Holder on Waterboarding — Proving It's Not Torture While Insisting It Is

[Yonivore]

I started a new thread on the narrow topic of whether or not the waterboarding, conducted during interrogations of al Qaeda terrorists or Taliban militia, constitutes torture because the other one is so polluted...

Holder on Waterboarding — Proving It's Not Torture While Insisting It Is (http://corner.nationalreview.com/post/?q=NjAwY2M0ZjljYjAzYzFiYzljZjNkNDY1YTE1YmVhMDU=)


At Human Events, Connie Hair excerpts (http://www.humanevents.com/article.php?id=31882&page=1#c1) some on Eric Holder's, er, interesting testimony on waterboarding (among other things) yesterday before the House Judiciary Committee, thanks to some terrific questioning by Committee Republicans:


[Rep. Dan] Lungren [(R., CA) and the state's former attorney general] then switched gears to a line of questioning aimed at clarifying the Obama Justice Department’s definition of torture. In one of the rare times he gave a straight answer, Holder stated at the hearing that in his view waterboarding is torture. Lundgren asked if it was the Justice Department’s position that Navy SEALS subjected to waterboarding as part of their training were being tortured.

Holder: No, it’s not torture in the legal sense because you’re not doing it with the intention of harming these people physically or mentally, all we’re trying to do is train them —

Lungren: So it’s the question of intent?

Holder: Intent is a huge part.

Lungren: So if the intent was to solicit information but not do permanent harm, how is that torture?

Holder: Well, it… uh… it… one has to look at... ah… it comes out to question of fact as one is determining the intention of the person who is administering the waterboarding. When the Communist Chinese did it, when the Japanese did it, when they did it in the Spanish Inquisition we knew then that was not a training exercise they were engaging in. They were doing it in a way that was violative of all of the statutes recognizing what torture is. What we are doing to our own troops to equip them to deal with any illegal act — that is not torture.

[ACM note: I'm not sure whether the Spanish Inquisition had a torture statute — the United States did not have one until 1994, and to this day federal torture law does not mention waterboarding. Nor does the federal war crimes statute. As I've recently noted, Sen. Kennedy posed an amendment in 2006 that would have specified waterboarding as a war crime — something he wouldn't have needed to do if it were already a war crime. The amendment was defeated.]

... Rep. Louie Gohmert (R-Texas), a former judge, continued the “intent” line of questioning in an attempt to make some sense of the attorney general’s tortured logic.

Rep. Louie Gohmert: Whether waterboarding is torture you say is an issue of intent. If our officers when waterboarding have no intent and in fact knew absolutely they would do no permanent harm to the person being waterboarded, and the only intent was to get information to save people in this country then they would not have tortured under your definition, isn’t that correct?

Attorney General Eric Holder: No, not at all. Intent is a fact question, it’s a fact specific question.

Gohmert: So what kind of intent were you talking about?

Holder: Well, what is the intention of the person doing the act? Was it logical that the result of doing the act would have been to physically or mentally harm the person?

Gohmert: I said that in my question. The intent was not to physically harm them because they knew there would be no permanent harm — there would be discomfort but there would be no permanent harm — knew that for sure. So, is the intent, are you saying it’s in the mind of the one being water-boarded, whether they felt they had been tortured. Or is the intent in the mind of the actor who knows beyond any question that he is doing no permanent harm, that he is only making them think he’s doing harm.

Holder: The intent is in the person who would be charged with the offense, the actor, as determined by a trier of fact looking at all of the circumstances. That is ultimately how one decides whether or not that person has the requisite intent.
The Attorney General may perhaps want to take a look at the brief his Justice Department filed about three weeks ago in the Sixth Circuit U.S. Court of Appeals. Torture is a specific intent crime — both the Justice Department and the Third Circuit U.S. Court of Appeals have explained that a person cannot commit it unless he has the intent, motive and purpose to torture (i.e., inflict severe pain on) the victim. The question is not, as Holder claimed, whether it was "logical that the result of doing the act would have been to physically or mentally harm the person"? With a general intent crime, the adage is that people are deemed to intend the natural, logical consequences of their actions. But that's not enough for specific intent crimes like torture. As Holder's Justice Department put it (bold italics are mine):


T]orture is defined as “an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment. . . . ” 8 C.F.R. § 1208.18(a)(2). Moreover, as has been explained by the Third Circuit, CAT requires “a showing of specific intent before the Court can make a finding that a petitioner will be tortured.” Pierre v. Attorney General, 528 F.3d 180, 189 (3d Cir. 2008) (en banc); see 8 C.F.R. § 1208.18(a)(5) (requiring that the act “be specifically intended to inflict severe physical or mental pain or suffering”); Auguste v. Ridge, 395 F.3d 123, 139 (3d Cir. 2005) (“This is a ‘specific intent’ requirement and not a ‘general intent’ requirement” [citations omitted.] An applicant for CAT protection therefore must establish that “his prospective torturer will have the motive or purpose” to torture him. Pierre, 528 F.3d at 189; Auguste, 395 F.3d at 153-54 (“The mere fact that the Haitian authorities have knowledge that severe pain and suffering may result by placing detainees in these conditions does not support a finding that the Haitian authorities intend to inflict severe pain and suffering. The difference goes to the heart of the distinction between general and specific intent.”) . . . .
In any event, the actions you take to waterboard are essentially the same whether the one inflicting the treatment is a miltary interrogation-resistance trainer or a CIA interrogator. (I am not saying all waterboarding is the same, nor am I denying that some waterboarding — such as sadistically practiced by the Japanese in WWII — rises to the level or torture. I am talking here only about these two situations: U.S. military trainer and CIA interrogator.) If Holder is correct that the military trainer does not commit torture because it is not his intent to inflict severe pain but to "equip" our military to deal with what he calls "illegal acts," then the CIA interrogator cannot be guilty of torture either since his intent is not to inflict severe pain but to collect life-saving information.

[ChumpDumper]

We're training detainees to resist waterboarding.

[Yonivore]

We're training detainees to resist waterboarding.
Why don't you read the whole thing before you spout off.

It speaks to intent and, makes a compelling argument.

[ChumpDumper]

Nah, it doesn't.

Just more excuse making and ass covering.

Tell me Yoni, did you ever find out why SERE started their training in the first place?

[Yonivore]

You and Attorney General Holder appear to have considerable difficulty applying the logic of his answer regarding trainers waterboarding SEALs to interrogators waterboarding detainees. My guess is that the source of the difficulty is political rather than intellectual.

McCarthy goes on to say that Holder's Justice Department argued in a brief it recently filed in the Sixth Circuit U.S. Court of Appeals that torture is a specific intent crime -- one that cannot be committed unless a person has the intent, motive and purpose to torture (i.e., inflict severe pain on) the victim. Thus, according to McCarthy, Holder contradicted his own Department (as well the Third Circuit case it cited) when he claimed yesterday that the torture issue depends on whether the logical result of doing the act would have been to physically or mentally harm the person. As McCarthy puts it:


With a general intent crime, the adage is that people are deemed to intend the natural, logical consequences of their actions. But that's not enough for specific intent crimes like torture.
Putting aside questions of purpose (which I think is how Holder was really trying to differentiate the trainer and the interrogator), the intent of the military trainer is the same as that of the interrogator who inflicts the identical procedure on a terrorist. The idea behind the training is to inflict exactly the same level of pain and distress on trainees as they would experience if they were captured and subjected to the same treatment. Thus, the trainer's purpose is to train (a lawful purpose), not to obtain information (also a lawful purpose). But the trainer's intent is to inflict the same pain and distress as an interrogator using the same procedure would inflict in order to obtain information.

You and Holder might counter that the "logical result" in terms of pain and distress is different when waterboarding occurs in a non-voluntary context. (Rep. Gohmert's question effectively assumed that this was not the case, but this assumption can be challenged). But such an argument would be unpersuasive. First, as noted, the "logical result" standard does not apply to the crime of torture.

Second, it is not logical to believe that identical procedures will have significantly different short term or long term effects on the victim, at least not in any respect that should matter to determining whether the procedures constitute torture. Terrorists will be more upset, after the fact, about their waterboarding experience than trainees. However, that's only because trainees have gained a benefit (training) whereas terrorists have gained none and, if the waterboarding worked, have ratted out fellow terrorists.

Surely, the Attorney General of the United States does not believe that the anguish associated with giving up information about terrorism converts an interrogation technique into torture.

Your turn.

[ChumpDumper]

Trainees are not prisoners.

Your turn.

[Yonivore]

Nah, it doesn't.

Just more excuse making and ass covering.

Tell me Yoni, did you ever find out why SERE started their training in the first place?
No, really, if you want to debate this, give my posts a fair reading and an intelligent rebuttal. Otherwise, I consider you conceding the argument and we'll move on.

[Yonivore]

Trainees are not prisoners.

Your turn.
Doesn't matter. Same process.

[ChumpDumper]

You are stealing from powerlineblog again.

Your turn.

[ChumpDumper]

Doesn't matter. Same process.Matters.

[Yonivore]

You are stealing from powerlineblog again.

Your turn.
They're lawyers making valid arguments. If you don't want to take them on...that's fine.

I understand why you'd feel inadequate to the challenge.

[Yonivore]

Matters.
Not according to Holder.

[ChumpDumper]

No, really, if you want to debate this, give my posts a fair reading and an intelligent rebuttal. Otherwise, I consider you conceding the argument and we'll move on.If you want to debate this, admit you don't write any of this yourself and just edit blogs to make it look like you wrote them in a feeble attempt to make yourself look like not such an idiot.

Otherwise, I consider you conceding the argument and we'll move on.

[Yonivore]

Here, re-read this part and tell me where it fails:


The Attorney General may perhaps want to take a look at the brief his Justice Department filed about three weeks ago in the Sixth Circuit U.S. Court of Appeals. Torture is a specific intent crime — both the Justice Department and the Third Circuit U.S. Court of Appeals have explained that a person cannot commit it unless he has the intent, motive and purpose to torture (i.e., inflict severe pain on) the victim. The question is not, as Holder claimed, whether it was "logical that the result of doing the act would have been to physically or mentally harm the person"? With a general intent crime, the adage is that people are deemed to intend the natural, logical consequences of their actions. But that's not enough for specific intent crimes like torture. As Holder's Justice Department put it (bold italics are mine):




T]orture is defined as “an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment. . . . ” 8 C.F.R. § 1208.18(a)(2). Moreover, as has been explained by the Third Circuit, CAT requires “a showing of specific intent before the Court can make a finding that a petitioner will be tortured.” Pierre v. Attorney General, 528 F.3d 180, 189 (3d Cir. 2008) (en banc); see 8 C.F.R. § 1208.18(a)(5) (requiring that the act “be specifically intended to inflict severe physical or mental pain or suffering”); Auguste v. Ridge, 395 F.3d 123, 139 (3d Cir. 2005) (“This is a ‘specific intent’ requirement and not a ‘general intent’ requirement” [citations omitted.] An applicant for CAT protection therefore must establish that “his prospective torturer will have the motive or purpose” to torture him. Pierre, 528 F.3d at 189; Auguste, 395 F.3d at 153-54 (“The mere fact that the Haitian authorities have knowledge that severe pain and suffering may result by placing detainees in these conditions does not support a finding that the Haitian authorities intend to inflict severe pain and suffering. The difference goes to the heart of the distinction between general and specific intent.”) . . . .

[Yonivore]

If you want to debate this, admit you don't write any of this yourself and just edit blogs to make it look like you wrote them in a feeble attempt to make yourself look like not such an idiot.
I admit I don't write much of this myself and just edit blogs and repost them becuase a) you're more likely to read the content since you google and search for it and b) I don't want to spend an afternoon re-writing what is already said perfectly


Otherwise, I consider you conceding the argument and we'll move on.
So, I don't concede. Respond to the points made now.

And, I don't care if you steal a lawyers words. Just show me where this argument is countered.

[ChumpDumper]

If the detainees were applying for refugee status in the US to avoid being tortured by the US, the arguments listed above might be relevant.

[Yonivore]

If the detainees were applying for refugee status in the US to avoid being tortured by the US, the arguments listed above might be relevant.
I'm sorry, misunderstood your statement.

On what do you base that?

[ChumpDumper]

I admit I don't write much of this myself and just edit blogs and repost them becuase a) you're more likely to read the content since you google and search for it and b) I don't want to spend an afternoon re-writing what is already said perfectly


So, I don't concede. Respond to the points made now.You do concede. You didn't say you did it in an attempt to make yourself look like less of an idiot

[ChumpDumper]

I'm sorry, misunderstood your statement.

On what do you base that?So now you admit you didn't even read this.

:tu

[Yonivore]

You do concede. You didn't say you did it in an attempt to make yourself look like less of an idiot
Because that's not my intent.

Look, if you don't want to argue this, fine. Why do you constantly distract from the argument?

Just because the case Holder was referring to was about Haitian refugees claiming they'd be tortured if returned doesn't change the "specific intent" argument of his citation.

[Yonivore]

So now you admit you didn't even read this.

:tu
I answered hastily and, on a second reading, realized I had read wrong.

Why do you retreat to sophomoric idiocy when you can't respond to a legitimate challenge to your understanding of a situation?

[ChumpDumper]

Because that's not my intent.Of course it is. Always has been.


Look, if you don't want to argue this, fine. Why do you constantly distract from the argument?Why do you constantly plagiarize and lie?


Just because the case Holder was referring to was about Haitian refugees claiming they'd be tortured if returned doesn't change the "specific intent" argument of his citation.Sure it does.

[Yonivore]

Sure it does.
How? Because if you disagree with that, we've been torturing SERE attendees as well.

[ChumpDumper]

Trainees are not detainees.

[Yonivore]

Trainees are not detainees.
As posted below...

the intent of the military trainer is the same as that of the interrogator who inflicts the identical procedure on a terrorist. The idea behind the training is to inflict exactly the same level of pain and distress on trainees as they would experience if they were captured and subjected to the same treatment. Thus, the trainer's purpose is to train (a lawful purpose), not to obtain information (also a lawful purpose). But the trainer's intent is to inflict the same pain and distress as an interrogator using the same procedure would inflict in order to obtain information.

[T]he "logical result" standard does not apply to the crime of torture.

[I]t is not logical to believe that identical procedures will have significantly different short term or long term effects on the victim, at least not in any respect that should matter to determining whether the procedures constitute torture. Terrorists will be more upset, after the fact, about their waterboarding experience than trainees. However, that's only because trainees have gained a benefit (training) whereas terrorists have gained none and, if the waterboarding worked, have ratted out fellow terrorists.

Are you suggesting the anguish associated with giving up information about terrorism converts an interrogation technique into torture.

[ChumpDumper]

I am stating that trainees are not detainees.

Do you have a legal opinion stating trainees are detainees?

[Yonivore]

I am stating that trainees are not detainees.

Do you have a legal opinion stating trainees are detainees?
I have an opinion that states trainees were subjected to the same treatment as detainees and, therefore, if it's not torture for trainees, it's not torture for detainees.

That's the opinion.

[ChumpDumper]

So you don't have an opinion stating the trainees are detainees.

Trainees are not detainees.

If you could prove they were, you might have a point.

If you can't, you have nothing.

[Yonivore]

So you don't have an opinion stating the trainees are detainees.

Trainees are not detainees.

If you could prove they were, you might have a point.

If you can't, you have nothing.
In the context of this argument, trainees and detainees are identically situated.

[ChumpDumper]

Except that trainees aren't detainees.

[Yonivore]

Except that trainees aren't detainees.
Except that you saying that doesn't change the fact that its not germane to the argument.

Trainees and detainees are subjected to identical procedures.

What makes it torture for detainees but, not for trainees?

[ChumpDumper]

Except that you saying that doesn't change the fact that its not germane to the argument.

Trainees and detainees are subjected to identical procedures.

What makes it torture for detainees but, not for trainees?Being detainees.

[Yonivore]

Being detainees.
How so?

[ChumpDumper]

Because they are not trainees.

You really see no difference between American servicemen and suspected Islamic terrorists.

That's how twisted you have become.

[Yonivore]

Because they are not trainees.
So?

[ChumpDumper]

So?So that's all that is needed to know.

[Yonivore]

So that's all there is to know.
No, it's not.

Being a detainee or a trainee doesn't change the quality of the procedure being used on you.

And, if you say it does, show me where.

[ChumpDumper]

No, it's not.Sure it is.

[Yonivore]

Sure it is.
I guess I'll let that stand as your argument. Because ChumpDumper says so.

Not very compelling, if you ask me but, if there are those who find it persuasive, so be it.

[ChumpDumper]

I guess I'll let that stand as your argument. Because ChumpDumper says so.

Not very compelling, if you ask me but, if there are those who find it persuasive, so be it.UN Convention Against Torture, Part 1, Article 1:

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

I didn't see training to resist torture as a definition of torture up there.

[Yonivore]

UN Convention Against Torture, Part 1, Article 1:

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

I didn't see training to resist torture as a definition of torture up there.
Now, you have to address the Bybee and Yoo memos that specifically exclude al Qaeda terrorists and Taliban militia from this convention.

I've got quotes from constitutional lawyers standing by to refute you. You'd better bring your A game.

Then, you have to prove the procedure being called waterboarding constitutes "severe" pain or suffering. Because, if it is, why would we subject our SERE trainees to severe pain or suffering?

Have at it.

[ChumpDumper]

Now, you have to address the Bybee and Yoo memos that specifically exclude al Qaeda terrorists and Taliban militia from this convention.Already did that.


I've got quotes from constitutional lawyers standing by to refute you. You'd better bring your A game.:lol The fact you never noticed I already did that tells me this is already over.


Then, you have to prove the procedure being called waterboarding constitutes "severe" pain or suffering. Because, if it is, why would we subject our SERE trainees to severe pain or suffering?Because they are being trained to resist severe pain and suffering -- and as I just proved, this training does not meet the definition of torture.

You're welcome.

[Yonivore]

Already did that.
Actually, you didn't.


:lol The fact you never noticed I already did that tells me this is already over.
No, it doesn't. Your saying this, however, just demonstrates your argument are getting thin and you're in a hurry to quit the argument before you have to actually show proof of your drivel.


Because they are being trained to resist severe pain and suffering.
And detainees are being interrogated to gain information. Both of which perfectly legal intents.

[ChumpDumper]

Actually, you didn't.Sure I did.



No, it doesn't. Your saying this, however, just demonstrates your argument are getting thin and you're in a hurry to quit the argument before you have to actually show proof of your drivel.I have already given you the proof, just as I gave proof that training isn't torture. Really knocked you for a loop, eh? You thought you had something worth stealing a pretending you wrote this time. :lol


And detainees are being interrogated to gain information. Both of which perfectly legal intents.No. The waterboarding meets the criteria set forth in the CAT, the US Code and numerous court cases I have already posted. No amount of pouting and lying on your part will change that.

[Yonivore]

In an excellent article about the incompetence of Holder's Justice Department and the OPR attorneys making a bit stink, Michael Stokes Paulsen says this:


...the memos' essential legal conclusions are correct. There is a fundamental distinction in the law between what constitutes actual, legal "torture" under applicable standards and what may be harsh, aggressive, unpleasant interrogation tactics but not, legally, "torture." Reasonable people will come to different conclusions as to where that line is, but the Bush administration's lawyers' conclusions are certainly defensible and, I think, ultimately correct. As a matter of constitutional law, moreover, the Bush administration memos' most sweeping and categorical conclusion--that at all events no statute or treaty may limit the president's sole constitutional powers as military commander in chief to direct and conduct the use of U.S. force--is in my opinion unquestionably correct.

This view is informed by my experience both as a law professor and, nearly two decades ago, as an attorney in the Office of Legal Counsel (OLC) of the Department of Justice--the same office that provided the advice in question during President George W. Bush's administration. The types of constitutional and statutory arguments made in the disputed memos are consistent with longstanding OLC positions with respect to presidential power under Article II of the Constitution. They involve subtle niceties of constitutional law and history.
It's an excellent article, I recommend it (http://weeklystandard.com/Content/Public/Articles/000/000/016/513wwmgb.asp?pg=2).

[ElNono]

In an excellent article about the incompetence of Holder's Justice Department and the OPR attorneys making a bit stink, Michael Stokes Paulsen says this:


It's an excellent article, I recommend it (http://weeklystandard.com/Content/Public/Articles/000/000/016/513wwmgb.asp?pg=2).

Not surprising, since Mr Paulsen is a self-declared conservative Republican:

http://www.yalelawjournal.org/pdf/115-8/Paulsen.pdf

We talked and argued much that year and the next (Amar is a
liberal Democrat; I am a conservative Republican)

[Winehole23]

At least Yoni tells us which ponies he is riding. Sometimes, anyway. I appreciate that.

[Yonivore]

Not surprising, since Mr Paulsen is a self-declared conservative Republican:

http://www.yalelawjournal.org/pdf/115-8/Paulsen.pdf

We talked and argued much that year and the next (Amar is a
liberal Democrat; I am a conservative Republican)
And that immediately invalidates the content of his opinion?

C'mon, that's stupid. Why bother arguing if you're just going to say you disagree because of a person's politics?

I'd like to know why you think his argument is flawed?

[Winehole23]

And that immediately invalidates the content of his opinion?

C'mon, that's stupid. Why bother arguing if you're just going to say you disagree because of a person's politics?Since you care about the argument, now you're suddenly above ad hominems?

C'mon Yoni, you do this all the time.

[Yonivore]

Critics Still Haven't Read the 'Torture' Memos (http://online.wsj.com/article/SB124243020964825531.html)

The CIA proposed the methods. The Justice Department gave its advice.

By VICTORIA TOENSING

Sen. Patrick Leahy wants an independent commission to investigate them. Rep. John Conyers wants the Obama Justice Department to prosecute them. Liberal lawyers want to disbar them, and the media maligns them.

What did the Justice Department attorneys at George W. Bush's Office of Legal Counsel (OLC) -- John Yoo and Jay Bybee -- do to garner such scorn? They analyzed a 1994 criminal statute prohibiting torture when the CIA asked for legal guidance on interrogation techniques for a high-level al Qaeda detainee (Abu Zubaydah).

In the mid-1980s, when I supervised the legality of apprehending terrorists to stand trial, I relied on a decades-old Supreme Court standard: Our capture and treatment could not "shock the conscience" of the court. The OLC lawyers, however, were not asked what treatment was legal to preserve a prosecution. They were asked what treatment was legal for a detainee who they were told had knowledge of future attacks on Americans.

The 1994 law was passed pursuant to an international treaty, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment. The law's definition of torture is circular. Torture under that law means "severe physical or mental pain or suffering," which in turn means "prolonged mental harm," which must be caused by one of four prohibited acts. The only relevant one to the CIA inquiry was threatening or inflicting "severe physical pain or suffering." What is "prolonged mental suffering"? The term appears nowhere else in the U.S. Code.

Congress required, in order for there to be a violation of the law, that an interrogator specifically intend that the detainee suffer prolonged physical or mental suffering as a result of the prohibited conduct. Just knowing a person could be injured from the interrogation method is not a violation under Supreme Court rulings interpreting "specific intent" in other criminal statutes.

In the summer of 2002, the CIA outlined 10 interrogation methods that would be used only on Abu Zubaydah, who it told the lawyers was "one of the highest ranking members of" al Qaeda, serving as "Usama Bin Laden's senior lieutenant." According to the CIA, Zubaydah had "been involved in every major" al Qaeda terrorist operation including 9/11, and was "planning future terrorist attacks" against U.S. interests.

Most importantly, the lawyers were told that Zubaydah -- who was well-versed in American interrogation techniques, having written al Qaeda's manual on the subject -- "displays no signs of willingness" to provide information and "has come to expect that no physical harm will be done to him." When the usual interrogation methods were used, he had maintained his "unabated desire to kill Americans and Jews."

The CIA and Department of Justice lawyers had two options: continue questioning Zubaydah by a process that had not worked or escalate the interrogation techniques in compliance with U.S. law. They chose the latter.

The Justice Department lawyers wrote two opinions totaling 54 pages. One went to White House Counsel Alberto Gonzales, the other to the CIA general counsel.

Both memos noted that the legislative history of the 1994 torture statute was "scant." Neither house of Congress had hearings, debates or amendments, or provided clarification about terms such as "severe" or "prolonged mental harm." There is no record of Rep. Jerrold Nadler -- who now calls for impeachment and a criminal investigation of the lawyers -- trying to make any act (e.g., waterboarding) illegal, or attempting to lessen the specific intent standard.

The Gonzales memo analyzed "torture" under American and international law. It noted that our courts, under a civil statute, have interpreted "severe" physical or mental pain or suffering to require extreme acts: The person had to be shot, beaten or raped, threatened with death or removal of extremities, or denied medical care. One federal court distinguished between torture and acts that were "cruel, inhuman, or degrading treatment." So have international courts. The European Court of Human Rights in the case of Ireland v. United Kingdom (1978) specifically found that wall standing (to produce muscle fatigue), hooding, and sleep and food deprivation were not torture.

The U.N. treaty defined torture as "severe pain and suffering." The Justice Department witness for the Senate treaty hearings testified that "[t]orture is understood to be barbaric cruelty . . . the mere mention of which sends chills down one's spine." He gave examples of "the needle under the fingernail, the application of electrical shock to the genital area, the piercing of eyeballs. . . ." Mental torture was an act "designed to damage and destroy the human personality."

The treaty had a specific provision stating that nothing, not even war, justifies torture. Congress removed that provision when drafting the 1994 law against torture, thereby permitting someone accused of violating the statute to invoke the long-established defense of necessity.

The memo to the CIA discussed 10 requested interrogation techniques and how each should be limited so as not to violate the statute. The lawyers warned that no procedure could be used that "interferes with the proper healing of Zubaydah's wound," which he incurred during capture. They observed that all the techniques, including waterboarding, were used on our military trainees, and that the CIA had conducted an "extensive inquiry" with experts and psychologists.

But now, safe in ivory towers eight years removed from 9/11, critics demand criminalization of the techniques and the prosecution or disbarment of the lawyers who advised the CIA. Contrary to columnist Frank Rich's uninformed accusation in the New York Times that the lawyers "proposed using" the techniques, they did no such thing. They were asked to provide legal guidance on whether the CIA's proposed methods violated the law.

Then there is Washington Post columnist Eugene Robinson, who declared that "waterboarding will almost certainly be deemed illegal if put under judicial scrutiny," depending on which "of several possibly applicable legal standards" apply. Does he know the Senate rejected a bill in 2006 to make waterboarding illegal? That fact alone negates criminalization of the act. So quick to condemn, Mr. Robinson later replied to a TV interview question that he did not know how long sleep deprivation could go before it was "immoral." It is "a nuance," he said.

Yet the CIA asked those OLC lawyers to figure out exactly where that nuance stopped in the context of preventing another attack. There should be a rule that all persons proposing investigation, prosecution or disbarment must read the two memos and all underlying documents and then draft a dissenting analysis.

[ChumpDumper]

What is "prolonged mental suffering"? The term appears nowhere else in the U.S. Code.It doesn't appear in the Code at all.

More sloppy lawyering.

Thanks, yoni! :tu

[Yonivore]

It doesn't appear in the Code at all.

More sloppy lawyering.

Thanks, yoni! :tu
You're right, the statute says, "prolonged mental harm." Big whoop.

Now, care to address the elements of her argument or are you just going to go on picking nits?

[ChumpDumper]

No need. I proved incompetence once more -- her attempt to connect arguments completely falls apart once you get past her deliberate misquoting of statute.

Lawyers really get fired for things like this.

[Yonivore]

No need. I proved incompetence once more -- her attempt to connect arguments completely falls apart once you get past her deliberate misquoting of statute.

Lawyers really get fired for things like this.
Okay, well, thanks for the enlightenment. You'll, of course, go on -- as you have for the past 8 years -- and convince yourself crimes have been committed here while, the rest of the world, sensible Democrats included, will realize they've been lied to by Pelosi and crowd about "torture," and move on.

Have fun being a part of the Nbadan, Galileo tin-foil hat club.

[ChumpDumper]

Okay, well, thanks for the enlightenment.No problem. You are a fantastically ignorant person, so it's easy to provide you with information of which you have no knowledge.
You'll, of course, go on -- as you have for the past 8 years -- and convince yourself crimes have been committed here while, the rest of the world, sensible Democrats included, will realize they've been lied to by Pelosi and crowd about "torture," and move on.Nah. You'll and your incompetent lawyer friends will keep avoiding a century's worth of case law that has established waterboarding as torture, no matter what the status of the detainee being waterboarded. Any newer statue would have to specifically allow waterboarding to make your laughable theory work.

Seriously, yoni -- why do you and they pretend the legal system has never dealt with waterboarding before? Answer that question.

[ChumpDumper]

Have fun being a part of the Nbadan, Galileo tin-foil hat club.Come up with a theory for the Air Force One New York flyover yet?

You're already a member, dumbass.

[Yonivore]

No problem. You are a fantastically ignorant person, so it's easy to provide you with information of which you have no knowledge.Nah. You'll and your incompetent lawyer friends will keep avoiding a century's worth of case law that has established waterboarding as torture, no matter what the status of the detainee being waterboarded.
Let's revisit this in a year.

No one will be any closer to being prosecuted for the enhanced interrogation techniques.


Seriously, yoni -- why do you and they pretend the legal system has never dealt with waterboarding before? Answer that question.
I don't pretend that. The Senate rejected a law that would have specifically made waterboarding illegal. Why?

Did the U. S. Congress remove language, when formulating their own statute on "torture", that would provide a legitimate defense to prosecution?

Is "Torture" a "specific intent" law and one that has very specific elements that have to be met?

Isn't, in fact, your argument overly broad to the point that it considers none of the prosecutorial hurdles that would have to be overcome by the courts to find anyone guilty of violating 18 USC 2340?

Why do you pretend the legal question is so definitively in the favor of your argument? It's not.

You've completely ignored the fundamental basis of the arguments made over your nit picking games. "harm" and "suffering" imply the same thing in the context of the word "prolonged." In other words, the argument was that the enhanced interrogation techniques used (including, the ones researched by DOJ for the purpose of advising the CIA and AG), do not have any lasting harmful effects.

This is proven on the most controversial of these, waterboarding, by simply pointing out that we subject our military trainees to the exact same procedure and, that if there were any danger in "prolonged mental suffering" or "prolonged mental harm," we wouldn't be doing it.

And, as Andrew McCarthy pointed out, the best argument you could make is that terrorists would suffer from the long term guilt of having divulged information that foiled their own plans to kill Americans or that resulted in the death or capture of fellow terrorists.

A result I can live with.

Seriously, if you don't want to argue these element but, instead, want to continue nit picking words and making ad hominem attacks on those whose opinions I choose to bring to the argument. Go on...I'm done.

Have a nice ignorance...

[Yonivore]

Come up with a theory for the Air Force One New York flyover yet?

You're already a member, dumbass.
All I've said is the mission has yet to be explained to my satisfaction. I offered no theories.

[ChumpDumper]

Let's revisit this in a year.

No one will be any closer to being prosecuted for the enhanced interrogation techniques.I never said they would. It's a sticky legal situation that has really yet to be tested in its present form. Once the entire legal history of waterboarding is surveyed, however, I think you and your lying friends might be on the losing side of the argument. I could be wrong -- but your and their absolute terror at the thought of even looking into the case history makes me think I'm right.



I don't pretend that.You absolutely do.


Did the U. S. Congress remove language, when formulating their own statute on "torture", that would provide a legitimate defense to prosecution?Not really.


Is "Torture" a "specific intent" law and one that has very specific elements that have to be met?You really need to move away from your "one statute" theory of law. You are pretending a century of case law doesn't exist once again.


Isn't, in fact, your argument overly broad to the point that it considers none of the prosecutorial hurdles that would have to be overcome by the courts to find anyone guilty of violating 18 USC 2340?No, my argument is pretty solid.


Why do you pretend the legal question is so definitively in the favor of your argument? It's not.My argument actually acknowledges legal precedent concerning waterboarding. Does yours?

No.

That's why mine is better.


You've completely ignored the fundamental basis of the arguments made over your nit picking games. "harm" and "suffering" imply the same thing in the context of the word "prolonged." In other words, the argument was that the enhanced interrogation techniques used (including, the ones researched by DOJ for the purpose of advising the CIA and AG), do not have any lasting harmful effects.Your incompetent lawyer friend deliberately misquoted the US Code to connect legal arguments. Once the word is corrected, her convoluted argument goes to shit.

And still doesn't recognize legal precedent.


This is proven on the most controversial of these, waterboarding, by simply pointing out that we subject our military trainees to the exact same procedure and, that if there were any danger in "prolonged mental suffering" or "prolonged mental harm," we wouldn't be doing it.Are you still trying to say trainees are detainees. You got statute shoved straight up your ass on that one. You've got to be running out of room with your head up there too all the time.


And, as Andrew McCarthy pointed out, the best argument you could make is that terrorists would suffer from the long term guilt of having divulged information that foiled their own plans to kill Americans or that resulted in the death or capture of fellow terrorists.Another incompetent argument.


A result I can live with.Hey, you live with your own lying and stealing too -- that doesn't make it right.


Seriously, if you don't want to argue these element but, instead, want to continue nit picking words and making ad hominem attacks on those whose opinions I choose to bring to the argument. Go on...I'm done.Sorry you don't realize dreary precision is the hallmark of legal research. Intentionally misquoting written statute and ignoring 800 years of common law is really, really bad.

Dishonest.

Evil.

But you can live with that.

You are evil.


Have a nice ignorance...Enjoy your lying and stealing and evil.

[jack sommerset]

Enjoy your lying and stealing and evil.

:lol What a lil drama queen. Are you gay? If the answer is yes, I promise not to ever ever say anything about ur preference in sex partners. If you ur answer is "no" I won't believe you. If you don't care to answer that, I won't mention it again. If you want to comeback with a question for me instead of a answer, I will not answer it. If you comeback and call me a name, well that's just you.

[Winehole23]

:lol What a lil drama queen. Are you gay? If the answer is yes, I promise not to ever ever say anything about ur preference in sex partners. If you ur answer is "no" I won't believe you.^^^Obsessed with teh gheys. It's getting old Jack.

[Yonivore]

I never said they would. It's a sticky legal situation that has really yet to be tested in its present form. Once the entire legal history of waterboarding is surveyed, however, I think you and your lying friends might be on the losing side of the argument. I could be wrong -- but your and their absolute terror at the thought of even looking into the case history makes me think I'm right.
Magnanimity...from ChumpDumper.


You absolutely do.
No, I don't.


Not really.
Was a bill that outlawed waterboarding presented in the Senate in 2006? The answer is, yes. Did the Bill pass out of the Senate? The answer is, no.


You really need to move away from your "one statute" theory of law. You are pretending a century of case law doesn't exist once again.
Case law only speaks to the matter once the matter is being tried. You have to have a statute under which to indict, first. And, you've yet to provide me with that statute. No, I've always assumed it was 18 USC 2340 (particularly since you threw out Title 18 earlier in the conversation -- the U. S. Code covering all criminality) but, none-the-less, we disagree over whether or not 18 USC 2340 is relevant, or not -- FOR PROSECUTION.

The government never states in a criminal indictment that a defendant has violated a statute because some prior case law says they did. No, they indict under a specific statute and try the case. If, during trial, the want to bolster a legal argument by citing case law, they do.

You've yet to show me how U. S. v. Parker (much less all the other supposed case law you've bantered about) is relevant to this specific case. First, of all, you can't. Neither you nor I have the requisite information to bring to bear. This is a national security matter and, necessarily, a lot of the facts are unknown.


No, my argument is pretty solid.
In your head, maybe. But, are a whole lot of people out there -- I've quoted a few -- who reasonably disagree with you...and, make pretty solid arguments to the contrary.


My argument actually acknowledges legal precedent concerning waterboarding. Does yours?
Citing a case that involved, as an element, waterboarding, doesn't make the argument relevant. You've yet to show how it is connected to the enhanced interrogation techniques beyond the fact there was water involved. I'm willing to bet there are a multitude of cases in which people were tortured -- some of which using water. Why did you not cite those as well?


Your incompetent lawyer friend deliberately misquoted the US Code to connect legal arguments. Once the word is corrected, her convoluted argument goes to shit.
You don't know that is was deliberate. If you were Lawrence Tribe, you'd have some weight in this argument but, you're not. You're an idiot that likes to hand out in this forum and pretend he knows stuff.


And still doesn't recognize legal precedent.
Actually, both memos discuss relevant case law in reaching the analysis offered the CIA and AG.


Are you still trying to say trainees are detainees. You got statute shoved straight up your ass on that one. You've got to be running out of room with your head up there too all the time.
Trainees and detainees are treated identically. If waterboarding -- as applied -- were torture, we wouldn't be doing it to our trainees.

Now, if you want to argue the waterboarding done to SERE trainees is different than that performed on detainees, you have a valid arguement but, if I'm not mistaken, an element to this is that the CIA and DOJ were advised that so long as the procedure were no different, it's not torture.

That implies waterboarding could be taken beyond a point at which it becomes torture. So, then, you have the added burden of proving it was. That the three detainees, against with the procedure was used are alive and well kind of blows a hole in that argument.


Another incompetent argument.
And, you've provided such illuminating detail. :lmao

I think this argument has merit. Seriously, if the only harm you can proved is that terrorists are upset over having divulged secrets that led to the disruption of terror plot or the capture or death of their cohorts, is that really worth getting upset over?

I don't think so.

What "prolonged mental harm" are you alleging occurred to these people? That is, after all, an element of the crime which you've not addressed.

Your whole argument seems to boil down to, "waterboarding = torture." That's it.

That's an incompetent argument.


Hey, you live with your own lying and stealing too -- that doesn't make it right.
You haven't demonstrated the enhanced interrogation techniques are wrong or that they have violated any statute or treaty.


Sorry you don't realize dreary precision is the hallmark of legal research. Intentionally misquoting written statute and ignoring 800 years of common law is really, really bad.
Well, in that respect, you've failed more miserably than anyone I've quoted in here.

You just kind of vomit stuff onto the board and expect everyone to take it as gospel. I'm still waiting for you to explain how the "water torture" of U. S. v. Parker is related to the enhanced interrogation techniques used against the detainees.

Because, if you buy the "specific intent" argument that's been made by at least two of the scholars, I've quoted -- and also referred to in the Bybee and/or Yoo memos, then you'd recognize the "specific intent" of coercing an individual in a U. S. criminal case is specifically a crime whereas, the "specific intent" of extracting actionable intelligence from a detainee is no more a crime than the "specific intent" of training SERE trainees.

The enhanced interrogation techniques weren't used to punish the detainees and they weren't used to extract information that would be used against them at any trial. In fact, President Obama has ensured that by fundamental changes to the Military Commissions Act. I don't think anyone is concerned with it either...I know I'm not.

There is already enough information on the three in custody to convict them of any crime over which they'd be tried without including the actionable intelligence extracted using the EITs.


Dishonest.

Evil.

But you can live with that.

You are evil.

Enjoy your lying and stealing and evil.
Once again, you draw conclusions over too little information. I'm not surprised.

[jack sommerset]

^^^Obsessed with teh gheys. It's getting old Jack.

Sorry Winehole.

[Winehole23]

Go away with yourself. You're not sorry one bit.

Take it back.

[jack sommerset]

Go away with yourself. You're not sorry one bit.

Take it back.

Yeah, Ur right again. I will take ur advice and go away. Good night.

[ChumpDumper]

Go on...I'm done.Another lie!

[ChumpDumper]

Anyway, get back to me when you and your chums aren't afraid of dealing with precedent.

[ChumpDumper]

:lol What a lil drama queen. Are you gay? If the answer is yes, I promise not to ever ever say anything about ur preference in sex partners. If you ur answer is "no" I won't believe you. If you don't care to answer that, I won't mention it again. If you want to comeback with a question for me instead of a answer, I will not answer it. If you comeback and call me a name, well that's just you.You are very interested in me and my sexuality.

[ChumpDumper]

Because, if you buy the "specific intent" argument that's been made by at least two of the scholars, I've quoted -- and also referred to in the Bybee and/or Yoo memos, then you'd recognize the "specific intent" of coercing an individual in a U. S. criminal case is specifically a crime whereas, the "specific intent" of extracting actionable intelligence from a detainee is no more a crime than the "specific intent" of training SERE trainees.Too bad folks have already been prosecuted and punished for the specific intent of extracting actionable intel.

And those who were waterboarded just happened to be what would be classified today as unlawful combatants.

It's a shame you are so terrified of realizing that this has all been done before. It is amazing how little of this you understand.

[Winehole23]

I'm not sure whether the Spanish Inquisition had a torture statuteIt did. Ad extirpanda.


The Inquisition, with its stipulation that torture and interrogation not jeopardize life or cause irreparable harm, actually set a more rigorous standard than some proponents of torture insist on now. The 21st century’s Ad extirpanda is the so-called Bybee memo, issued by the Justice Department in 2002 (and later revised). In it, the Bush administration put forth a very narrow definition, arguing that for an action to be deemed torture, it must produce suffering “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” To place this in perspective: the administration’s threshold for when an act of torture begins was the point at which the Inquisition stipulated that it must stop. http://www.theatlantic.com/magazine/archive/2012/01/torturer-8217-s-apprentice/8838/2/

[ChumpDumper]

Another blast from the past. Yoni really tried to wear his ignorance as armor on this one.

[CosmicCowboy]

The Inquisition, with its stipulation that torture and interrogation not jeopardize life or cause irreparable harm, actually set a more rigorous standard than some proponents of torture insist on now. The 21st century’s Ad extirpanda is the so-called Bybee memo, issued by the Justice Department in 2002 (and later revised). In it, the Bush administration put forth a very narrow definition, arguing that for an action to be deemed torture, it must produce suffering “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” To place this in perspective: the administration’s threshold for when an act of torture begins was the point at which the Inquisition stipulated that it must stop.

:lmao

You actually believe the Spanish Inquisition didn't jeopardize life or cause irreparable harm?

:lmao

http://www.medievality.com/torture.html

[Winehole23]

no, but I do believe they had a rule against it and that inquisitors took it seriously enough to come up with interpretations of the rules consonant with breaking those rules.

[Winehole23]

there's prose to that effect @ the link, if you care to read it