MucheDumbre

No really.  What is it?  This turned out to be much more difficult to answer then you would think.   Of course, I’m not talking about boiling someone’s feet, or taking a blowtorch to the eyeballs.  Those acts seem to be rather uncontroversially designated as torture.  No, I’m talking about that crown prince of enhanced interrogation; waterboarding.   

 On a philosophical and personal level, I feel waterboarding is torture.  Its purpose is to cause mental anguish enough to cause the subject to spill their guts on plans and operations.  Still, unlike a blow torch to the eyeball or boiling feet, people are lining up to have themselves waterboarded, either for a bet, charity, or publicity.   One wonders why Jackass star Steve-O didn’t think of it.  Vanity Fair journalist Christopher Hitchens did think of it.  As well as Chicago radio personality Mancow (allegedly) and Central Florida radio listener Evil Eye.  Sean Hannity made the offer to do it, but as yet hasn’t made good on his offer.  In a battle of the ratings can Chris Matthews and Glenn Beck be far behind?

On a legal level however, I have grave doubts on if waterboarding meets the standard.   Torture is against Federal law, specifically, Title 18 Part 1 Chapter 113C of the US Code.  However what does it actually say?  The law defines torture this way:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

 It would be difficult to argue in court that waterboarding results in severe mental or physical pain.  No marks or physical damage after all, and no reported mental issues from waterboarding.  Or at least I have not heard of anyone suffering from Post traumatic Stress Syndrome or other long term issue from the interrogation method.

This was the gist of the “Torture Memos” which I had discussed a few weeks ago.  The former Justice Department attorney’s, whom President Obama has decided to give the Kangaroo Court go ahead to the Attorney General, made a fairly good case that waterboarding doesn’t violate US law as torture.  That’s not an argument that waterboarding is a harmless prank, or around the level of good cop/ bad cop when it comes to interrogations, but it does give good evidence that the high bar to define it legally as torture was not met.

And who should confirm that conclusion? None other than Attorney General Eric Holder.  Holder gave away the store a few weeks ago during a Congressional hearing on closing the detainee facility at Gitmo. Holder was being questioned specifically about torture and confirmed again (as he did during his confirmation hearing) that he regarded waterboarding as torture.  Then he was asked if he regarded the waterboarding that Navy Seals received during their training as torture.

Holder:  No, it’s not torture in the legal sense because you’re not doing it with the intention of harming these people physically or mentally, all we’re trying to do is train them —

 Rep. Dan Lungren:  So it’s the question of intent?

Holder:  Intent is a huge part.

Lungren:  So if the intent was to solicit information but not do permanent harm, how is that torture?

 Holder:  Well, it… uh… it… one has to look at… ah… it comes out to question of fact as one is determining the intention of the person who is administering the waterboarding.  When the Communist Chinese did it, when the Japanese did it, when they did it in the Spanish Inquisition we knew then that was not a training exercise they were engaging in. They were doing it in a way that was violative of all of the statutes recognizing what torture is. What we are doing to our own troops to equip them to deal with any illegal act — that is not torture.

 Rep. Louie Gohmert:  Whether waterboarding is torture you say is an issue of intent.  If our officers when waterboarding have no intent and in fact knew absolutely they would do no permanent harm to the person being waterboarded, and the only intent was to get information to save people in this country then they would not have tortured under your definition, isn’t that correct? 

Holder:  No, not at all.  Intent is a fact question, it’s a fact specific question.

 Gohmert:  So what kind of intent were you talking about?

 Holder:  Well, what is the intention of the person doing the act?  Was it logical that the result of doing the act would have been to physically or mentally harm the person?

 Gohmert:  I said that in my question.  The intent was not to physically harm them because they knew there would be no permanent harm — there would be discomfort but there would be no permanent harm — knew that for sure.  So, is the intent, are you saying it’s in the mind of the one being water-boarded, whether they felt they had been tortured.  Or is the intent in the mind of the actor who knows beyond any question that he is doing no permanent harm, that he is only making them think he’s doing harm.

 Holder:  The intent is in the person who would be charged with the offense, the actor, as determined by a trier of fact looking at all of the circumstances.  That is ultimately how one decides whether or not that person has the requisite intent.  

   So Holder, seems to be saying, without outright admitting it, that in a legal sense, under Title 18 Part 1 Chapter 113C, the waterboarding that was done by the CIA was not torture.  It’s all about the intent.  And Holder practices what he preaches.  That is the exact position the Justice Department is taking in another case, Demjanjuk v. Holder.  In that case, John Demjanuk, a former Nazi camp guard was fighting deportation to Germany to stand trial on the grounds that considering his age, poor health, and expected bad treatment at the hands of German jailors (ohh irony!),  would be the equivalent of torture due to the “severe Pain and suffering” that he would be expected to endure.  Demjanjuk lost, since the court found there was no established intent (there is that word again!) by German authorities to torture him.

And yet, law is apparently not going to stand in the way of political opportunism both for the Obama administration and the Holder Justice Department.  A leaked DOJ ethics report on John Yoo and Jay Bybee, two of the authors of the infamous torture memos, will recommend disciplinary action.  All because they devised the legal strategy that Holder is using in another case, and has basically admitted in hearings is correct.

Frankly, this is bullshit.  I know it and Attorney General Holder knows it, but with such a friendly press, there is never going to be a gotcha moment in a press conference; at least not one that will receive wide coverage.  Did you catch Holder’s admission on intent in those hearings leading the nightly news?  Neither did I, even though it exposes the hypocrisy of deriding a legal theory in public that the Obama administration is accepting as it’s own on the down low.

Was it worth it?  The waterboarding I mean.  The former Bush administration took a political risk in adopting that technique, and competing camps have battled on cable shows on whether waterboarding was effective or saved American lives.  However the opinion of the intelligence community seems to be yes, it did.  A Washington Post piece describes the “second wave” attack that had been planned for Los Angeles.  A hijacked airliner would have been used to crash into the Library tower in LA.  Thanks to information collected through waterboarding, we were able to stop the plot before it ever got off the ground (pun is mine).

You can have a philosophical argument on if any sort of enhanced interrogation is ever justified, regardless of the lives saved.  Some people, incredibly, would rather see such plots go forward rather than sully their hands at the dirty work of intelligence collection.  But that’s different from the legal argument on whether the three Al Qaeda terrorists that were waterboarded were legally tortured.  I would have to say, based on the preponderance of evidence that they were not.  As I said at the beginning of this piece, I do personally regard waterboarding as torture, however there are several other techniques I may feel personally are torture that just don’t meet the legal standard.  Letting me drink a couple of beers and then not letting me pee for instance.  President Obama has already banned the use of waterboarding as an interrogation technique by executive order, but don’t look for the Congress to try bring up another bill to outlaw the technique, like they did during the Bush administration.  I imagine if there is another 9/11 style attack, that executive order will quietly be rescinded, in a closing the barn door after the horses are out kind of way.

So we now live in a world in which we can waterboard Mancow, or any other publicity whore, but not Khalid Sheikh Mohammed, or if we ever catch him Osama Bin Ladin.  I’m not sure we could even force KSM to listen to Mancow. Maybe if KSM would agree to be waterboarded  for charity…

Some wag once said that Obama keeps all of his promises; they just have an expiration date.  I guess that’s how we got from “President Barack Obama will not pursue the prosecution of Bush-era officials who devised torture policy against detainees” to it “is going to be more of a decision for the attorney general” within a few days.  That was a quick turnaround, even by Obama standards.  However events and leftie blogs pushed Obama rather quickly after the release of the “torture memos,” which reveal the legal underpinning for what is euphemistically referred to as “enhanced interrogation.”

The timing strikes me as odd considering just a week ago a Spanish court decided to investigate whether to pursue charges against Bush administration officials who provided the legal underpinning for those interrogations.  Then low and behold, the Obama administration declassifies those very documents written by those Justice Department lawyers.  That could hardly be a coincidence.  The message seems to be that the Obama administration will not attempt to protect and may even assist, in international prosecutions of Bush administration officials, and who knows, maybe even prosecute a few themselves.

I took a look at the torture memos out of curiosity and to confirm that things people were saying were in there actually was.  I’ve learned you can’t trust someone else’s interpretation.  Full disclosure:  I didn’t read the whole thing.  I just don’t have the legal background to make a determination if the case the Justice Department attorneys tried to make made sense or not, but I was curious about a few things.

First of all, what was the classification of these damn things?  Looking at the pdf of the memo, I could see that the pages were all classified Top Secret (scribble scribble) NOFORN, but what was the caveat or code word that was scribbled out?  I magnified and tried to see through the blackened areas, but no such luck.  Just curious I guess.  I was just wondering if it was a cool sounding codeword, Top Secret Maximum Hammer, or just something dorky, Top Secret Loosie Goosie?

Another thing; what was the deal with all the waterboarding?  The original leaks described it as the most successful interrogation technique since “good cop, bad cop.”  Abu Zubaida supposedly broke after 35 seconds.  However page 37 of the memo details something more complicated:

…where authorized, it may be used for two “sessions” per day of up to two hours. During a session, water may be applied up to six times for ten seconds or longer (but never more than 40 seconds). In a 24-hour period, a detainee may be subjected to up to twelve minutes of water appliaction. See id. at 42.  Additionally, the waterboard may be used on as many as five days during a 30-day approval period.

…The CIA used the waterboard “at least 83 times during August 2002” in the interrogation of Zubaida…and 183 times during March 2003 in the interrogation of KSM”

So somebody check my math, but that that means either the guidelines for waterboarding are wrong, they ignored their own guidelines, or the number of waterboarding sessions is wrong, since the could not have waterboarded that many times in a month if they followed the guidelines.  Or they are counting applications, instead of sessions.  It’s too vague to tell.

As far as I know, I’m the first person to discover this, so somebody give a prize or something.

However I’m not the first person to notice the incongruity of it being reported that Zubaida broke after 35 seconds and being waterboarded 83 times in one month.  I don’t see how both of those can be true.

But like a 23 minute Arlo Guthrie song, that’s not what I’m here to talk about.  OK well maybe a little, but what I am really worried about is the Obama administration deciding to settle scores.  Since President Obama is the Attorney General’s boss, going from being not interested in pursuing prosecution of Bush era officials to saying it’s up to the Attorney General is tantamount to giving the green light to prosecute.

Now I am of two minds on this.  There is one part of me, the mean, hateful part, that would love to see lawyers have to take responsibility for writing legal opinions, and by taking responsibility I mean forced to pull their orange jumpsuits down in a dark corner of a federal prison and get doo doo raped.  I’m not a fan of lawyers as you might notice.  Generally, lawyers don’t have to take any responsibility for their poor performance. Their clients do. These lawyers, if prosecuted, certainly would.

Also there is the precedent.  Once one administration opens the door to prosecuting the previous administration for policies it disagreed with, every time there is a change in power, the new administration will do the same.  In 4 years I could sit back and watch members of the Obama administration be indicted for all manner of crimes.  What comes around goes around eh?

But that is only one side.  I have a more dominate opinion on this, not one based on score settling, hatred of the bar, or getting revenge on wrongs, real or otherwise, on the current administration at some point in the future, but based on reason, rule of law, and the dangers setting bad precedents.

 First of all, I’m not sure there is even a crime here.  There may be a crime somehow under Spanish law, but I’m fairly certain there is no Federal Statute against giving a legal opinion that the current administration disagrees with.  One can imagine the kangaroo courts if we decide it’s OK to prosecute judges for ruling on a decision that’s been overturned, or a legislator who votes for a law that is later found to be unconstitutional.  That would be as criminal as anything those Bush Justice Department attorneys did.

The precedent of one administration getting revenge on the previous one would be a bad one.  Senator Leahy’s idea of a truth and reconciliation commission; as if going from the Bush administration to the Obama one is equivalent to eliminating apartheid, or the Nuremberg Trials, is ridiculous.  During every election, we always like to repeat the old canard about “the peaceful exchange of power” but how long would that be true if we up the stakes every time  political parties switch positions of power?  If hundreds of administration officials could expect nothing but indictment if a rival party takes power, are we really not that far from Peron’s Argentina?

It’s one thing to indict and prosecute officials who have actually done criminal wrongdoing, but I’ve noticed from my friends on the left is their tendency to want to criminalize policy differences.   They would love to have Bush and Cheney doing the perp walk, weighed down with chains, but ask them what sort of charges its usually something vague, like “war crimes” or just that they were criminals.  Their real crimes?  Holding different policy positions.  Not violating federal statutes.  If we try to prosecute attorneys for writing legal opinions, that won’t be justice, it will be punishment.  Punishment for losing the election.

Once we cross that particular Rubicon, it’s damage that cannot be undone. Rome could never go back to it’s Republic, and if we allow score settling after every change of power, we won’t be able to go back either. 

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