True, and Mukasey thinks it is too.Watching him squirm under questioning was not pleasant, was it? He looked as though he wanted to say plainly that it is but was constrained by thoughts of the litigation he would encourage and the trouble he'd bring the administration and the CIA.
'Mukasey wants to be the chief law enforcement officer of the United States — the man charged with issuing authoritative executive branch interpretations of the law, with advising the president on what legislation to seek from Congress if he thinks the laws need to be changed and, ultimately, with deciding when to prosecute officials who have broken the law. And if that’s the job he wants, he needs to show the Senate that he has the wit and the will to do it.
If Mukasey thinks that water-boarding is not just repugnant but constitutes torture or cruel, inhumane or degrading treatment under current law, he should just say so. If CIA interrogators currently use water-boarding, they’ll now be on notice that the likely incoming attorney general considers it illegal. But should they fear prosecution for any past use of water-boarding? No — prior Justice Department memos that gave the green light to the practice would effectively immunize interrogators who relied on them in good faith.'Mukasey's black magic on torture
Is this true? Would those who had used water-boarding "in good faith" be off the hook (so to speak)?
Originally posted by newnickname: But should they fear prosecution for any past use of water-boarding? No — prior Justice Department memos that gave the green light to the practice would effectively immunize interrogators who relied on them in good faith.'[/i] Mukasey's black magic on torture
Is this true? Would those who had used water-boarding "in good faith" be off the hook (so to speak)?
You see, we have a question of fact, not law
It's a good question. It's a practical problem for prosecutors. There's no problem of law if a statute plainly makes something illegal.Statutes are not normally retrospective .If only there was a "Water-boarding Act" we'd have no problem. One day water-boarding would be legal, next day it would be contrary to the Act and illegal.Nobody could be prosecuted for acts done before the commencement of the statute.
This question here is not confined to water-boarding.It occurs in many cases. Take cruelty to animals in Britain.Cutting off the tails of puppies [this is done without anaesthesia] or cropping a dog's ears or using a 'gin-trap' to catch animals might have been prosecuted under our existing laws on "cruelty" .Some might opine that it was an act falling within cruelty, either necessarily in all cases because that act could never be anything else in fact, or on the facts of a given case, and others might hold it was not.So,in Britain laws had to be passed over time to specifically declare these acts illegal.
Now, you (and I) may think that it is plain as a pikestaff that water-boarding falls under the heading of 'torture', just as I always thought gin-traps, docking tails and cropping ears would have been under the pre-existing laws against cruelty.We start from the premiss that someone in authority has decided that, as a matter of fact, that the practice either does not fall within torture at all or may not do (depending on the facts of the particular case).We'd need to show that that decision of fact, that water-boarding was not torture, was such that no reasonable person could make it.That's the problem we have.It doesn't matter that someone else thinks, as a matter of fact, it does fall within torture.
The bona fides of the person performing the act is irrelevant.A person may be a moral imbecile or plain wrong and genuinely believe that what they do is right.However, it is reasonable for someone to say " I respect the judgment of X, he is a reasonable man, wiser than I, and so if he thinks this is not torture I accept that".Here a defendant would say not "I was under orders and so had to do it regardless" but " Very intelligent, experienced people have issued memos meaning that they have decided that this is not, in fact, torture. Given that, I went ahead.You tell me other intelligent people think it is, in fact within torture.So? "
On Jan. 21, 1968, The Washington Post published a front-page photograph of a U.S. soldier supervising the questioning of a captured North Vietnamese soldier who is being held down as water was poured on his face while his nose and mouth were covered by a cloth. The picture, taken four days earlier near Da Nang, had a caption that said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk."
The picture reportedly led to an Army investigation.
Twenty-one years earlier, in 1947, the United States charged a Japanese officer, Yukio Asano, with war crimes for carrying out another form of waterboarding on a U.S. civilian. The subject was strapped on a stretcher that was tilted so that his feet were in the air and head near the floor, and small amounts of water were poured over his face, leaving him gasping for air until he agreed to talk.
"Asano was sentenced to 15 years of hard labor," Sen. Edward M. Kennedy (D-Mass.) told his colleagues last Thursday during the debate on military commissions legislation. "We punished people with 15 years of hard labor when waterboarding was used against Americans in World War II," he said. - http://www.washingtonpost.com/wp-dyn/content/article/20...AR2006100402005.html
It looks to me that the US had already decided that it is torture.
Posts: 17506 | Location: Lincoln Place, Granite City, IL, USA | Registered: 06-03-02
It looks to me that the US had already decided that it is torture.
Sure, but only when it's used on Americans
American contractors can murder or commit manslaughter against Iraqis but that doesn't count as a crime either. What happens if one recklessly or deliberately and without reasonable excuse, shoots dead another American has yet to be decided.Probably it's not a crime if the deceased is some 'peace activist' or a liberal journalist, who is therefore being unpatriotic and so an honorary Iraqi and not protected.
More seriously, that somebody decided that what the Japanese man did was within the definition of torture [assuming that the case was indeed decided only on the basis that it was torture and not e.g some assault which somehow fell within the definition of war crime,whatever that is or was in that place at that time] is not a binding decision. [Section 147 of the Geneva Conventions does list 'torture' among the criminal acts]
The photos we've seen from Abu Ghraib showed humiliation and degrading treatment, mostly - although some were worse, and there have been perhaps 100 deaths in US custody in Iraq and Afghanistan Officially, this was due to criminal acts by lower ranks, doing things they shouldn't.
With the water-boarding question we're not talking about humiliation which was not entirely clearly allowed or encouraged, and which the people in charge deny any responsibility for; we're talking about the officially authorised use of torture (tying people down and half-drowning them is torture in a way that parading them naked isn't).
What is humiliation (not torture) for an Iraqi, might very well seem like a pleasant experience to an American; that may be what our guys had in mind. So there's little need to worry about the possible effect when and if the same method is used on our troops. We might even scream and holler that it is inhuman and humiliating, only to encourage its continued use. I can't imagine an American enjoying being "waterboarded".
'Asked at a community meeting here whether he considered waterboarding torture, Mr. Giuliani said: “It depends on how it’s done. It depends on the circumstances. It depends on who does it.”'www.nytimes.com
"It depends on who does it"? What on earth could that mean?
In the same story Giuliani is quoted as saying “They talk about sleep deprivation... ...I mean, on that theory, I’m getting tortured running for president of the United States. That’s plain silly. That’s silly.”
Some of those who seek to excuse or belittle accusations of torture would like to focus on the relatively mild abuses, so that they can dismiss it all as not much more than silly pranks. Yes, some detainees of the US have been forced to wear underwear on their heads or make naked human pyramids, but others have been beaten to death.
The point about water-boarding, however, is that it seems to be officially sanctioned. Bush won't confirm whether or not water-boarding is used, saying he will not discuss 'techniques' as that might help the enemy. He shouldn't, therefore, have raised the question by saying the US doesn't torture. He can't have it both ways.
From the article in newnickname's original posting:
quote:
While US media reports typically state that waterboarding involves "simulated drowning", Mr Nance explained that "since the lungs are actually filling with water", there is nothing simulated about it. "Waterboarding," he said, "is slow-motion suffocation with enough time to contemplate the inevitability of blackout and expiration. When done right, it is controlled death."
Mr Nance said US troops were trained to withstand waterboarding, watched by a doctor, a psychologist, an interrogator and a backup team. "When performed with even moderate intensity over an extended time on an unsuspecting prisoner – it is torture, without doubt," he added. "Most people cannot stand to watch a high-intensity, kinetic interrogation. One has to overcome basic human decency to endure watching or causing the effects. The brutality would force you into a personal moral dilemma between humanity and hatred. It would leave you to question the meaning of what it is to be an American."
Of course it's torture. Even McCain -- intimately familiar with military interrogation techniques -- has denounced it as such.
If the US government accepts this as an acceptable standard of conduct in the 'war on terror', then game over: The terrorists have won already.
Posts: 2055 | Location: U.S. | Registered: 06-03-02
'Mr Bellinger made his remarks during a Guardian debate with Philippe Sands QC, professor of international law at University College London. Mr Sands asked whether he could imagine any circumstances in which waterboarding could be justified on an American national by a foreign intelligence service. "One would have to apply the facts to the law to determine whether any technique, whatever happened, would cause severe physical pain or suffering," Mr Bellinger said.
When Mr Sands said he found Mr Bellinger's inability to exclude waterboarding on Americans very curious, the US official replied: "Well, I'm not willing to include it or exclude it. Our justice department has concluded that we just don't want to get involved in abstract discussions."'Top US legal adviser refuses to rule out 'torture' technique
The article says that the administration has tied itself in legal knots over this. They seem to be pulling them tighter and tighter.
Their stated reasons for voting in favor of Mukasey - for example that he'd support a hypothetical law (which would be vetoed) against waterboarding, or that he's better than any hypothetical alternative that might be nominated instead - seem pretty lame.
One thing I recently discovered is that water-boarding dates back to the Spanish Inquisition, when it was called tortura del agua. That's "water torture" in English. Maybe the soon-to-be-new AG will approve the rack, too, for enemy combatants.
Posts: 2055 | Location: U.S. | Registered: 06-03-02
This was posted today on the popular blog Pharyngula, with a fresh perspective on the utility of torture (boldface mine):
quote:
Torture — what's it good for?
One little post about waterboarding seems to have stirred up the mob, but at least the majority seem to agree that it is torture. How could it not be? It's a process for causing pain and suffering, nothing more. At least the commenters here, even the ones I disagree with most strongly, are more honest than our politicians, many of whom seem to be in a state of denial.
But then the argument becomes whether torture is a useful procedure. I'm going to surprise some people and agree that torture is an extremely powerful tool. It's just useless for gathering information. There's just no way you can trust information gotten while ripping somebody's fingernails off with a pair of pliers — they'll scream anything to get you to stop.
Here is all that torture is good for: inspiring fear in a population. If you want it widely known that your ruling regime is utterly ruthless and doesn't care about individuals, all you have to do is scoop up random people suspected of anti-government activities, hold them for a few weeks, and return them as shattered wrecks with mangled limbs, while treating the monsters who would do such a thing as respected members of the ruling clique, who are immune from legal prosecution. The message gets out fast that one does not cross the government.
So, yeah, if you're a tyrant in Uzbekistan who is holding control through force of arms, fear is a useful part of the apparatus of control, and torture is a great idea, as are barbaric executions, heads on pikes, and bullets to the back of the head.
When the US government announces it's support for torture, they aren't talking about intelligence gathering: they are simply saying "Fear us." They are taking the first step on the road to tyranny.
The real problem is that fear isn't a good tool to use in a democratic society. We are supposed to be shareholders in our government; when a process of oppression is endorsed by our legislators and president, we should recognize that they are trying to set themselves apart from the ordinary citizenry, and it's time to rebel before the goon squads come to your neighborhood. Anyone who supports torture is a traitor to the democratic form of government, and should be voted out of office, if not impeached.
And I know some are going to crawl out of the woodwork to claim it's OK in this case because the US is mainly trying to torture non-citizens, outsiders and foreigners — but then what it represents is an announcement to the rest of the world that the American superpower is not planning to be a benevolent member of the community of nations.
Posted by PZ Myers
Myers is a noted evolutionary biologist, though his liberal-minded blog also covers a wide range of social issues. (With thanks to AP member Sid for first making me aware of the Pharyngula website.)
Posts: 2055 | Location: U.S. | Registered: 06-03-02
It seems that there's a question now over defining 'person'.
'...Judge Janice Rogers Brown dissented with parts of the opinion, saying that "it leaves us with the unfortunate and quite dubious distinction of being the only court to declare those held at Guantanamo are not `person(s)'..."In voiding suit, appellate court says torture is to be expected
If the US authorities can play games with the definition of 'person' and 'torture', what constitutional protection do people in the US actually have?
That's nothing. These four ex-detainees are British.We've always suspected that Americans think of us as not being people!
There's little that's new: Sixty years ago,one of the maids cut herself badly,so my mother rushed to help, only to be restrained by her mother-in -law who memorably explained " It's all right, dear. They don't feel pain like we do" (For some unaccountable reason my mother helped anyway )
Interesting to note that such 'them' and 'us' thinking is still to be found beyond the seas.
'Canada's foreign ministry has put the United States and Israel on a watch list of countries where prisoners risk being tortured and also classifies some U.S. interrogation techniques as torture, according to a document obtained by Reuters on Thursday...'Canada places U.S., Israel on torture watch list
One day water-boarding would be legal, next day it would be contrary to the Act and illegal.Nobody could be prosecuted for acts done before the commencement of the statute.
I can't imagine an American enjoying being "waterboarded". 
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