Opinions On Opinions
One of the problems in the debate over the "torture" memo, according to Victoria Toensing, is the opposition hasn't read it. But that's never stopped them before:
The memo to the CIA discussed 10 requested interrogation techniques and how each should be limited so as not to violate the statute. [...]
But now, safe in ivory towers eight years removed from 9/11, critics demand criminalization of the techniques and the prosecution or disbarment of the lawyers who advised the CIA. [...]
...Washington Post columnist Eugene Robinson, [...] declared that "waterboarding will almost certainly be deemed illegal if put under judicial scrutiny," depending on which "of several possibly applicable legal standards" apply. Does he know the Senate rejected a bill in 2006 to make waterboarding illegal? [...] So quick to condemn, Mr. Robinson later replied to a TV interview question that he did not know how long sleep deprivation could go before it was "immoral." It is "a nuance," he said.
Unfortunately, nuance is what's being lost in this debate. What is and isn't allowable treatment for prisoners in a war is not as easy a question as critics of the former administration would have it. (BTW, everyone agrees intent matters when it comes to waterboarding and that it can't be inferred from the act alone. Does that suggest it's at least on a different level from many other more "traditional" forms of torture?)
The attempt to criminalize something after the fact is a greater threat to our rights than the fear that the executive branch is going to go torture crazy. Perhaps pundit Eugene Robinson should note if he had been in the Department of Justice a few years back and merely gave advice following the lines of what he said above, the Left might be shouting for his head now along with the others.
posted by LAGuy @ 12:21 AM
11 Comments:
LAGuy -- I'd love to get the cite from on which you base the statement that "everyone agrees intent matters" in waterboarding and the act itself is insufficient to connote torture. (I do agree that if you trip on the way into the prisoner's cell with his gourmet meal and the ice water sloshed over the edge of the glass, that wouldn't count.)
AG Holder was tecently asked under oath if intent matters in waterboarding, and he said yes.
He had to, of course. We have waterboarded many of our own military. It's part of their training.
If intent doesn't matter, then all those instructors must be tried for torture. Do you know of anyone who insists we try them? If not, then, as all agree, intent matters.
Intent or consent? Certainly the military trainees have consented to their waterboarding training and presumably have the power to stop it by withdrawing consent (which is different from having the power to stop it by telling the torturer what s/he wants to hear)
It's still a legal question of intent, no matter how you slice it.
And our enemies don't consent to anything, including being held in a cell.
(I wonder how much our trainees--and formerly conscriptees--how's that for consent?--would "consent" (I use quotation marks since I bet none of them knew waterboarding was part of the deal) to having fingers cut off, being stretched till their bones break, or having water poured down their nostrils till their stomachs burst--you know, the "traditional" forms of torture I referred to in the post that seem perhaps on a different level. BTW, thanks for parenthetically turning the argument back into one about whether torture works as a means of gathering information--if that's what this debate is about, then of course torture should be one of the tactics we use.)
We are training our military to learn how to take torture. One major difference between the training and the actual torture is that the trainee is able to stop the waterboarding at any time. I guess if your intent is to stop whenever the subject asks (and the subject knows this ahead of time), then it's not torture. But it seems that would apply to any kind of torture.
I used to test myself by swimming across the pool underwater in order to increase my lung capacity. But if someone dunks my head under without my control (even for less time than I can hold my breath) it is torture.
Sorry -- I didn't see NEGuy's comments when I posted mine, or I wouldn't have repeated his.
Anonymous.
"I guess if your intent is to stop whenever the subject asks (and the subject knows this ahead of time), then it's not torture. But it seems that would apply to any kind of torture."
I'm not sure if you get my point. There are things that are pretty rough on our soldiers that we'll do in training to prepare them, but under no circumstances will we toss them out a five-story window or saw off their hands or permanently disfigure them or a lot of other things that have traditionally been considered torture, no matter how kindly our intentions.
Often in criminal law, an action implies intent. Bamboo shoots under the fingermails, making someone sit on a spike, or tying someone to four horses and letting them run in opposite directions. Waterboarding requires intent in ways these acts don't. I can imagine getting some friends to waterboard me to see how it feels, but they will not get me to sit on a spike.
This perhaps deserves its own thread, but yesterday's S.Ct ruling in Ashcroft v. Iqbal contains some discussion of when an administration official can be held liable for violations of law by lower ranking officials attempting to execute the orders of the higher officials.
http://www.scotusblog.com/wp/analysis-a-pass-for-high-officials/#more-9553
The alleged violation of law is not torture, per se, but the profiling of Muslim Men immediately follwoing 9/11. The Court, 5/4, held a claim cannot be maintained against Ashcroft for ordering the round up, even if the FBI went overboard and violated the rights of some of the suspects detained pursuant to the law, since Ashcroft did not instruct the FBI to violate the law.
Applied to the Justice Dept. memo writers, they wrote memos that answered a question posed by the administration - what violates the laws against torture. They responded, and unless they intentionally lied in those memos, their intent was to instruct CIA interrogators how not to violate the law, and this would seem protected under yesterday's ruling, even if the CIA did violate the laws.
Of course, Pres. Obama has told us there will be no prosecutions of the CIA Interrogators, so we will never have a definitive answer as to whether waterboarding, etc. is or was torture under the law.
The difference appears to be whether a training procedure will cause permanent damage to the body -- not whether the procedure being imitated is torture. I don't think these questions are the same.
I'm sure that, whatever torture techniques are being used against our soldiers, we would try to train them on how to survive them. If it's a pain technique, there are probably ways to train them to endure pain, but we're not likely to cause permanent injury or scars. If the torture technique interferes with breathing, it may be easier to train for without causing permanent scarring, but that does not mean it's not torture in the first place. And, if we were to learn that the training was in fact causing permanent damage to the lungs, for instance, I don't doubt we would stop or alter the training.
THese two questions are not the same. Depriving someone of breath is torture, plain and simple.
I'm not arguing about the points you make, anon, so maybe you're responding to Denver Guy.
However, I have to ask you, then, as I've asked others, give me a very clear rule of how terrorists we captured can be treated (and if it's any different from regular POWs or, for that matter, convicted U.S. criminals) and what's the worst thing we can do to them (not what we can't do). Vague rules are worthless in this situation.
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