What is Torture?
Written by lilmike on May 31, 2009 – 2:47 pm -
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.
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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…
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Tags: Al Qaeda, Attorney General, Christopher Hitchens, CIA, Dan Lungren, Demjanuk v Holder, Eric Holder, Evil Eye, gitmo, Jay Bybee, John Yoo, justice department, Khalid Sheikh Mohammed, Library tower, Louie Gohmert, Mancow, Obama, Osama bin Ladin, SEALS, Sean Hannity, second wave, SERE, torture, torture memos, waterboard
Posted in MucheDumbre | 11 Comments »
May 31st, 2009 at 5:08 pm
Great Blog..
but let’s get this out of the way 1st..
It’s not “simulated” drowning.. it’s actual drowning.. if they didn’t stop, you would die.. from drowning.. simulation implies that it’s not really drowning.. and sorry, but you are really drowning..
2nd.. this isn’t the same thing SERE goes through..
SERE trainees know it will stop.. they know where they are,who has them and that they are not going to be killed..
they are not tied up by unknown ppl, speaking unfamiliar languages, taken to an unknown place by an unknown authority figure, strapped to a board and drowned??.. drown?
added to that..per http://www.mcclatchydc.com/227/story/66895.html
and 3rd.. there was no ‘2nd wave’..
FBI Muller’s already dismissed that in his Vanity Fair article..
http://www.vanityfair.com/magazine/2008/12/torture200812?currentPage=4
so, now let move on to is it torture under the law..
yes, why? it’s in the law you quoted
(C) the threat of imminent death; or
if it is not stopped.. the person dies..death is therefore.. imminent..
Besides, if it’s legal our govt shouldn’t have tried and convicted some Japanese for it..
Testimony from the Tokyo War Crimes Trials
http://www.washingtonpost.com/wp-dyn/content/article/2007/11/02/AR2007110201170_2.html
sorry, it was and still is torture…and illegal..
The problem was in the cover-up… Just like Bill should have said “It’s none of your business what I did with that woman” Bush should have said “Just like the Secret Service doesn’t talk about their security measures, the CIA doesn’t talk about theirs.”
problem is, he lied about it
and the second he did that.. it became political,partisan and punishable.. the same way a blow job became a reason to impeach..
everyone’s abandoning ship on this.. Powell,Petraeus,Rice and even Gonzales has the balls to say “wasn’t me”..
well sorry guys.. it was you…
May 31st, 2009 at 7:16 pm
To me, torture is torture when the guy administering the torture gets a boner doing it…just ask Zed….oh right, Zed’s dead…
May 31st, 2009 at 8:06 pm
nice pulp fiction reference Andy ;)
June 1st, 2009 at 9:09 pm
A well thought out reply, almost a blog in and of itself. However, the description of the differences… didn’t really highlight differences. You’re talking about the difference of applying a small amount of water to a cloth and… a larger amount. Not exactly a clear cut difference. So no, it’s not drowning, neither version is.
The differences between a SERE candidate knowing this is training and and Al Qaeda detainee being in enemy hands are of course legitimate to the experience, but not to the legal aspects, at least according to the law as I am reading it. Remember, Holder was applying the standard of intent, as does the written law.
You may not believe there is a second wave, but the Torture memos, http://72.3.233.244/pdfs/safefree/olc_05302005_bradbury.pdf, page 10, certainly reference them.
Former CIA Director Michael Hayden apparently believes there was one, http://www.foxnews.com/politics/first100days/2009/04/22/hayden-chain-interrogations-yielded-bulk-intelligence-knowledge/
So why you take the word of the FBI’s opinion on enhanced interrogation, when they were not involved in them over, the CIA, which was, is kind of mystifying. And Muller seemed like he was punting rather than giving a straight denial. You’ve made the point over the years that any terrorism threat is greatly exaggerated, so I understand that you don’t want to accept that there really are terrorists who are really still out there and really want to kill us.
Yes, even though Bush is out of the White House.
But frankly, it’s irrelevant to the larger issue of whether under US law, our AQ detainees were tortured. Even if you were right (and the preponderance of available evidence doesn’t back you up) it wouldn’t make a difference to the legal case.
Your point about the threat of imminent death highlights exactly why there were guidelines drawn up on it’s application. You can’t say if the waterboarding just went on and on it would eventually result in death. That’s why there were guidelines. You could argue that about anything you do. I’m awake now, but if I continue to stay awake for days and days on it, eventually it would result in my death. I’m drinking a Sam Adams now, but if I never stopped eventually it would result in alcohol poisoning. I’m sure if waterboarding was continued, it would eventually result in death, but so would everything else. I don’t think it fits within the law.
I can’t speak to how we handled the Japanese war crimes trials. That is a topic to be researched, but US torture law was only passed in 1994, so nothing we did to the Japanese war criminals had anything to do with US law, or any sort of written law that I know of. And as I mentioned in my blog, Congress still has not made waterboarding illegal. You would think that would have come up again since Bush is in Elba err I mean Texas.
Anyway, I think the clearest legal tool to determine torture is based on the intent of the actor, as Attorney General Holder said, or as Andy said, when the guy administering it gets a boner.
June 2nd, 2009 at 10:12 am
you admit that it is torture… you just don’t know if torture is illegal..
IF it’s legal, then by your own admission.. we are now able to torture ppl for national security reasons.. is that really want you want on our ‘resume’…
because when we justify it for our nationally security, then others will justify it for theirs against our guys..
and hey, I’m all for it… so don’t lump me into the side that isn’t for torture.. I get the ticking bomb scenario..I just don’t think it works.. and don’t lump me in with those that think there aren’t imminent threats out there.. I’m sure there were and/or are.. but that’s not the argument here Strawman.. ;)
assuming the 2nd wave was real…then the only ‘ticking bomb’ intel they got after 300+ ’sessions’ was one single piece of intel.. that’s not a great success rate IMO.. seeing as how they got KSM and Zubaydah from ‘non-torture’ means..seriously, we got Zubayduh with an apology and a cookie..
besides that.. we don’t know how much bad intel was given just to make it stop and what kind of resources were wasted..
and how many hardened criminals daily give up their information in every cop-shop across the country without using anything more than harsh words and threats? you can’t claim that this kind of “passive” interrogation doesn’t work, b/c if it didn’t.. no one would ever confess.. and yet, they do.. over and over and over again..
and if we’re supposed to be listening to the generals.. then let’s listen to them when they say this isn’t a moral or valuable tool in our arsenal.. in fact it’s a dangerous tool.. Think about it, right now the only ones supporting it are the ppl that could be convicted if it’s found to be an actual crime…(or their news station) so why are we listening to them instead of the ppl (generals,FBI and CIA) who really have no dog in this hunt other than getting actionable intel..and keeping not just our citizens safe, but our troops also..
so..it is torture, you admit this…. but is it illegal..
here’s a test on that…
would you be willing to allow the local PD to waterboard suspects?
why …
why not?
the threat of death may be imminent.. the shipment of drugs may be imminent.. the bank’s robbery may be imminent.
the child being held in a hole somewhere needs to be found…
so, would you give this tool, which you freely admit is torture.. to the local PD? if passive interrogation doesn’t work on what? captured Muslims.. then who else does it not work on that the local PD might pick up?
by the way.. is it just militarily captured Muslims that won’t talk under passive interrogation? do they have some kind of super power that prevents them from succumbing to regular, tried and true interrogation methods? because that seems to be what those in support of this are imply..
so who are the ’super-muslims’ anyway..
or do we just use on it ppl we think aren’t telling us the whole truth..
are you willing to go down that line with the local PD and where do you draw that line anyway?
since death wasn’t ‘imminent’ this isn’t torture? well, how about we remove a fingernail or two.. we’ve all lost nails, it’s not that painful and you definitely won’t die from it..
what about hitting suspects with phone books.. that barely leaves a mark..
if the line is ‘we don’t torture’.. and waterboard is torture.. the question is answered.. no?
June 2nd, 2009 at 10:41 am
so the amount of water defines a ‘drowning’…. you do know kids die in puddles and tablespoons of water in the bathtub every day right? are their deaths less of a ‘drowning’ death than one who dies in 6ft of water?
is that death less of a ‘drowning’ than one who dies in 50ft of water?
if the waterboarding isn’t stopped, death is imminent..
whether the ME report would read death by suffocation or drowning may be be debatable.. but the end result of what would happen if someone just decided to keep going with the action isn’t..
if it wasn’t.. why was a doc standing by ready to ‘trach’ the prisoner in case he drowned?
a gun shot to the lung isn’t imminent death if a doc is standing by to re-inflate the lung and remove the bullet..
right?
so let’s argue ‘intent’ then..
SERE trainees know it will stop.. that equals no torture b/c they know death is not the intent… a prisoner who has already gone thru numerous other forms of ‘enhance interrogation’.. doesn’t know if they will stop, so for him.. they are intending to kill him..b/c he will die if they don’t stop..
it’s a psych thing just like the ‘walling’.. the walls are made to break so when they are thrown against the wall and they go thru it, they think “OMG,he just pushed me thru a wall, he’s going to kill me if I don’t tell him everything”.. now, add a few of those with the waterboarding.. and visual of what went on in Ab Gharib running thru the prisoners head.. and to them the intent in plain…
boner or no boner..there have been lots of ppl killed and the person doing the killing says “I didn’t mean to”.. .. doesn’t make it any less of murder now does it?
June 3rd, 2009 at 10:56 am
You spelled Evil Eye wrong. “any other publicity whore”
June 4th, 2009 at 7:42 pm
To your first point, I think comparing what our police forces are allowed to do with civilian criminal suspects and enemy combatants who are military prisoners is about as apples and oranges as you can get. That is the problem your side has continuously had with this. You keep thinking these captured terrorists are criminal suspects who are being denied habeas corpus and other rights we associate with citizen defendents. Until you can understand that difference we will only talk past each other.
So I’m not in favor of police torturing, even in a ticking time bomb scenario (officially- Privately I may be grateful to the rogue Movie action heroe cop who dangles a crook over the side of a building to illicit the locatin of the little girl who is buried alive). But if the cops or the judge toss a defendent in a cell with an inmate who they know will rape or abuse him if he doesn’t talk, and that defendent IS raped and abused, isn’t he tortured? To him, yes. Legally no.
If black hooded figures grab me off the street and waterboard me to get the location of the schools my kids attend, to me I’m, being tortured. If I volunteer to be waterboarded for a radio stunt, no I’m not being tortured. It’s about intent.
But…
As AG Holder says, it’s not my intent that matters, it’s the intent of the person doing the waterboarding. Legally, I have no say to define what happens to me is torture.
I’ve already said a bajillion times that I think waterboarding is torture, TO ME. Legally, under US law, it doesn’t look like it meets the standard as was performed by the CIA.
The point of my blog wasn’t so much what I thought was torture, but where the law was on it, and where the Obama administration interpets the law. So my point was that the Obama administration is interpeting the law the SAME way as the Bush administration did. Holder admitted in in hearings and the Justice Dept is arguing the same way.
AND of course their hypocrisy in having an ethics investigation for the attorneys who developed the legal theory that they themselves have adapted as their own.
Now that I find torturous.
June 5th, 2009 at 4:21 pm
ELROSS Says:
June 3rd, 2009 at 10:56 am
You spelled Evil Eye wrong. “any other publicity whore”
Reading your twits is torture.
June 9th, 2009 at 9:22 pm
Don’t read my twitter then, Howance. #ban
June 17th, 2009 at 3:53 pm
[...] he says that we actually faced a ‘Jack Bauer’ scenario and torture is what stopped this ’second wave’ from happening. The Head of the FBI says this is untrue, The CIA says this is untrue, and others [...]