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Friday Talking Points [74] -- Pirates And Torture

[ Posted Friday, April 17th, 2009 – 16:57 PDT ]

Pirates are in the news these days. So is torture.

What a strange set of sentences that is to begin an article about the twenty-first century world we live in. But pirates are attacking ships with regularity off the coast of Somalia. This has been going on for years, but Americans just realized it is happening (because an American ship was just attacked). And, while the two are not connected (and I am not advocating for their connection, sorry for the slightly-misleading headline), people are finally talking about torture after President Obama released the Bush torture memos to the public. We'll get to the Bush torture memos in a bit, but I'd like to begin with a proposed solution to the pirate problem first.

While the U.S. Navy pulled off a spectacularly successful rescue last week, this should not be seen by anyone as the ultimate answer to the problem. It's not going to end this way every time, folks, no matter how much of an optimist you may be. There are millions of square miles of open ocean to patrol, and we'd have to throw something like half our Navy at the area to adequately secure it. Which just isn't going to happen. There is a better answer to the problem which I haven't heard proposed yet, which is why I am doing so now.

The problem is not just one of open ocean. The businesses which do the shipping (and the insurance companies behind them) are willing to pay an occasional ransom and absorb it into the cost of doing business. The merchant ships are not in favor of arming their crews. The crews themselves are not trained for this sort of thing, even if there were no objection from the ships' owners. And gun laws within several countries which these ships visit would make such weaponry illegal. So, what to do?

The easy answer is to hire someone like Blackwater to do it for them. Now, Blackwater has a reputation which might provoke gasps for this suggestion, but isn't that exactly what we want? There is actually a time and a place for mercenaries (or "private security guards" if you will), and this seems to be a dandy one. When I say "Blackwater," of course, I do not refer to merely one company (they don't even call themselves that anymore), but rather to the concept itself of hiring someone who knows how to shoot a gun to protect your ship while it is in the danger zone.

This would remove several of the arguments against arming the crews, chiefly that they are not trained for such duty. And this also avoids the problem of guns on board the ships in ports, because the guns wouldn't ever be in port. A ship approaching the danger zone would helicopter in some guards, with their equipment, and they would be on duty while the ship traverses the zone. At the other edge, the guards could be flown off the ship and onto another ship about to make the journey in reverse.

As for legalities, isn't the "Law of the Sea" pretty much based upon the concept that every ship has the right to defend itself (with deadly force, if need be) against pirates?

And as for the cost of doing business, isn't it cheaper to pay guards to protect your ships rather than pay out multimillion-dollar ransoms? If it isn't, then how about an international law which fines anyone paying a ransom 100 times the value of the ransom? That would change the financial risk calculation in a hurry.

I'm no fan of Blackwater-style companies when they are doing what should be done by the U.S. military (as happened in Iraq), but I do believe they serve a purpose. And fighting pirates -- out where there are no bystanders or civilians to complicate things -- seems to me to be an excellent job for them to tackle.

Maybe I'm missing something, because I wonder why nobody else has suggested such a scheme. Sure, it would take some logistical planning, but it doesn't seem all that tough to match a crew of guards with each ship. And if we could avoid ridiculous standoffs between a lifeboat and the U.S. Navy in the future, then maybe it's time to consider it.

 

Most Impressive Democrat of the Week

Because Congress is on (yet another) vacation, the political world was muted this week. Except for President Obama, of course, who makes news wherever he goes.

Obama's biggest news this week (other than the dog rollout in the media) was releasing the "Bush torture memos." For doing so (instead of refusing and defying the courts), Barack Obama wins the Most Impressive Democrat Of The Week award this week.

Now, before you post irate comments about this, I would caution you to read through the Most Disappointing Democrat Of The Week section first.

Because while Obama's statement that he would not be prosecuting any CIA agents who actually carried out such torture has raised a storm of anger, what gets lost in this is the fact that Obama even released the memos at all.

He could quite easily have decided to stonewall the courts with a "national security" stance which would have kept the case dragging on for years, while the memos stayed secret. He could also have redacted major parts of the memos, so that anything truly embarrassing was blacked out and remained secret.

He did not do either of these things, even though he was under heavy pressure to do so from a certain faction within his administration. He released the memos anyway, and even critics begrudgingly admitted that the redactions were minimal.

But Obama will have to share his award this week with Senator Patrick Leahy of Vermont. Because Pat Leahy is not willing to sweep all of the Bush era under the rug (which Obama seems almost eager to do, wanting to "look forward" and not back). The Chairman of the Senate Judiciary Committee has been calling for a commission to look into what was done in all our names, and he has renewed his push for just such an investigation. He should be supported in his efforts to find out what was done, who ordered it, and what we're going to do about it.

So a second MIDOTW award goes out to Senator Leahy in honor of his tireless attempts to keep this issue alive and not just brush it aside. As he explains in his press release: "We must take a thorough accounting of what happened, not to move a partisan agenda, but to own up to what was done in the name of national security, and to learn from it."

[Congratulate President Barack Obama on the White House contact page and Senator Pat Leahy on his Senate contact page to let them know you appreciate their efforts.]

 

Most Disappointing Democrat of the Week

On the same subject, President Obama is also awarded a Most Disappointing Democrat Of The Week award, for his indefensible stance on prosecutions for the torture which happened under President George W. Bush.

The torture memos' release was a step towards accountability, but a very small one. The memos speak for themselves (read them in full, if you've got the stomach for it). The best commentary I've heard yet on the actual content of the memos comes from Dan Froomkin at WashingtonPost.com: "These memos gave the CIA the go-ahead to do things to people that you'd be arrested for doing to a dog. And the legalistic, mechanistic analysis shows signs of an almost inconceivable callousness. The memos serve as a vivid illustration of the moral chasm into which the nation fell -- or rather, was pushed -- during the Bush era."

Obama, in the statement he made about the memos' release, said the following:

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America's ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.

This is doublethink of the first order. Because the first paragraph simply cannot be reconciled with the second. "The United States is a nation of laws" sure sounds good politically, but if the laws can be broken and nobody held accountable, then we are not "a nation of laws." Otherwise any defendant in any criminal case in this country could say "I promise I won't ever do it again," and he would not just be found innocent, the case would be thrown out of court at that point. This is not "a nation of laws."

When I say doublethink, I mean doublethink in its worst sense. Consider, for a moment, what happened to the guards at Abu Graib. They were called "a few bad apples" and chucked in military jails for what they did. Their higher-ups were not prosecuted, or even truly investigated. Nobody (at the time) wanted to hear that the orders did actually come from higher up in the military chain of command.

So why are they different than CIA agents who may have been in the same Abu Graib prison at the same time doing similar (or worse) things to the same prisoners? What, exactly, is the difference between the two groups?

This is why Obama's position is not logical, not legally defensible, and not morally defensible. "I was only following orders" is not supposed to be an adequate defense for war crimes. Otherwise, a lot of people paid a penalty at Nuremberg that they shouldn't have. You simply cannot have it both ways.

You can argue many positions on this issue. You can argue for pardons, or prosecutions, or whatever. But whatever position you have, it should be consistent, both legally and morally. Either treat the CIA guys the same way we treated the Abu Graib guards, or else pardon the Abu Graib guys and insist that they were following legal orders at the time.

Obama, a former constitutional law professor, should know this. Which is why he also gets a Most Disappointing Democrat Of The Week award.

Be he will have to share this one, as well. Because we're also awarding another MDDOTW award to CIA head Leon Panetta. Panetta, formerly loved by liberals and moderates in California (and elsewhere) apparently led the fight not to release the Bush torture memos. It's his duty to protect the agency he now runs, and you can bet he was instrumental in getting Obama to announce at the same time that all CIA agents would not be prosecuted. And for that, he has earned his co-award with Obama for the week.

Once again, to sum the core issue up: "These memos gave the CIA the go-ahead to do things to people that you'd be arrested for doing to a dog."

[Once again, contact President Barack Obama on the White House contact page to let him know what you think of his actions.]

 

Friday Talking Points

Volume 74 (4/17/09)

Sorry this is such a grim column today, but the whole issue of torture is a grim one indeed.

For Democrats talking to the media this week, the grim nature of the subject needs to be brought out. So here are this week's Friday Talking Points, a grim bunch for the most part. I promise, I'll throw in something to lighten it up at the end, how's that?

 

1
   Bush torture memos

The first thing is to slap the correct name on the memos themselves. And never reference them without using the term.

"The Bush torture memos were released this week by President Obama, and I think they show what happens when executive power gets out of control. The Justice Department is supposed to give legal advice to the president, and tell him what he can and cannot legally do. Instead, as the Bush torture memos show, the people who were charged with doing so worked backwards. They took the result Bush wanted, and tortured the law itself to try and justify its legality. But the Bush torture memos fall far short of what our laws and international laws require of us as a country."

 

2
   Slamming a prisoner's head into a wall

This one is insidious. The media has already picked up on a euphemism from the memos -- "walling" -- which sounds like something Wall E the robot would do in his spare time. This needs to be smacked down before it catches on.

"I'm sorry, did you just say 'walling'? I have to explain that in plain English here. What you are talking about is wrapping a towel around a prisoner's neck, and repeatedly slamming his head into a wall. That's what people are now calling 'walling' and I think the American people deserve more than some namby-pamby term to describe what was done to people in our custody. Prisoners we held were beaten to death in our care -- let us not forget that. And let us not dismiss it by some euphemism. Call it what it is -- throwing a prisoner against a wall. Slamming someone's head into a wall. If that doesn't fit the definition of 'torture' then I don't know what does."

 

3
   Water torture

This is an old gripe, but now is the time to try again, in keeping with that last point.

"Can we stop using the term 'waterboarding' as if it was some new surf rage sweeping the California beaches? Call it what it is -- water torture. We used a torture method developed during the Spanish Inquisition. We have prosecuted Japanese soldiers for doing this during World War II, and we prosecuted our own soldiers for doing it in the Spanish/American War. We had the honesty to call it what it was back then, and we should have the same honesty now. Waterboarding is water torture. Period. It's not an 'enhanced interrogation technique,' it's not 'a technique which some have likened to torture,' it is, in fact, torture. Call it what it is."

 

4
   Room 101

Did anybody else notice the bit about the bug and the confinement box? One prisoner had an inordinate fear of bugs. So our answer was to lock him in a box and put an insect in with him, and tell him it was a stinging insect. It's unclear whether this was actually done, or just authorized. But the technique should be familiar to anyone who has read George Orwell's Nineteen Eighty-Four.

"Did you notice that bit in the Bush torture memos where he authorized stuffing a prisoner in a box and then putting in the prisoner's worst fear -- in this case, an insect -- with him? Does anyone else remember reading Orwell in high school? What we are talking about is 'Room 101,' where a prisoner had to face the torture of his worst fears. This is exactly what was authorized by the highest levels of our government. Room 101."

 

5
   What would you call it if it happened to your son or daughter?

Some may balk at using the word "torture," so be prepared to defend the word.

"You don't want to call what we did to prisoners 'torture,' is that what you're saying? Well then, I ask you: what would you call it if it was done to your son or daughter while wearing the uniform of the United States of America? If an enemy did this to American prisoners, what would you call it? Would you be quibbling about the legal meaning of the term, or would you be denouncing these enemies for 'torturing' American prisoners? I bet I know which term you'd use in that case, and I defy you to say otherwise. If it was your daughter, would you call it torture? Would you, or wouldn't you?"

 

6
   Rocky IV wiretapped

This is just too ironic for words. Senator Jay Rockefeller IV (or, as we like to call him here, "Rocky IV") thinks the NSA may have wiretapped his phone without a warrant. Excuse me while I weep some liberal crocodile tears for him. Boo hoo.

"Senator Rockefeller thinks he may have had his communications tapped by the NSA. I would feel sorry for him, except for the fact that he led the fight to gut the FISA laws and took a whole bunch of telecommunications industry money to write the laws to exempt them from any penalty for cooperating with the NSA's illegal wiretap program. If Rockefeller hadn't personally made it his highest priority to assure that nobody could ever find out in court what the telecoms and the NSA was up to, by now we might have some answers as to what they are doing. But since he led the fight to gut these laws to allow such illegal activity to go unpunished, it is hard to work up much pity for him now when he finds himself on the other end of the equation."

 

7
   Sorry, Rush!

OK, I promised you a cheerful end to this, and I'm going to deliver. First, a completely unrelated issue, though. Everyone should go support their local record store (my favorite is Amoeba in San Francisco) tomorrow, on "Record Store Day." Sorry for sticking that in this article, but I just heard about it myself.

But on to our amusing item of the week. Those mischievous folks over at the DCCC (the House Democratic re-election group) have posted a handy page for Republicans to issue their apologies to Rush Limbaugh. This is a one-stop shopping page for any Republican who says anything Limbaugh may not agree with. Since the immediate response by Republican politicians is to beg forgiveness from their de facto leader, the Democrats have helpfully made it easier for them to do so. Check out the DCCC's "I'm sorry, Rush" page, it's hilarious!

"I would like to say to Congressman Todd Tiahrt, in response to his calling Rush Limbaugh 'just an entertainer,' that the DCCC has a new helpful site where he can apologize to Rush much more quickly and easily than ever!"

 

Cross-posted at: Democratic Underground

Cross-posted at: The Huffington Post

 

-- Chris Weigant

 

33 Comments on “Friday Talking Points [74] -- Pirates And Torture”

  1. [1] 
    fstanley wrote:

    It has been a tough week for Obama fans. I want him to do the right thing and not what is politically expedient. It is very disappointing when he behaves like a politican instead of a force for good. I knew that he was not perfect but it is still hard to have it confirmed.

    ...Stan

  2. [2] 
    Osborne Ink wrote:

    I can't fault any of the TPs, but I have to disagree on two points.

    First: the solution to Somali piracy is on land, not at sea. Ultimately, we'll need to have a ground presence in that country again (or else play defense on the ocean until Somalia figures its own way to stability -- which could take forever). That won't be politically popular, but I would note that the US has had an active troop presence in Somalia since 2001. Like the troop mobilization to invade Iraq, this fact has managed to stay under the public radar. Something like that may be needed -- and let's face it, how many news crews are in Mogadishu these days? The number of journalists with access to the lawless pirate towns is probably quite small.

    Second, what you're seeing in this "disappointment" with Obama is the de-politicization of the judiciary. He wants Congress to take this particular hot potato and stay the hell away from it himself. And really, it **IS** the role of Congress to hold hearings and so forth -- remember that this is a constitutional scholar we elected.

  3. [3] 
    Michale wrote:

    While the U.S. Navy pulled off a spectacularly successful rescue last week, this should not be seen by anyone as the ultimate answer to the problem.

    Sorry, but this is factually and historically incorrect..

    3 words to support my position.

    El Al Airlines...

    'nuff said..

    Reading on (I really need to respond to the ENTIRETY of your comments.. :D) you seem to agree that force IS the answer to piracy. And, by extension of that reasoning, force would be the answer to terrorism..

    Addressing your Most Disappointing award, your stance that the CIA agents should be prosecuted seems to contradict your earlier position, IE keep torture illegal, but allow for extenuating circumstances in cases where torture is necessary, warranted and, ultimately successful...

    This is well hashed out ground between us. My position hasn't changed much.

    Torture CAN be effective..

    Torture CAN produce actionable intel..

    Torture is a useful tool in the CT arsenal and must be available in actions to safeguard this country..

    "No great country has ever been saved by 'good' men. Because good men will not go to the lengths that will be necessary."
    -Horace Wapole

    Well then, I ask you: what would you call it if it was done to your son or daughter while wearing the uniform of the United States of America?

    This seems to be a take-off of your column that brought you and I together back in Sep of '06.. :D Namely, would you want your son or daughter tortured?

    Let me rephrase that...

    Would you want some scumbag terrorist tortured if it would absolutely and positively save the life of your son or daughter?

    Anyone who answers anything but "HELL YES" is lying or is not a parent...

    Don't get me wrong, I am all for calling a spade a spade. If it's torture, then dammit, call it torture...

    Torture is a terrible, ugly and immoral act.. As are many acts that the men and women charged with our security and safety must do.

    Such is the nature of the beast...

    Michale......

  4. [4] 
    Osborne Ink wrote:

    Michale, you suffer a persistent delusion that torture works. But there is a cure.

    A team of masked men can kidnap you, keep you isolated for weeks, and make you completely dependent on them.

    They can humiliate you for days at a time between torture sessions.

    Oh, and the torture will be exquisite. We'll even have a doctor on hand to make sure the torture doesn't kill you or leave any really nasty marks.

    They won't tell your family where you are, and they'll even make threats against your family. They might even talk about making it a family vacation so the kids can enjoy the torture, too.

    Somewhere along the line, you will confess. you will invent things to confess. You will do whatever it takes to make the torture stop and to prevent the torture of your loved ones. You will beg them to be **allowed** to confess.

    Michale, there's a reason why these "interrogation tactics" were invented by the KGB, Gestapo, etc... It's that the inventors weren't interested in information. They wanted CONFESSION.

    Now take a deep breath and repeat: "Jack Bauer is only a television character...24 is not real, it is a TV show..."

  5. [5] 
    LewDan wrote:

    Chris,

    The U.S Justice Dept. asserted "intensive" interrogations were not torture and legal. The President authored the program and Congress consented. Americans, by mutual agreement, set up that system to determine "the law."

    Isn't accepting their determinations, absent SCOTUS decisions to contrary, "the law?" Doesn't calling for "consistency" from Pres. Obama while advocating prosecution of people for NOT breaking the law, (because "the law is the law!") a little... in-consistent?

    Your position is each person must make their own legal determinations because... "the law, is the law?!" Sounds more like anarchy.

    You might want to read that Declaration Of Independence thingy again. The law, is not, and never has been -- "the law." We care about justice, not "the law."

    The Geneva Conventions exist because the Nuremberg Tribunal retroactively made Nazi acts criminal. The law is a means to an end, not an end itself. Laws exist to promote justice.

    Prosecute Pres. Bush, his cabinet, the Justice officials who signed-off... by all means! Throw the book at THEM!

    But the federal agent or service member on the short end of the stick, legally ordered to execute official U.S policy? -- Because "the law is the law?!"

    WE have more culpability than they do. WE elected Bush (twice!) WE elected Congress. They were OUR representatives. WE supported the war on Iraq, and Iraq and Guantanamo as "extra-judicial" territories. The government, the system, that advocated, conducted and condoned torture is OURS. WE created it. WE financed it. We maintained it. And WE are responsible for it.

    We're not talking about some "rogue" agents. We're talking about prosecuting civil servants, our employees, for doing what their bosses, us, told them to do... obey Congress, Justice and the President.

    Your call to prosecute the torturers for not disobeying their orders is injustice until and unless the superiors who GAVE those orders have been prosecuted. And that, would include us.

    Are you blogging from prison because you haven't paid taxes in the last five or six years? Or did you provide financial aid to the Bush terrorists who tortured? Financial support of terrorists being one of the reasons some were imprisoned and tortured to begin with. How many congress-critters have been recalled for not stopping the torture, not impeaching Bush? Surely YOU at least TRIED to recall your Congress-critters?!

    We set up the system, pay for it, run it, and have done nothing to change it... But, -- let's prosecute the workers! Not management?! A strategy AIG would love... And you think Wall Street is a problem? WE ARE THE PROBLEM.

    Pres. Obama is the chief-executive. He's responsible for running the country day to day. Charting our future and addressing our past is what Congress is for.

    Sorry Michale. Didn't mean to agree with you... It -- just happened! -Lew ;)

  6. [6] 
    Michale wrote:

    @Osborne

    Michale, you suffer a persistent delusion that torture works.

    There is a reason for that. Because I know for a fact that it does.. Granted, that knowledge is based on personal experience and, therefore, cannot be substantiated. However, there is also a very specific example that has been made public.

    Torture CAN work. Torture CAN produce actionable intel. This is fact.

    Granted, it's not foolproof. It CAN lead to false information and dis-information. But, I can assure you with complete certainty that MANY aspects, actions and procedures of CT are not foolproof either. But they are necessary tools. Even if it is only 1% effective or even .001% effective, and that 1 time it saves just ONE innocent life, then it is worth it.

    Give you a perfect example. Using late 1990s stats, only about 8% of LEOs in the US has ever used their firearms. There HAVE been many instances where innocent people have been killed by a cop's weapon.. Using your argument against torture, you must then advocate that all cops be disarmed. Because innocent people CAN be killed or injured and it's rare that a cop needs his gun anyways..

    But that is a facetious argument because, as everyone knows (some more than others) a cops job is dangerous and it's better to HAVE a weapon and not need it than to NEED a weapon and not have it.

    So it is with torture. In the world of Counter Terrorist operations, it is infinitely better to HAVE the use of torture available and not need it than it is to NEED the use of torture and not have it available..

    Now, keep in mind that I only approve of torture under very specific circumstances.

    1. The subject is a known and proven terrorist.

    2. There is imminent loss of innocent life.

    3. It has been proven beyond reasonable doubt that the subject has actionable intel regarding the afore mentioned loss of life.

    Under these stringent conditions, I whole-heartedly and unequivocally approve of the use of torture.

    And, frankly, I am shocked that anyone would disagree with this...

    "Jack Bauer is only a television character…24 is not real, it is a TV show…"

    So is NCIS, so is ER, so is Star Trek, so is Battlestar Galactica..

    Yet ALL of those shows have reflected current events and/or provided social commentary on real-life prejudices and injustices...

    What you, and those that think like you, cannot grasp is the fact that, just because events have been fictionalized, doesn't mean it can't or doesn't happen in real life..

    One only has to read Tom Clancy's WEB OF HONOR to realize the accuracy of my statement..

    @LewDan

    Sorry Michale. Didn't mean to agree with you… It — just happened! -Lew ;)

    Scary, ain't it? :D

    Michale.....

  7. [7] 
    Michale wrote:

    Interesting article...

    http://www.washingtonpost.com/wp-dyn/content/article/2009/04/17/AR2009041702639_pf.html

    Says pretty much what I have been saying for years..

    Michale....

  8. [8] 
    Elizabeth Miller wrote:

    Chris,

    I'm gonna have to defer, for now, to the two constitutional law experts on this one who were elected to clean up a very big mess and agree with Matt, too.

    Both Biden and Obama are very well versed in constitutional law. And, they also understand the many critical challenges that must be met by their administration, including those challenges that result from the misguided and unconstitutional actions taken by the Bush administration. I really don't see that Obama's statement - which was made in the context of a very controversial release of the torture memos and meant to mute that controversy - is at all inconsistent with what Leahy is working toward.

    If Obama/Biden were to get involved in the nitty gritty of investigating the abuses of the Bush administration it would literally sap the energy and oxygen right out of everything else they MUST do...and the media would be all to blame. In fact, if it wasn't for the inept and incompetent media, the Obama/Biden administration may be able to do everything, including visiting accountability upon the Bush administration. I mean, it's not hard to imagine what kind of constant and prolonged media circus that would be...enough to derail everything, I am sure...and where would that leave us?

    Why not put the time and effort into ensuring that Congress does their job and support Leahy in holding the hearings as the first logical step to understanding what happened during the Bush administration.

    If that investigation leads to prosecutions by the Justice Department, then those prosecutions can proceed with as little politicization as can be possible...and, in the meantime, Obama/Biden can continue making sure that the economy recovers and that there are allies and friends at their side in Iraq, Afghanistan/Pakistan, and elsewhere where friends and allies will be nothing short of indispensable.

    I guess what I’m saying is that we should let this play out a while longer and see what happens with Senator Leahy’s initiative which I have to believe has the full support of Obama/Biden.

  9. [9] 
    BashiBazouk wrote:

    Michale-

    And, frankly, I am shocked that anyone would disagree with this…

    I think your ideas on torture are still flawed. First, I find it strange that using torture to save "just ONE innocent life" is fine and groovy but no thought is given to the opposite: terrorist organizations using the fact that we torture to recruit more terrorists thus indirectly causing the loss of innocent life. I wonder what that number currently is as well as the additional death rate for it. Do you think it's worth it if that additional death number is 10? 100? 1000? More?

    But the biggest problem I have with your scenarios of acceptable torture is their singularity in nature. It's always A terrorist as in one. This has been proven to be the worst possible use of torture. Sure you will get the "truth", but it will be sandwiched between many lies. Maybe too many to act on all of them. A group on the other hand, all the stories that come out of torture can be compared and cross referenced and is probably very effective. Though still morally questionable and probably still ineffective on the macro level, that is you indirectly cause more death than you save. I think torturing a single person is only effective for the silliness of written confessions.

  10. [10] 
    Michale wrote:

    @Bashi

    terrorist organizations using the fact that we torture to recruit more terrorists thus indirectly causing the loss of innocent life.

    This argument postulates the idea that, if we didn't torture terrorists, then no more terrorists could be recruited.

    This is a completely speculative and facetious argument that is not supported by ANY facts whatsoever...

    Sure you will get the "truth", but it will be sandwiched between many lies. Maybe too many to act on all of them.

    This pre-supposes that the interrogators has absolutely NO training, experience or expertise that would allow them to sift thru the BS and dis-information and get to the facts.

    I can assure you from personal experience that this supposition is completely and unequivocally wrong.

    Using this mindset, one can easily say that, "Oh, we shouldn't send men and women into space because there is no life support whatsoever." Or, more accurately, "We shouldn't have ANY kind of medical procedure because it's impossible to tell what is what inside a human body..."

    We CAN send men and women into space because we have highly trained men and women who know how to handle the dangers...

    We CAN have doctors to perform medical procedures because they are highly trained professionals who KNOW their chosen profession...

    Chris Farley:"A lot of people go to college for seven years!"
    David Spade:"Yea... They're called 'DOCTORS'" :D

    And we CAN have CT professionals perform torture because they are trained and skilled in interrogations. Training that allows them to separate the bulk from the BS...

    I think torturing a single person is only effective for the silliness of written confessions.

    And yet, THOUSANDS of American and British lives were saved because the Pakistani SIS tortured some low level AQ scumbag and was able to glean intel that lead to the disruption of an airliner plot that would have killed thousands...

    Like I posed the question above... If your family was in the hand of terrorists and their release could be GUARANTEED by the torture of a terrorist co-conspirator in custody, I am betting you would whole-heartedly support torturing the scumbag...

    What reasonable person wouldn't???

    Michale.....

  11. [11] 
    Michale wrote:

    @Liz

    Why not put the time and effort into ensuring that Congress does their job and support Leahy in holding the hearings as the first logical step to understanding what happened during the Bush administration.

    Why???

    Let me put it another way..

    If you could guarantee that such knowledge would be used for the betterment of the government and not as a political baseball bat, then I would say, "Go for it!!"

    But you can't, it won't and it will...

    Ergo, such hearings would not only be useless and counter-productive, they would actually harm this country...

    Michale.....

  12. [12] 
    Elizabeth Miller wrote:

    Michale,

    You make a very good point and that is precisely why I don't think Obama deserved the MDDOTW award this week...or, he should be sharing it equally with Biden. Obama/Biden seem to me to be laying the groundwork for a bipartisan - as much as that is possible - approach to bringing the Bush administration to account for their actions and taking it step-by-step...kind of like how the Somali pirate crisis was handled but on a much longer time frame.

    Whether the Senate Judiciary Committee can hold productive hearings will depend entirely on how well Leahy and Specter can work together. I must say that if any current committee chairman and ranking member can proceed with hearings on this topic that would be productive and meaningful, it would be these two senators.

  13. [13] 
    Elizabeth Miller wrote:

    I just re-read my post above and, for the record, I'd just like to say that using the example of the Somali pirate crisis was a bad analogy...very bad...it would be nice if that (and this) could somehow be edited outta here...and fast!

  14. [14] 
    Michale wrote:

    One only has to read Tom Clancy's WEB OF HONOR to realize the accuracy of my statement..

    DOH!!!

    That should read Tom Clancy's DEBT Of Honor.. Dunno what I was thinking..

    @Liz

    I see your point and yes, if Obama (and, to a lesser extent, Bidden) had their way, I believe that such hearings WOULD be bi-partisan and WOULD be for the betterment of the country..

    However, I believe that those on the Left wouldn't let Obama/Biden have their way and that the Left would use those hearings SOLELY as a political bat with which to continue to beat the Right over the head with.

    Let's give the Democrats 8 years and see how well THEY do with the country.... THEN we can discuss hearings... :D

    If these first few months are any indication, I have a feeling that the GOP will be swept back into power by a landslide in 2016.. Maybe even sooner...

    @CW

    LewDan made an extremely good point, one that really sunk in after sleeping on it...

    The CT operatives and interrogators were simply following orders therefore no prosecution is warranted.

    You might respond with the "Nuremberg Argument" (IE, it's wrong to obey an illegal order) but, as LewDan so eloquently states, by every legal and ethical definition the orders were fully and completely valid and the "law of the land".

    The fact that those orders violate ya'alls personal morality (as many orders in the military and/or CT operations probably would) is completely irrelevant to the questions of legality and prosecution.

    However, where LewDan drops the ball (no offense :D) is stating that prosecution of Bush and Congress Critters is warranted..

    Why??

    The system worked. Bush, as Commander In Chief, initiated actions based on Authorizations from Congress. It was pointed out that some actions (Gitmo, Torture, etc etc) MIGHT be going too far and not be part of the initial authorizations. So Bush went back to Congress, briefed the relevant Congress Critters on these new aspects, received authorization and then put those aspects into play..

    Where is the illegality??

    Was it illegal that it all happened in secret?? Not at all.. Such actions and procedures REQUIRE secrecy to be effective...

    Personally, I think it's a shining example of exactly how great our government works, despite the doomsayers from the Hysterical Left...

    Michale....

  15. [15] 
    LewDan wrote:

    Michale, unlike Gitmo interrogators the Bush admin DID violate the law and their oaths of office. While the interrogators acted in good faith the Bush admin knew, or should have known, that the practices were illegal. They swore an oath and are constitutionally bound to uphold the law. Its their job to ensure that practices are legal.

    Congressional authorization can't in any way absolve them, they are coequal, not subservient to Congress, unlike the interrogators. And that doesn't even consider the deceptions and bad faith displayed by Bush & Co. to gain public support and Congressional authorization!

    Also, I mentioned Nuremberg earlier because the "Nuremberg Argument" can't even be dignified as a "Catch-22" as its completely arbitrary. Nuremberg tribunals executed people in spite of finding no illegality by creating new crimes out of whole cloth and applying them retroactively. The real "Nuremberg Argument" was the same as the old argument... "might makes right."

    Now I happen to agree with the Tribunals, which was my other point, their decisions were just and the whole point of the exercise was justice not law enforcement, a distinction we too often ignore in promoting domestic injustices while hiding behind the hypocrisy of "law enforcement."

    And Chris, let me be clear, your comparison to the guards already convicted is "apples to oranges." Pres. Obama had nothing to do with their convictions. They may even actually BE "rouge" agents. I certainly can't envisage taking personal pictures of degraded prisoners under you care and publicly posting them home as pursuant to official orders for example...

    Be that as it may, before their guilt or innocence comes into play we need to face the fact that their trials were tainted. Bush clearly withheld exculpatory evidence and lied to the court just as surely as he lied to us in withholding the "torture memos" and denying what was clearly U.S. policy. I've serious doubts about the veracity of other seniors in the chain of command as well. If the guards DID do anything wrong it needs to be proven in FAIR trials. Then if they're convicted we can talk.

    But for now, their lawyers should be petitioning the court and unless appeals are denied Pres. Obama has no business in it at all.

  16. [16] 
    Michale wrote:

    Michale, unlike Gitmo interrogators the Bush admin DID violate the law and their oaths of office. While the interrogators acted in good faith the Bush admin knew, or should have known, that the practices were illegal.

    "If the President does it, it's not illegal."
    -Richard Nixon

    Of course, each and every one of us knows that this is a completely innaccurate statement. Even the President Of The United States is not above the law...

    BUT....

    But, if the President briefs Congress and Congress authorizes the action (which is the case here) then it is not illegal.

    That fact that the notifications and authorizations were done in secret is irrelevant.

    As I said above, the system worked.

    Bush felt that the USE OF FORCE authorizations clearly authorized the actions he took. So no crime was committed. Bush was informed that there MAY be some issues with certain actions. Bush went to Congress for authorization. Congress provided said authorizations, both privately and publicly (The MCA).

    All nice and legal...

    Michale.....

  17. [17] 
    Michale wrote:

    Let's lay bare the argument so that positions held are unequivocal..

    If it is established as fact that torture DOES produce actionable intel in EVERY instance and it is guaranteed that ONLY terrorists will be tortured.... If these points are established as undeniably and unarguably factual....

    Would anyone here have any problem with torture?

    Michale.....

  18. [18] 
    LewDan wrote:

    Michale, the President is required by the Constitution, the highest law, to administer the law. That same Constitution reserves unto Congress the EXCLUSIVE authority to legislate.

    The President DOES NOT get to write his own laws even if some select congressional committee raises no objection. A committee's failure to faithfully execute their own responsibilities to the rest of Congress and the American people does not overrule the law or the Constitution. Laws must be voted upon and endorsed under the rules of both houses, federal statutes, Supreme Court precedents and signed into law by the current sitting President.

    The President knew that, the Vice-President knew that, the Cabinet knew that, the Office of Legal Counsel knew that, the Senate and the House of Representatives knew that... And they willfully violated their oaths of office, their responsibilities as officers of the court, their obligations under international treaties, their obligations under federal statutes and their Constitutional obligations... THEY BROKE THE LAW.

    The President violated the Geneva Accords -- HE BROKE THE LAW. The President withheld information from Congress denying their right to advise and consent -- HE BROKE THE LAW. The President, through signing statements, refused to faithfully execute the law as required by his oath and the Constitution -- HE BROKE THE LAW. The President refused prisoner's habeas corpus -- HE BROKE THE LAW. The President perjured himself in representations to Congress -- HE BROKE THE LAW. The President failed to report and willfully concealed prisoners in U.S Custody -- HE BROKE THE LAW. The President abused an authorization for use of force in compelling compliance with U.N. directives to wage an undeclared and unauthorized war that had nothing to do with WMD's -- HE BROKE THE LAW. The President perjured himself to the courts claiming torture was not U.S policy and National Security precluded court review -- HE BROKE THE LAW. He wiretapped U.S. citizens in violation of the Constitution and FISA -- HE BROKE THE LAW...

    Michale, I could do this all day, Bush as President for eight years, and none of it, especially not the brou-ha-ha over torture even scratches the surface of his war crimes. He misrepresented to obtain, and then misused an authorization to enforce U.N. sanctions to wage an unprovoked war when he knew the underlying WMD "justifications" were baseless.

    He, not Congress, declared war on a nation he knew posed no threat to us, in violation of the Constitution and international law, and hundreds of thousands, perhaps a million Iraqis have died in consequence. Now I don't know about you but in my book murdering a million people makes you a MAJOR war criminal!

    The Use of Force did indeed authorize actions, but NOT the ones he took! It was obtained fraudulently, and even if he had "valid" authorization to invade a harmless nation and murder a million people that wouldn't absolve HIM of being a war criminal, it would merely indict Congress also!

    Now granted none of my accusations are PROVEN, but that's what trials are for. There's more than enough proof that the accusations are at least reasonable enough to warrant -- hell, DEMAND, war crimes prosecutions! (Not that I think it'll ever happen.)

    As to your second comment, It is NOT a fact that torture always produces actionable intel so don't even go there. I'm not wasting my time on red herrings.

    Under the reasonable, limited and well-defined conditions you've previously espoused I've no problems with torture at all. Doesn't mean it should be legal. Doesn't mean it should be policy. Just means it can't be eliminated as a tactic which may be used in extremis, like murder. I'm against that too. I don't think it should be legal either. I think its MUCH worse than torture. John McCain seems to've survived torture and lived a long, rich, full and productive life. The dead, however, are still dead.

    But being against murder didn't stop me from volunteering for the Army. I've no more qualms over the use of deadly force in defense than I have over torture as the only option to save lives. I would hope that I've also made it clear that I'm both a firm believer in personal responsibility and no worshiper of the law. I believe in justice.

    When laws are inappropriate to a situation, unjust, or counter-productive they must be ignored. The Founding Fathers new that. This country exists because they acted on that belief. It isn't in the Constitution, that's only the highest law in the land. Again I commend all to the Declaration of Independence where the founders recognized inalienable rights, rights beyond any law, even the Constitution... I think you'll find that the right to life is in there...

    There can be no legitimate laws prohibiting one from defending oneself. We can demand only the minimum necessary force -- but if that's torture or murder, then they're legal. And if they weren't and your life were at stake, the life of a loved one, or the life of those you've sworn to protect, who'd care if they were legal? Not me.

    Is that unequivocal enough for you?

  19. [19] 
    Michale wrote:

    Several points... Not necessarily in any order..

    The President did not violate the Geneva Conventions, because terrorists (like spies and saboteurs) are not listed as protected entities under the auspices of the Geneva Conventions.

    Read the AUMF/IRAQ here

    http://74.125.47.132/search?q=cache:nNp4IfofyekJ:www.pjw.info/iraq_terrorauthorizations.pdf+%22Authorizations+for+use+of+military+force%22&cd=2&hl=en&ct=clnk&gl=us&client=firefox-a

    and the AUMF/Terrorism here:

    http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html

    You will note that Congress, on 2 distinct and separate occasions, gave the Bush Administration blank checks, in dealing with terrorism and Iraq **IN ANY WAY THE BUSH ADMINISTRATION SAW FIT**..

    Ergo, anything the Bush Administration did, that can be shown to have ANY context within the afore mentioned AUMFs is completely authorized by the US Congress and perfectly legal.

    Now, if Congress didn't like the way things were going, Congress could have revoked their authorizations..

    You can argue morality and other such subjective arguments until the cows come home..

    But that will not change the basic facts..

    Bush did it....

    Congress authorized it...

    Hence, no prosecutions are possible...

    Why do you think impeachment of Bush was never an option??

    Because you can't impeach a President for doing everything that Congress authorized him to do...

    It's really THAT simple...

    As to your second comment, It is NOT a fact that torture always produces actionable intel so don't even go there. I'm not wasting my time on red herrings.

    It's that "red herring" that is at the heart of this debate...

    That "red herring" will determine exactly what the argument is...

    If (as I suspect) those who are anti-torture claim that they would not support torture under ANY circumstances, even if it were to produce actionable intel, then that would totally decimate their "torture is useless" argument. Those people are simply morally averse to ANY use of force, whether it is morally, ethically and/or legally justified or not...

    Those who live in the REAL world know that torture CAN be effective, HAS been effective and HAS saved lives..

    You and I seem to be in agreement with regards to the use of torture under very specific conditions.

    Where we differ (IMNSHO) is whether or not the Bush Administration was properly justified in it's actions...

    Michale.....

  20. [20] 
    LewDan wrote:

    Michale, people kidnapped off the streets of Afghanistan and sold to the U.S. because we're stupid enough to pay for them are not terrorists. Iraqis fighting an invasion force are not terrorists. While I doubt that even Bush was incompetent enough to have not incarcerated ANT terrorists, those who were incarcerated and not terrorists were most definitely violations of the Geneva Accords.

    And as I've pointed out earlier, Congress is also bound by the law. Retroactive authorizations do not mean Bush actions were legal. They mean that they clearly WERE illegal and Congress went on record in refusing to adhere to THEIR oath of office and constitutional duty to obey and enforce the law. Morality has nothing to do with it. I'm talking about the law.

    You may at some time have heard that two wrongs don't make a right? The process by which laws are enacted is well known and unambiguous. Any grade-school student who paid attention in civics class can tell you what it is.

    That same process must be followed to amend or revoke laws and to renounce treaties. Congress is no more free to do as they please than the president. No-one is above the law. Pres. Bush as the chief-executive at the authority and obligation to craft policy. But ONLY WITHIN THE LAW!

    Yes, I generally agree with your position on torture. I also agree that the absolutism expressed in comments to the effect that torture can't ever be appropriate or necessary are irrational and unrealistic. I even share your faith in trained CT professionals.

    I do not, however, share you faith in spoiled rich sociopaths who happen to be the sons of men influential enough to rig and steal presidential elections for them.

  21. [21] 
    Michale wrote:

    Michale, people kidnapped off the streets of Afghanistan and sold to the U.S. because we're stupid enough to pay for them are not terrorists.

    Assumes facts not in evidence..

    Iraqis fighting an invasion force are not terrorists.

    No one, least of all me, ever claimed otherwise..

    those who were incarcerated and not terrorists were most definitely violations of the Geneva Accords.

    Please cite relevant and applicable Geneva Convention Accords that support your claim.

    But ONLY WITHIN THE LAW!

    The law that is created and defined by Congress..

    "Executive Sanction" is a perfect example. At one point in our history, assassinating foreign leaders was illegal under US Law. Then it was made legal. Then it was changed to being illegal again...

    The "Law Of The Land" is what Congress says it is at any given point in time and space.

    If you want to bring up the US Constitution, by all means, do so...

    But, just remember.. The US Constitution, at one point in space and time, severely disputed the notion that all men (and women) are created equal..

    If the President does it, after Congress authorizes it, it is not illegal..

    Those are the facts, unpleasant though they may be.

    Yes, I generally agree with your position on torture. I also agree that the absolutism expressed in comments to the effect that torture can't ever be appropriate or necessary are irrational and unrealistic. I even share your faith in trained CT professionals.

    I do not, however, share you faith in spoiled rich sociopaths who happen to be the sons of men influential enough to rig and steal presidential elections for them.

    Fair enough...

    I have faith in our elected leaders, past and present..

    You do not..

    Seems to me to be a minor point in the grand scheme of things.... :D

    Michale.....

  22. [22] 
    LewDan wrote:

    Google is available to all. There have been both Australian and Canadian examples recently, I believe, of freed prisoners whom the U.S. admits were not in fact terrorists. The fact that even Bush refused to call Gitmo prisoners "terrorists" and that out of hundreds of "enemy combatants" held for upwards of five to six years, the number of convicted terrorists could be counted, even by you, without taking off your shoes is also strong anecdotal evidence that actual terrorists were few and far between.

    As to "the law that is created and defined by Congress..." just where does Congress get that authority? Its called the law. Its called the Constitution. It was not created by Congress. IT created Congress.

    Had, as you claim, Congress been insane enough to transfer their authority to legislate to Bush with "blank check" AUMFs there's the small problem that Congress has no authority to do so. The Constitution gives the authority to legislate exclusively to Congress and requires the President to uphold the law, it decrees that amendments require both Congressional approval and ratification by the individual states.

    So even if we're all going to act like 2-year-olds and pretend that since Congress didn't specifically impose limitations on the President in every act, his having an "Ivy League" education and being required to swear an oath to uphold and defend the Constitution apparently not being a big enough clues, you're still faced with the fact that Congress, by law, can't just give the store away without the consent of the states.

    And I'm black. I have plenty of personal and historical precedents to fully justify my lack of faith in elected leaders past and present. And, trust me, to us it has always been a MAJOR point in the grand scheme of things. But I too get that you do not and will not agree with me on this -- so be it!

  23. [23] 
    Michale wrote:

    @LewDan

    OK, if I understand your position correctly.

    You and I are on the same page insofar as torture CAN be effective, torture CAN produce actionable intel and torture SHOULD be a tool in the arsenal of CT Operations.

    Where we part company is whether or not the "tool" has been wielded properly in the past..

    I can live with that....

    As an aside, it's a shame that the "TORTURE IS NEVER EFFECTIVE" crowd has been silenced... I would sure love their input on this little gem...

    Before he was waterboarded, when al Qaeda leader Khalid Sheik Mohammed was asked about planned attacks on the United States, he ominously told his CIA interrogators, “Soon, you will know.”

    According to the previously classified May 30, 2005 Justice Department memo that was released by President Barack Obama last week, the thwarted attack -- which KSM called the “Second Wave”-- planned “ ‘to use East Asian operatives to crash a hijacked airliner into’ a building in Los Angeles.”

    http://www.cnsnews.com/public/content/article.aspx?RsrcID=46949

    Thousands of people in Los Angeles are alive today that WOULDN'T be, if the hysterical Left had had their way...

    Kinda really brings it home, doesn't it??

    So, please.. Don't continue the fiction that torture is NEVER effective and NEVER saves any lives...

    Michale.....

  24. [24] 
    Chris Weigant wrote:

    To all -

    I invite you all to read today's column ("In Defense Of Dick Cheney") for some of my thoughts on this matter. At the very least, the collection of links provided by Dan Froomkin should certainly add some fuel to the raging debate.

    I also invite you all to read my first column on torture, wherein Michale and I crossed paths for the first time. Sadly, the Huffington Post comment thread (which ran around 150 or so comments) has been lost. This is a real shame, because the arguments pro and con (from more than just Michale and me) were very interesting to read. In any case, I provide the link, for those interested, to a column written 7/7/08, titled "So Is Torturing A Daughter OK?"

    OK, on to some specific comments. [I'm reading these in order, so some names may be used multiple times here for multiple comments.]

    Stan -

    You are experiencing "Obama Letdown Syndrome." Place a cool cloth over your eyes, and repeat: "He can't walk on water" over and over again until you feel better.

    Heh.

    Osborne Ink -

    You may be right about the land side of things, but when other countries are just letting go any pirates they capture, it seems like kind of a pointless waste of time. If they knew they were going to spend a long jail term away from their families, some of these pirates might think twice about it. Or be shot for doing so, as with the three the Navy took out. In other words, why not try getting a little tougher at sea before we think about invading? But you're right, when pirates have land bases they are safe within, there may be no other answer than to attack such bases eventually. The problem is the hostages make dandy human shields for these pirate bases. Would you attack if you knew some hostages were likely to die, or not?

    Michale -

    I feel like one or the other of us should be twirling a pencil-thin moustache and saying "So, we meet again..." in a menacing tone of voice.

    Heh. Sorry, this is a serious subject, and I shouldn't be cracking jokes.

    I think you misunderstood me when I said: "While the U.S. Navy pulled off a spectacularly successful rescue last week, this should not be seen by anyone as the ultimate answer to the problem."

    What I should have said, to be more accurate, is: "The Navy's spectacularly successful rescue last week should be seen as a tactical victory, but not a strategy for success in the fight against pirates. If we continue to be put in these situations, it is impossibly optimistic to think that every one will be resolved as perfectly as this one, meaning that we need a better answer to the problem as a whole."

    I think we'd even agree on that. I wasn't saying the Navy didn't solve this problem successfully, but rather that we can't expect it to happen 100% of the time this way. What would we all be saying now if the headline had been "Navy kills three pirates, hostage also dead in shootout"?

    That was my point, however badly I tried to make it.

    Also, if you read closely, I didn't actually take a stance either way on the CIA prosecutions. I was merely pointing out that if the people carrying out the orders are now going to be exempt, then we need to rethink the sentences for Lynndie England and even what happened to General Karpinski (doing that from memory, may have spelled them wrong) at Abu Graib.

    My personal preference is to see the lower people in the chain of command pardoned, and prosecute the higher-ups if a case can legally be made for doing so ("legally" and "in the court of public opinion" are two different things).

    All I'm basically arguing for here, though, is consistency.

    And I've got a thought experiment for you -- Would you torture a suspected terrorist if you knew that by doing so you could (a) possibly save the lives of thousands of Americans, but also (b) endanger the lives of thousands of other Americans if you were wrong and the man was innocent?

    Abu Graib was the best recruitment tool Al Qaeda ever got. This has to be factored in to the equation.

    LewDan -

    Ah, but what about Nuremberg? "I was following LEGAL orders" is just not supposed to be a defense against war crimes, which is really what we are talking about here. We hanged people at Nuremberg for following legal orders. So the legality of them isn't really in question. And yes, that sets up the standard that every person IS supposed to question the legality of their orders. Ask any soldier -- they are briefed on this during training. They are not just allowed, but actually REQUIRED to refuse illegal orders (although they certainly should expect to be court martialed afterwards, to determine who was right). But it is their duty to do so.

    Which is why I favor pardons. Pardoning the lower levels says "you thought you were doing the right thing, even though you were breaking US and international law by doing so, so we think you should not be punished as a result." This fits legally, it seems to me, although others would argue for prosecuting everyone all the way down the chain of command.

    Doesn't it bug anyone else that the Abu Graib guards were doing their thing at exactly the same time CIA officials may have been in the same place doing the same (or worse) things, and legally we're letting one group off the hook, but not the other? It bothers me, I can tell you.

    Wow, OK, I wrote all that before I finished reading your entire first post. You make an excellent case, and I want to see Democrats (who supposedly were briefed on all this -- the Congressional leaders on the short list for intelligence briefings) as well as Republicans in Congress answer for their involvement as well. I too am actually focused on the higher-ups. In making the case for reconsidering the Abu Graib people (now sitting in prison for what they did), I apparently gave the impression that I was for prosecuting everyone in the CIA as well. I am not, I just want to see consistency. Which is another way of saying I think there's an injustice here.

    [Note: OK, this response is getting long, so I'm going to break it up into smaller comments so I don't lose things I type (it's happened before). So, more to come...]

    -CW

  25. [25] 
    Chris Weigant wrote:

    Michale -

    Now, keep in mind that I only approve of torture under very specific circumstances.

    1. The subject is a known and proven terrorist.

    2. There is imminent loss of innocent life.

    3. It has been proven beyond reasonable doubt that the subject has actionable intel regarding the afore mentioned loss of life.

    But I just don't see how (3) can ever be accurately known.

    And if you knew that torturing a suspect had a 1% chance of causing thousands of Americans to die as a direct result, would you still do it? I'm not being facetious, I just want to know what your calculation would be if you factored this possibility in.

    As for that Washington Post article, I found it amusing. It's kind of the nature of the beast, though. By definition, almost, those who don't feel strongly about something will likely not bother to take the time to post a comment about it. No?

    Elizabeth -

    Actually, I think Obama has tried to (mostly successfully) dodge this very issue, throughout the campaign (when it was probably smart to do so) and since. He knows it is a gigantic, partisan headache, and he's not exactly looking forward to it. His hand was forced today, and already the news media (find a transcript of tonight's NBC news to see) is portraying him as "flip-flopping" and "going back on his word" for something Rahm Emanuel said. It's really a no-win situation for Obama politically, so I expect him to be reluctant throughout the entire process. But that's OK if someone else (Leahy, Feinstein, the AG) gets out in front of it and takes the heat for him. Reluctant is a lot better than the stonewall we got from the Bush folks. I think we actually agree on this.

    But still, you can't use the line "rule of law" without admitting that what that phrase actually means is "when you break the law, you pay some sort of price." Which Obama was not doing, which is why I called him on it. Either stop saying the phrase to make your case, or live up to it. And as for "looking forward and not back", oh please. ALL laws are prosecuted "looking back" because all crimes tried in court happened IN THE PAST. So you can't make this argument at all.

    So while I am not as confident as you that the Obama and Biden support Leahy, I still think some sort of truth commission is necessary, on the lines of the 9/11 commission. We can talk about prosecutions later, but let's at least examine the evidence before we get there.

    BashiBazouk -

    Thank you for making the recruitment argument. It simply has to be factored in, as well as the fact that when you torture, and you get lies, you wind up sending the CIA all over the world chasing down lies, which actually winds up HELPING the enemy, because it ties up the CIA in quite possibly a critical situation. This actually happened with one of the tortured prisoners (KSM? I forget, almost certain I read about it in the Washington Post, see Tuesday's column on Cheney, it's probably in that collection of links somewhere).

    More later, promise...

    -CW

  26. [26] 
    Michale wrote:

    @CW


    I feel like one or the other of us should be twirling a pencil-thin moustache and saying "So, we meet again…" in a menacing tone of voice.

    Hehehehehehe Now THAT was funny.... :D

    Regardless, my point is that the exact actions of the Navy Seals is what needs to be done to curtail piracy in the region.

    One can argue all the liberal talking points about the poor under-privileged and the quality of life and all that other felgercarb...

    But, as long as piracy is effective and profitable, it WILL continue.. So, the obvious solution is to make piracy IN-effective and NON-profitable..

    And how do you do that? The same way the Israelis made El Al one of the safest airlines in the world. By responding with brutal, efficient and over-whelming force. (Entebbe, anyone??) The Israelis made it so that NOTHING was to be gained and EVERYTHING was to be lost by attacking an El Al airliner.. Hence, attacks against El Al dropped to virtually nil...

    So, how does this translate to the Piracy issue? Countries that have standing navies contribute to a peace-keeping force in the Gulf Of Aden. Any time a pirate ship is identified, it is summarily blown out of the water. No quarter, no warning shots, no negotiation. Just a couple of $720K Cruise Missiles and se fini....

    You do this and word will get around that there is no profit and no future in piracy. Pirates won't be able to get enough men to crew a bathtub dinghy...

    Problem solved.

    And I've got a thought experiment for you — Would you torture a suspected terrorist if you knew that by doing so you could (a) possibly save the lives of thousands of Americans, but also (b) endanger the lives of thousands of other Americans if you were wrong and the man was innocent?

    I would have to weigh the benefits vs costs. What are the odds of saving innocent lives vs the odds of endangering innocent lives.

    I can state one thing though, completely unequivocally. I have no desire to inflict pain or death on an innocent person. But I would not let the possibility of that happening deter me from doing my utmost to save innocent lives..

    Abu Graib was the best recruitment tool Al Qaeda ever got. This has to be factored in to the equation.

    It's not as big a factor as you might think... The simple fact is, if Abu Graib hadn't happened, it would have been something else. Even if the enemy had to make shit up...

    That's the point that everyone that puts forth that line of reasoning seems to miss..

    It's like saying that if there were no Jews in Germany in the late 30s and early 40s, there would have been no Holocaust.. That's facetious reasoning. If it weren't Jews that were massacred, it would have been another group. The "problem" wasn't the Jews, it was the psychotic mentality of the leadership.

    So it is with terrorists. The US and it's actions are not the cause in this Cause and Effect scenario.. It's the psychotic mentality of the terrorist that will latch onto ANY Cause to produce their desired Effect. And, if there isn't any Cause, then they will just make one up.

    Michale.....

  27. [27] 
    Chris Weigant wrote:

    OK, I have to admit I wanted to get to all of these comments tonight, but I do not have the time to do so. I did have the time to at least read everything posted, though. And I have to say, on the "legality" arguments here which have bounced back and forth, everyone needs to consider another citation. Because the Convention Against Torture -- proposed by Ronald Reagan, and ratified by the US Senate in 1994 -- are also relevant law.

    Glenn Greenwald, who is a constitutional law expert, examines this in a posting on Salon in January, which I invite everyone to read. His "Update III" leaves a tiny bit of wiggle room, but it seems quite clear to me that there simply is no argument for not (at the very least) investigating and fact-finding, as could be accomplished by a 9/11 type commission. Contrary to some arguments, a truly bipartisan group could avoid at least some of the politics swirling around the issue.

    There are other laws in play here than just Geneva and our own Constitution. Make of this what you will.

    I will try to catch up on all the comments as the week progresses, sorry for the continued delay.

    -CW

  28. [28] 
    LewDan wrote:

    Evaluating risks v benefits has always been the crux of the debate. Its why the SEALS attacked when they did and why they didn't attack on numerous other opportunities. Its also why I share Michale's faith in military and intelligence professionals.

    That's why Michale's three conditions for torture are acceptable (although #3 must also include "and there's no other reasonable method with any likelihood of success.") Its unlikely those three conditions would be met with any great regularity but when they were the benefits of torture would outweigh the risks IMHO.

    But that same risk/benefit calculus is why I'm against legalizing torture, in large part because of the unintended consequences (such as promoting terrorist recruitment) associated with it, but also because of the inevitable abuses which would ensue, nationally and internationally.

    While I appreciate Michale's concern that CT interrogators acting in good faith and appropriately, are placed at greater risk, that's another of the risk/benefit calculations I'm willing to accept. The military in general faces such heightened risks as do other federal employees. (Such as air traffic controllers.)

    When Nuremberg tribunals spoke of "illegal" orders they meant illegal as in the "higher laws," "crimes against humanity," not illegal in some geopolitical context. When the U.S. military instructs troops in their obligation to disobey illegal orders, they mean illegal under U.S. law. U.S. troops do not have an obligation, much less a "right" to disobey orders that are simply immoral. Again, as Michale has pointed out, many routine military orders are immoral. War is immoral. How immoral an order has to be before prosecutions ensue is what Nuremberg was all about. And frankly, the only standard is whatever the winning side decides is the standard.

    But Chris, I think both you and Michale are ignoring that the law isn't only about crime and punishment. There are legal defenses written into law, chief among them self-defense and defending the life of another. Legal defenses supercede laws. Its a misconception that laws are inviolate, immutable, "the law is the law." Our system is based on the idea that no-one has the foresight to write laws that are always appropriate, always just, and always unimpeachable. That's why we have judges, juries, grand juries, appeals and pardons. Not because prosecutors are incapable of understanding and applying the law and not just to ensure the law isn't being misapplied, but also so that the law may be discarded at need.

    When the legal defense of self-defense or defense of another's life is employed, the "crime" isn't pardoned -- there was no crime. The defense supercedes "the law," that is the law! And that's what I'm talking about. Torture is immoral and barbaric and must remain illegal but in those rare cases where it truly is necessary it isn't and never will be illegal.

    It's not a totally fair system just the fairest anyone's been able to come up with. Pres. Obama isn't being inconsistent. He's applying the law as was always intended. We expect citizens to defer to the opinions of Justice and the President in matters of law unless the court says otherwise. That doesn't mean those opinions are legal, it means they must be presumed legal by citizens, else anarchy. If every individual were the final arbiter of what's legal it'd be pointless to even have laws.

    But the Executive Branch, Congress, and the Supreme Court are not required or expected to defer to anyone. The opposite, in fact. They are our "checks and balances." They are required to make their own objective, factual determinations. They are required to uphold the law. Put another way, CIA are obeying the law even when breaking it when acting in good faith. (Another of those legal defenses I alluded to earlier.) Bush and Cheney either obeyed the law or they didn't. And whether or not they obeyed the law is what determines if they acted in good faith. Mitigation isn't an issue. If they find the law a true impediment to legitimate official actions they can change the law, an option not available to citizens.

    ...As to pirates, put U.S troops on American shipping passing through the region. We're paying to keep the troops there already. Who cares if we can't protect an entire region that large. We need to protect shipping, not fish! American vessels are already paying for it, that's what taxes are for. Foreign vessels desiring U.S. protection could be offered the same service at cost. (And we'd still profit. As I said we're already paying to keep troops there.)

  29. [29] 
    Michale wrote:

    @LewDan

    That's why Michale's three conditions for torture are acceptable (although #3 must also include "and there's no other reasonable method with any likelihood of success.")

    Acceptable to me..

    When the legal defense of self-defense or defense of another's life is employed, the "crime" isn't pardoned — there was no crime. The defense supercedes "the law," that is the law!

    Well, I'll be dipped in shit! :D

    If torture is made illegal, it may force CT operatives to become criminals in order to do their jobs.. By invoking the "self defense/defense of others" argument, you have completely addressed my major concern.

    I am still constrained to point out that, by making (keeping?? I can't keep track of it anymore) torture illegal, it will give those political nuts an
    opportunity to use torture as a political baseball bat, ala the TelCo fiasco. However, by using the laws governing self-defense/defense of others, I can see where such political grand-standing may be muted, if not eliminated. I mean, what Congress Critter wants to go on record as prosecuting (and persecuting) an American that just saved thousands (if not millions) of lives..

    An immensely logical, yet elegant, solution LewDan... :D Kudos.

    Michale.....

  30. [30] 
    LewDan wrote:

    Michale,

    If only it were true. Chris' Glenn Greenwald link (thanks Chris!) has made me aware that I am wrong. (Not all that unusual, unfortunately.) The St. Reagan ideology over rationality crowd has apparently used treaties to backdoor Constitutional amendments (something I'd forgotten was possible) to create their own reality.

    If torture is the only option to save lives we're just supposed to either die so we don't offend anyone's delicate sensibilities or be imprisoned so they can show their moral superiority. Torture being unambiguously and unconditionally illegal.

    After eight years of Bush/Cheney I'm not really surprised, but somehow I'm still thoroughly disgusted. Just a slow learner I guess.

  31. [31] 
    Michale wrote:

    Sorry, LewDan, but you are wrong.. And so is Glenn Greenwald.. In the latter, I am not real surprised. He has always lead with his radicalism instead of his brain..

    The United States has SIGNED the UN Convention Against Torture, but it has not been ratified.

    Ergo, it is not binding and the US is under no obligation to follow it.

    Intensive interrogations were made legal by the Military Commissions Act. I do not recall if Obama has signed anything into law that has negated the MCA but, as far as I know, the MCA is still the law of the land..

    The more I think about your position of using the Self Defense/Defense Of Others as a legal justification for torture, the more I am fascinated by it. I wonder if there is any case study (fact or fictionalized) that utilized that defense.

    UPDATE
    I have found one source that says that the US HAS ratified the UN Conventiona Against Torture

    http://en.wikipedia.org/wiki/United_Nations_Convention_Against_Torture

    and once source that says the US Has NOT ratified the UNCAT...

    http://www.hrweb.org/legal/catsigs.html

    I also found this link here:

    http://www.globalgovernancewatch.org/human_security/the-united-nations-convention-against-torture-and-other-cruel-inhuman-or-degrading-treatment-or-punishment

    “. . . nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.”

    So I am not sure the standing. Regardless, since it is a UN fixture it can be safely ignored because, as everyone knows, the UN is the most corrupt and greedy organization on the planet and is completely useless.

    Michale.....

  32. [32] 
    LewDan wrote:

    Okay, so no matter what, I'm wrong... I feel SO much better...

    Seriously, I don't know about fiction, but doubt you'll find case studies. Torture not being a real common problem (until recently!) and legal defenses don't require judicial determinations, prosecutorial discretion includes them as well. Which was kind of the point. No prosecutor is going to take an interrogator to court and wade into the whole national security, state secrets, quagmire unless they can prove it wasn't in defense of the lives of others. And no AG would allow them to, so there won't be cases.

  33. [33] 
    Michale wrote:

    Yer probably right (See!? Yer not ALWAYS wrong.. :D) on the factual case study..

    No prosecutor is going to take an interrogator to court

    There was a fictional case. CW would know more about it, as he pointed it out to me. It was one of the LAW AND ORDER series (don't recall which one) and the episode dealt with the prosecution of a doctor that, on behalf of the US Government, signed off on the torture methods. She was prosecuted for murder when one of the terrorists being tortured died. Quite similar to real life, where the Hysterical Left wants to impeach a Federal Judge because he signed off on the legality of the intense interrogation methods.

    The episode had a REALLY good performance by Steven Weber as the Pro Torture, Pro Government defense attorney. But the episode was whacked in it's execution on was obviously written by some lala Hysterical Lefty who had no firm grip of reality. If CW is still paying attention to this thread, maybe he can recall that episode.

    Michale....

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