Wednesday, January 30, 2008

The United States does not torture. Much.

Our new Attorney General, Michael "Thumbscrews" Mukasey, testified before Congress today about torture. Specifically, waterboarding. In most cases, he avoiding saying anything of substance about it.

There has been a lot of legal sophistry in reference to torture in the past few years. First, there was John Yoo's torture memo that defined torture as only that which "death, organ failure or the permanent impairment of a significant body function." What I didn't realize until today was that that memo also said any law that prohibited the President from ordering the torture of an al Qaeda fighter would be unconstitutional. Seriously. That's what the memo says. Page 31.

Thumbscrews is now claiming that "reasonable people" can disagree about whether waterboarding is torture. No, I'm sorry. They can't. When a torture technique is used by the Spanish Inquisition, the Nazis, and the Khmer Rouge, it's torture. When Japanese soldiers are prosecuted for war crimes because they performed it, it's torture. When the fact that managing to withstand it for all of two-and-a-half minutes actually impresses the CIA interrogators, it's torture. Reasonable people can not disagree on this subject.

We all know why there is so much hand-wringing on this subject: because it is torture and because we now know for sure that the United State has used it. We've passed a legal point of no return. That's why the new torture memo had to say that all the interrogations performed under John Yoo's definition of torture we all legal. Because admitting that CIA interrogations had broken the law would require investigations and prosecutions. That's why Thumbscrews is now saying that waterboarding doesn't "shock the conscience", or doesn't shock the conscience unless it's used to "discover information that could not be used to save lives and was simply of historical value." In other words, Thumbscrews is actually arguing that waterboarding isn't torture. And even if it were torture, it wouldn't be torture if we really, really wanted to find out some information.

I've had a hard time writing this and I hope I was at least semi-coherent. This is just one of those things that makes me almost blind with righteous anger and that makes it hard to focus my thoughts into good writing. Other people do not have such problems. Balkinization has some good posts, with legal analysis from someone actually qualified to pass it. Specifically: How Can the Legality of Waterboarding Depend on the Circumstances? and Yes, It's a No-Brainer: Waterboarding Is Torture. TPM Muckraker has video of Thumscrews's testimony as well as transcripts. There are quite a few posts, so I won't link to them all. Illinois Senator Dick Durbin's question and non-answer period is especially interesting.

One last note: Marty Lederman, a former lawyer in the Justice Department's Office of Legal Counsel, makes a very interesting speculation:

Mukasey would probably have no problem telling the Senators that waterboarding is unlawful, except that in order to reach such a legal conclusion, he would almost certainly have to repudiate the legal rationale underlying OLC's contrary opinion -- and such a repudiation would undermine the legal basis for other of the "enhanced" CIA interrogation techniques...

In other words, they know that the "extreme interrogation techniques" are built on a legal foundation of sand. And if you wash one away, you wind up washing away all the others.

UPDATE: Dr Fig links to a guy that waterboarded himself to understand what it was like. I suggest everyone read it. Remember, he's doing this to himself, he's not in any danger, and he is in full control. Here is some of what he described:

It seems that there is a point that is hardwired in us. When we draw water into our respiratory tract to this point we are no longer in control. All hell breaks loose. Instinct tells us we are dying.

I have never been more panicked in my whole life. Once your lungs are empty and collapsed and they start to draw fluid it is simply all over. You [b]know[b] you are dead and it's too late. Involuntary and total panic.

There is absolutely nothing you can do about it. It would be like telling you not to blink while I stuck a hot needle in your eye.


So, is it torture?

I'll put it this way. If I had the choice of being waterboarded by a third party or having my fingers smashed one at a time by a sledgehammer, I'd take the fingers, no question.

It's horrible, terrible, inhuman torture. I can hardly imagine worse. I'd prefer permanent damage and disability to experiencing it again. I'd give up anything, say anything, do anything.


Fig said...

Unfortunately I can't find the post but I was just reading about a guy who voluntarily underwent waterboarding and describes his experience. It was horrific.

prairie biker said...

We use waterboarding in training our own troops. I disagree vehemently that it is torture. When done properly, the only risk to the recipient is passing out from oxygen deprivation.

Narc said...

As I understand it, we use waterboarding to familiarize troops with what they may experience when captured by enemy forces. That makes it no less torture.

Your implied claim that torture must pose some physical risk to the victim is false. Electrical shocks to the testicles is undeniably torture, yet poses no risk to the victim. The same goes for rape. If anything, a good torture technique imposes extreme pain without risk to person being interrogated. A dead prisoner can not talk.

Mock executions pose no risk at all, yet are also prohibited as a form of torture.

Look, the whole point of waterboarding is to impose excruciating pain and induce the terror of imminent death into the victim.

Furthermore, there is serious risk involved in waterboarding. It induces tachycardia and can trigger a heart attack, for example. It creates long-lasting mental trauma, including PTSD, another criterion under the Convention against Torture.

Fig said...

ah, here it is:

Sounds extremely unpleasant.

It seems to me that if this were being done to US citizens by Bad Guys (tm) that it would be classified as torture. I doubt that if it were being done to Americans by non-Americans it would be described as "a dunk in water" (, disclaimer - I do realize that this is a biased site).I think that, therefore, it makes sense that when we do it to Bad Guys it is still classified as torture.

Anonymous said...

"The United States does not torture. Much."

And your problem with it is what exactly? How do you define torture? What methods would you employ? Or any at all?

I'll have to agree with PB here. When done properly it can be effective. Since it is not our policy to actually inflict organ failure, dismemberment, or death what is the problem? The use of these techniques is to force the individual to weigh the value of what he knows against what we make him think can happen to him even though we know it won't happen. If all an individual can expect from us is maybe some harsh language then what is the motivation of the individual to divulge anything? Btw, the use of some techniques that apparently some here find distateful is generally used last after other less physically demanding alternatives are used. We also don't actually run high current through someone balls. Please. We haven't done that in a very, very long time.

Again, what alternate methods would you employ?

Narc said...

Your argument seems to be that torture is only torture if it is policy to inflict permanent damage. That has nothing to do with torture. Torture is the infliction of pain and terror to elicit information.

Your argument from effectiveness is just "the ends justify the means." If you also look, you'll find that it's not effective. One of the waterboarding subjects started giving his interrogators false answers not because he was trying to mislead, but because he was trying to please them and make the pain stop.

We don't eschew torture because it is ineffective. We don't torture prisoners because doing so is evil. Whether or not it works is irrelevant.

Hey, if you don't believe me that waterboarding is torture, why don't we ask an actual torture victim?

Anonymous said...

Does not war inflict pain and terror? There are plenty of things that inflict pain and terror. A little bit of pain can go a long way after everything else is exhausted. You still haven't answered what you consider torture. Is playing rap music loudly torture? Sleep deprivation? Those don't inflict pain or torture, but are still opposed by groups such as AI and HRW.

Unfortunately a great deal of what doesn't inflict pain is opposed by people like yourself. Since you are apparently read up on this topic and have a stated opinion, again, I ask for the third time, what alternate methods would you use to gain valuable or even time sensitive information and how far are you willing to go? Do some techniques lead to false information? Sure, but it works often enough when done properly that it should not be restricted anymore than it has. Sometimes false leads still have an element of truth to them when crosschecking.

Even if it wasn't the ticking time bomb scenario and you had in your custody an individual who held a key piece of information or could lead you to a cache of evidence, but you did nothing and his fellows killed a random number of citizens simply because you think its torture to box his ears a little. How would it make you feel? Would you be able to sleep well at night knowing what you found out later? Please answer that honestly.

Here's an object lesson for you. The following may give you a glimmer into what is done. Follow along closely. Pick a friend and ask him some questions about something that is not specific, but not too general in nature to both of you that allows you to ask narrower questions as time goes by to find something. Now use someone who your friend doesn't know and take them somewhere they don't feel comfortable. Then ask them some questions w/o you being present. But before you do any of that have a close friend of that person tell them to expect certain negative things w/o being too specific. Short of using something physically demanding how far do you think you'll get?

This is not 'the ends justify the means' meme but something that is sometimes used when all other things have failed. Btw, if we were evil, and we are not, then we would have no issue whatsoever in doing what we do. Suffice to say, we care how we go about our business and that's why we have rules. Do some people go beyond them? Yes, and they are punished. You won't see that kind of thing in the news though.

Narc said...

"Does not war inflict pain and terror?"

War inflicts many things. Pain, terror, PTSD, maiming, rape, and starvation are among them all.

"You still haven't answered what you consider torture."

What I consider torture is irrelevant. There has been absolutely no question in the civilized world that waterboarding is torture, including in the United States, until it was revealed the CIA was using it. Then we started hearing all sorts of excuses from conservatives, like how it was justified because they were bad people (Coulter), about how it was equivalent to a swimming lesson (Senator Bond), and how we have to do it because it's the only thing that works (this anonymous commentor).

"A little bit of pain can go a long way after everything else is exhausted."

That's a very dangerous attitude. In fact, I'll go so far as to say it's flat-out immoral.

As for what interrogation methods I would use, I'm not an interrogation expert. But actual interrogations experts are shocked and horrified b this practice. Those are the same experts that interrogated the Nazis after WWII. If we didn't even torture the Nazis to get information, we don't need to torture Al Qaeda.

Anonymous said...

""A little bit of pain can go a long way after everything else is exhausted."

That's a very dangerous attitude. In fact, I'll go so far as to say it's flat-out immoral."

When you figure out a better way to motivate obstinate terrorists you be sure let me know ok? For the love.

"If we didn't even torture the Nazis to get information, we don't need to torture Al Qaeda."
Let me preface this next as saying it is not meant to be insulting. Your last statement shows just how ignorant you are of the differences between even the Nazis and Al Qeada. You need to look into that and see why that is and then you'll understand.

David said...

Does not war inflict pain and terror? There are plenty of things that inflict pain and terror.

That makes them right? I don't understand that attempt at rationale.

If you can find it in your heart to condone harm — fear, pain, terror, whatever you call it — to another human being in the interest of "gaining information," then I think you've pretty much already crossed over to the other side. And I feel sorry for you.