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Legal Analysis Should Not be a Partisan Plaything.

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There is an old legal maxim,

When the facts are on your side, pound on the facts.
When the law is on your side, pound on the law.
When neither is on your side, pound on the table.

Sometimes this works, but more often it fails. The table is being pounded upon, very heavily and very noisily, but neither the law nor the facts appear to be on the side of the principal pounders.

The Geneva Convention provides various protections for "prisoners of war," as defined in Article 4. In relevant part, Article 4 provides

Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

Such protections are not provided for people not meeting the definitional requirements.

However, it is argued that the portions of the U.S. Code dealing with "torture" are to be read independently of the Geneva Convention and its various protocols. I think this is incorrect. Nevertheless, assuming arguendo a lack of interdependence, water boarding and other forms of "harsh interrogation" still do not seem to violate, or in the the past to have violated, the U.S. Code. 18 U.S.C. Section 2441(d)(1)(A), which defines "torture" as follows:

The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind. (emphasis added)

In subsection (d)(2), applicable following the 2006 enactment of he Military Commissions Act a few changes are made including that the term "severe" is replaced by "serious,", :

the term “serious physical pain or suffering” shall be applied for purposes of paragraph (1)(B) as meaning bodily injury that involves—

(i) a substantial risk of death;

(ii) extreme physical pain;

(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or

(iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty; and

(E) the term “serious mental pain or suffering” shall be applied for purposes of paragraph (1)(B) in accordance with the meaning given the term “severe mental pain or suffering” (as defined in section 2340(2) of this title), except that—

(i) the term “serious” shall replace the term “severe” where it appears; and

(ii) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term “serious and non-transitory mental harm (which need not be prolonged)” shall replace the term “prolonged mental harm” where it appears.

Hence, some definitions were different after the the Military Commissions Act of 2006 was enacted, and some were not. Water boarding appears not to have taken place subsequent to 2006, and I am unaware of any legal basis for applying definitions in criminal statutes retroactively. However, it seems as though even well before 2006, substantial efforts were made to avoid the intentional infliction of "severe" or even "serious" physical or non-transitory mental harm, prolonged or otherwise.

Nevertheless,

Manfred Nowak, who serves as a U.N. special rapporteur in Geneva, said Washington is obligated under the U.N. Convention against Torture to prosecute U.S. Justice Department officials who wrote memos that defined torture in the narrowest way in order to justify and legitimize it, and who assured CIA officials that their use of questionable tactics was legal.

"That's exactly what I call complicity or participation" to torture as defined by the convention, Nowak said at a news conference. "At that time, every reasonable person would know that waterboarding, for instance, is torture."

One of the functions of an attorney is to advise his client how to achieve his lawful goals legally; one aspect of this function is to base his advice on statutory definitions and case law. It is not a proper function of an attorney representing a client to elevate his own notions of morality, or of what "every reasonable person would know," either to a position of superiority over what the law says or over the lawful goals of his client. Should he feel compelled to do so, he should cease representing the client, because he cannot in those circumstances provide adequate representation.

As a reading of the quoted portions of Title 18 U.S.C. Sections 2441 and 2340 should suggest, statutory construction can be a tedious process. Should it be desired to make changes, that should be done by amending the pertinent statutes to provide, with adequate specificity, what is desired for prospective application. For the meaning of laws to be second-guessed long after the fact by those who seek to elevate and apply retroactively their own notions of morality above the definitions provided by statute, is confusing and pernicious. Here, it has led to arguments driven by partisan politics and the associated desire for revenge — which sometimes backfires.  That may be happening. A recent poll indicates that:

Only 28% of U.S. voters think the Obama administration should do any further investigating of how the Bush administration treated terrorism suspects.

Fifty-eight percent (58%) are opposed. Democrats are evenly divided over whether further investigation is necessary. Seventy-seven percent (77%) of Republicans and 62% of voters not affiliated with either major party are against more investigating.

Sizable majorities of Republicans and unaffiliated voters say the release of the CIA memos about the interrogations hurts national security. Democrats are evenly divided on whether the release hurt national security or helped the image of the United States abroad.

Here is a fascinating editorial from the Wall Street Journal. Here is another, a commentary by Peter Hoekstra, minority leader of the House of Representatives, and finally, we have an article from the Weekly Standard. These articles pertain to the recent controversy over "torture," and their thrust is that President Obama, by reversing direction and suggesting the further public and adversarial ventilation of what went on with "torture" several years ago would open an enormous can of worms, from which neither Democratic Party leaders nor Republican Party leaders nor — of far more importance — the United States, would escape unscathed.

It is now becoming quite clear that the leadership of the Congress, from both sides of the aisle, was kept well informed of what was going on and offered no objections.

Porter Goss, former CIA Director and past chairman of the House Intelligence Committee, blasted the Obama administration for releasing Justice Department memos on harsh interrogation techniques. "For the first time in my experience we’ve crossed the red line of properly protecting our national security in order to gain partisan political advantage," Goss said in an interview.

Goss, a former CIA operative, has made few public comments since leaving his post as DCI in September 2006. In December 2007, he told a Washington Post reporter that members of Congress had been fully briefed on the CIA’s special interrogation program. "Among those being briefed, there was a pretty full understanding of what the CIA was doing," Goss told the Post. "And the reaction in the room was not just approval, but encouragement."

Mr. Goss's comments are further reflected in an April 25, 2009 editorial in the Washington Post. It is also becoming clear that the materials recently released by the Obama administration were redacted to leave out information outlining the effectiveness of the mild forms of "torture" which were used on a very few high value subjects, and the likelihood that many U.S. citizens who are now alive might otherwise now be dead. This is claimed to have been normal editing, for purposes of brevity. Right. There are those who argue that harsh interrogation can and does produce valuable information, and there are others who argue to the contrary. Unless important decisions are to be made in the abstract, which seems unwise, information as to the consequences of such interrogations should be made public. There are at least two sides to the story, and the public release of a manifestly one-sided report mandates the public release of the other side.

There may be some who would abstractly prefer more dead Americans to a very few water-boarded and otherwise harshly interrogated terrorists, on the ground that the United States should not engage in what they classify as "torture," for any reason, and regardless of the consequences of not doing so. I find this position very difficult to understand and even more difficult to accept. I wonder how many of them would feel the same way were they permitted to travel forward in time and see alternative scenarios in which they and their loved ones were, and were not, killed violently and painfully depending on whether "torture" had been employed. Some might view the killings with equanimity, but I doubt it; slaughter does not occur in the abstract. Perhaps lacking the benefits of such time travel, they are excessively intent upon demonstrating their own moral superiority in a context where they and their loved ones are not in immediate danger from their choices, except in the abstract.

This recent Blogcritics Magazine article apparently seeks to have show trials and thereby make a mockery of justice and of national security.

We have every right to see in the public limelight what the world saw after World War II when Nazi criminals were tried and punished on the world stage.

Attempting to create an equality of "torture," in ways previously determined to be lawful, to gain badly needed intelligence, with the blatant crimes committed by Nazis during World War II, is on a par with referring to a city sanitation agency as engaging in a "war" on litter. It grossly dilutes the meaning of both "war crimes" and "war." The comparison to Nazi war criminals and their slaughter of many Jews and others in concentration camps is absurd, and "tortures" both history and common decency.

Although President Obama seems to be trying to "clarify" his administration's position on whether to have some sort of truth commission on "torture" by changing that position as the winds shift, substantial confusion has resulted, possibly causing the persistent economic problems facing the country to recede in perceived importance. For example, Chrysler appears to be in imminent danger of bankruptcy, and "the Treasury has an agreement in principle with the United Auto Workers union to protect pensions and retiree health care benefits as a condition of the bankruptcy filing. . . ." GM plants are to be closed for the Summer, following a multi-billion dollar bailout and the replacement of a CEO, which one supposes may have been intended to prevent that sort of thing, as well as the default on a one billion debt and GM's very likely ultimate bankruptcy. Some U.S. banks may well need another trillion dollar bailout on top of what they have already been given. These difficulties are in danger of being displaced from view by a "torture" distraction or something else, perhaps worse.

What does all of this mean? It may suggest that the party now in power is feeling its oats after having regained control of the Congress two years ago and of the Presidency this year, and senses a need to have its modestly disaffected left side coalesce around its middle to carry out programs more attractive to its left side than to anyone else. Like a pubescent child newly discovering the pleasures of sex, it may just want to get laid, right now, without regard to the consequences. Or, it may suggest that having screwed up royally on the recent "stimulus package," which it pushed through without understanding either its import or its consequences, it wants to divert attention from its past fiascoes and move on to new ones. Or it may simply mean that despite President Obama's great audience appeal, he is seen as well over his head in multiple messes with which neither he, nor his confidants, are able to appear to deal effectively without creating interesting but unrelated and damaging distractions.

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About Dan Miller

  • Ma r k

    However, it is argued that the portions of the U.S. Code dealing with “torture” are to be read independently of the Geneva Convention and its various protocols. I think this is incorrect.

    The Convention is referenced in US code where torture is treated as a war crimes (Chapter 118). What is the argument that consideration of the Convention applies where torture is treated as a crime in itself (Chapter 113C)?

  • Jay

    During the 1960’s the U.S. Air Force would waterboard their own pilots to prepare them for what was ahead should they ever be captured by the enemy. To call waterboarding torture is pure bull-feathers.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Ma r k,

    I said that it is my understanding that the statutes should be read in conjunction with the Geneva Conventions, and that is, in fact, my understanding. However, what I have read on the subject seems to be based on less than rigorous legal and historical analysis and I saw no useful purpose in relying on it.

    Accordingly, I intentionally did not seek to rely on the point and assumed, for the sake of argument, that the criminal statutes can properly be read independently for purposes of prosecution under the statutes. To research the question of dependency on the Geneva Conventions adequately is beyond my resources; it would require access to much more on the history of the statutes and of the Conventions than I have. That information is probably available somewhere, but I haven’t been able to find it on the internet. If you have anything definitive, I would certainly appreciate it if you would share it with us.

    However, for purposes of my argument as presented in the article, it does not matter, because I assumed that the statues would apply regardless of limitations provided for in the Geneva Conventions.

    Dan(Miller)

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Jay, I agree. However, the question has been raised and some have a different view, which I consider to be inadequately considered. The article was an attempt to provide some sort of a context for the discussion and possibly to remove it from an abstract realm into a realm in which actual people on earth have to function in frequently unpleasant circumstances.

    Dan(Miller)

  • Ma r k

    Dan, I followed your argument when I read it; my question — which I’m having alot of difficulty finding an answer to — is on the side issue. If you happen on a source, I’d appreciate it.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Ma r k

    If you happen on a source, I’d appreciate it. I’ll look some more, but if you find something, please do provide it to the rest of us. It could provide an unambiguous answer to the question of how and whether to proceed with what now appears to me to be rather an inquisition.

    Dan(Miller)

  • http://drdreadful.blogspot.com Dr Dreadful

    Jay @ #2,

    By that logic, a football player pulling on an opponent’s helmet isn’t a foul because his team prepared for it by pulling each other’s helmets during training.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Doc, my agreement with Comment #2 was perhaps poorly phrased. My agreement was with the thesis that water boarding is not “torture” as defined in the U.S. Code (or, certainly, in the Geneva Conventions).

    That the U.S. military simulates water boarding, while (as far as I know) it does not subject its members to acts likely to cause severe or even serious physical or mental harm or pain during training (e.g, slowly immersing them in vats of sulfuric acid) suggests that it views water boarding as something less than “torture” as statutorily defined.

    Obviously, pulling on a player’s helmet during practice is rather different from water boarding or even “torture” as defined in the U.S. Code, and a foul during a football game is rather different from “torture.”

    Dan(Miller)

  • Glenn Contrarian

    Dan –

    There’s a big difference between being waterboarded for military training, and being waterboarded because someone (who probably hates you) wants you to sing.

    I think I can safely say that when the military waterboarded, it was only done in strictly controlled situations, with the admonishment beforehand that it was just an example of what they might face in capture…and they were told they would not die.

    Were the ones we waterboarded given the same admonishments? I think not…and you know as well as I do of the value of the saying, “forewarned is forearmed”.

    Additionally, if waterboarding and other ‘enhanced interrogation methods’ worked so well (in direct opposition to EVERYTHING said by WWII interrogators of both German and Japanese prisoners), then why did Khalid Sheik Mohammed need to be waterboarded 183 times, six times a day for a month????.

    “Gee, Lieutenant – we waterboarded him 125 times so far, and we ain’t got anything!”

    “‘Sokay, Sarge – maybe we’ll get lucky on number 126!”

    Dan, most of us – including you and I – are patriots here. Do you remember how the Republicans howled about how Clinton shamed the nation for a little fellatio? Yet where is the moral outrage now? WHY do the conservatives defend this torture so strenuously when (1) it is against American law, American military law, and international law (even if you try to interpret it differently), (2) To a man, the WWII interrogators stated that such ‘enhanced interrogation’ does NOT produce quality intel, and (3) we have publicly sacrificed our national honor and moral authority as a nation for the sake of expediency.

    I’m not naive. Yes, the armies of every nation tortures sooner or later in the field…but to have it as POLICY, directed even from the White House? To continue to conduct such operations even when whiffs of it began being making its way into the mainstream media?

    Dan, AMERICA (including you and I) invaded Iraq on false pretenses. AMERICA tortured in the name of expediency. AMERICA took men (many of them innocent of ANY wrongdoing) – and children as young as fourteen years old and imprisoned them for years in Gitmo without trial. AMERICA allowed Afghanistan to have record-breaking crops of heroin after we took control. AMERICA wasted over 4,000 military lives and over 700 billion dollars on a military adventure…that was begun on FALSE pretenses!

    To me, honor cannot be had unless one is willing to hold oneself publicly accountable…even when no one else is demanding such accountability. To me, the ONLY way we can regain our national honor (and moral authority) is to prosecute those who brought such shame upon America.

    On a side note – Cheney stated that on 9/11, al-Qaeda was not well-known and we knew little about them. Of course, I’m sure you’re aware that al-Qaeda bombed the Cole and they were among the TOP terrorist groups on our watch list on 9/10.

    Hold them accountable, Dan. Without accountability, there is no honor.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Glen,

    I understand the difference between water boarding for training purposes and water boarding to extract information from a prisoner. However, I do not think that when used for the latter purpose under medical supervision it amounts to “torture” as defined in the relevant statutes and/or conventions. Water boarding is highly unpleasant, and is intended to be; however, it seems to cause neither severe nor serious physical or mental pain, and the effects are transitory. Reasonable men can differ on the interpretation, but “Monday morning quarterbacking” for partisan political purposes, as seems to me to be happening, is quite unfortunate — particularly when it comes from folks who had long been aware of what was being done and who approved it or at least acquiesced in it until it became politically convenient to complain.

    As to the effectiveness of water boarding and other forms of harsh interrogation, the question remains open. One of the things I found offensive about the recently released materials was the omission of those portions dealing with effectiveness. Some of the comments by those whose information was included in the released materials, but whose statements about effectiveness were redacted, are quoted in the article. While I agree that if “torture” is completely ineffective, it should never be used. However, if it is effective, and can save lives by preventing future terrorist attacks, I think its use can occasionally be appropriate.

    I do remember how the Republicans howled about how Clinton shamed the nation for a little fellatio . . . . Frankly, I don’t much care about President Clinton’s sexual escapades, although doing in the Oval Office things which might have been less inappropriate if done elsewhere was disgraceful. However, much of the outrage, mine included, was based on his commission of perjury, for personal benefit. I can understand lying, even under oath, when necessary to preserve national security. To do it to cover one’s own personal misconduct is different.

    As stated in the article, the entire matter of “torture” could be handled far better by simply changing the pertinent statutes to prohibit it, prospectively, clearly and with sufficient specificity to be clear to all concerned. A partisan witch hunt, as now appears to be in progress, is not, to me, a viable option.

    Dan(Miller)

    PS Since there is presently no “preview comment” capability on the new site, I have not been able to do that. I don’t think there are any open tags or garbles, but if there are, I apologize in advance.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Re # 11 — what the heck is this? Spam?

    Dan(Miller)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    This new and improved site has got a long way to go. Prepare yourself for some pain in days ahead.

  • Clavos

    Yes.

    One of the glitches being addressed…

  • Clavos

    #14 responds to #12

  • http://twitter.com/tolstoyscat Cindy

    Where is the complaint form? What a chore having pages and pages of comments, with no way to see them all on one page.

    How is one supposed answer comments on the preceding pages without a headache?

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Well, they’ve eliminated scrolling which, though cumbersome, provided for the thread’s better continuity. But the worst part is you can’t get to the end at an instant, and that’s a bitch. Also, no preview option.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Another suggestion: I’m not interested in comments on other side if I’m in the Politics section – because if I happen to be engaged with people there, I want to access their responses immediately if not sooner. So please amend the site to show the most recent comments appropriate to the section you happen to engaged with, rather than comments at large.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Also, the “Fresh Articles” list shouldn’t be set as as a default. The “Fresh Comments” appropriate to the section in question ought to be so. If I want to see the newest in Music or Culture or Sci/Tech, I’ll go there to find out; and so will the general public.
    Common, guys. This is common sense. Keep it nice and simple.

  • Clavos

    Cindy,

    The tech guys are aware of the problems, and are addressing them. Naturally, there are priorities, so not all problems will be addressed immediately.

    I will say this, I am a veteran of several major IT changes like this in which I participated while working in the airline biz, as we upgraded and revamped entire reservations systems, complete with huge call centers. This cutover has (so far) been one of the most trouble- and glitch-free I have seen.

    Everybody have a little patience, please.

    Roger you can reach the end of comments (up to #100 only-still being addressed) by clicking anywhere in the comments and then hitting the “end” button on your key board. I just tried that on this thread, and it works fine.

    ¡Paciencia, por favor!

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Sorry, Dan Miller, for using your thread to raise these issues before we move on to the substance of your article, but as of this moment, navigation and ease of use have seriously been jeopardize.

    We must correct these glitches to ensure smooth operation in the future.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I will, Clavos. We have been so spoiled. Apologies to Dan Miller for using this thread to address technical problems before the substance of his article; but as of now, they take precedence.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Where is the “end” button on my keyboard? I must be blind.

  • http://twitter.com/tolstoyscat Cindy

    No prob Clav and thanks for the reply. I just hope that they consider that one really does need to be able to see all the comments at the same time.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Although I have seen very few results, I understand that the powers that be are working diligently and that all will soon be well.

    In the meantime, please be aware that the various blockquotes in the articles are neither indented nor otherwise set off from the text; the HTML codes are there, but do not work. This can be very confusing when reading my latest article, which has numerous blockquotes. Also, if I don’t respond to a comment immediately, it is because the automatic e-mail notification of new comments does not appear to be working. I have received no notification of any comments after number 9.

    Dan(Miller)

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    This comment did not appear when posted, so I am going to try again:

    Although I have seen very few results, I understand that the powers that be are working diligently and that all will soon be well.

    In the meantime, please be aware that the various blockquotes in the articles are neither indented nor otherwise set off from the text; the HTML codes are there, but do not work. This can be very confusing when reading my latest article, which has numerous blockquotes.

    Also, should I take a while to respond to comments, it is because the automatic e-mail notification of new comments does not seem to be working. The last comment of which I was notified was number 9.

    Dan(Miller)

  • http://ruvysroost.blogspot.com Ruvy

    I do hope Eric and Phil are reading this comment thread.

    Having studied law for a bit, I long ago came to the conclusion that “legal logic” was the equivalent of “military music” if you get my drift.

    But since everyone else is complaining about the “new and improved” site, let me also bitch too (or three).

    I’ve seen one thing resolved – I no longer have two writers’ sites instead of one. Great! But pages of comments? Come on, is this You Tube? I only get to see five recent comments? And speaking of comments, where is the comment review button? I miss it, even if I will not miss Chris Rose demanding that I preview my comments for broken HTML tags. But he’ll have a lot more work (don’t say I never did you any favours, Chris).

    And where the hell did my photo go? I it just on my writers page? How are all those assassins going to find me?

    Clavos, since you’ve taken it upon yourself to ask for patience (not a smart move to stand in for management, especially with that high salary they’re paying you), what I really want to know is when do us writers get to see how many hits WE are getting?

    Finally, hat I want to know is have they excised Desicritics and all the other parts of BC Magazine as well? Has Aaman Lamba been spun off to mix his own curried rice all by his lonesome?

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    re my # 26: my fault. I neglected to go to the next page of comments. It is difficult for an old dog to learn new tricks. You may consider me to have been severely chastised, arguably amounting to torture.

    Dan(Miller)

  • http://jetssciencepage.blogspot.com/ Jet

    Have you guys noticed the ads that now are placed between the 3rd and 4th comments of each page?

  • http://twitter.com/tolstoyscat Cindy

    Ruvy,

    Having studied law for a bit, I long ago came to the conclusion that “legal logic” was the equivalent of “military music” if you get my drift.

    Good point. Or put another way. “legal logic” = “military intelligence”.

  • Clavos

    Ruvy,

    Aaman and his crew at Desicritics are still very much alive, but have not escaped the bug invasion. However, I did just see a communication from him on what is now a VERY busy edlist correspondence list.

    Again, all of you, most bugs are known and will be addressed in priority order.

    And c’mon: don’t it look purty, bugs and all?

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Jet, yep and it’s another distraction — sometimes, it is difficult to see all changes we can believe in as beneficial. I shall resist the temptation to leave an open tag.

    Dan(Miller)

  • M (a) ® k

    Site speed is significantly improved…good job.

  • http://www.futonreport.net/ Matthew T. Sussman

    Roger, nobody in a position of power is going to read your gripes about the redesign here in the comments. Refer to the Yahoo Groups’ instructions on sending feedback and bugs to the editors. The dev team is actively working on fixing stuff. Thanks!

  • http://twitter.com/tolstoyscat Cindy

    It looks magnificent. Even as I find myself lost amongst pages and pages of comments…unable to remember who said what…or find the comment I am trying to reply to, or the other comment I know was around here somewhere, I notice it’s quite pretty.

    It’s actually taken my mind off the visceral anguish I experienced yesterday on attempting to read Dan(Miller)’s article here. Who knows, the beauty may help me to look past and get to page two today.

  • http://twitter.com/tolstoyscat Cindy

    I love the colors. They’re very soothing. It’s like having the ocean in front of you and the sun above.

  • http://twitter.com/tolstoyscat Cindy

    They’re working already.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    In the unlikely event that anyone is interesting in reading the article as reasonably well formatted, it is here , along with some other stuff including a couple of short stories.

    I know, absurd self-promotion; the blog devil made me do it.

    Dan(Miller)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Cindy,

    The beauty of the site is intended to take the vitriol out of you and me. And it is working.

    Yes, Dan Miller. Earlier on, the comments just did not post and you had no idea whether they’d post. So I, too, had to repost again only to find out it was a duplicate.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    #33, Matthew”

    I can’t find the site you’re referring to – the Yahoo discussion group. I think it would be good idea to set up just one comment thread to deal specifically with these technical issues. That way, everyone could participate and all could benefit from the feedback and the interface.

  • http://www.maskedmoviesnobs.com El Bicho

    Here’s a suggestion: why not send the issues/complaints to the people who can actually fix them rather than whining to each other here.

  • Baronius

    Dan(M), this article addresses a lot of things we’ve been talking about recently. Nice job. I do have to disagree with you on one point, however. I would much rather have redacted memos in the public than memos that clearly stated who revealed what. The enemy knows we foiled an attack in, say, Seattle. They don’t know if Ali revealed the bank accounts or Ahmed told them to bug a safehouse in Zurich. Ideally, there would be no information made public, but by all means let’s not call for the publication of more. That’s dangerous partisanship too.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Baronius,

    Join the fucking expeditionary force and then you’ll be able to speak with greater credibility about “the enemy.”

    You still haven’t answer my question whether your sons and or daughters have come back with body bags. So I until you do, all I see from you is a bark, not a bite.

    Get real. You’re not a fucking general to be sending other people to war while you sit on your ass and pontificate.

    You should see the sorry picture you cut. It’s pathetic.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Baronius,

    Thanks.

    I do think that may well be possible to provide information about the effectiveness of “torture” without disclosing who said what when or otherwise providing useful information to the bad guys. Or, maybe not; without access to the unredacted memos, I obviously have no idea what could have been revealed safely.

    What bothers me is the wholesale redaction of everything suggesting that “torture” may have served an occasional useful purpose, suggesting that a main reason for redacting stuff was political expediency rather than national security. It is, obviously, easier to oppose “torture” when it does no good than when it disrupts terrorist attacks. Without even suitably redacted information, an informed judgment is very difficult to make.

    Dan(Miller)

  • http://twitter.com/tolstoyscat Cindy

    Dan(Miller),

    I haven’t finished your article still, but I will. It’s upsetting, in the way that when someone you ‘know’ says a thing, it’s different than when someone you’ve never heard of says it. But I want to ask a question for now.

    …water boarding and other forms of “harsh interrogation” still do not seem to violate, or in the the past to have violated, the U.S. Code. 18 U.S.C. Section 2441(d)(1)(A), which defines “torture” as follows:

    The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering

    1) I’m not sure how you’re stating as a ‘fact’ that drowning doesn’t involve severe mental suffering.

    2) I’m also not sure how you conclude that ‘waterboarding’ has never violated the code.

    I’ll refer you to this information by a JAG.

    Waterboarding Used to Be a Crime

    The media usually characterize the practice as “simulated drowning.” That’s incorrect. To be effective, waterboarding is usually real drowning that simulates death. That is,
    ad_icon

    the victim experiences the sensations of drowning: struggle, panic, breath-holding, swallowing, vomiting, taking water into the lungs and, eventually, the same feeling of not being able to breathe that one experiences after being punched in the gut. The main difference is that the drowning process is halted. According to those who have studied waterboarding’s effects, it can cause severe psychological trauma, such as panic attacks, for years.

    The United States knows quite a bit about waterboarding. The U.S. government — whether acting alone before domestic courts, commissions and courts-martial or as part of the world community — has not only condemned the use of water torture but has severely punished those who applied it.

    After World War II, we convicted several Japanese soldiers for waterboarding American and Allied prisoners of war. At the trial of his captors, then-Lt. Chase J. Nielsen, one of the 1942 Army Air Forces officers who flew in the Doolittle Raid and was captured by the Japanese, testified: “I was given several types of torture. . . . I was given what they call the water cure.” He was asked what he felt when the Japanese soldiers poured the water. “Well, I felt more or less like I was drowning,” he replied, “just gasping between life and death.”

  • Baronius

    Dan(M), I consider that a moot point. I oppose torture. In the worst case scenario, with the atomic bomb about to explode in five minutes, I’d oppose torture. So for me there’s no need to discuss the quality of information to be gained by torture. If this was torture, it shouldn’t have occurred.

    To me, the whole waterboarding issue boils down to the fact that the administration followed one legitimate interpretation of international law in good faith.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Cindy, it is entirely clear that water boarding, as well as the other “harsh interrogation” techniques as used by the U.S., were highly unpleasant and frightening. That was the intention.

    Here is a contemporaneous Department of Justice memo addressing the limitations under which the “torture” was to be conducted. Links to additional memos as well as a summary can be found here.Those limitations were presumably intended to prevent the types of harm incident to “torture” as defined. Presumably that memo, and others like it, were relied upon in good faith by those who requested the guidance as well as by those who acted upon it. I have no reason, at least yet, to assume otherwise.

    I have read nothing thus far suggesting that any harm of the sorts prohibited by the statutes was caused, to anyone. Reading the accounts of water boarding by the Japanese during World War II, and the memo detailing the conditions imposed by the U.S. on those conducting this species of “torture,” it seems as though the U.S. did things quite differently.

    Unpleasant? Obviously. Extremely frightening? Obviously. Something I would willingly have done to me? Obviously not. Effective? I don’t know, because the memos were redacted to eliminate that sort of information.

    Perhaps new and more comprehensive humanitarian limitations should be imposed — prospectively — on what can lawfully be done to extract critical information from those unwilling to provide it except under extreme duress. However, to impose new and different definitions retroactively strikes me an very unwise. So does the politicizing of the issues which seems to have occurred.

    Dan(Miller)

  • Baronius

    Roger, one of the great things about the US is that everyone’s entitled to his opinion, and his vote, even those of us who’ve never lost a child on the battlefield. If you think about it, you wouldn’t want our interrogation policy to be decided by grieving parents. They might allow tortures you’ve never conceived of.

    I have to say, this new confrontational approach of yours seems a lot like you’re trying to bully me into agreeing with you.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    OK. Time out!

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    “To me, the whole waterboarding issue boils down to the fact that the administration followed one legitimate interpretation of international law in good faith.”

    Now, how do we establish this?

  • Baronius

    I’m guessing the old spam filters aren’t working anymore? You don’t know what you’ve got until it’s gone.

  • Clavos

    Ya think, Bar?

  • http://twitter.com/tolstoyscat Cindy

    Dan(Miller) and Baronius,

    I left comment 125 here for both of you, regarding torture.

    In case you never find it.

  • http://twitter.com/tolstoyscat Cindy

    Dan(Miller),

    I have read nothing thus far suggesting that any harm of the sorts prohibited by the statutes was caused, to anyone.

    But why haven’t you? There is plenty of information available. Isn’t it selective to fail to look at that information? What does that say about your analysis? Doesn’t that make it ‘table-pounding’ in a guise of rational detachment?

    I’ve got a couple of counters to the information you provided in #46. I’ll work on one at a time.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Cindy,

    Just read your #125 and left response there. On the point. That’s what they ignore and I hide behind “the legaleese.”

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Guys:

    Two major points. Please make “Fresh Comments” default. And make it possible for us to refer to those comments upon clicking rather than have us return to the main page.
    These are basics.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I’ll post another just for the heck of it to kick Donna out of here.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    And one more. She doesn’t belong in this section.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    This one should do it – for a minute.
    Perhaps now they’ll get the message.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Now the spams took it over. All five of e’m. More effective than me trying to dethrone Donna.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Cindy, in your Comment # 125 here, I think you have pointed out one of the principal points at issue: I am asking a question about ethics. You are both discussing ‘law’. What does looking at legal definitions have to do with ethics? I think that the question is a good one. “Ethics” is different from law; sometimes they conflict, and sometimes “ethics” are imposed by, and thereby become, law. Both law and ethics are necessary.

    Let’s look at the “torture” controversy indirectly, by analogizing it to a different controversy. Many people have ethical/religious objections to abortion, particularly to near term abortion, which they view with some justification as murder of innocent children. Over the years, some of their ethical objection became law, while others did not. However, the laws against abortion have become increasingly relaxed in recent years, much to the dismay of people who oppose it, vigorously, on ethical/religious grounds. Others have different views, and tend to elevate their ethical/religious views of women’s rights over objections to abortion. For some on both sides, the abortion issue is far more important than any other, and they take inflexible positions.

    At present, the Federal Government is expanding women’s rights by making abortions more readily available. Many find this very distasteful, and demand that these encroachments on their ethical views cease and reverse course. Suppose, for the sake of this discussion, that during President Obama’s current term, the abortion laws, regulations and executive orders become increasingly permissive and that even near term abortions become increasingly common.

    Assume that eventually the “right” gains enough power to elect a President and a Congress with substantial ethical/religious objections to abortion, and that the legality of the regulations and executive orders issued during the Obama administration comes into serious question. Just as lawyers can often find ways to fit conduct within the four corners of the law, they can also often find ways to support a contrary conclusion; that’s what we do for a living. Many cases tried by the courts involve just that.

    Should Rush Limbaugh or Glen Beck become President, with a strong majority in the Congress, should the pro-choice legal memoranda and the executive orders and regulations based on those memoranda be dissected and countermanded with a view toward punishing those who wrote the memoranda, those who promulgated the executive orders and regulations and those who relied upon them? I think that this would be a travesty of justice. Changing those regulations, etc. prospectively would not be. I would consider even prospective changes significantly limiting the ability to obtain an abortion to be a mistake, since I consider the matter one for individual choice; but my views — even though I am entitled to hold them — don’t constitute law.

    The “torture” situation is not entirely different. When writing the legal memoranda justifying acts which some find ethically very objectionable and deem to be “torture,” the attorneys writing them considered the statutes defining torture and may have pushed them further than some in the Obama administration consider ethical or necessary. Presumably, they were writing in a context where preventing terrorist attacks on the United States was considered to be extremely important. The key words in the statutes are “severe” and “serious” physical/mental harm, words which are certainly elastic. There are always gray areas, and within those areas there are numerous shades of gray. There appear, however, to have been good faith efforts to stay within the law, while acting within the law to prevent terrorist attacks, when the memoranda were written and relied upon; I think that the memoranda, etc. were well done and accurately reflected the intent of the statutes in question while accommodating the need to prevent terrorist attacks. Others doubtless disagree.

    It would be one thing to change the interpretation of the statutes, prospectively or indeed, to enact new and different statutes. I would have no objection to this from a legal standpoint, although I think it would be harmful further to limit “torture” as now permissible under the statutes to take it entirely off the table even when necessary. It would be quite a different thing to impose new and different interpretations of the law retroactively, to punish those who wrote and those who relied upon the old memoranda.

    To me, law and ethics coincide in the view that to punish people for writing or relying in good faith upon legal memoranda at a time when preservation of national security was seen as paramount would be perverse in the extreme. It would be unethical in the circumstances here present to direct people to perform acts which in a time of peace and tranquility would not be performed, and then later to punish them for it. I think it would also be contrary to our system of laws.

    Dan(Miller)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    The difference number one as regards the analogy in #62 is that the pro-choice vs pro-life controversy is not a clearly resolved moral issue; if it had been resolved, there would be no controversy (to speak of).

    Whereas, there is no question that “torture” (and “cruelty,” I may as well add) is not a moral/ethical behavior; and it’s condemnable by the average moral sensibility: that’s the force of those words in the English language, and the force they carry is precisely for that very reason – to regard such acts and behavior in that light.

    Now, the pro-life/pro-choice controversy MAY be regarded by some as a moral issue, although I happen to think it’s more properly a case of moral vs religious controversy. But the matter of torture (in the context here defined), and of the application of torture, is not a moral issue by any means. We all know it’s WRONG. And the conflict at hand is a conflict between moral interests/concerns and political interests/concerns – an entirely different plane.

    As regards “going back” and looking into the deeds of the past administration. I’d say there is sufficient circumstantial evidence to the effect that the existing laws regarding “torture” and the matter of applicability of those laws were skewed to serve the interests and designs of the party in power – sufficiently so to warrant an independent investigation.

    So let’s find out what really happened rather than argue for total immunity.

  • Clavos

    Not so fast there, Speedy.

    While no one in his right mind would argue the immorality of torture per se, there does exist some controversy over what is or is not “torture.”

    Some of the practices currently being touted by the Left as “torture” are not, in the opinions of many, any such thing. Some of these include: sleep deprivation (whether by piping in loud sounds/music, leaving lights on continuously, or both), “cold rooms,” and use of non-lethal insects to frighten insectophobes. These methods do not cause physical injury, are non-contact even, and are often very effective.

    What they aren’t is “torture.”

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    No question there. It is, ultimately, the matter of “definitions.” I don’t think I implied anything to the contrary, other than pointing out to the inadequacy of DM’s analogy.

  • Baronius

    Dan, your duplicate of comment #62 shouldn’t be deleted. It should be duplicated again, printed on pamphlets, given to schoolchildren to memorize…

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    OK, Herr Goebbels.

    Let’s make all Americans into obedient little soldiers. Uniformity of mind, uniformity of thought, uniformity of action.

    And thus, United We Stand.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    This is probably a repeat of what was to become comment #70; however, Comment #70 as displayed has no text. If it is a duplicate, I hope that Zeus will forgive me.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    OK, I put something in blockquotes, and that evidently didn’t work. So, here goes again with the blockquotes replaced with italics:

    [T]here is no question that “torture” (and “cruelty,” I may as well add) is not a moral/ethical behavior; and it’s condemnable by the average moral sensibility: that’s the force of those words in the English language, and the force they carry is precisely for that very reason – to regard such acts and behavior in that light.

    I would therefore assume that the members of Congress, on both sides of the aisle, who were briefed on what was being done and on what was going to be done and raised no objection lacked average moral sensibility. Strangely, they appear to have developed new moral sensibilities recently, or perhaps have revised their understanding of “torture.”

    Dan(Miller)

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Bar, #68 —

    Thanks.

    Dan(Miller)

  • Ma rk

    Dan, from my comment to Dave over on his related thread on the side-topic:

    Chapter 113C was written specifically to implement requirements (guidelines if you prefer) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which the US ratified in ’94 — the same year 113C passed. (What the US hasn’t ratified is the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment which some argue threatens US sovereignty as it provides for international supervision of national governments.)

    It becomes ever less clear that it’s reasonable to claim that 113C ‘derives’ from the Geneva Convention and is limited by its exceptions.

    One of the provisions of the Convention against Torture:

    Article2, 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    “I would therefore assume that the members of Congress, on both sides of the aisle, who were briefed on what was being done and on what was going to be done and raised no objection lacked average moral sensibility. Strangely, they appear to have developed new moral sensibilities recently, or perhaps have revised their understanding of ‘torture.'”

    I can’t comment on whether the present stink is motivated by nothing other than politics or desire for full-disclosure and transparency in government. The motives may vary from individual to individual. I’m certain, however, that there are some – this writer included – who are moved by higher concerns rather than seeing people hang.

    My understanding of the situation is that there has been sufficient vacillation and back and forth to revise definitions and/or their applicability to meet the circumstances of the moment [which, IMO, constitutes abuse of the existing law(s)], and that alone warrants looking into. Not to mention the legal opinions to the contrary, or inadequate research/preparation as to the origins of “water-boarding,” e.g., at the hands of the North Koreans and the Chinese during the Korean War.

    So the question really is as to what were the laws in effect once the Bush team took over, and the matter of how they got to be changed (if they indeed were “changed” or “altered”) to suit the occasion. That’s all.

    As to the matter of “developing new moral sensibilities,” both of us know that such things happen – as a result of disclosures, new realizations, learning the facts, reflection, any number of things. Whether this applies to the present case, and to which people individually, it’s not for me to tell. I don’t have a crystal ball.

    As to your analogy in #62, it’s still the case that it’s rather unfortunate. But of course Herr Goebbels is not apt to be highly sensitive to finer moral nuances. In light of which, your “thank you notes” going back and forth put your own moral sensibility in question.

    At the very least, you should abstain from encouraging uncritical thinking, especially when it comes to friends.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Roger, we disagree. As noted in the article, the laws were changed, modestly, in 2006 to make them more restrictive as to “torture.”

    However, thank you for what I have no doubt is your well meant albeit unsolicited advice about my moral well being and critical thinking abilities. Although I very much appreciate your advice, if I ever feel that I am in need of it, I shall ask.

    Dan(Miller)

  • Baronius

    Roger, I was applauding Dan(M)’s clarity of thought, ability to avoid digressions, and grasp of America’s legal tradition. I’m stunned that someone online would accuse someone else of being a Nazi.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I wasn’t suggesting you’re lacking in moral sensibilities, only that some of your comments may lead one to think otherwise. So that’s point number one.

    As to whether “the laws were changed, and modestly,” as you say, I have no opinion in the matter either way: If you read my comment, I simply posed the question.

    And third, again if you read my comment, I wasn’t impugning on YOUR critical abilities, only on the consequences of your meaningless (and therefore empty) encouragement of Baronius who seemed to have missed holes in your argument. But then again, perhaps you yourself weren’t aware of those holes, so in that case I’ll correct myself in that you were operating from the position of ignorance. Quite excusable, IMO, because none of us humans are strangers to this condition. And in that case, you were simply perpetuating a state of ignorance. The more, the merrier.

    But since Baronius posted an intermediate comment, I’d like to ask where does the accusation of “being a Nazi” come from? As to Dan’s “clarity of thought,” please re-read my comment, please, where I point out the inadequacy of his analogy.

    But I suppose Dan himself had come to realize that since he failed to address this very point. As you see, I’m being guided by another maxim here, and no less valid – namely that silence implies consent. Which is good news, since there’s hope for both of you.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Roger,

    You may, of course, assume whatever you please. However, silence does not necessarily imply consent; to the contrary, it may imply that the point is not worth addressing.

    As to what you consider the holes in my argument, I think I addressed them to the extent that was appropriate. I recognize that abortion and “torture” are not identical, and did not claim that they are. However, there are very strong feelings about what is currently referred to as “torture” as well as about abortion, shared by some but far from all.

    Here is a link to an article which sets forth some arguments on the “torture” issue. I find myself in substantial agreement with it.

    Dan(Miller)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    An addendum to your last comment:

    “Although I very much appreciate your advice, if I ever feel that I am in need of it, I shall ask.”

    You should know, Dan, that it doesn’t work that way, especially in matters relating to “moral advice.” There is no such thing, BTW, as a “moral advice,” strictly speaking, because we all – of most of us at least – know what’s right and what’s wrong. But even if there were, for hypothetical purposes, let’s say – than any such advice would be useless.

    Why? Because those who would need it the most are most likely not to respond to it if and when given. Which makes the exercise futile in such cases, don’t you agree.

    The proper language and purpose of morals is exhortation. So yes, I may have been guilty as charged and therefore stand convicted.

    Back to you.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I agree as to the similarity of passions which connect the two cases. But this is not to say they are logically equivalent.

  • Baronius

    Roger, I’m at a loss. I believe that you called my “Herr Goebbels”. I believe that you then denied having called me a Nazi. Am I misreading you? If so, how?

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Guilty plea accepted. Go thou and sin no more. Say only as many Hail Marys as you deem appropriate. Be forewarned, however, that repetitions of the offense will result in penances involving cigarettes.

    Dan(Miller)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I was only referring to your propagandizing proclivity, Baronius – not a direct analogy by any means.

    And if I remember correctly, Dr. D referred to you once as Herr Baron. So I just continued in that vein.

    BTW, Dan. It is my obligation as a human being to “preach morality.” I wouldn’t want to live in an amoral world. So do forgive if at times I violate the best forms of decorum but I think higher issues are at stake. Try to think of it as an excuse.

  • Baronius

    Roger, if you don’t recognize the difference between “Herr Baron” and “Herr Goebbels”, I’m guessing you get punched in the face a lot.

  • Clavos

    I’m willing to bet that our friend Roger is far more circumspect when dealing with other people face-to-face than he is when they are simply pixels on a screen.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Baronius,

    You’re missing the point of my remark concerning Doc. It was peripheral. The main point was expressed in paragraph one.

    And no, I haven’t been punched a lot. Are you getting the urge?

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    The same goes, Clavos, for people like yourself and Baronius.

    I have never had any problem for speaking my mind, under any and all circumstances. And yes, I took my licks.

    I’m willing to bet, though, this conversation would be far more polite than it is if it were conducted in person.

    For everybody’s sake, I dare say – Baronius
    s yours, and mine.

    I don’t mind restoring it to standards of civility if you don’t.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Baronius, if you would stop wearing that silly flying helmet and scarf, it might help some not to confuse you with the Red Baron. As to any confusion with Herr Goebbels, I have no suggestions to offer. Hell, he wasn’t even Herr Von Goebbels.

    Roger, “preach” all the morality you wish. It is often amusing and adds quantity if not quality to the threads.

    Dan(Miller)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Your kind of response is only expected of someone who’s bent on self-justification. I’m glad you’ve never been proven wrong, but that’s your business.

    There is no discussion with people from another planet, and for all your academic qualifications, you are an alien.

    But then again, I suspected it all along.

  • Baronius

    Roger, I’m not getting the urge to hit you. It’s more that I’m concerned about you. But you have been really goading me the last few days, and today you compare me to Goebbels, but not in a “bad” way? I don’t know how else to take that, but that you’re licked in the argument, and you’re trying to create a distraction.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Roger,

    Alas, you have hit upon a sore point. Zaphod Beeblebrox and I have much in common. We both have two heads and three arms, and come from a planet far away from Earth. My semi-cousin and I each have two of the same mothers, and we like it that way. Space-alien pride is something to be taken seriously into account.

    If we space-aliens are not a protected class, illegal to disparage, then we should be. I shall contact my attorney forthwith to determine whether the laws against disparaging protected classes apply. It may take a while, since he is now handling an important case on Magrathea and communications are, regrettably, rather slow due to the primitive technology on Earth. Please wait.

    Dan(Miller)

  • http://twitter.com/tolstoyscat Cindy

    #72

    Dan(Miller),

    I would therefore assume that the members of Congress, on both sides of the aisle, who were briefed on what was being done and on what was going to be done and raised no objection lacked average moral sensibility. Strangely, they appear to have developed new moral sensibilities recently, or perhaps have revised their understanding of “torture.”

    Yes, they were briefed in 2002 and even Democrats were in support, apparently with minimal to no questions asked. (I’m pretty sure, not perfectly, about that bit.) I made a post about it and paraphrased the article I quoted as saying, Nancy Pelosi is unlikely to want to investigate herself.

    Alas, it is somewhere in the 42 pages of comments attached to Dave’s article and I don’t have an hour or two to find it in there. :-)

    I’m working on a couple/few points, still. Just thought I’d throw that in.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Ma r k, re # 74 —

    However, that just bring us back to the questions “what was torture” under the 1994 statute, and what became torture following the 2006 amendments. I tried as best I knew how to deal with that in the article. That torture is prohibited under all circumstances does not mean that something else referred to as “torture” by some but not falling within the statutory definition of torture is prohibited.

    We can call a bunny rabbit a horse, but attempting to ride a bunny rabbit in the Kentucky Derby would be, well, “torture.”

    Dan(Miller)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    All right then. Let’s protect the aliens.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    A bunny rabbit in a Kentucky Derby?

    That is a winner no matter how he or she places!

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Anyway, the Bush team is exonerated. And that’s all that matters.

    Three big cheers.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    In case you’re suffering from mistaken identity, Baronius, Goebbels wasn’t Hitler. He was only a mouthpiece. A PhD, though, and a really sharp guy.

    I don’t know, of course, about his personal habits. They may have had something to be desired.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    The truth is, Cindy, no one wan’t to be investigated, not Bush, not Nancy Pelosi, and especially not the legal advisors or their apologists.

    So let’s just forget it and move on to the next chapter, That way, everybody would be happy.

  • M a rk

    So Dan, do we agree that the question isn’t whether the people who were subject to ‘enhanced techniques’ were protected from torture by US law at the time? Do we agree that the question is whether the techniques used meet the definition of torture in effect at the time? And — despite your analysis — shouldn’t that be determined by the court putting partisan questions aside?

  • Baronius

    Mark, why should that be determined by a court?

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Ma r k, re your comment #100 —

    As to the question do we agree that the question isn’t whether the people who were subject to ‘enhanced techniques’ were protected from torture by US law at the time? Probably, although I haven’t found much on the limiting effects of the Geneva Conventions, mainly because I haven’t looked very hard, having conceded the point arguendo.

    Proceeding then to your second question, Do we agree that the question is whether the techniques used met the definition of torture in effect at the time? Yes, and then the sub-questions become, (a) were the various memoranda provided by the Justice Department, as amplified by others in the Administration (and in which those in Democratic Party leadership positions who are now crying “bad!” apparently acquiesced), and apparently relied upon by those unfortunate schmucks in the field, reasonable interpretations of the law and (b) were they actually followed?

    The pertinent sub-questions, of course, depend on who is being tried for what — the unfortunate schmucks in the field or the authors of the memoranda,et al. Thus far, I have read little to suggest that anyone other than the authors of the various memoranda are being considered for investigation.

    As noted elsewhere, there are many ways to construe “severe” and “serious,” and it is difficult to navigate gray areas involving many different shades of gray.

    This leads to the next question, shouldn’t that be determined by the court putting partisan questions aside? Here, I suppose I must waffle a bit. I assume that a Federal District Court would try the case. The prosecution would probably be able to select the Federal District Court in which the case would be tried. I further assume that appeals would eventually be taken to the Court of Appeals for the circuit in which the District Court functions, and possibly then to the Supreme Court. In a case like this, where there are very real partisan divides, geographically and otherwise, I am less than sanguine that a decision could be rendered “putting partisan questions aside.” I note parenthetically that determinations of fact by a jury are very rarely set aside by appellate courts unless based on erroneous instructions by the trial judge or patently inconsistent with the record of the trial.

    Be that as it may, the ultimate answer for the courts to provide would probably turn on whether the methods employed caused, and were intended to cause, “severe” or “serious” physical or mental harm, depending on the dates of the interrogations. These are big questions, and all sorts of conflicting expert medical and other testimony would be required to resolve them fairly.

    This would probably require expert testimony about the results and methods of the physical and psychiatric examination of the people subjected to interrogation and also quite probably the testimony of the “tortured” examinees. That, as well of course as their cross examination, would probably be required to determine whether the Department of Justice memos were followed, faithfully. So, as well, would be the testimony of those who conducted the interrogations and of those who authorized them, not to mention those who authored the memoranda proclaiming the circumstances in which the interrogations could proceed. Please keep in mind that written memoranda by various organizations, such as the Red Cross, are not automatically admissible in evidence for the truth of the matters stated in them; the defendants as well as the prosecutors have the right to cross examine all adverse witnesses.

    Once all of this had been accomplished, the trial judge would have to provide instructions to guide the jury on how to resolve the various questions of fact (questions of law are the province of the judge), including whether the interrogations caused or were intended to cause “severe” or “serious” (depending on the relevant dates) physical or mental pain, based on conflicting expert as well as lay testimony, and whether the various Department of Justice memoranda and any implementing instructions were written and followed in good faith.

    This could probably be done, although I would not like to be charged with writing such instructions.

    Please keep in mind that I have not set foot in anything resembling a court room for more than twelve years, and that I have only attempted to highlight the procedures to be followed based on increasingly vague recollections. I have not dealt with the discovery procedures in criminal trials or many other substantial matters.

    So, my “bottom line” is yes, it could probably be done. The next question is, what useful purpose would be served, beyond allowing one political party or the other to have a big party at the end and to proclaim “we were right!”? It would take years to get to that point, and the alleged “victims” would still have been “tortured” or not, lawfully or not.

    There is no need for this if the desire is to do what is “right” from this point forward. I suggest that to the extent that the Obama administration wants to put an end to what it conceives to have been the mistakes of the past, the best way to proceed (as I suggested in the article) is to amend the damn laws to reflect, with excruciating clarity, what they think is best, and then to suffer any political consequences should the procedures, which may well have prevented deadly attacks on the United States, be no longer available. The Obama Administration has an apparently complaint Congress, set upon doing its will; there is no need for a court proceeding for that.

    It strikes me that the whole controversy is a tempest in a rather fragile tea cup, and that the tea cup is likely to be shattered by pursuing the matter. Frankly, I see it all as a gross waste of time, but then it’s not my call.

    Dan(Miller)

    PS: This comment might have been shorter had I taken longer to write it. However, this has taken substantially more than an hour and, unfortunately, I am an old fart; it is now past my bed time.

  • Baronius

    Mark, why should that be determined by a court?

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Doc,

    There was a poem, written during WWI or WWII:

    Got Straff (punish, I’ve forgotten the German) England and
    God Save the King.
    God this and God that
    and God the Other Thing!
    Good God, said God,
    I’ve got my work cut out!

    Good luck!

    Dan(Miller)

  • http://twitter.com/tolstoyscat Cindy

    Dan(Miller),

    There appear, however, to have been good faith efforts to stay within the law, while acting within the law to prevent terrorist attacks, when the memoranda were written and relied upon; I think that the memoranda, etc. were well done and accurately reflected the intent of the statutes in question while accommodating the need to prevent terrorist attacks….I have no reason, at least yet, to assume otherwise.

    To me, law and ethics coincide in the view that to punish people for writing or relying in good faith upon legal memoranda…,” would be unethical.

    The two ideas here are the ones I want to give arguments against (for now). I can’t do it all at one time, though; so, this post is just a start. My main points are:

    1) There was a lack of good faith or professional standards used in the writing of the OLC memos.
    2) The CIAs failed to rely in good faith on the OLC memos.

  • http://twitter.com/tolstoyscat Cindy

    Spanish Judge opened a Guantanamo probe today.

    In case anyone missed this important occurrence.

  • http://twitter.com/tolstoyscat Cindy

    Dan(Miller),

    These 3 arguments regard my first point. I didn’t make much of a summary from the articles, as I figured you would have to read them to get all of the details, like the case information, and things.

    How Justice Erred on Waterboarding
    Senator Sheldon Whitehouse (former US Atty)

    A) The standard used was inappropriate:

    This standard was taken from, of all things, health-care reimbursement law, not from precedents regarding torture. And there were plenty of precedents concerning torture, and waterboarding in particular.

    B) Ignoring precedent that waterboarding was determined to be torture:

    For decades, the U.S. government said the same thing, initiating war-crimes prosecutions against Japanese soldiers who waterboarded American aviators in World War II and condemning the use of water torture by U.S. soldiers in the Philippines at the turn of the 20th Century. This substantial body of precedent has been documented by Evan Wallach in the Columbia Journal of Transnational Law.

    C) The failure to cite a “…U.S. appeals-court case on point, a case in which DOJ itself had brought the charges, and a case whose prosecuting assistant U.S. attorney is still in the department…”

    Another article worth reading:

    Reagan’s DOJ Prosecuted Texas Sheriff for Waterboarding Prisoners By Jason Leopold, TruthOut.org. Posted April 27, 2009.

    Ignoring the 1983 case is just one of the flagrant violations committed by Bush lawyers who crafted the newly released “torture memos.”

    (Interestingly: Not one MSM outlet in my search carried this story. It appears in alt media, personal blogs, the MSN Encarta Encyclopedia and on Senator Whitehouse’s web site.)

  • http://twitter.com/tolstoyscat Cindy

    Dan(Miller),

    I do have more toward my first point. But for now I’ll put this in regard to my second point. It’s an analysis from from a legal blog. It’s not the only evidence available. I have a variety of different things. Just one, for example, is the statements made by one of the interrogators that performed the torture describing it in detail. He also calls it torture.

    The CIA’s Failure to Rely in ‘Good Faith’ on the OLC

    Consider the following footnote from Bradbury’s May 10, 2005, memo, discussing the CIA Inspector General’s Report on Counterterrorism and Detention Activities. Pay attention to the quoted language, which was redacted in the version of the IG Report released to the public:

    “51. The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 45,103, 104 and also that it was used in a different manner. See id. at 37 (”The waterboard technique was different from the technique described in the DOJ opinion and used in the SERE training. The difference was in the manner in which the detainee’s breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by by the firm application of a damp cloth over the air passages; the Interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency interrorgator [sic]… applies large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency’s use of the technique is different than that used by in SERE training because it is ‘for real’ and is ‘more poignant and convincing’.”)…. The Inspector General further reported that… “[c]onsequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.” Id. at 21 n.26.”

    The footnote makes clear that the CIA’s waterboarding regime was different from — and much harsher than — the waterboarding regime approved by the Justice Department. The interrogators involved in waterboarding, therefore, cannot argue that they were simply “relying in good faith upon legal advice from the Department of Justice…”

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Good luck, Cindy. It’s going to take a year to decide this one single point – and that’s if you’re lucky since Mr. Miller’s mind appears to be made up; I haven’t seen him change it yet.

    All of which goes to show what’s wrong with our government: you need a battery of lawyers to decide one single issue (as response #102 alone clearly indicates); so our freedoms and liberties have to be rephrased in terms that most ordinary people can’t understand. And if that’s what had become of America, then for sure it ain’t worth defending.

  • M (a) ® k

    Baronius, if it’s a matter of law, where else should a ‘verdict’ be rendered?

    But, then, (as Dan expressed it — sorta) concerning the whole chimeric ‘rule of law’ thing: why bother? Better, perhaps, to apply a bit of that vigilante juice expressed so vigorously in discussions among BC warriors about what to do with those pirates.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I’m glad, Mark, someone has the patience for these arguments. And how can you hope to win without a law degree? We are at the hands of the technocrats. That’s the taste of modernity.

  • Baronius

    Mark, I don’t see why we would take it to court. There are millions of policy decisions made during each administration. We don’t review each Department of Agriculture memo in legal proceedings. That’s not the judiciary’s job.

    And that’s not a technicality; it’s the structure of our government. We have a separation of powers. If you want to argue that you don’t like it, fine. But then let’s not pretend we’re arguing over torture – we’re arguing over the Constitution.

  • http://twitter.com/tolstoyscat Cindy

    Dan(Miller),

    I thought my points were fairly on target, no?

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    He seems to have given up on that Cindy. (I thought the links were great, especially the second one talking about obligations of attorneys to review all prior cases and precedents. Makes a helluva point.) Wrote another one instead, in a different vein.

    How have you been doing? Kinda lonesome here without you.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Cindy,

    Talk to me!

  • http://twitter.com/tolstoyscat Cindy

    Roger,

    Don’t be so hasty. If Dan(Miller) is interested in addressing them, he’d need some time. They were relevant and I think challenging points.

    (P.S. I hope you have a walk outside; it’s summer and it’s beautiful! Grow a garden. Talk to your neighbors. Volunteer in your community. There are plenty of people anywhere you are. Don’t miss out on real life. Sorry for the lecture. :-)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    See, I can’t even get to your comment because “the next 20″ ain’t on.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Looks like I have to load ‘em up with trivia to make them turn.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Again.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Again.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    And again.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Meet me on another thread – Dan Miller’s follow-up article – if you can.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Please fix this thread, editors. It seems to have frozen. Won’t go beyond remark #120.

  • http://twitter.com/tolstoyscat Cindy

    I think comment #21 doesn’t show until comment #22 is posted.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I’ve posted them all and none shows up.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    The pages just stops with #120 and there is no way to turn it.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Now they’re in.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Never mind. You’re right of course. So later.

  • http://twitter.com/tolstoyscat Cindy

    Dan(Miller),

    It’s is likely thousands of innocent people were abducted and subjected to what you would not call, but I would call, torture. Yet, you continue to act as if it was some small handful of people that are called ‘terrorists’. As if only ‘terrorists’ were taken and locked away and subjected to torture. As if we ‘pious’ and ‘morally superior’ idiots were defending people with guns locked and loaded and pointed at us.

    It’s almost as if, despite the fact of your legal training, you are not some unbiased nonpartisan at all. It’s almost as if you are a very biased table-pounding militant, who would feign ‘expert’ innocence (I’m merely, unbiasedly interpreting the law.).

    Do you recognize this distortion when you make it? Am I to think that perhaps even attorneys pound tables? Despite suave attempts to look all legal and impartial?

    Isn’t law to be designed to protect innocents?

    Pardon my naivete, I’m no lawyer. Nor was I trained in Cowboys vs Indians as a child. I haven’t really learned well who the good guys are and who the bad guys are. So, it’s understandable I might have a hard time believing that the ‘authorities’ (including politicians and torturers) were all ‘supermans’ defending truth and justice, while the prisoners (including mostly innocent people) were all ‘terrorists’ intent on destroying civilization.

    Does Panama have torture? Hopefully they won’t mistake you or your wife for terrorists. I mean, you know, they have every right to ‘torture’ you (of course no one could support that, unless…well, maybe if they called it something more palatable…or argued it wasn’t really torture at all)…they have to protect themselves and all…and you well, are a gringo, after all.

    Those who you denounce for being morally outraged and moved to defend innocent people–I hope you’ll never need us.

    Ut vos animadverto opportunus pro alius sic licet vobis quoque.

  • http://twitter.com/tolstoyscat Cindy

    Okay, now I posted this on the wrong thread. But, the comment I posted here never showed up. Oh well…I’ll put a link.

  • http://twitter.com/tolstoyscat Cindy

    Roger,

    You can do what you like. But you’re driving me crazy! :-)

    I replied to your e-mail. Did you write directly to anyone? Or are you planning on making the site even more unpalatable by doing all those posts that are meaningless?

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Cindy,

    I responded to your comment #134 on the other thread.

    Dan(Miller)

  • Bliffle

    I’ve lost patience with the awkwardness of this new format. Why was it changed?

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Bliffle, I’m telling you. If they’re not going to correct these glitches, and soon, they’ll loose sixty percent of the traffic if not more. Jet had a perfect idea – submit it to users from review prior to release. But no! Everyone wanted to celebrate the first hundred days in office.

  • Franco

    138 – Bliffle

    “I’ve lost patience with the awkwardness of this new format. Why was it changed?

    LOL

    Bliffle you’re starting to sound more like a conservative all the time.

    Maybe we missed it Bliffle, maybe BC announced they were going to make changes to the site and wanted to have user input first and so they asked, you know, all the users, the ones running the gauntlet here, and on many many other blogs as well, what we thought and might like to see. But if they did, we missed it.

    The act of socialistically governing progressively is always from the top down were the masses are herded into a designed system that the few ruling elite develop for them as their parental figure. Its not a new concept at all and is always born out of the vacuum of time between generations now gone who suffered under such elites but are no longer around to tell the stories.

    History doses in fact repeat it self. So shut up and enjoy the shafting change Bliffle, unless, social justice forbid, you want to keep sounding like one of those conservatives.

  • http://twitter.com/tolstoyscat Cindy

    Blah to Franco’s nonsensical reasoning. You’re not aware that a Republic is a top-down structure that imposes rules on the masses? Where do these ideas come from? Inside your head or Pluto?

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I’ll say one thing. This ineptness just might motivate a few bright people on this here site to band together and form their own forum, separate from BC. The Internet is here to stay, and so is blogging. Getting the advertisers is a cinch too. All you need is a few enterprising minds and a little capital; the would-be members/writers would be stockholders.

    Stranger things had happened when a parent company take their eyes off the ball.

    Any takers, because I’d be willing to listen?