So Is Torturing A Daughter OK?

[ Posted Monday, July 7th, 2008 – 15:06 UTC ]

[If you missed it, please see the Program Note for an explanation of the repeat columns this week.]

[This column was the first one where I got a flood of comments in response. I can't tell for sure, since the original Huffington Post version now appears without the old comments displayed, but I believe it generated over 150 comments.

A little over a week ago, two of the architects of the new American policy on torture appeared before a House committee. Both David Addington and John Yoo were instrumental in providing the legal reasoning for what they termed "interrogation methods."

John Yoo refused to answer such simple questions as: "Could the president order a suspect buried alive?"

Think about that for a moment -- a former Justice Department legal counsel couldn't answer whether the President of the United States of America could legally order a prisoner buried alive. These were the people who were responsible for drawing the lines on what was (in their opinion) legally allowable, and what wasn't, and they can't even publicly state whether the president ordering someone buried alive is legal or not.

But Addington had an even simpler question that he couldn't answer, which is why I am writing this foreword, and which is why I am re-running this column. Addington was asked the following question: "Professor Yoo is quoted as saying that under certain circumstances, it would be proper and legal to torture a detainee's child to get necessary information. Do you agree with that?"

To which Addington replied: "I don't agree or disagree with it, Mr. Chairman. I don't plan to address it. You're seeking legal opinion and, as we told you in Exhibit 4, I'm not here to render legal advice to your committee. You do have attorneys of your own to give you legal advice."

This article started as a thought exercise. But apparently, it's not. Presidential advisors contend that the following scenario is just fine with them. Which makes it as relevant today as when I wrote it.]

[This column originally ran September 15, 2006. The note at the end was for Huffington Post readers, where it originally appeared.]


So Is Torturing A Daughter OK?

The best way to make a political case against an untenable position is to ask a question that paints the opponent into a corner, because it has no "right" answer.

The most famous of these is "So tell us, Senator, have you stopped beating your wife?"

The most devastating of these (since Dukakis flubbed the answer so badly) was when a debate moderator asked Michael Dukakis, "Governor, if Kitty Dukakis [his wife] were raped and murdered, would you favor an irrevocable death penalty for the killer?"

The most recent conundrum was the brilliant "If there's a fire in a clinic and you can save a live baby or 100 frozen embryos -- but not both -- which one would you save?" which points out the fallacy of equating embryos with live children.

But we need some new ones, and we need them quickly. Republicans are trying to paint anyone who opposes torture as being "soft on terrorists." So all the anchors on all the Sunday news talkfests this week need to ask their Republican guests the following two questions.

"If your daughter were a member of the U.S. Army and were captured by an enemy, and waterboarding and other 'interrogation techniques' you are condoning the United States use were used against her -- against your own daughter -- would you call those techniques 'torture' or would you defend them as being legal techniques?"

Catch-22. There's just no way to answer that question. That's why it needs to be asked.

The follow-up question is easy, too.

"If we hold a terrorist and we think he knows about an imminent plot, you advocate 'aggressive interrogation techniques' against him, since his comfort is less important than saving the lives of so many in an attack on America -- but if he has been trained to resist interrogation and doesn't talk, would you also advocate using the same techniques on his innocent nine year old daughter, in front of him, in an effort to make him talk?"

Once again, an unanswerable question.

How insane is it that this is an election issue? What kind of country have we become? Even Colin Powell is pointing out that we're now taking the moral low road. Have we all forgotten all those World War II movies with the guy in a dirty lab coat and a thick German accent saying "Ve haff vays of makink you talk..."?

Remember -- those were the bad guys in those movies, not the United States of America.

[I apologize for posting three times this week -- don't want to wear out my welcome -- but this issue just punched my buttons. Next week it's back to my one post on Wednesday, I promise!]


-- Chris Weigant


13 Comments on “So Is Torturing A Daughter OK?”

  1. [1] 
    Elizabeth Miller wrote:

    That Addington and Yoo testimony was difficult to watch, on a number of levels. One might even suggest that it was a tortuous process.

    We often talk about the incompetence that has run rampant throughout the Bush administration - from the departments of Homeland Security, Defense and State (to say nothing of DoJ) to the EPA and FDA - in only superficial terms. But, testimony from the likes of Yoo and Addington and others, if you're lucky enough (or not) to witness it, puts it all into vivid focus.

    On another note...I can't believe that the good ole HP had you operating under a limit of one post per week. Actually, now that I think of it, that would seem to be typical behavior from the powers that be over there. I trust you don't still have to work under those types of restrictions. The more and longer, the better...when it comes to CW blog posts!

  2. [2] 
    Chris Weigant wrote:

    Elizabeth -

    Interesting comment note here, this column is where I originally met Michale. I am truly sorry the comments thread on HuffPost is gone, since it was an epic battle of the wits and of the wills. Neither one of us convinced the other of our position, but we did force each other to refine exactly what that position was, and to respect the other's stance.

    But I do have to correct you -- the limit at HuffPost was my own imposed limit. I was very new there (I had only started at the beginning of June, 2006) and didn't want to appear pushy. There were a lot less people posting at HuffPost at the time, I should add. As time went on, people seemed not to mind, so I slipped into twice a week, then three times. I try to post Mondays, Wednesdays, and Fridays there now, but occasionally I miss a day here and there. There were several comments to the original article which said, in essence, "post as much as you want, we like your work," which was a big confidence-builder to post more often, I must say.

    I still think that Addington and Yoo should be questioned using the exact methods they approved, personally. I bet we'd get some better answers out of them that way!


  3. [3] 
    Elizabeth Miller wrote:

    I had a chat with Michale on the subject of torture, as well - right here, as a matter of fact...several of your posts ago. I can safely say that it was one of the most intense give-and-takes I've had on-line! (his ears must be ringing)

    So, you're saying that I owe HP an apology...sorry...

    I am quite sure that if Addington or Yoo or anyone of their ilk were ever to be questioned using those methods, they'd crack in an instant and start pointing the fingers at each other and their own mothers!...the little so-and-so's...

  4. [4] 
    Michale wrote:

    Yea, that was a marathon for both of us! :D

    One correction though, CW... I thought that the TORTURE YOUR DAUGHTER commentary was in Sep of 2005. I seem to recall that 2005 was when I started posting on HuffPo on a regular basis and it was your commentary that got me started.. I coulda swore that was 2005 and not 2006..

    But, at my age, the memory is the second thing to go..

    Regardless of that, all the same points apply..

    Torturing terrorists is not the same thing as torture in a military on military conventional war.

    Terrorists, like spies and saboteurs, are not afforded Geneva Convention protections.

    There is NO EVIDENCE to support the contention that, if we treat terrorist prisoners "nicely" that terrorists will cease being terrorists..

    Finally, this is a NEW point..

    Did you know that terrorists at Gitmo actually enjoy MORE rights than an American prisoner??
    Yea, how badly does THAT suck!? The Democrats in Congress are so intent on making kissy kissy with terrorists that they actually gave MORE rights to terrorists held than they give to prisoners held in our conventional prisons..

    Think about THAT, the next time ya'all feel sorry for terrorists held as enemy combatants..

    On another note, filed under the UNBELIEVABLE BUT TRUE category.. Over at HuffPo, I am actually in a pitched battle with a dozen or more er... people?

    My position? That Obama and the majority of the Democrats in the House & Senate are doing the right thing. It's an amazing position for me to be in to actually fight tooth and nail for Democrats!!

    Who woulda thunked it! :D



  5. [5] 
    akadjian wrote:

    Very interesting post. Had no idea this went back so far.

    "There is NO EVIDENCE to support the contention that, if we treat terrorist prisoners "nicely" that terrorists will cease being terrorists.."

    Unfortunately, there's also no evidence to show that torturing prisoners helps prevent terrorism.

    If anything, it erodes our status throughout the world, hinders cooperation with international law enforcement agencies, decreases our moral standing, and leads to false confessions.

    I find it most interesting that we've taken some of our torture techniques from the Chinese communists that we ourselves determined led to false confessions.

    Also interesting that you presume all of those held at Guantanamo are actually terrorists. Why are they terrorists? Because we say they are? Whatever happened to "innocent until proven guilty"?


    p.s. There's also a great article on Salon about the abuse of the executive branch when it comes to FISA.

    The government argument is so circular that it would be funny if it weren't so tragic.

    p.s.s. Michale, welcome to the light! :)

    p.s.s.s. Come back soon, Chris!

  6. [6] 
    Michale wrote:

    Unfortunately, there's also no evidence to show that torturing prisoners helps prevent terrorism.

    Actually, you are quite in error....

    The British/American Airlines attack that was thwarted was a direct result of coercive interrogations.

    There are many more examples, but I want to keep myself out of jail. :D

    Also interesting that you presume all of those held at Guantanamo are actually terrorists. Why are they terrorists? Because we say they are?

    Yea, pretty much.... Would you like a signed confession???

    Whatever happened to "innocent until proven guilty"?

    Funny about that.. I asked the SAME question of hysterical Democrats about President Bush.. They ignored the question and went on with the hysterical accusations of "war criminal", "murderer", "fascist", etc etc etc...

    Go figger.. :D

    p.s.s. Michale, welcome to the light! :)

    I'm trying to stay but the Dark Side is so seductive.. :D


  7. [7] 
    Michale wrote:

    As to FISA?? Here ya go...

    You'll just LOVE that thread.. :D


  8. [8] 
    akadjian wrote:

    Ah, the "hysterical Democrats" tag. That's a good one :). When no argument exists, nothing like resorting to labeling someone. I'm kind of surprised the pundits haven't taken to just calling us "terrorists."

    Yes, in additional to being out-of-work hippie communist wimps, we are hysterical and often run around screaming and yelling for no reason :).

    It is true, though, that the dark side is seductive. I'm not sure why, but I have felt its' pull. Perhaps it is because they seem to understand marketing better. Or perhaps it's because a small minority has managed to sway public opinion so dramatically.

    I think that's why I feel so strongly that before progressives can really challenge Republicans (and in particular, neo-Conservatives), progressives need to reform our own party and stand for something.

    This is why I believe Barack has a great opportunity to take a stand when it comes to FISA and torture. Privacy and maintaining our moral standard in the world are beliefs shared by a large number of Americans.

    Speaking from a branding perspective, Obama may win more votes short term by moving to the center, but at the risk of damage to the Democratic brand. To truly win long term, the Democrats have to have a recognizable and respected brand that stands for something.

    Which is why we should keep fighting to reform the Democratic party and also why I enjoy Chris' columns so much because I believe he truly understands the damage Democrats keep doing to their own party.

    If you stand for something, you may take some initial hits, but in the long run people will respect you more and guess what, Democrats, as many have pointed out, Republicans are going to hit no matter what you do. Even if Democrats agreed with everything Republicans wanted, do you think Republicans would stop attacking? Not a chance. It's how they differentiate their brand.

    Here's a quick example. Obama decides to support FISA. Does he get credit for supporting the bill? No. He's accused of flip-flopping on the issue by Republicans. If he had voted against the bill, he would have been accused of supporting the terrorists. Either way, he gets attacked.

    This is why progressives should be leading and standing for something. They truly have nothing to lose.


    p.s. Now the trick is, if I put on my politician hat for a second, I might believe I have something else to lose. By voting against FISA, I would incur the wrath of several extremely large telecommunications companies that have a lot of money to spend to either help elect or help not elect me. No one talks about this much, but I believe it is this 3rd point that tipped the balance.

    p.s.s. And sending money to Russ Feingold? Not a bad idea. I like the idea of the grassroots activists supporting those who are willing to take a stand. I think I'll send some today.

  9. [9] 
    akadjian wrote:

    Michale, I just read a bit of the comments thread on HuffPo. And I have to say maybe that's why I like hanging out here in Chris' corner of the world.

    Even though we disagree over things sometimes and get very passionate, I think the conversation has always been civil and respectful and I could honestly see us all hanging out solving the world's problems over beers. We're just each very passionate about certain things we believe in.

    I think sometimes commenters forget that they're talking to people when they only see the written words on the page.

    Have to say, I felt kind of sick to my stomach reading some of the things that people said to you. I don't agree with that in any way shape or form from anyone, Democrat or Republican or Communist or Libertarian :). Because at the end of the day, we're still people and typically have more in common than we do differences.


  10. [10] 
    Michale wrote:

    Thanx David...

    I have always said that there isn't anyone on CW's site that I would be opposed to having a beer with.. :D

    But, then again considering how much I like beer, that doesn't say very much.. :D

    Speaking of FISA though, I just posted a "tutorial" on HuffPo on why HR 6304 is legal and constitutional..

    I hated to waste it on HuffPo so I figured I would post it here enjoy.. :D


  11. [11] 
    Michale wrote:

    FISA provides authority for warrantless monitoring of foreign communications.

    There have been very few cases involving the constitutionality of FISA. 2 lower court decisions, the courts found FISA constitutional. US v. Duggan, defendants were members of the IRA 743 F.2d 59 (2nd Cir., 1984). They were convicted for various violations regarding the shipment of explosives & firearms. Court held that their compelling considerations of national security in the distinction between the treatment of US citizens and non-resident aliens.

    In US v. Nicholson, defendant moved to suppress all evidence gathered under a FISA order. 955 F.Supp. 588 (Va. 1997). The court affirmed the denial of the motion. There the court flatly rejected claims that FISA violated Due process clause of the 5th Amendment, Equal protection, Separation of powers, nor the Right to counsel provided by the 6th Amendment.

    However, in a 3rd case, the special review court for FISA, the equivalent of a Circuit Court Of Appeals, opined differently should FISA limit the President's inherent authority for warrantless searches in the foreign intelligence area. In In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002) the special court stated "[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . . We take for granted the President does have that authority &, assuming that is so, FISA can't encroach on President"s constitutional power."

    OK, as I have established as fact, it IS perfectly legal for US intelligence to monitor foreign communications without a warrant...

    That's established as fact..

    OK Let's take a look at domestic laws..

    Cops get a warrant for Joe Blow's phone for illegal narcotics. During the course of this LEGAL monitoring, Jon Public calls Joe Blow and says something about having illegal guns for sale.

    Using this NEW information, cops can now get a warrant to monitor Jon Public's phone...

    A textbook example of how one legal warrant provides PC (probable cause) for a SECOND legal warrant on a totally unrelated crime.

    Everyone with me so far???

    OK, so what have we learned??

    It is perfectly legal for US intelligence services to monitor foreign communications without a warrant..

    On the domestic side, if evidence of a crime is learned during the execution of a legal warrant then this new information can be utilized as PC (probable cause) to obtain a NEW warrant to monitor the subject of the NEW crime...

    OK, so how does this all tie in to HR6304??


    We have legal authority for US intelligence services to monitor foreign communications.

    Interspersed with foreign communications is American communications..

    During the execution of legal monitoring, evidence of crime is flagged. Anything else is NIV'ed..

    Once the flagged item is analyzed, it is determined that it either originated or destinated in US Soil or it involves a US Citizen. One this information is learned, a warrant is obtained based on PC (probable cause) from a legal and constitutional monitoring.

    I'll be here all week. Be sure and tip your waitresses....


  12. [12] 
    Michale wrote:

    As far as Obama supporting HR6304, I think he did a very brave and principled thing.. Which is why I am supporting Obama..

    He has every political reason to kill HR6304. But he took a stand on principle and supported it..

    A good leader is someone who leads when everyone agrees with them.

    A GREAT leader is someone who leads when no one agrees with him....


  13. [13] 
    akadjian wrote:

    Your court cases are interesting but there seem to be several leaps of logic and questions begged.

    From the same Wikipedia article that you pulled your information from, here's my understanding of the court cases:

    1) The first two cases were challenges to the constitutionality of FISA and the rulings by the lower court simply held that FISA was constitutional.

    2) The 3rd case had to do with whether the government could use FISA to gather evidence of a crime. The decision ruled that the Patriot Act provided new latitude in surveillance and said that the government could collect evidence related to a crime as long as a substantial portion of the surveillance was of foreign powers.

    See also: (The Wikipedia article on this is very bad. Ah, the dangers of a free-pedia.)

    3) None of these cases have anything to do with Bush's circumventing the FISA law with the NSA surveillance program. The evidence collected suggests that the President circumvented the courts altogether and authorized the NSA's spying program which also intercepted domestic communications.

    3a) Attorney Gonzales admitted authorizing the program.

    4) The penalties for violating FISA are fines up to $10,000, up to five years in jail, or both.

    In addition, individuals could seek damages of $100 a day or no more than $1,000. The statute also authorizes punitive damages and an award of attorney's fees.

    One estimate has AT&T owing as much as $146,000 per individual with a phone in the U.S. if they were sued and lost. No wonder they want this bill.

    5) There doesn't seem to be much argument Bush and the telecoms broke the law. That's why they've fought so hard to amend it and provide retroactive immunity.

    6) I like how you mentioned "probable cause" in your argument. The warrant could be obtained with probable cause. That was the old FISA. Under the new bill, no probable cause is needed. There is also no need to prove that it's a foreign power or agent that is being spied on. The government can now spy on Americans.

    7) The new bill actually erodes our rights more.

    8) And, it provides protection to lawbreakers. And encourages companies to break the law in the future. Heck, if all you have to do is give a few dollars to some politicians, where's the incentive to obey any laws that regulate corporations?

    The question really comes down to one of our founding principles: Are we a nation where no man is above the law? Or is somehow the President more like a king and above the law?

    - David

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