Human Rights Watch Renews Call To Investigate Bush Administration on Torture
At the end of June, the Obama administration announced it was dropping 99 out of 101 investigations into the CIA's use of torture.
Human Rights Watch has since called again for the Obama administration to investigate what went on during the Bush II years and let juries determine whether or not water boarding and other techniques are legally justified in trying to prevent terrorism.
Would it be a legally justifiable defense for someone to use water boarding to find a kidnapped relative? What if the individual accidentally drowned? A debate between Kenneth Roth of Human Rights Watch (and a former USAA) and John Baker, a professor at LSU, touches on that and other issues in the eternal torture debate. Of course, Yoo was asked to participate, but declined. Excerpted in the Democracy Now debate is one of Yoo's weakest defenses of the policy. (And it includes the moment where Stewart calls him on the fib that 9/11 was the first attack in the US by a non-state group, Yoo responds by basically saying that 9/11 was different because it was different).
We know that Bush, Cheney, et al. would do it all again if they could. We know that the US prosecuted individuals for the same actions towards our troops and other countries' troops in the past. What makes things different now?
Human Rights Watch has since called again for the Obama administration to investigate what went on during the Bush II years and let juries determine whether or not water boarding and other techniques are legally justified in trying to prevent terrorism.
Would it be a legally justifiable defense for someone to use water boarding to find a kidnapped relative? What if the individual accidentally drowned? A debate between Kenneth Roth of Human Rights Watch (and a former USAA) and John Baker, a professor at LSU, touches on that and other issues in the eternal torture debate. Of course, Yoo was asked to participate, but declined. Excerpted in the Democracy Now debate is one of Yoo's weakest defenses of the policy. (And it includes the moment where Stewart calls him on the fib that 9/11 was the first attack in the US by a non-state group, Yoo responds by basically saying that 9/11 was different because it was different).
We know that Bush, Cheney, et al. would do it all again if they could. We know that the US prosecuted individuals for the same actions towards our troops and other countries' troops in the past. What makes things different now?
Labels: Yoo-Hoo
posted by James at 1:19 PM
32 Comments:
Why would a jury determine a question of law (e.g. definition of torture and whether they are entitled to qualified immunity)?
When did the U.S. prosecute anyone else for waterboarding?
What evidence is there that anyone died b/c of waterboarding?
Why must this conflict be "different" in order for waterboarding to be justfied?
If you read/watch the debate, a defense of justifiable self defense is brought up by the pro-Yoo camp. A jury would decide this question.
During WWII. http://www.huffingtonpost.com/paul-begala/yes-inational-reviewi-we_b_191153.html
There is substantial risk of both drowning and heart attack while being waterboarded. There have been many reports of individuals dying in US custody and the two cases that are still being investigated by the DOJ involve individuals who died during or after interrogation.
You'd have to ask John Yoo, I don't think it can be reasonably justified in any real circumstance.
It never ceases to amaze me how people can be upset because the government conducts an investigation and concludes that further action is not warranted. They did it with the investigation of Y*o, begging the question by asserting the investigation into his culpability must have been flawed, because he is culpable and the investigation did not reach that conclusion.
Is there evidence that the Obama administration's investigation was somehow flawed? If not, this seems like more whining about nothing.
If the investigations were transparent you'd get a lot less "whining." But, you're right, we should definitely all just trust the government. Hey, if the government investigated it, whatever they say must be true and accurate.
Lede: Government Investigates Self, Fails to Find Fault.
Sublede: "Case Closed!" Exclaims 9:06. Hundreds of Tortured Inmates Unavailable for Comment Due to Death or Location in Third World Prison.
10:19, that made me laugh really hard.
James has finally succeeded in making me nonplussed. I'm almost charmed by the idea that 12 random jurors are going to become the ultimate arbiters of U.S. law and national-security policy.
Anyway, 2:01 is correct that this is entirely a question of law. To the extent there is any self-defense or national-security justification, that would be a political question for the Senate to decide, not a jury.
Also, James, a shorter answer to 2:01's question 3 is "none," since there's no evidence (that I know of) linking waterboarding to the deaths being investigated.
I'd like to point out how ridiculous are the rhetorical questions in the original post. You might as well ask if I would be legally justified in electrocute someone who has murdered a relative. If I am an individual, the answer is no. If I am the State of California, the answer is yes. So what's the point?
They weren't rhetorical questions, but instead intended to start a discussion. Looks like they did.
Question 3 is hardly as narrow as you've phrased it. Of course, torture does not always lead to death, but is illegal nonetheless and also morally reprehensible. There's little dispute in the medical community that it is dangerous and traumatic and that it can cause a heart attack. It also often causes serious psychological problems as well. Frankly, I think it's sad that instead of denouncing it as something our government (or any other) should not be doing you'd rather spend time nitpicking, but I guess it's not surprising.
Of course, we've already decided many times that there is no national self defense justification for torture. It's pathetic that this country has engaged in these acts and that people are actually willing to debate about whether or not it's appropriate to fake an execution in one of the most brutal ways possible during the course of an interrogation.
Of course, it's clear we've executed innocent people and it's also clear we've tortured innocent individuals as well. Of course, the hypo I posed has to do with gaining intelligence to prevent a future crime, not punishing an individual for breaking the law. Last I checked, the government wasn't legally justified in using "enhanced interrogation techniques" on American citizens. It's a political fiction that we're justified in torturing anyone.
10:19, your joke presupposes that the inmates were tortured, perpetuating the circularity mentioned above.
I agree that government investigations are not generally very transparent, but the frustration comes from the heavy lobbying for government investigations and the subsequent ignoring of the results of those investigations if they do not produce the results people want.
Sorry, but heavy lobbying is what Haliburton does to get billions of dollars operating in Afghanistan. Bill Clinton had a special investigator after him for getting a bj in the oval office. No one could muster up the political willpower to get a special prosecutor for torture? The dems were on it from the beginning anyway and this behavior by Obama is hardly surprising. Pelosi was briefed on this issue very early on.
Yawn. Next topic.
James,
1. It's getting to the point that I can't really tell the difference between your posts and 4:09's little conspiracy rant. That's not a good sign.
2. Question 3 was a simple question; I'm not sure how I narrowed it. So why are you so scared to answer it? You could at least have written "No, but..."
3. I notice that you're now using 'torture' and 'waterboarding' and 'enhanced interrogation techniques' interchangeably. I guess the backhand slaps to the stomach are torture now, too?
4. You know, my real problem with all of this is that you're throwing around the terms 'torture' and 'waterboarding' without really being clear about what you're talking about. The term waterboarding is like the term 'assault,'---it can mean a lot of different things, and it really does make a difference which one you're talking about.
5. "Of course, it's clear we've executed innocent people and it's also clear we've tortured innocent individuals as well." Honestly, I have no idea of exactly who or what you're talking about now.
6. But you're right--the important thing is to jump on a PC bandwagon of denouncing those-things-that-we-all-agree-should-be-denounced. I guess your next two posts are going to be about antisemitism and gay marriage opponents.
Carbolic, your most recent post was regrettably free of any support whatsoever for any of your arguments, but I find myself strongly disagreeing with you nonetheless. So, I'm going to make some very well-sourced responses to several of your numbered points. I'm using a URL shortener to save precious comment space, but I'll note the sources after each link. As a warm-up, let's start with #1!
4:09's post may have been a little conspiratorial, but you know the old saying - "Just because you're paranoid doesn't mean they're not out to get you!" But that's a little extreme, since pretty much every element of his/her post is factually true. From the top:
Halliburton does heavy lobbying
- Halliburton PAC lobbying expenditures in the 2010 election cycle: $308,689 (OpenSecrets)
- KBR Inc. (subsidiary) lobbying $ 2010: $121,130 (OS)
Halliburton gets billions of dollars operating in Afghanistan (and Iraq)
- 7/13/2002: "KBR is the exclusive logistics supplier for both the Navy and the Army... The contract recently won from the Army is for 10 years and has no lid on costs, the only logistical arrangement by the Army without an estimated cost." (NYT)
- 8/28/2003: "Halliburton... has won contracts worth more than $1.7 billion under Operation Iraqi Freedom and stands to make hundreds of millions more dollars under a no-bid contract awarded by the U.S. Army Corps of Engineers" (WaPo)
- I couldn't find recent stats, but I bet they've made a few dollars since 2003.
Clinton had a special investigator after him for getting a BJ in the Oval Office
Normally I don't cite Wikipedia, but I really don't feel like digging through news articles from almost 20 years ago now. You remember Ken Starr? "The three-judge panel charged with administering the Independent Counsel Act later expanded [his] inquiry into numerous areas including an extramarital affair that Bill Clinton had with Monica Lewinsky."
Pelosi was briefed on torture; dems were on it from the beginning
- 12/9/2007: A bipartisan group of Congressional leaders (including Pelosi) was briefed on enhanced interrogation techniques and overseas CIA detention sites in 2002. (WaPo)
- 5/8/2009: That being said, there's some dispute as to whether or not waterboarding was specifically mentioned (Mother Jones)
[Obama's failure to push for a special prosecutor] is hardly surprising
1/11/2009: 9 days before his inauguration, Obama indicated he wouldn't investigate detainee torture, saying "we need to look forward as opposed to looking backwards." (NYT)
So in terms of credibility, I'd consider it a compliment to compare James to 4:09. But moving on...
#4: Meaning of "waterboarding" unclear, and this matters
Waterboarding can mean a lot of different things
- A JAG's explanation of distinctions: victim may be immersed in water, have water forced into nose and mouth, or have water poured over material draped over face to force inhalation. In all three cases, point is controlled drowning.
- For the purposes of legality, I don't think these distinctions matter, but if you disagree, pipe up
Legal Meaning of "Torture"
- U.N. Convention Against Torture defines torture as "Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession…"
- 18 USC §2340 defines it as "an act… specifically intended to inflict severe physical or mental pain or suffering… upon another person within his custody or physical control." "Severe physical or mental pain or suffering" means prolonged mental harm caused by or resulting from "intentional infliction or threatened infliction of severe physical pain or suffering" or "the threat of imminent death."
- Bybee's 8/1/2002 memo does a laughable job of interpreting the plain statutory text to mean something totally different. For one thing, he re-defines the meaning of "mental pain," even though a definition is provided in the statute. He also invents a requirement out of whole cloth that "severe physical pain" refers only to pain involving organ failure or death. In support, he offers essentially no precedent or legal reasoning. Then, he concludes that the UN Convention Against Torture applies only to his mangled interpretation of the US statutory definition.
- The U.N. unsurprisingly disagreed, saying in the Report of the UN Committee Against Torture 35th & 36th Sess., p. 71, that the US "should rescind any interrogation technique, including methods involving... 'waterboarding'... that constitutes torture or cruel, inhuman or degrading treatment or punishment... in order to comply with its obligations under the Convention."
It's pretty much the consensus
- Organizations like Amnesty International and Human Rights Watch agree that waterboarding is torture
- The practice originally gained prominence in the Spanish Inquisition and was rejected worldwide as "morally repugnant" in the Englightenment Era.
It was the consensus here until this crazy fucking millennium
- The U.S. charged a Japanese officer in WWII with war crimes for waterboarding a U.S. civilian. A U.S. soldier who waterboarded a captured North Vietnamese soldier for interrogation purposes in 1968 was court martialled. A Texas Sheriff and three of his deputies were prosecuted by the DOJ and sentenced to four years in prison for waterboarding a prisoner in 1983. (from an NPR history of waterboarding)
- The idea that waterboarding ISN'T torture is new, and coincides with the 2004 announcement that we'd been waterboarding terror detainees, as documented in a Harvard public policy paper. It was called torture before, and it still is when other countries are doing it, but we're special!
So basically, I think it's safe for James to call it "torture," regardless of which of the several similar flavors of torture the word can refer to.
#5: What innocent people tortured/killed??
One first basic point: We've been detaining a shit ton of innocent people
- Diplomatic cables provided by Wikileaks indicated that the presence of 380 of the 780 prisoners passing through Guantanamo was "questionable." Another 150 prisoners were straight up innocent Afghans and Pakistanis. (Telegraph article)
- (Not to mention the 22 innocent Uyghurs)
- A top aide to Colin Powell said that a large portion of our Guantanamo detainees were known to be innocent, but the Bush administration found it "politically impossible to release them" (Times UK)
- Which continues... There are nearly 50 prisoners the Obama administration has deemed "too difficult to prosecute," but which it plans to detain indefinitely without charges anyway. (NYT)
So waterboarding was a common interrogation practice at Guantanamo and a huge portion of the prisoners were innocent. Just by Venn diagrams, you can reasonably conclude that we tortured innocent people. But you don't have to, since we know of at least several examples by name:
- Fouad al-Rabiah, who was captured while delivering supplies to Afghani refugees, found to be innocent, and then tortured to obtain confessions to justify his continued detention. Only released 8 years later when a judge found there was no evidence (HP, with PDF of decision)
- Maher Arar, innocent Canadian citizen yanked out of JFK and shipped off to Syria to be tortured for a year (New Yorker)
- Murat Kumaz, 19-year-old German of Turkish descent seized by Pakistani police and handed to US troops for a $3,000 bounty on "suspicious foreigners," then tortured in Kandahar and Gitmo (CBS)
etc. As for innocent people executed, I don't have any names for you. (They tend to go to the press even LESS than the ones who were just tortured!) But as of 2005, at least 108 prisoners in Afghanistan and Iraq had died in custody. Many of those died of natural causes or were killed by other prisoners, but six were classified as "closed, substantiated abuse cases." (BBC)
As you can imagine, these kinds of stats are hard to come by. But maybe I'll have two more names for you after these investigations!
#6: Only reason to condemn torture is because you're on a PC bandwagon
Carbolic, I don't know you, but I think you're smart enough to know this isn't true.
There are plenty of good reasons to condemn torture. It's illegal, it's immoral, and thre is literally no good reason for us to have decided to start doing it. Really.
The people who designed our torture policy were inspired by Jack Bauer from the 100% fucking FICTIONAL TV series 24. No lie: The Guantanamo staff JAG who gave approval for 18 interrogation techniques (including the ol' H2O board) said that, in "brainstorming meetings," 24 "gave people lots of ideas," and that "she believed the series contributed to an environment in which those at Guantanamo were encouraged to see themselves as being on the frontline - and to go further than they otherwise might." (Guardian) People arguing in support of the legality/necessity of waterboarding in years since, from John Yoo to Michael Chertoff to fucking SCALIA have cited 24. (Newsweek) A television show starring Agent The Guy From Lost Boys. (Network show! not even cable! We're not on some The Wire shit here!)
Had they consulted, you know, doctors, or interrogators, they would have realized it wasn't a good idea.
- Army Field Manual 34-52 Chapter 1: "the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear.”
- 1963 CIA KUBARK interrogation manual: "The threat of death has often been found to be worse than useless." (p. 92) and "Intense pain is quite likely to produce false confessions, concocted as a means of escaping from distress." (p. 94)
- Trends in Cognitive Science article: Extreme stress and pain affect the memory and executive brain functions necessary to respond to interrogation
And it doesn't just theoretically not work, it has proven to actually not work. Army interrogators agree. Fucking John McCain agrees. But it HAS lowered our standing in the middle east!
So yeah, there are plenty of non-PC bandwagon reasons not to support torture, but hey, I'm not trying to force you or anything. I'll be over here condemning torture, antisemitism, and gay marriage opponents, but you can feel free to take the other side all you want.
Will FT(middle of the night)W!
Will has accurately cited the sources I relied on (and a couple of others for good measure). Thanks, Will. :)
It's pretty repugnant to try and smear those of us who are against torture with the "PC" label. When did we get to a place where asserting the basic human rights and dignity of individuals was some sort of PC move. Although, taken literally, human rights are politically correct. So, maybe you were right about that, Carbolic.
Will:
Carbolic's point was that James' posts were vague, unsubstantiated, and misleading. By making James' points less vague, more substantiated, and less misleading for James does not make Carbolic wrong, it makes him right by showing how much was missing.
But yeah, yawn.
Show me where I misled. Thanks!
11:31: Really? Carbolic never said anything was vague, unsubstantiated, or misleading in either of his comments. His first comment said this was a question for a judge or Congress, rather than a jury; questioned the link between waterboarding and death; and distinguished between actions illegal for an individual and actions illegal for the state to perform. His second post was the one I responded to, 3/4 of the points of which sounded substantive (obviously not the one about 4:09 being a conspiracy nut).
BTW, my original intent was to point out that Carbolic's second post was vague and unsubstantiated. It's the first sentence that I typed, go back and look. So because I pointed that out... somehow Carbolic gets more credit? Because James?
Your face is being vague and unsubstantiated
Well, that was thorough!
1. The mark of a conspiracy rant is not the falsity of any individual item, but the assumption that they are connected, meaningful, and sinister.
4.1. Released documents demonstrate the interrogation techniques were intended (successfully or not) to reach the edge of, but not cross, the definition of torture in § 2340. The gist of the Bybee memo's reasoning, based on the experience of U.S. soldiers at SERE training, was that waterboarding presented the immanent fear of death, but the mental harm it caused was not prolonged. I'm sure you will point to literature that disagrees. But just because someone can identify new or previously-unknown material that changes a legal conclusion doesn't mean the original analysis is inherently flawed (it may be incorrect).
4.2. Our obligations under the CAT are basically limited by the definition in § 2340, which basically codifies the reservations we adopted when we ratified the treaty. So to the extent the treaty's language adopts a broader treatment, that's not legally binding on the U.S. Now, I'm not denying the practice constituted cruel and inhumane treatment. Nor do I deny there are other, nonlegal definitions of torture. But we are a law blog, right?
4.3 As an aside, I'd like to point out that the other enhanced interrogation techniques were nowhere near being considered torture. And I do think that the fact that the U.S. exposed thousands and thousands of its own soldiers to the practice during SERE training does undercut the claim that all forms of waterboarding are necessarily torture. That's not to say that one can't torture via waterboarding. Again, precision matters.
5.1 Yes, we've detained lots of innocent and questionably guilty people during our war in Afghanistan and our "war" against Islamic terrorist groups. Is that a surprise? I mean, how else are you going to go after a group like Al-Qaida those that appear to be its members? Even in a criminal law context, the police, acting on probable cause, routinely stop and detain individuals who turn out to be questionably guilty or innocent.
5.2 The difference, of course, is that we don't use criminal law's "beyond a reasonable doubt" standard when dealing with apparent enemy combatants. Where one SHOULD draw the line on questionable individuals is a tricky question. But obviously some care is required when dealing with those that intend to kill tens of thousands of Americans.
5.3 The Uyghurs are actually a good example how things are complicated. We kept holding them not because we thought they represented a threat to us, but because they would likely be tortured if we sent them back to China. And of course, these Uyghurs were innocent in the sense that they didn't see US as the enemy. Instead, they seemed to have been supporters of an East Turkish Islamic movement that has been responsible for terrorism in China.
5.4 "So waterboarding was a common interrogation practice at Guantanamo." Wow, that's a big claim, and it's one you don't have a citation for. Source?
5.5 I appreciate the cites on al-Rabiah, Arar, and Kumaz. But I don't see where the links establish that any of the three had been tortured by the U.S. The al-Rabiah decision seems to reference coercive interrogation techniques, but I don't the Judge mentioning torture (I admit I skimmed). The New Yorker article is about torture conducted by other countries, with the suggestion that the U.S. is sending people to their home countries with the knowledge they may be tortured. And Kumaz is alleging inhumane treatment, but he doesn't seem to describe torture.
5.6 Yes, people die in Iraqi and Afghanistan prisons. Many probably as a result of violence. But again, you're just assuming that the U.S. is involved and responsible in those deaths.
6. Whether torture (or coercive treatment, more generally) is effective a policy argument, not a legal argument. I think you recognize this.
11:31: Really? Carbolic never said anything was vague, unsubstantiated, or misleading in either of his comments. His first comment said this was a question for a judge or Congress, rather than a jury; questioned the link between waterboarding and death; and distinguished between actions illegal for an individual and actions illegal for the state to perform. His second post was the one I responded to, 3/4 of the points of which sounded substantive (obviously not the one about 4:09 being a conspiracy nut).
Oh right. Actually, I appreciate the opportunity to reiterate the fundamental flaw in James's original post, which is the fact that there is no jury question here. But now that you mention it, I'm still waiting for those other things you mention.
Carbolic, you continue to mischaracterize what I said, which leads me to believe you either don't understand a few simple connections or you're doing it on purpose. Given that torture is illegal and that individuals tortured, they should be prosecuted. In that way it becomes a jury question.
You continue to try and sidestep the real issue - that waterboarding is torture. It was torture when the US hung Japanese officers for using it on American troops during WWII and it is only under Bush, who wanted to try and get around the Geneva Convention, that there was any attempt to define it otherwise. (In fact, the US State Department as recently as 2005 referred to it as torture in a report on Tunisia).
A cursory Google search would have found any of the links that Will posted and will also result in materials detailing the damage done by waterboarding (materials that were published before the White House's ex post facto decision to make something they had already been doing "legal.")
To say that no Americans have caused the deaths of detainees is laughable. We know that Manadel al-Jamad, a detainee, was killed by two American troops and a private contractor in Abu Ghraib. We also know about all of the other abuses perpetrated by American service people and American contractors. It's also incredibly disingenuous to suggest that when we take a Canadian national from US soil, ship him to a CIA black prison in a foreign country and then have him tortured for US intelligence purposes that this isn't an act perpetrated by the United States military or government.
Finally, police officers don't detain and torture individuals who may or may not be innocent. The US government does. Not only does it detain these individuals, it does so without due process of law. At the end of the day, we'll likely look back on this period like we do on Korematsu and think, what the fuck were we doing? What happened to our respect for our own Constitution? Whether torture is effective is not the proper frame for the argument. Some things, regardless of how effective they may or may not be, are prohibited by both the Constitution and International law because there is a consensus that these acts are never worth doing because they are inherently bad acts.
That said, it's clear no matter what arguments are presented you'll continue to nitpick and avoid the actual issue - whether or not the US government should be torturing people. Based on your responses, I don't think your position is going to change based on anything that's presented and so I'll be moving on.
James, I think Carbolic's core point is that what counts as torture is a question of law, not a jury question. He's right about that.
James, I like how you're moving on after accusing me of "avoid[ing] the actual issue--whether or not the US government should be torturing people."
Actually, that was never an issue in this thread, much less "the" issue. I would accuse you of being a a sloppy writer, but you can't even remember what you're writing about.
James, I know I should stop responding. But it's hard, because you keep writing sentences that either beg the question or muddle logic and facts.
Let me give an example. You say waterboarding was always considered torture until Bush, "who wanted to try and get around the Geneva Convention, defined it otherwise." But the issue of whether al-Qaeda members are protected under the Geneva Conventions is entirely separate, since U.S. law prohibits the government from torturing individuals regardless of their Geneva Convention status.
Now, I'm sure you will treat this as more nitpicking, but honestly, I could do this with half your sentences. And the consequence is that it's hard to respond to your "argument," because you're not really arguing anything. You're just stringing together a series of assertions.
Oh, and just to throw out a conversational grenade: I think anyone prosecuted would have a colorable qualified immunity defense, based on the definition in § 2340.
James, a more thorough post would include the Al Kidd decision from May, which speaks directly to this issue and at least party explains why the Obama administration made the decision it did. This is a law blog, after all. I realize that putting your thoughts in a multi-dimensional context would require a little research, thinking, and analysis on your part, but it would do wonders for your credibility.
http://www.supremecourt.gov/opinions/10pdf/10-98.pdf
I should have been clearer at 2:13, since qualified immunity is technically a defense to civil, not criminal, liability. (This is what happens when you post after 2 a.m.) But the rule of lenity and the fair warning requirement would have the same practical effect as qualified immunity.
It's also worth noting that the statutory definition requires proof that a defendant specifically intended to cause prolonged mental harm.
It's true that the definition of torture is a legal question. But 2340 goes ahead and defines torture. After reading the statute, I think it gives an actor fair notice of at least some types of conduct that would constitute torture.
For example, i think the following jury instruction would be supported by the statute:
Torture--Imminent Death: For you to find the defendant guilty of torture, the state must have proven beyond a reasonable doubt that
(1) The defendant acted under the color of law.
AND
(2) The defendant committed a physical act upon another person.
AND
(3) That person was in the defendant's physical control.
AND
(4) The defendant committed the above act with the intent to cause prolonged mental harm caused by the threat of imminent death.
It is at least as definitive as the jury instructions for things like murder, battery, and robbery.
Of course, I can see some strong policy reasons to consider this a legal question.
http://25.media.tumblr.com/tumblr_lo87vlWKMm1qbvj5no1_400.jpg
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