The New York Times has published a blistering editorial calling upon President Barack Obama to fulfill our obligations under domestic and international law and investigate and prosecute those responsible for the torture program under the administration of President George W. Bush. The American Civil Liberties Union is also calling for the appointment of a special prosecutor to investigate the program and possibly prosecute those responsible. The Obama Administration has steadfastly refused to prosecute anyone despite its admission that, to quote Obama, “we tortured some folks.” The political costs of such a prosecute were likely viewed as too high and Attorney General Eric Holder has again taken the politically expedient approach in avoiding any serious effort to hold those responsible for these crimes. In the meantime, many of those who would be prosecuted under domestic and international law have been writing books and giving interviews — casually discussing acts that are considered war crimes under international law.
The editorial, entitled “Prosecute Torturers and Their Bosses,” takes the position long advocated by experts in the field and various academics, including myself. There is no question that we tortured people under this program. While there are plenty of torture deniers about, both U.S. and international law is clear. Waterboarding is torture and we have prosecuted both our own citizens and foreigners for this long recognized form of torture despite early denials from people like Ashcroft. Moreover, Obama has admitted that it was torture. Holder admitted it was torture. The United Nations has denounced it as a torture. Leading Republicans and Democratic leaders have denounced it as torture. The United States Senate denounced it as torture. However, not a single person has been prosecuted by the Obama Administration. Instead, the Administration has been threatening allies who have threatened to start their own torture investigation under international treaties.
I have previously written about the cynical calculation that led to Obama blocking the prosecution for those responsible for the torture program. He knew such prosecutions would be unpopular, and with so many constitutional principles since that time, he just did not see the value in adhering to principle (even those embodied within binding treaty obligations). Since Obama ran on a civil liberties platform, many expected an independent torture investigation as soon as he took office. After all, waterboarding is one of the oldest forms of torture, pre-dating the Spanish Inquisition (when it was called tortura del agua). It has long been defined as torture by both U.S. and international law, and by Obama himself. Torture, in turn, has long been defined as a war crime, and the United States is under treaty obligation to investigate and prosecute such crimes.
However, such a principle did not make for good politics. Accordingly, as soon as he was elected, Obama set out to dampen talk of prosecution. Various intelligence officials and politicians went public with accounts of the Obama administration making promises to protect Bush officials and CIA employees from prosecution. Though the White House denied the stories, Obama later gave his controversial speech at the CIA headquarters and did precisely that. In the speech, he effectively embraced the defense of befehl ist befehl (“an order is an order”). As I have written before (here and here), the Obama Administration has destroyed some of the core Nuremburg principles, particularly in its revisal of the “superior orders defense” to excuse U.S. officials.
The board notes that such an investigation would clearly include “former Vice President Dick Cheney; Mr. Cheney’s chief of staff, David Addington; the former C.I.A. director George Tenet; and John Yoo and Jay Bybee, the Office of Legal Counsel lawyers who drafted what became known as the torture memos,” the editorial reads. “There are many more names that could be considered, including Jose Rodriguez Jr., the C.I.A. official who ordered the destruction of the videotapes; the psychologists who devised the torture regimen; and the C.I.A. employees who carried out that regimen.”
The New York Times asks whether the Obama Administration has “the political courage” to order an investigation. That question unfortunately has been loudly and repeatedly answered in the negative.
Don’t forget David that the SC ruled recently that exercising the right to remain silent CAN be held against you in a court of law. Problem solved. The Continental Army dished out corporeal punishment far more severe than what has been discussed here.
I’ll even agree we should put on trial everyone involved in EIT/Torture cases as long as Jury Nullification instructions are also provided.
randyjet, In your inimitable fashion, you are either being intellectually dishonest, or some hybrid of that. Please read our elderly shrinks definition of torture . Chucky states, “If an interrogator would not allow it to be used on his or her children, then it’s over the line.” Chucky states NOTHING about legality, he only uses his pedestrian acid test. So, speak to him, and stop wasting my time w/ your vapidity. Merry Christmas.
I see that you are intellectually challenged nick. If you bothered to THINK at all, legality is implied in that statement, unless you think that police and other interrogators would break the law in punishing their kids. I hope you celebrate Xmas better than you think.
Stuart:
Seems pretty definitive from a legal description and definition POV.
What say those here who claim that what was done by the CIA, was not this?
Gary T
You got me! I’ve never quite understood them.
Article 1 of The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as:
“ … 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, …”
The rest of the definition of torture in Article 1 is “… 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.”
The United States signed that treaty on April 18, 1988, when Ronald Reagan was president, and ratified it on October 21, 1994.
That’s an objective definition of torture, and should put the debate about what torture is or isn’t to rest.
Stuart Selkin wrote: “That’s an objective definition of torture, and should put the debate about what torture is or isn’t to rest.”
Not even close. The problem is that people experience pain differently. So first you have to say that splashing water in someone’s face is painful. Next, you have to say that it cause SEVERE pain. What is severe? There is no objective definition of Severe Pain. Both words, SEVERE and PAIN, are measured subjectively.
If I walk up to you and splash water in your face, it might startle you, but I doubt you would say it was painful.
If I had you lay down on a board and I poured a glass of water onto your face as you lay there, would it hurt? Would you say that it caused you severe pain? I doubt you would say that.
How many seconds of having water poured on your face would it take before you felt SEVERE PAIN? Would 5 seconds be enough? What about 20 seconds? How about 40 seconds? The CIA protocols were to not allow it to go more than 40 seconds.
We will never settle this debate about what torture is for borderline activities like waterboarding. We might all agree that hitting someone’s knee with a hammer is torture, but splashing water on someone’s face is going to be more subjective.
The solution is to recognize that violating a person’s right to remain silent is the problem. People should have the right to speak as well as the right not to speak, and using coercive means to cause someone to speak is a human rights violation. Enhanced interrogation is a human rights violation. This is the path for us to agree about what is humane and civilized and what is not. The definition of torture gets us nowhere.
DavidM
I’m pleased with the responses in the latter portion of this thread. They’re appropriate and focused on the matter at hand.
But I ask you this: Have you ever seen anyone being waterboarded? Has it ever been done to you?
Your answers will l help me understand your very well-presented arguments. And I sincerely hope that you’ll never think that I mean them in any way an argument against you.
Stu
Stu – I think the better question is, have YOU been water boarded? If so, when and by whom? And did you talk? How much information did you give up?
Stuart Selkin wrote: “But I ask you this: Have you ever seen anyone being waterboarded? Has it ever been done to you?”
I have seen people waterboarded on videos, but not in person. No, I have never been waterboarded. I would not hesitate to agree to be waterboarded by you or anybody else following the protocols of James Mitchell. I would not agree to being tortured, such as having fingernails pulled out or kneecaps smashed with a hammer.
Seems to me that a crux of the problem here, is defining objectively what “torture” is. And that seems to be the thing sorely lacking in these discussions.
I respect the wherewithal of many of the commentators here who are on both sides of this issue, and I have my own biases of course as well.
If it is going to be a standard of some legal definition, with the elements well spelled out, that is one thing.
If it is a standard of “I know it when I see it”, as the current definition of obscenity seems to be, well that is another thing.
If the two sides of this argument, assuming good faith intentions on both sides, cannot agree as to what objectively the standard is going to be, then of course there will be never ending disagreement.
Then of course there is the raw data that we are all working with, which is the rather detailed report, the testimony of those involved, the legal memos, the professional pundits and interpreters of the raw data, and perhaps the administrators who erased data that could have been more illustrative of what actually occured.
In my experience, when a report is made, the author of the report will involuntarily massage the rendition to make it more palatable to whatever stance he has on the matter. So it is a legitimate consideration that what evidence we have of what happened, may in itself be played down and normalized.
It would have been helpful to actually see the videos of what was done to the prisoners, and make our own direct determinations.
Until make a touchstone of wtf we are talking about, as to what “torture” is, and what it is not, we will be arguing with each other in circles.
“In some instances of incorrigible villains, it is adju[d]ged by the court that the culprit receive his punishment at several different times, a certain number of stripes repeated at intervals of two or three days, in which case the wounds are in a state of inflammation, and the skin rendered more sensibly tender; and the terror of the punishment is greatly aggravated.”
(Military Punishments in the Continental Army by Surgeon James Thacher 1780)
http://www.shsu.edu/~his_ncp/MilPun.html
Two things have been proven in these threads regarding the use of torture:
1. It’s illegal.
2. No one would deny its use to save the lives of innocents; especially their own family.
Max points out this is a Law blog and that means exactly what? Everyone in this blog violates the law; the only question is to what degree. Taking a guess here but I believe driving drunk has killed or injured more people since 9/11 than all the wars and torture combined. Does this not torture the innocent victims that suffer as well as their families?
• In 2012, 10,322 people died in drunk driving crashes – one every 51 minutes – and 290,000 were injured in drunk driving crashes.
• Every day in America, another 28 people die as a result of drunk driving crashes.
• Every two minutes, a person is injured in a drunk driving crash.
• On average, two in three people will be involved in a drunk driving crash in their lifetime.
http://www.madd.org/drunk-driving/about/drunk-driving-statistics.html
Torture should remain illegal and the threat of prosecution should remain a real consequence for its use. This is the point of Law. If its use were legalized then civilized cultures would be turned into the Islamic State. Torture, while morally repugnant, has and will continue to save lives. This is the point of Trial. Put them on trial and let the evidence show whether its use was capricious or judicious. I believe that is what differentiates us from the barbarians.
Many would not allow their children or grandchildren to be spanked. So, that acid test is quite lame. Unless, spanking is torture???
Nick, Talk about being lame, your post takes the cake. Spanking is NOT illegal nor is it considered torture and to equate that with waterboarding shows a lack of intellect or respect for the rest of us.
Paul, no one cares.
Inga – you really need to keep on topic here. Ad hominem attacks are so passe for progressives these days.
Ok Cliff.
The United States Prosecutes Waterboarding as Torture.
Here’s a brief time line:
1902
The U.S. court-martialed Major Edwin Glenn for waterboarding insurgent Tobeniano Ealdama during the Spanish American War (1898). (The New York Times, April 16, 1902)
1947
The U. S. prosecuted Japanese officer Yukio Asano for war crimes. Asano, who had water boarded a U.S. civilian, was sentenced to 15 years of hard labor.
(The Washington Post, October 5, 2006)
1968
The US court-martialed a US soldier who supervised the waterboarding of a North Vietnamese POW. The soldier, whose name has never been released, was court-martialed after the Washington Post published his picture on January 21, 1968. He was drummed out of the Army. (ABCNews.com, Nov. 29, 2005)
1983
The Reagan Justice Department prosecuted Texas Sheriff James Parker and 3 deputies for waterboarding prisoners. They were sentenced to 4 years in prison.
George W. Bush, who was governor of Texas at the time, did not pardon them.
(Joseph L. Galloway, McClatchy Newspapers, November 7, 2007)
(Waterboarding: A Tortured History, NPR.org, November 3, 2007)
Stuart Selkin, MD, JD
Dr. Selkin,
Thanks for your input and the cites. There are some who don’t seem to get the memo, both on this blog and the halls of Congress. A few days ago, another forensic psychologist asked me where was the dividing line between interrogation and torture. My response was when the interrogator feels obliged to call it ‘enhanced.’ EIT is just a euphemism for torture.
If the interrogator would not allow it to be used on one of his/her children or grandchildren, then it’s over the line.
Chuck – so when the interrogator threatens the suspect with forcible rape in prison as a possibility and that they should confess, that is torture?
Stuart, all those cases were brought up before. They just do not hold up. All of them are hearsay evidence from reporters or Senators who just heard about it from someone else. When you actually investigate and look at the cases, the argument falls apart.
For example, every one of the Japanese prosecutions included crimes beyond waterboarding. They also beat the prisoners and killed some of them. Some were burned. None of the prosecutions were for waterboarding. They were for torture, and in the line of questioning of the victims, they discussed the “water cure.” When one of the victims was asked if it was painful, he said NO. He said he would pass out from time to time, but it was not painful.
So if the victim said it was not painful, then how does it satisfy the definition of torture, which defines torture as causing SEVERE PAIN. Another victim said that the water pumped into his stomach was painful when the interrogator jumped up and down on his stomach, forcing the water out. However, pumping water into the mouth and forcing it into the stomach is not waterboarding. None of these prosecutions ever used the word waterboarding. It was the water cure, and some of it was torture and some of it was not. One of the men who did the water cure was executed. Why is that person not at the top of the list? Because people would not find it credible and they would go look it up and learn that he was executed for murder. Yes, he waterboarded someone, but that is not why he was executed. Yukio Asano was sentenced to 15 years hard labor, because he also tortured people through beating them.
Nobody was sentenced to 15 years for waterboarding despite what the Washington Post wants you to believe.
The case with Texas Sheriff James Parker also is misrepresented. He and his deputies were involved in drug trade and the waterboarding was part of that whole thing. They came to a plea deal.
I can’t get trial transcripts or more information about court martials, so I can’t verify the two court martials you mentioned. All I know is there are a lot of people blowing smoke about this, and their reports sound credible because they cite dates and specifics. The problem is that nobody actually takes the time to research and read these cases for themselves. They are content on repeating rumors because it fits with what they want to believe.
Great quote Chuck!
Max-1,
Justice Roberts is needed today.
Weaponizing Health Workers: How Medical Professionals Were a Top Instrument in U.S. Torture Program
Physicians for Human Rights is calling for a federal commission to investigate, document and hold accountable all health professionals who took part in CIA torture. Last week, the group released a report titled “Doing Harm: Health Professionals’ Central Role in the CIA Torture Program.” The report finds medical personnel connected to the torture program may have committed war crimes by conducting human experimentation on prisoners in violation of the Nuremberg Code that grew out of the trial of Nazi officials and doctors after World War II. We speak with Nathaniel Raymond, a research ethics adviser for Physicians for Human Rights, who co-wrote the new report. “We now see clear evidence of the essential, integral role that health professionals played as the legal heat shield for the Bush administration — their get-out-of-jail-free card,” Raymond says. “There has often been this narrative that Mitchell and Jessen were the lone gunmen of torture, that they were doing this out of their garage,” Raymond explains. “They were operating inside a superstructure of medicalized torture. It was not just them alone. It includes physicians’ assistants, doctors and it may include other professionals. What they were doing was everything from ‘care’ to actual monitoring, calibration and design of the tactics.”
http://youtu.be/BjkbRF_vfmk
FYI
Torture fetishists that support the experimentation on humans…
… Dr. Mengele like to experiment on humans, too.
Nice company you keep!
This is a Law blog?
Max-1 – Physicians for Human Rights is not a reputable medical organization.
http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-h-jackson/
I’m making a hit and run post here…
To remind everyone that the Germans and Japanese said their torture was to “protect their country from the enemy.” And here’s what the USA did in return.
(short clip opening statement, day 2)
https://www.youtube.com/watch?v=L50OZSeDXeA
Apparently Chief Justice Judge Robert H. Jackson was incorrect for some here when he said,
Opening and closing statements can be found at the following link.
Do not let the revisionists force America to walk the low road of the past Nazi excuses… Their denial and revision only forces the world to repeat history.
Same to you Zedalis! Merry Christmas to everyone, even Olly. See I forgave you for Christmas.
Inga
It’s always a hoot to see Constitutionalist try and thread the needle regarding individual liberties. All the hue and cry about “A Return to Constitutionality!” is usually just code for “Return my ability to infringe your liberties!”.
Anyway… Have a Merry Christmas. Best Holiday wishes to all.
Olly is special.
Now, that’s not very Christmas-ey. Or very nice. I thought name-calling…Oh, forget it.
http://0.tqn.com/y/politicalhumor/1/S/S/X/2/bsh-cheney-record-sac1224ac.jpg
http://media.cagle.com/20/2014/12/17/157540_600.jpg
HoHoHo! Merry Christmas!