You decide

From Matthew Yglesias comes this report of conditions under which prisoners are held:

[P]rolonged periods of exposure to the elements; humiliations such as public nakedness; confinement for up to several weeks in small ‘punishment cells’ in which prisoners were unable to stand upright or lie down; being forced to kneel or sit immobilized for long periods; being hung by the wrists; being forced to stand up and sit down to the point of collapse.

Quick. North Korea or American "enhanced interrogations"?

You mean it gets even worse?

Four and a half years ago, I wrote this blog post, about how frustrating it was that no one would be held accountable for what happened at Gitmo other than a few low-level functionaries.

Three and a half years ago, I wrote this blog post, about how much worse what actually happened at Abu Ghraib was than we all had thought.

A former Gitmo guard has now come forward and is talking about what is actually going on there.

Neely [the guard] discusses at some length the notion of IRF (initial reaction force), a technique devised to brutalize or physically beat a detainee under the pretense that he required being physically subdued. The IRF approach was devised to use a perceived legal loophole in the prohibition on torture. Neely’s testimony makes clear that IRF was understood by everyone, including the prison guards who applied it, as a subterfuge for beating and mistreating prisoners—and that it had nothing to do with the need to preserve discipline and order in the prison.

Honestly, that really doesn't shock me. Several prisoners were actually beaten to death at Abu Ghraib. I remember one quote from an Army doctor that examined the dead detainee, and how he described his injuries as resembling those of someone that had been hit by a bus. So finding out that physical abuse is not just regular, but encouraged, seems just par for the course.

But as shocking and saddening it is to hear about beatings like this, that's not the end of it: (emphasis mine)

He describes body searches undertaken for no legitimate security purpose, simply to sexually invade and humiliate the prisoners. This was a standardized Bush Administration tactic–the importance of which became apparent to me when I participated in some Capitol Hill negotiations with White House representatives relating to legislation creating criminal law accountability for contractors. The Bush White House vehemently objected to provisions of the law dealing with rape by instrumentality. When House negotiators pressed to know why, they were met first with silence and then an embarrassed acknowledgment that a key part of the Bush program included invasion of the bodies of prisoners in a way that might be deemed rape by instrumentality under existing federal and state criminal statutes.

It's one thing (and implausible) to say that the Abu Ghraib abuse was the work of "a few bad apples." This obviously isn't. White House lawyers were aware of what was going on and actually fought to provide legal cover. You can't tell me that the awareness of these tactics stopped with those lawyers.

In other words, rape is now official government policy.

My God, it's full of torture!

Various people have testified in front of Congress that it's OK that we waterboard, because we've only done it to three people, and they were the worst of the worst. Well, it looks like those officials may have been "bending the truth" a bit.

A German-born Turkish citizen ... said that in 2002 in Afghanistan, U.S. interrogators subjected him to beatings, electrical shocks and, on one occasion, a technique he said was referred to as "water treatment." He said his head was held under water in a bucket while he was punched in the stomach, forcing him to inhale. On another occasion, he was hung by his arms for five days, he said.

Republicans have constantly been downplaying the extent of the torture we've been committing by referring to waterboarding as a "swimming lesson" and trivializing the pain that's caused by stress position techniques. Now we find they may have been lying all along as to the extent.

It gets even more Kafkaesque. The guy in the above passage was completely innocent of all terrorism charges. US officials even knew he was innocent, held him anyway, and it still took a personal appeal from German Chancellor Angela Merkel to get them to let him go. Think about that. It took an appeal from a head of state of one of our allies to get the US to free a torture victim from detention.

And to make matters even worse, a UK human rights group has accused the US of using ships to detain and secretly interrogate prisoners.

A British human rights organization claimed Monday that the United States had used military ships to secretly detain and interrogate terrorism suspects. U.S. officials denied using ship as prisons.

I imagine any US Navy vessel holding a prisoner would be subject to US military law. But what about a Halliburton-owned ship, in international waters, crewed by civilian contractors, registered in say, Liberia?

On the normalization of torture

As more timely bloggers than I have pointer out, Supreme Court Justice said the other day:

...it would be absurd to say that you can’t stick something under the fingernails, smack them in the face. It would be absurd to say that you couldn’t do that.

I just want to point out the complete moral turpitude of what Scalia is saying. He's not even bothering to participate in the legal sophistry so popular among Republicans these days that waterboarding isn't torture. He's flat-out saying that the US can torture detainees. He's talking about putting splinters under people's fingernails, for crying out loud.

That's where this issue has brought us. It used to be that the United States could claim to be a moral authority in the world. Now a member of the highest court in the land is claiming the US has the legal authority to torture captives and it barely even makes the news.

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.

And:

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.