Yeah, it's pretty clear that most of the US and UK administrations could conceivably face war-crimes trials at some future point [and, furthermore, they should].

The problem with Kevin's post is that it places too much emphasis on the ineffectiveness of torture -- as though torture were a reflection of incompetence rather than moral depravity.

2:"I've argued that the most important point for opponents of torture to make FIRST, is that it isn't good law enforcement, not that it is immoral. If you say it's immoral first, and only later add that it doesn't work, as an afterthought: you've effectively told people that protecting them is LESS important than self-righteousness.

It's far more effective to show that it does NOT work. Then proponents are left to argue "but it's cruel and illegal, too!". A much better approach for the good guys." ..."theAmericanist" in KD's comment section

Since people I respect, like Katherine & hilzoy, have giving priority to the "ineffectiveness" argument, I remain undecided.

I perhaps should not have spoken for Katherine, because I am not completely sure about her tactics. More confidant about hilzoy.

3rd approach might be called "institutional", used in ogged's post here. Int'l law (and US law) has been violated, and int'l law & institutions should be used to approach justice, and int'l institutions should be strengthened to prevent recurrence. This argument has, to my mind, a better upside than the other two.

And may describe Katherine's position better. Or not.

The "ineffectiveness" argument is barking up the wrong tree. Governments don't torture to extract useful information; they torture to produce confessions, to quickly produce the intelligence they want to produce, and as a means of state-sponsored terror. All of these motives will remain in place for as long as the United States remains engaged in a permanent worldwide war to maintain its global hegemony.

The only tactic we can use to roll back torture is to show people being tortured. This is why Abu Ghraib made such a lasting impression, even while it's remained the tip of the iceberg as far as state-sponsored torture goes. Photographic evidence rips the civilized facade off the debate - which is why we haven't seen any photos since the first Abu Ghraib pictures were leaked, and why these tapes were destroyed. On a larger scale, it's why you'll never see photos of the victims of a U.S. airstrike in a mainstream newspaper.

An edit: "useful information" should be "accurate information" in 5. Obviously, false confessions and false information are still plenty useful.

"Unfortunately, even Sen. Clinton said national security is more important than civil rights recently. She may not have been directly responding to the issue of torture, but I think her attitude includes very harsh treatment of 'terrorist' subjects. More than just Republicans share it." ...another quote from KD's comments

I think MY might say that one of the critical issues for our age is to inextricably connect liberal internationalist FP to domestic security. "Joining the ICC makes us safer" kinda stuff.

The "ineffectiveness" argument is barking up the wrong tree. Governments don't torture to extract useful information; they torture to produce confessions, to quickly produce the intelligence they want to produce, and as a means of state-sponsored terror.

Right, that's the point--it's ineffective at achieving the stated goals (accurate and relevant intelligence), but is pretty good at extracting false confessions. Since most supporters of the use of torture probably think we're actually getting something worthwhile out of it, it's important to make the point that we really aren't.

Governments don't torture to extract useful information

Jack Bauer does, and so do the people who believe as he does. In the early days of the WOT, they tortured little fish to find out if there were any ticking time bombs.

I understand the emphasis on effectiveness -- as Bob notes above, it has some political appeal. I worry about overstating it though: there will always be instances where people who do know something tell that thing under torture. There are going to be plenty of false positives too -- either people who know something telling stuff that isn't true, or people who don't know anything making stuff up -- but proponents of the ineffectiveness argument have to avoid absolutes.

One major issue with stras's point (with which I agree 100%) is that it includes a premise that the majority of people will never want to believe -- namely, that the US is doing evil things sheerly out of desire for power.

5:I wish it were true, but I watch people being tortured on cable almost every night. For a broad meaning of torture, the deliberate infliction of pain on another for emotional satisfaction or utilitarian purposes. I have just started reading The Golden Compass, where Lord Asriel twists Lyra's arm on page 3 or something.

Sadism and insufficient empathy is fucking universal if you are willing to look. I see it in comment sections. I am not sure if I cannot say most people have enjoyed watching it since there have been people.

I won't use anyones else's, but as I was writing it, I asked myself if comment 11 was sadistic or lacked empathy toward the readers.

I am outa here. I depress myself.

Morally, torture is wrong whether it's effective or not.

Practically, in order to convince people who think it's okay to torture "bad guys" that torture is wrong, you have to point out that it doesn't work.

Now, people who have any kind of imagination at all will realize that point two and point one are mutually reinforcing. The reason torture doesn't work is that people being tortured will confess to whatever, in order to get the torture to stop, because it is intolerable.

I've tried the ineffectiveness argument on my Marine brother, and he kept on replying, "destroyer, these guys are trained in this stuff, they know what they're doing."

We need prominent military-types making this argument. I'm worried that they won't, as long as there remain other prominent military-types whose asses need covering.

8: Except the last use of torture strasmangelo jones mentioned, torture as state-sponsored terror, doesn't have anything to do with intelligence. I'd think it's probably very effective as a way of terrifying a population and making them submit to authority.

Making bureaucratic effectiveness the issue here is very dangerous, IMHO.

13.3 begs the question, I think.

The problem with the "torture is evil" argument alone is that convincing yourself an act committed for your benefit is not evil is the easiest thing in the world.

No, the problem with the "torture is evil" argument is that plenty of people think it's okay to be evil to evil people.

Perhaps there are two problems with it.

There is only one problem with it, and mine is the correct one. B will agree as soon as my Warrior on Terror Waterboarding Kit Junior arrives in the mail.

What I meant by 13.3 is that, if you say to someone (for instance), "if I were to torture your child in front of you, would you confess to planning to hide a bomb at the mall in order to get me to stop?" People who say "yes" will get that torture is ineffective *and* that it's immoral.

People who say no are either grandstanding liars, or morally fucked up sons of bitches, and in either case there's no point trying to talk to them.

Torture does work as a means of intimidation. It also serves to discredit people who end up breaking, so that they can't be remembered as heroes, and to demoralize movements by creating splits as people snitch out their friends and allies. And false information is useful if it can be used to justify harsh measures or if it implicates someone the torturers want to get to. (And there even are times when it gets usable information, but that's not the main point. An once it becomes standard operating procedure, it will continue indefinitely regardless of whether it serves any purpose whatsoever. Just like every other bureaucracy. People were kept in Guantanamo for years after everyone knew that they had been sent there in error, because there was no protocol for exonerating anyone. Just a bureaucratic glitch.)

Franz Fanon's "Wretched of the Earth" says a lot about the use of terror in Algeria. He was a psychologist and reported that the torturers themselves (low ranking individuals under orders) suffered terrible trauma. There are several degrees of separation between the decision-makers and the people who do the dirty work (though some decision-makers enjoy getting in on the action).

Destroyer's Marine brother might be right. Torture has been carefully rationalized and scientized with the help of a lot of MDs and psych PhDs, and this presumably includes sifting the information obtained.

This is a loser issue domestically. We mostly have to fight it in order to keep some shred of self-respect in front of our non-American friends.

I also think that, pace Destroyer's brother, most military folks are *quite* clear that torture is wrong, because they realize that the Geneva conventions protect their asses.

they realize that the Geneva conventions protect their asses

Not from the terrists, they say.

from the martians?

22: Self-preservation is only half of the military psychology here, I think. The other half is an internalized obediance culture in the military, an almost thoughtless (or thoughtful) respect for orders, chains-of-command, institutions, heirarchies, etc. An officer will follow the UCMJ because it is the UCMJ.

OTOH, the CIA covert agent is supposed to internalize almost the opposite cultural attitudes. Wherever he is overseas, it is his job (in part) to break local laws and disrespect local institutions.

Part of the problem with the torture doesn't work argument is that people don't hear something like B's sensible hypothetical in 20. They hear 'if you were an evil terrorist, would you confess your plan to blow up the mall if we tortured you?' as a first resort. They think, if I were a bad guy, I'd probably crack if some Marines beat me up. I'd probably say whatever I thought they wanted.

What's hard to drive home is that there is no crystal ball by which the government knows who is a bad guy, so even if Mr. Terrorist confesses his plot, he's likely confessed to 100 other things that weren't true, and so have the other hundred innocent people that we accidentally rounded up.

And the original post/story I think describes the problem well. My intuition tells me that at least the military torturers understood all three arguments:torture was morally wrong, ineffective, and violated the Conventions.

But they had orders from the President.

27: I really doubt the actual torturers had any ethical problem with torturing people, particularly scary brown foreigners who'd been handed to them not long after a terrorist attack and labeled Enemies of the State.

The other reason why it's good rhetorically to downplay the effectiveness of torture is that emphasizing only the immorality of it feeds easily into the myth of lawman or soldier who loves his country or city or cause so much that he accepts the burden of doing a horrible moral deed so that those he loves can sleep peacefully.

I haven't watched 24 in a while, but at one point even they were kicking around the idea of torture being wrong and horribly damaging to the torturer. Which is why we need someone as tough as Jack Bauer to sacrifice himself....

Settle down, 28. Not everyone is less moral or thoughtful than you.

Well, y'all know different military folks than I do. Most of the guys I know are quite adamant that violating the Geneva conventions is bullshit.

Eichmann suffered too.

30: Is it so difficult to believe that people who've been professionally trained to torture prisoners might have fewer reservations about the morality or efficacy of torture than ordinary citizens?

I just can't believe people (Dersh) still argue the ticking time bomb scenario. Per 26, a terrorist might confess to where the bomb is, and also 100 places it isn't. In fact, I can't think of a scenario where torture is less likely to work- a bomb will go off in an hour, so the terrorist just has to tell the torturers enough false places to look so as to occupy them for an hour.

31:But I think you are underestimating the power of an order from the President or his representative. Most of the pressure, IIRC, was directed upwards, at changing the order, because the ordinary soldier would be in too much conflict.

re 30:You or I maybe, maybe might drop the bomb in the ocean,. but I doubt Jimmy Doolittle felt he had a choice. "Disobeying an unlawful order" only looks easy from the outside.

34, that presumes that the torturers don't have the magical ability to detect when someone is lying and insist on the truth, which from TV and movies we all know they have.

I think 29 makes a really important point in favor of the ineffectiveness argument, but the myth that it's taking on is too potent to take down through argumentation alone. American culture has been lionizing vigilante figures since long before Jack Bauer and 9/11, and Americans need much, much more exposure to visual evidence of what torturers actually do. The "good men who do bad things for a good purpose" myth needs to be punctured not just with the argument that torture serves no good purpose, but with the visceral reality that these are not good men.

I'd agree with that. I don't see the two strategies as necessarily opposed.

Int'l law (and US law) has been violated, and int'l law & institutions should be used to approach justice, and int'l institutions should be strengthened to prevent recurrence.

There is no such thing as international law.

39: My arsenal of nuclear weapons says you're wrong. So whattaya going to do about it?

37: I think that the famously stupid concluding plot in 24 this year showed that, simply because the loving, tearful Jack Bauer shown in the end was no longer at all believable. The Jack Bauer of much of the season, who displayed various levels of suicidal behavior, seemed more believable.

We need less waterboarding and more ginboarding.

I agree with 37, and also 42.

39:Jeez, flippanter, now you are sounding like me or Kant or something.

There is as much int'l law as you believe there is. I know the arguments that we have simply implemented treaties with enabling legislation, so that we can withdraw at any point, but I would still say say that the torture treature is not merely morally binding, but legally. I have internalized the Conventions as legally precedent to any sovereignty. That makes me, in my own opinion, a traitor.

I have already been thru one thread on Eichmann in Jerusaleum this week.

That's the redundancy of evil, McManus.

And torture, incidentally, is far from the worst of our war crimes. Bombing civilian populations of an occupied area as a counter-insurgency tactic is much worse. And a violation.

I'll overlook that insult, bob, because I know your Simone Weil cosplay takes up a great deal of your attention.

The "good men who do bad things for a good purpose" myth needs to be punctured not just with the argument that torture serves no good purpose, but with the visceral reality that these are not good men.

No, this is bitter nonsense. You're buying right into the idea that there are "good men" and "bad men," and only quibbling on the details of what's to be done with them. I'm sure that many of the torturers are fucked up assholes, and that many of them are people who will end up with serious PTSD as a result of their work. And that their fucked uppedness is *because torture is immoral*, rather than it's being immoral because it's done by Not Good Men.

5- Isn't Stras right here? Finally in the 90's, the US is THE world's superpower then a bunch of guys armed with fucking box cutters take down the Towers. Isn't the administration's enthusiasm for torture much less about effectiveness and more about contempt for non-state sponsored, brown people who aren't seen as worthy of protection by any treaty or even moral justice?

48: I don't think the causality needs to flow one way or t'other for stras' point to be accurate. Whether by nature sociopathic or curdled by the awfulness of their act, competent torturers are corrupt, unhappy, and evil people, not heroes.

50: There's a difference between "unhappy people" and "bad men," in rhetorical terms. I really think that demonizing people who do things you don't like is counter-productive.

I can't believe I'm the one making this argument.

51: it's better than lionizing them.

Those are the only two options?

51: I'm sticking with the terminology from my daughter's school: people who pluck random civilians from foreign cities, hold them without charges based on secret evidence that turns out to be completely insubstantial, and inflict grievous physical psychological and physical tortures on them...these people make "bad choices."

I hope to one day explain to Caroline that the president made some "bad choices" and as a result is going to be "in time out for the rest of his life."

There's a difference between "unhappy people" and "bad men," in rhetorical terms.>

That's true. If you weren't weeded out during training for killing (or torture. whatever) and when you come home, you're awarded with a medal and considered a hero patriot, you might be a pretty happy person.

Right, with PTSD, horrific nightmares, and the inability to keep your life together.

B you are aware who you're defending, right?

I'm not defending anyone. I'm saying that the "evil men" rhetoric is the same thing that lets people rationalize torture in the first place, and that it's important, I think, to recognize that almost any of us are capable of that kind of evil under the right circumstances. Which is why it ought to be illegal.

54: rob, that story makes me laugh. Not because you're not doing the right thing by Caroline, but because 'Have fun! Make good choices!' has been the traditional snarky sisterly send-off to an evening of debauchery ever since one of the younger three heard the 'make good choices' line in some high school anti-drug assembly. (My dad used to tell us 'no sex, no drugs, and very little rock and roll.')

I'd say that if anyone needs to be demonized, it's torturers (along with promoters of genocide, serial killers, serial rapists, slave traders, etc.) And I don't think that we should demonize people who demonize others. Some demonization is perfectly copacetic and swell.

I have an inlaw who was a military lifer who has worked as a prison guard, and he has a frighteningly matter-of-fact attitude toward rough stuff. He hasn't brought that with him into civilian life -- he's mostly a nice guy -- and I tend to avoid talking to him about anything serious.

And remember, GWB is not a bad person. He just makes consistently bad choices on the basis of settled dispositions which he has no second order desire to change.

The scrap of truth in what B says is that the people who do the actual dirty work are seldom the ones who decide that the dirty work will be done. Fanon recognized that the hands-on torturers were victims in a sense. But if she thinks that there should be no demonization at all, I'm afraid I'll have to credit her post to the great Randomizing Barrel she has in he Opinion Room.

And remember, GWB is not a bad person.

Apparently my son told his classmates that GWB was a bad man. His teacher informed me that this was an "inappropriate" opinion for a first grader to hold.

The problem isn't with the policy of demonization -- it's the fact that demonization has been done so incompetently and haphazardly.

it's important, I think, to recognize that almost any of us are capable of that kind of evil under the right circumstances.

Not that kind of evil. I understand that when people are in circumstances in which they are scared, traumatized, etc, they may be capable of acts they would ordinarily not be. But safely walking into a room to torture someone strapped to a board is not one of them.

Liberal relativism runs wild.

safely walking into a room to torture someone strapped to a board is not one of them.

Well, good for you. I'm not so sure that, under the right circumstances, I'm incapable of this. And I hope to god I never find out.

My point here isn't to defend torturers at all. But the main way to convince people that torture is wrong is to get them to empathize with the victims. Many of whom genuinely *are* bad people. It seems unlikely, to say the least, to think we can convince other people to empathize with bad people if we refuse to do it ourselves.

I'm of two minds about this, but I think demonization is winning out. I suspect B is right that nearly any nice normal person could be induced to torture someone, given the right set of incentives. But I also think it can be useful to point out that if you cross that particular Rubicon, you are no longer a nice person who just made some bad choices. Making those particular choices poisons you; you're a moral monster if you decide to torture.

And no, not all the victims are bad people. But the point is that torture's wrong regardless of whether the people tortured are innocent or not, isn't it?

68 nails it, of course.

I think that immorality and ineffectiveness flow into and push each other around, and that the question of what to emphasize is a contextual one: who are you trying to persuade, in what circumstances?

One thing I've learned from reading the comments of professional interrogators like Terry Karney is that successful interrogation leaves the interrogators feeling able to live with themselves, because they've done an important thing well. He emphasizes how much good intelligence depends on earning the trust of the subject, so that they have reasons to deal in the truth. The best interrogators are, just as Sun Tzu said, the ones who can win with least fighting. The more force is involved, the worse the process is going, says Terry, and torturing is an admission that you've already failed - at least, it would be with interrogators who were being honest with themselves. That makes sense to me.

any nice normal person could be induced to torture someone

I'm having a an extremely hard time with this.

67: I can't believe you said that, B. I just don't understand how you think. I don't think that empathy is what's in question here. Your post is off in Kumbayah group hug territory.

"any" might be overstating it, but i thought milgram showed this pretty conclusively.

72: The Milgram experiments aren't conclusive proof, especially as iirc, the 'torturer' didn't see his victims, but they show that at least one threshold (causing pain to others) is easy to override just by telling someone that they won't be held responsible. Add to that 'the good of the country', some propaganda about how the victim is really not the sort of person that could be expected to listen to reason, that violence is the only language 'these people' understand... yeah, I think so.

There was also a 'nearly' floating around in there.

The only way Americans are going to object to torture is if they're convinced that torture is a tactic of the weak.

But the main way to convince people that torture is wrong is to get them to empathize with the victims. Many of whom genuinely *are* bad people.

You object to "bad person" as applied to the torturer, but not to "bad person" as applied to the torture victim?

The only way Americans are going to object to torture is if they're convinced that torture is a tactic of the weak.

Agreed.

Yeah, all the really tough guys go in for non-violent resistance.

78: No. I object to "bad person" being the final word about either.

The only way Americans are going to object to torture is if they're convinced that torture is a tactic of the weak.

Right, but how can you make this case? It's hard to convince somebody who's scared that his reaction to fear shows weakness. People don't want to hear that, especially not with Strongman Rudy promising to electrocute as many testicles as it takes to keep the homeland secure.

77- No. The only way Americans object to torture is that the peoples being tortured are worthy of recognition and respect. Even the strongest proponent doesn't believe it's effective in all cases. So to be good with it, you have to believe that the unknown innocent being tortured are not worthy of that recognition and respect.

Or another way: people who are scared will only accept this message from leaders whom they regard as strong. But anybody who's anti-torture is ipso facto weak.

83: So it's okay to torture people who aren't innocent? Do you really want the case to rest on that?

82:How about "bad person" being applied to everybody equally? Does that eliminate the moral relativism problem?

I am sympathetic to B's position here, and do not completely trust milgram. It is a fact that only a minority of even SS soldiers did the vast majority of killing. It is a fact that the vast majority of soldiers are incapable of shooting the enemy even while under fire, which is why they shifted to automatic weapons in Vietnam. I don't know what argument those facts are supporting.

Was the Mayor of Castorbridge already always a horrible person? Fuck if I know.

85:That's not what 83 says at all.

No, B, that's the last thing I'm saying. I'm saying that Americans are ok with torturing Islamists because to them innocent casualties are people unworthy of recognition.

86- Isn't it a tough assumption that results from a 50-year old study could be replicated today?

47: Ok, so I finally got around to looking up "cosplay" and Simone Weil, and I wish y'all would make flippanter insult me in language I can understand. "Cosplay" may refer to a costume, and "Simone Weil" may refer to her mercurial, to be kind, personality, but who really knows.

88: That reminds me of Butler's argument in Precarious Life. All her work in this area is really amazing, in my opinion.

B's argument isn't so hard to understand. Call people who torture bad people. What's wrong with torturing bad people?

91:"Butler in Precarious Life"

See, at times like this I am not sure if this crowd is universally deeply read in the life & works of Simone Weil, which to me doesn't look so easily digestable that her name can become a signifier. Or fuck, maybe you all are. I suspect it means "politico-philosophical flake" and maybe phony or dilettante.

Anyway, on skimming the Wikipedia entry and Sontag's essay, I actually feel flattered (cross-dressing in a Simone Weil costume? works for me) in many ways, which certainly wasn't the intent, which doesn't matter to me a whit, which is part of the reason flip's insult both works and is funny.

So the fact that I referred to Judith Butler tipped you off that people at Unfogged aren't all polymathically erudite?

Wrongshore, you seem to have taken will's "w", and he your "W". Please arrange for an exchange post-haste.

94:Shhh...I am trying to self-justify my Simone Weil cosplay as a "politics of the performative."

And I think I am falling in love. Reading Weil and about Weil is a lot more fun than struggling thru Phillip Pullman, which was really rough reading last night.

Trendy academic trivia: Agamben did his dissertation on Simone Weil.

97: It was a dissertation of force.

77:

The only way Americans are going to object to torture is if they're convinced that torture is a tactic of the weak.

Cynical as it is, this may be true. It's not the right reason to object to torture, obviously, but if the question is one of influencing American public opinion, the right reasons rarely matter.

83 may be the right reason to object:

The only way Americans object to torture is that the peoples being tortured are worthy of recognition and respect. Even the strongest proponent doesn't believe it's effective in all cases. So to be good with it, you have to believe that the unknown innocent being tortured are not worthy of that recognition and respect.

And we're in a state of war (These Colors Don't Run), in which the enemy is not worthy of respect. Which comes back around, then, to the Geneva Conventions and the fact that many Americans feel that all bets are off. So frightened, we are. It's so tempting to engage in armchair cultural psychology.

How many Americans would object to the execution of Osama bin Laden? Is the number of people who would object to him being tortured greater than that?

When people use concrete examples to show why torture is wrong, the tortured is almost always not truly "deserving" of being tortured -- he's either innocent, or a nobody without any real information to provide. Then there is also the issue of accountability and oversight for the torturers. It seems to me that one gets to "torturing Hitler is morally wrong" after considering those issues, not as a first principle.

100:I have publicly and repeatedly called for the release to safe haven of Khaled Sheik Mohammed, with the US Gov't awarding KSM some fair monetary compensation.

Anyone who objects to torture without accepting that there should be appropriate, even tho terribly costly, remedies for the victims of torture, is quite frankly, a bullshit artist and hypocrite.

Emerson's point about torture as a form of intimidation made me think of a new slogan: "Torture is Terrorism"

Now, good arguments could be made on both sides as to whether that's actually true, but truth is academic. I think the real question is, would the slogan work for propaganda purposes? If "Torture is Terrorism" got slapped on a bumper sticker and viewed by millions of people, would it change anyones mind?

IIRC, most of the legal blogosphere took the position that even tho Jose Padilla had been unbelievably maltreated, he remained a baddie and dangerous, so it was ok to sentence him to life in a Supermax. Fuck em all.

Here you go, bob. From Weil's "Reflections on War," written when she was 24:

Whether the mask is labeled fascism, democracy, or dictatorship of the proletariat, our great adversary remains The Apparatus--the bureaucracy, the police, the military. Not the one facing us across the frontier or the battle lines, which is not so much our enemy as our brothers' enemy, but the one that calls itself our protector and makes us its slaves. No matter what the circumstances, the worst betrayal will always be to subordinate ourselves to this Apparatus, and to trample underfoot, in its service, all human values in ourselves and in others.

102: The problem is that terrorism is something that, definitionally, "we" don't do. That's because terrorism is a term reserved for non-state actors (or sometimes "rogue state" actors).

So the slogan would probably backfire, with people feeling outraged by the implicit moral equivalency. (And they're right to be outraged at moral equivalency -- after all, the US has caused much greater death and suffering than al Qaeda could ever dream of.)

102, 105: I'm pretty sure no less an avatar of reasonableness than Matthew Yglesias has described torture as state-controlled terrorism. I'm also fairly sure this line of reasoning has a long and well-established history.

And AFAIK, I am the only person in the world with the skirt (still wearing Weil) to say that the torture obligates us to release KSM and his colleagues. All call for punishing the torturers, but still, still refuse compassion and justice to the tortured. Yet ask us to revere these lawyers as moral exemplars.

104:I don't know who or what flippanter is, but he nailed me profoundly, only missing the irony. A drama queen who knows himself ridiculous. I am too consistent a misanthrope to take my own martyrdom as seriously as Weil. For me, immolation would be performance art, a con.

105: In as much as we accuse countries of being "state sponsors of terrorism", I don't think the statehood vs. non-statehood of the actors involved is where the definitional line is drawn. If the CIA were to blow up a civilian jet liner, I'd have no prolem calling that terrorism. I would say that terrorism is something that happens outside the international rules of war, and both terrorism and torture meet that test.

If people were to get outraged at the implied moral equivalency, well, at least it would get them thinking in the frame of moral equivalency.

How did we stop cops from beating confessions out of suspects? We threw out the confessions, and in many cases, let murderers walk free. It hasn't been easy, and those rulings have been seriously eroded recently, but it worked for a while. If KSM walked, Americans might take torture more seriously.

One last word:One of my favorite movies rolled around on cable the other night, David Hare's Weatherby with Vanessa Redgrave. It is very much a companion piece to Hare's better known Plenty, centering on a maudlin drama queen who commits suicide as an attempted reproach to his "sane & sound" acquaintances. Highly recommended.

Solipsistic raving tonight. Sorry. Bye.

Confirmation for Bob's 109 comes from the police officer who was father of one of my childhood friends. I remember him commenting on changes to law and policy coming down in the '70s. Now, he was quite conservative in his worldview, but in a way that included a great respect for the authority of government in all three branches. He said repeatedly that a cop who paid attention to instructions and asked questions until he was sure he knew what he should do and who then did those things would never have to face the humiliation of a suspect let go, and anyone who had to see one walk because he (the cop) did the wrong thing deserved to. He had it happen to himself a couple of times in the years we knew the family, and he always said that he'd deserved it, because he hadn't paid attention when it counted.

So yeah, highly visible failure is what it takes to make some changes stick.

my position is that you can't actually separate the morality argument & the effectiveness argument. They are intertwined. It's so practically disastrous in part because it's so immoral; it's so immoral in part because it's practically disastrous. They're not separate issues.

This probably sounds like a neat little rhetorical trick but I'm completely serious: they're intertwined problems & we need to make both arguments at once.

Precisely.

All call for punishing the torturers, but still, still refuse compassion and justice to the tortured.

I don't see how compassion and justice for people who have both been tortured and committed terrible crimes requires that they not be punished for those crimes. It does of course require that any evidence against them derived from their torture not be used against them, and they should be free to argue that all of the evidence against derived from their torture, but that won't make it so, at least in some cases.

OT: Has anyone else been following the bizarre blow-up at Henley's today/tonight over his Mark Steyn post which included a mis-reading on his part?

I personally think that compassion for Padilla requires him to be executed at this point. The man has been driven mad.

Padilla was subjected to the mind-destroying psychological techniques pioneered by Dr. Ewen Cameron, to an extent unprecedented as far as some people know. Everyone in solitary confinement is subjected to this to some extent.

The first part of Naomi Klein's "The Shock Doctrine" is a great description of this, and has only a tenuous connection to the rest of the book.

Holy crap, I'd never heard of Ewen Cameron. The first three links in the google results: just, wow.

113:The torture was not a mistake or an aberration or a rogue act but an act of State, and the State should pay. Yes, according to "Law" (sneer, snarl) KSM can sue for civil damages from the depths of Leavenworth or Angola or Gitmo. Like we would really miss the 5 million from the US budget, and like KSM would appreciate it.

The State should pay. That means us, you & me & Rush Limbaugh. It should really fucking hurt. Even Bush in a prison cell or on the gallows would only increase a sense of shame. Take from the State what it considers its own, and what it values most highly:its monopoly & right to force & retribution. Free KSM.

114:Oh, B.

I might shoot Padilla, but I don't want to allow the gov't to put its victims out of their misery. Oh no.

The way to rectify an injustice is another injustice?

I seem to have lost my appetite for vengeance somewhere, wd.

The thing at Henley's is something I haven't seen for years. To me, it is the equivalent of a DoS attack, an attempt to get Henley in trouble with his server or host.

116: Jesus Christ. I just did the same thing. Fucking terrifying. That's some Jacob's Ladder shit.

Bob: It sort of is a DoS attack, where "S" might be "sense" or something of the sort. :)

Ewen Cameron is known as "the memory thief." He wanted "to wipe the mind clean of bad thoughts."

The CIA found his research very promising. By research, I mean crazy and wildly unethical experimentation on unsuspecting victims.

86

"... It is a fact that the vast majority of soldiers are incapable of shooting the enemy even while under fire, which is why they shifted to automatic weapons in Vietnam. ..."

This is misleading. What is a fact is that most soldiers are reluctant to take careful aim while exposed to enemy fire. With automatic weapons they don't have to take careful aim to be effective. It has nothing to do with a reluctance to kill.

re: 123

Actually, no. There's been a lot of research done on willingness to kill in past conflicts. That research backs up the claim that (in the past) the majority of soldiers were incapable of killing the enemy. That had nothing to do with exposure to risk but a general unwillingness of people to kill.

That, however, has largely been fixed. Contemporary military training has been designed to get around it.

There's been at least one book, and at least one UK tv series on this topic, covering the evolution of military training over the past 40 - 50 years and the increasing emphasis on 'conditioning' soldiers to be able to kill.

Bob, I'll join your "free the tortured" movement. At the very least, KSM should get a little house and garden to spend house arrest in.

Yeah I don't disagree. As stomach churning as it might be, we have to abide by the rule of law. Unfortunate those fuckwits running our country blew it, but we have to live with the consequences.

124

For the anti Marshall case see here .

the evolution of military training over the past 40 - 50 years and the increasing emphasis on 'conditioning' soldiers to be able to kill.

Yeah, treating the military like some kind of more heavily armed police force is a huge mistake. These guys are trained to slaughter lots of people and raze infrastructure. Not surprising when occupation turns into a bloody clusterfuck.

128: I think it's pretty well accepted by everyone who seem to know what they're talking about that police make lousy military and military make lousy police.

Which is supported by both the clusterfuck in Iraq, and the status of domestic policing.

126: Why would you say that freeing KSM is required by the rule of law? I ask because I think it's more clear cut that the rule of law doesn't require it than it is that it's a bad idea.

30: I'm not sure I would; not a lawyer, don't know details. I was speaking in generalities: it seems likely we'd have to cut some people loose if we actually prosecuted them and all the facts about what we'd done to them came to light.

132: Again, I don't know details. But if we prosecuted him without using information procured by torture, as I think the rule of law does require, it's not clear to me that we'd be able to convict him of anything. (This is off the cuff -- if there's something obviously provable by non-interrogation produced evidence that we could find him guilty of, then I'd be wrong. I'm just not thinking of what that is right now.)

132: right, and none of the information gleaned from those interviews could even be used to lead to other sources for evidence, right? Anything down the chain from the interviews where he was torturred would be out?

(At least, that's what I've gleaned from cop shows)

Padilla is still insane and locked up and under indictment handed down by a grand jury, isn't he? I don't think that the law is doing a very good job here.

There should be an asterix to 134, to wit: "good job" as defined by the "free the tortured" movement.

Rrrr, this isn't my area, but my cop-show (and memory of law school) sense of how it would work out is that that's right -- "fruit of the poison tree". (To be precise, I know that's how it works if the initial bad evidence is the result of a 4th, 5th, or 6th amendment violation. Where the results of torture, for someone who didn't have a right to counsel while being interrogated, comes in? I'm not sure if there's settled law, or how it would work.)

I don't think that the law is doing a very good job here.

I'm basically convinced that `the law', in particular the judicial branch, has systematically failed in this particular and all related areas. I'm not at all sure how one would go about fixing that, though.

I'm not arguing about suppression of evidence gathered via torture (because I think its necessity is self-evident), and I don't think McManus is either. His argument is that the government's hideous acts require torture victims to be freed even if it's also the case they could be proven guilty of crimes without using evidence from torture, and I thought Sifu was alluding to Rule of Law concerns which would support the McManus view, and was curious about what they were.

136: Shit, I should know this a little better. Missouri v. Seibert just recently clarified that the fruti of the poisonous tree thing doesn't apply to Miranda violations and it's sort of sketchy (to my recollection) whether that doctrine applies to 5th amendment violations that go beyond Miranda to actual coerced confessions. It's principally a doctrine applicable to 4th amendment violations. My memory was that it wouldn't preclude the use of non-testimonial evidence that the coerced confession led to because the 5th amendment technically doesn't preclude obtaining coerced confessions but rather precludes using coerced confessions against the suspect in court.

138: is that what he was arguing? If so I misunderstood him.

139: Missouri v. Seibert just recently clarified that the fruti of the poisonous tree thing doesn't apply to Miranda violations

Really? I don't know this shit at all. I had no idea.

141: It's a pretty new case -- surely long since the last time you looked at criminal law. I recently did like 47 briefs dealing with the stupid case and it is depressing me terribly that I can't remember exactly what the fruit of the poisonous tree discussion was. I am going to go look it up now. (Using the freely, not billed to any client, file available either on the USSCT website or Findlaw.

OK, as far as fruit of the poisonous tree not applying to Miranda violations, Seibert is just confirming Oregon v. Elstad which seems to merely have followed Harris v. New York on this point. None of which actually answers whether the tainted fruits idea applies to actual coercion rather than mere technical Miranda violations. In other words, my half-remember input was totally off-point...

140:What, I'm arguing with lawyers about the exclusionary rule or sumpin? I am pounding on the table, from underneath the table.

Torture News!

1)1. "The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President's authority under Article II."

This is simply a correct statement. " ...Marty Lederman, reluctantly correcting Sen Sheldon Whitehouse.

But I guess Marty still says this does not mean the President can ignore the law or court rulings. Or sumpin. Still hiding under the table.

2) Pelosi has known about waterboarding etc since Sept 2002, and has spun(?) her knowledge since. Details at Digby's and ObsWi & K Drum. People are calling for her resignation. It's hard to care anymore.

Is Pelosi a lawyer? Talks like one. Can I tip the table of lawyers now?

Reading as carefully as I can, I guess what Lederman is saying is that the President can interpret his Art II powers so as to say waterboarding is not illegal, and then he can waterboard everybody, and the President would be substantively wrong, but not acting illegally or unconstitutionally? Whatever.

Does anybody need a link?

Pelosi has known about waterboarding etc since Sept 2002, and has spun(?) her knowledge since.

I just read this today. I'm beyond shock, I think, but I'm still outraged.

And Pelosi, being deeply briefed IIRC 30 times, agreed with the President about waterboarding and its legality.

"I guess what Lederman is saying is that the President can interpret his Art II powers so as to say waterboarding is not illegal, and then he can waterboard everybody, and the President would be substantively wrong, but not acting illegally or unconstitutionally?"

No, I think you're misinterpreting him. I think he would say that the president was absolutely acting illegally. I doubt he'd dispute that it was legitimately impeachable though he might disagree tactically.

However, he would probably argue that you couldn't prosecute people for relying on the president's determination because it was binding within the executive branch. I find Lederman distressingly resigned to the idea of the OLC as mob lawyers with superpowers (or on the OLC as the means by which the Nuremburg defense works under U.S. law).

I think he's exagerrating the impossibility of prosecution because in fact, the CIA went beyond the authorized techniques. I also think that to the extent that the Nuremburg defense really would work legally (which I'm not so ready to concede)--well then, we obviously need to change the law.

Pelosi would be another data point in favor of my "the dems actually just don't give a crap" hypothesis. (there are, of course, exceptions)

Well, I for one am heartened by the revelation that the Dems aren't actually spineless, just guilty as hell.

Back upthread to torturers, what about Tony Lagouranis, who's candid that his stint as an Army interrogator included abuse/torture of prisoners, and now speaks out about how wrong he & others were? Is he a moral monster?

Re: Lederman & the OLC:

Water torture was recognized as an unacceptable means of obtaining confessions by, for goodness' sake, the Mississippi Supreme Court, back in the 1930s, where black people were the victims no less. So you would think it's obviously not okay for the CIA.

But I can imagine a CIA spook being told, "hey, the lawyers say it's not torture if there's no permanent harm done." He could look up the statute himself; but he's not a lawyer, is he going to know how to interpret the law better than the lawyers?

(As a lawyer, I get to deal all the time with non-lawyers I call "clients," and they are unanimous in thinking that *I* should tell *them* what the law means. Also, the last thing I want is some client quoting a statute to me and saying "so that settles it," when (as lawyers know) the statutes only mean what the caselaw says they mean. And who reads the cases and decides what they mean? Lawyers do.

So I think it's plausible that any CIA folks who trusted the Yoo-Addington opinions were in fact betrayed by the lawyers ... the spooks trusted the lawyers to do their job, and quite obviously, the lawyers let them down. I would put the liability on the lawyers themselves.

lederman would put it on no one, I think.

I'm not especially up in arms to prosecute cia agents who only did exactly what was authorized & no more. But Marty tends to write as if the Mark Swanners of the world didn't exist. And I wouldn't necessarily cut George Tenet as much slack as I would a low ranking interrogator...

I liked Scott Horton's post at Balkinization, comparing Yoo and Addington to the Nazi lawyers who signed off on the "Nacht und Nebel" orders as 100% legal. I do not think that even Lederman could agree that Yoo and Addington would fare well with a tribunal that applied Nuremberg law.

(None of this to slam Lederman of course, who has done God's own work on this issue.)

I'm not especially up in arms to prosecute cia agents who only did exactly what was authorized & no more.

I am. Yes, the Bushes and the Cheneys and the Addingtons are responsible for forming the policy, but someone had to carry it out, and those someones damn well knew what they were doing was torture.

re: 153

Yeah, I'm all for the full-on 'deNazification/deBathification' process. With as many imprisonments as possible. Here [UK] as well as there [US].

It's going to take political and cultural leadership of the highest order to get the country to officially accept the need for atonement, where we here are already. I think mostly the leaders we have will skip it, finding it not worth the trouble if they possibly can, with so much else to do, just to get back to a responsive and functional government.

I'm unable to imagine how it will become important enough to tackle before before moving on to something else, sad to say.

I understand that they are working overtime to see if they can convict KSM without resort to tainted evidence. You'd think they could, but then they've mishandled the whole thing pretty badly. And I don't see any reason on earth why he'd be different from any other criminal defendant: if you can't prove guilt beyond a reasonable doubt with admissible evidence, then he walks. (I wouldn't be surprised if he's thought to have broken the laws of countries other than the US as well. If so, and if we have to let him go, maybe KSM ends up extradited.)

I too would like to see the senior US policy-makers in jail, but frankly doubt our ability as a society to get this done. As for the little guys, we have Anderson's points above, and the prosecution of Corsetti to think about.

I'm not surprised about Pelosi. I'm not sure when I learned about waterboarding, and the rest, but I think that the government was going to do this stuff was out in the open pretty early on. The report re her is misdirection -- not that it excuses her, but her culpability doesn't excuse at all the people who did this thing.

and those someones damn well knew what they were doing was torture

I realize it's comfortable to *say* that, but in the real world, whether something is legally "torture" depends on the interpretation of the law against torture. If the executive's top lawyers tell you that waterboarding isn't *legally* torture, who are you to argue, CIA spook?

re: 157

Leaving aside the ethical/moral element here* 'I was just following orders' didn't work for the Nuremberg defendants and it shouldn't work now.

* i.e. that anyone who thought waterboarding people was acceptable behaviour is already way over the line ..

Nuremburg was victors' justice; if there were some concerned hyperpower beyond ourselves we wouldn't be having this discussion, but this war wouldn't have existed either.

Corsetti:

"The president of the United States doesn't know what the rules are. The secretary of defense doesn't know what the rules are. But the government expects this Pfc. to know what the rules are?" -- Lawyer defending Pfc. Damien M. Corsetti, who is facing court-martial for the deaths of two men in a U.S. military detention center in Afghanistan in 2002

re: 159

I don't know what "Nuremburg was victors' justice" is supposed to be doing in this context.

There's a legal precedent that 'just following orders' is not an acceptable defence in law. If the point is just that 'no one can compel the USA to stop behaving collectively like a bunch of cunts' than that is correct.

Nobody but us, if we can figure out how.

162, yeah.

[This all applies to the UK as well, of course. Our political leadership is culpable.]

I don't think that genocide is quite the same as waterboarding, in the self-evidently-egregious scale. Some may differ.

I have gotten into arguments at various blogs about whether waterboarding violates the torture statute, and while I'm convinced that it does, the argument is sophisticated enough that I wouldn't expect a non-lawyer to read that statute and reliably infer that waterboarding was clearly covered, in the face of an OLC opinion to the contrary.

"I was just following orders, even though I knew they were illegal" is the classic Nuremberg defense. (Tho see Arendt's discussion.) That's not the same as "I was just following orders, which the White House's top lawyers had advised me in writing were legal."

I don't think that genocide is quite the same as waterboarding, in the self-evidently-egregious scale. Some may differ.

I don't think anyone claimed that. Waterboarding is still self-evidently-egregious enough.

"I was just following orders, even though I knew they were illegal" is the classic Nuremberg defense.

Well, no. The Nazi regime passed laws that legalised some of the things we now think of as being heinous about their behaviour. The whole 'crimes against humanity' thing is partly a response to that. It's explicitly stated in that context that it doesn't matter whether the actions were legal under the statutes of the offending nation.

Waterboarding is still self-evidently-egregious enough.

Sigh. You cannot convict people and sentence them to prison terms for conduct that they "just should have known" was illegal, where that conduct was (1) sufficiently weird to be outside the normal range of common-sense judgment, and (2) expressly declared legal by the OLC.

By (1) I would distinguish, say, kicking someone repeatedly in the ribs, or beating him in the head. The risks of permanent harm or death there are too obvious to believe they could be allowed:

Torturer 1: Hey, you're gonna give that guy brain damage or something.

Torturer 2: But this OLC opinion says that beating guys in the head is okay, it's just "enhanced interrogation," no permanent harm done.

Torturer 1: But that's obviously b.s. -- it says torture is only permanent harm done, and nobody can believe that you don't risk permanent harm when you beat a guy in the head. The opinion contradicts itself in a way that even a torturing CIA spook like myself can detect.

Torturer 2: You're no fun. Wanna waterboard him instead?

Torturer 1: Sure!

And, according to Lederman (who I like too!) the lawyers were just following orders to find it legal.

No. If that's the law right now, then perhaps some prosecutions are impossible--perhaps we can't close certain loopholes ex post facto. But others were coing more than following orders. And if that's what the law says, & the OLC can do, then the law ought to be changed, & the OLC ought to be abolished if it can't be reformed.

oh fucking please Anderson. I have asthma; waterboarding could very easily kill me & we all know what drowning is.