Gore vs. Cheney
Victor Davis Hanson, the National Review's most partisan polemicist (and that says a lot), thinks that he's spotted some hypocrisy:
And guess what, Gore was completely crucified in the media for having the temerity to question Bush's policy. There were all sorts of hysterical editorials at the time, many by supposed liberals, trashing Gore for his decision to speak up. It was so very undignified. Couldn't Gore just go away and shut up?
But here we are, four months into the Obama presidency, and Cheney is already on every channel telling us how Obama is making us all less safe. And he pretty much gets a pass for it. I haven't seen a single editorial anywhere criticizing Cheney for speaking out. Some have criticized the content of his rants, but no one is telling him to shut up and go home the way they did to Gore. And Cheney is a guy who left office in disgrace (just four months ago!) with an approval rating bordering on the single digits. He's a man who can't leave the country for fear of being charged with war crimes.
But in Victor Davis Hanson's world, Republicans are much more civilized statesmen, not like those viciously partisan Democrats.
A once-vein-bulging Al Gore who barnstormed the country slurring President Bush by calling him a liar now seems baffled about the precedent he set of a vice president (albeit now much more politely in the case of Cheney) questioning the policy of the current president. . . .Even by partisan hack standards, this is a pretty weak argument. Notice the time period Hanson highlights, 2003-2008. Why start in 2003? Maybe that's because Al Gore, the Clintons, and virtually everyone else gave Bush a pass for the first two years of his presidency. Gore in particular made a point of not publicly criticizing anything Bush did during that period. And if anyone had the right to criticize Bush, it was the guy who got more votes than him in the 2000 election. The thing that finally caused Gore to break his silence was the insanely stupid and dishonest campaign by the Bush administration to launch a war against Iraq, a country that had nothing to do with 9/11. The reason he spoke out was because no one else had the courage to (oh, and by the way, I think history's vindicated Gore on that one).
The problem is that between 2003-2008 there was such hysterical antagonism to Bush that the combatants never worried about the often vicious means they used to achieve their supposedly lofty ends, and so now, finding themselves in a position of responsibility, are infuriated that anyone, well, would even conceive of playing hardball as they once did.
The striking thing about the sudden wounded-fawn Democratic syndrome is that Cheney is far milder than Gore was that the CIA is not the firebrand Pelosi has been, and Bush has been silent about Obama in a way that even Clinton was not about Bush.
And guess what, Gore was completely crucified in the media for having the temerity to question Bush's policy. There were all sorts of hysterical editorials at the time, many by supposed liberals, trashing Gore for his decision to speak up. It was so very undignified. Couldn't Gore just go away and shut up?
But here we are, four months into the Obama presidency, and Cheney is already on every channel telling us how Obama is making us all less safe. And he pretty much gets a pass for it. I haven't seen a single editorial anywhere criticizing Cheney for speaking out. Some have criticized the content of his rants, but no one is telling him to shut up and go home the way they did to Gore. And Cheney is a guy who left office in disgrace (just four months ago!) with an approval rating bordering on the single digits. He's a man who can't leave the country for fear of being charged with war crimes.
But in Victor Davis Hanson's world, Republicans are much more civilized statesmen, not like those viciously partisan Democrats.
posted by A.L. at 10:33 PM
92 Comments:
AL - Bravo - you said it well - VDH is a hack whose academic pedigree is secure
solely because his error filled books are not ridiculed soley because
ancients seem so estoric to the msm.
But what is worse than VDH is the cred that msm types grant him as a legit voice.
Cheney is a disgrace.
A.L.: Good post, but here's what's bothering me, and it's not confined to the debate about Cheney. Why can't there be a resolution of these various arguments?
I see this on television and read it in the papers and blogs all the time. Somebody, on either the right or left - but mostly the right - makes an easily refutable argument, but it just hangs out there like a poster glued on a wall (think Instapundit). The author either doesn't know the counter-argument, or (more likely) doesn't care. So we end up with commentators talking past one another and no minds are changed and no progress is made towards consensus.
I realize this is partly a technical/logistical problem Commentators are not locked in a room with a debate-master, not to be freed until a particular argument is fully played out and one or both parties concede. But there can be a state of affairs where, as a matter of integrity, people give good faith responses to criticism.
E.g. will VDH care about the various points you made vis-a-vis outspoken Cheney and would he concede there is a difference between dissing the administration using opinion and not facts (like Cheney's assertion that the country is less safe) in the first months, and critiques of going to war when the case was obviously flawed (by not honoring the weapons inspection process).
I will continue to read blogs of all stripes, but this failure to engage and commit to a process of going down the decision/logic tree means that we still have two assertions out there: A and not-A, and it gets tiresome after many years.
I think the reason I'm speaking out on this topic at this particular blog is because A.L.'s style is representative of clear thinking. Lawerly, I guess you could call it, but I'm a computer programmer and see it as proper use of terms, appreciation of evidence, and logic. To see it sit there and not engage, as it were, with the opposition, is dispiriting.
This is a dumb tradition anyway. America needs more vigorous debate not more silence and pretending the executive branch is a delicate flower that can't withstand any criticism. The country long since decided Cheney was a loathsome toad so anything he says only helps Obama anyway.
But here we are, four months into the Obama presidency, and Cheney is already on every channel telling us how Obama is making us all less safe.
There is a major reason for this, which isn't mentioned by Hansen or A.L. The left, Democrats in Congress, and elements in the Obama administration are actively seeking to put Cheney and a number of others in the Bush administration (as well as the former President himself) in prison. The prior (Bush) administration isn't being targeted for violating the law, but for policy differences of those on the left, with those policy differences being masked by the left as violations of the law.
The Bush administration, on the other hand, wasn't trying to criminalize policy differences it had with the Clinton/Gore team.
war crimes are not policy differences, they are violations of the law.
Steve - I know you mean well, but you are inverting recent history.
Recall the Bush admin - when they did not like
the politics of Joe Wilson, they responded with criminal behavior (convicted!).
The Bush people criminalized the political process.
The plot against Wilson was criminal in nature and the exposure of Plame put national security at risk.
Bush and co. could have responded to Joe Wilson's politics, with more politics - But they chose to respond criminally.
Steve's revisionist inversions come a bit too soon - Memories are too fresh.
Anonymous (10:56sm):
Recall the Bush admin - when they did not like
the politics of Joe Wilson, they responded with criminal behavior (convicted!).
No they didn't. The "crime" being investigated was that someone in the Bush administration violated the Intelligence Identities Protection Act (IIPA), which sets strict guidelines for prosecution. Nobody was ever charged. Libby was convicted of obstructing the investigation (and rightly so), and was punished for doing so. There was no "plot" against Wilson.
Wilson was still preaching the conventional wisdom that Saddam Hussein had WMDs in this interview with Bill Moyers at the end of February, 2003. A little over two months later, Wilson began changing his story when he began working for the John Kerry campaign, then began leaking information to Nick Kristof and Walter Pincus before writing his own op-ed in July, 2003. These are irrefutable facts. One could argue that it was Wilson doing the "plotting" against the Bush administration, not the other way around. Besides, considering what Wilson was accusing the administration of doing, it is reasonable for the administration to defend itself. Unless you think the Constitution doesn't actually allow for the equal protection of all its citizens, such as those in a Republican administration.
There was a "plot" against Wilson -
Your cynical attempt to deny that serves no purpose at this late stage.
Time for you to leave the partisan bubble.
The phrase "plot against Wilson" comes from Judge Tatel's key opinion that allowed the case to proceed.
Your infantile attempts to re-write recent history would be laughable if they were not so obviously cynical and fraudulent.
Wilson never changed his story - he was unarticulate some times and he is an annoying personality - But that does not excuse
the crimes against his wife.
Bush criminalized the political process.
The exposure of Plame's covert status was even admitted by Bush's own CIA and the conservative-minded
Patrick Fitzgerald.
Btw, do you really think I don't think the constitution allows Bush to defend himself?
I don't think you think that - It was a quick throw away line on your part.
As I noted - they could have responded to Joe Wilson's politics, with their own politics, rather than conduct a criminal plot - illuminated by many court docs - against Wilson - so as to punish is wife.
When you leave your partisan bubble you should ask yourself why you are so defensive of those in power against those out of power. The idea that Bush - the most powerful man in the world at the time - was beseiged so by a former FSO - that he had no choice, is silly.
Your arguments are mostly insincere - since they ignore or sweep aside known facts.
Btw, Wilson may have assumed Saddam had hidden weapons, but he never said there was proof of that.
But he was against the war anyway - at that time - Something you forget to admit,
SteveAR types:
The left, Democrats in Congress, and elements in the Obama administration are actively seeking to put Cheney and a number of others in the Bush administration (as well as the former President himself) in prison.No sense in trying to refute an argument by someone who types a statement like that. All of the "leftists" he mentions seem actively to be avoiding anything resembling criminal prosecution.
No one wants anything more than jury trials for people who may, eventually, be accused of crimes, not "policy differences."
This, of course, from the side who tried to politicize disingenuous depositions in a civil case (i. e., what thousands of Republicans do every yr. in divorce court) by impeaching a president whose policies they didn't like!
If you put partisan blinders aside - as Steve and some others might admit - few people doubt that Cheney and many others technically committed war crimes.
The question is one of saving face - War crimes have severe penalties. Life in jail, death, etc.
That would be rather divisive - But few people doubt the guilt - indeed, many Republicans are openly
pro torture to this day.
I take it AL, that you would not deny the truth of the following statement: "But in AL's world, Democrats are much more civilized statesmen, not like those viciously partisan Republicans."
i would love to have stevear to get the chance to experience some of the "policy differences".
oh, and i like and agree with what quiddity wrote although i am entirely guilty of debating from the vulgar and visceral end of my brain.
-proudliberal
MLS,
Nice use of false dichotomy there.
Anonymous (12:09am):
The exposure of Plame's covert status was even admitted by Bush's own CIA and the conservative-minded Patrick Fitzgerald.
Whether Plame was covert or not is immaterial to the statute that was being investigated. The IIPA clearly states that the party committing the offense had to have known she was covert, and that outing her would damage national security and put her at risk, in order to have gotten a conviction. Based on all evidence and documentation, nobody outside of the CIA knew Plame was covert, and therefore intent could never be proven. That isn't partisan, that is fact.
Many (if not most) people who work in the CIA aren't covert operatives, and it is known that they work for the CIA. Telling people about that isn't a crime. Had Plame not been covert, then this issue would never have come up. As far as anyone in the government outside of the CIA knew, including those in the Bush White House (Cheney, Rove, Libby, etc.), Plame was just an employee of the CIA and not a covert operative. The lack of anyone being charged with violating the IIPA after a four-year investigation by a special prosecutor with near-unlimited power proves that. So to continue to harp on something immaterial, the Bush administration outing a covert CIA operative, is a partisan position by those who keep bringing it up, and not based on some non-partisan aspect of the law.
It's the same as with Cheney and what people call war crimes. Many believe that the Bush administration should be held responsible for what some call "torture", along with those in Congress (of both parties) who supported that policy (saying nothing against the policy is tantamount to supporting it; the idea that members of Congess in the party out of power are mere window dressing, as has been asserted, is utterly ridiculous). But far too many, especially those same Democrats in Congress who either supported the policy or did nothing, only want to punish the former Republican administration and leave Democratic members off the hook. Those who support that position are being partisan and disingenuous when they hypocritically accuse others of being partisan.
SteveAR,
What a perfect example of blind, partisan, up-is-down-ism.
It should serve as a reprimand to anyone who ever considered you as anything but a mindless right-wing stenographer.
I especially enjoy the way you assert that your twisted opinions are fact.
VDH is the classic example of a person with an extensive education who never learned to think. He touts Western intellectual principles, but clearly would be more comfortable in a monarchy. In spite of the evidence all around him, he still thinks Bush policies were beneficial.
"I take it AL, that you would not deny the truth of the following statement: "But in AL's world, Democrats are much more civilized statesmen, not like those viciously partisan Republicans.""
MLS, I know you seem to think I'm the left-wing equivalent of some of the more partisan voices on the right (why makes me wonder why you bother to read me), but there's a difference between generally rooting for one side and being oblivious to your own side's faults and actions. I'm fairly confident that I wouldn't write a post (like VDH did) pretending that somehow the Democratic party invented hardball tactics and Republicans have just adopted them (albeit in milder form). That's just such an absurd thesis that even most Republican partisans can see is transparently stupid.
I have no illusions about Democratic politicians being dignified statesmen. They are politicians, riddled with faults. I do tend to think Democrat politicians, as a general matter, suffer from a different set of faults, though. If anything, they have shown a historical tendency to not be partisan enough, to be feckless and easily intimidated, unwilling to speak up for what they believe in. Republicans on the other hand, tend toward extreme partisanship and combativeness, even when public opinion is not on their side.
I don't know what is to be gained by pretending that the parties are mirror images of each other. In some ways they are, but in a number of significant ways, they are very different in their approach to politics. That's not a value judgment, just a descriptive one. For instance, the Democrats never would have proceeded with impeachment hearings in the face of public opposition, even if they thought the president deserved it. They are too feckless, too easily frightened by opinion polls. That's just a fact. But the Republicans did exactly that in the 1990s.
The dynamic between the parties and the media is also very different. Which is why no Democratic president or vice president would be on the air four months into a new presidency strongly criticizing his replacement. Republicans would loudly cry foul and the media would side with them.
Again, pretending that party dynamics are mirror images of each other is just being willfully ignorant. It's not about good vs. bad. It's just that the parties are different in significant ways. They are not mirror images of each other.
right on, al.
of course, it is s.o.p. over in republican la la land where all issues are black and white unless it is about them then the gray areas are boundless.
i think you are too nice in your comparisons, though, al: republicans tend to be more viscious, vacuous, and mean-spirited while democrats tend to be spineless lemmings.
anytime there is a major issue being debated on a talking head show and you dont know the people arguing, turn the sound off and you can still easily pick out the righty from the lefty.....the righty will always be looking straight at the camera without hesitation and maintaining his/her position regardless of objections/facts/video refuting said argument, while the lefty will tend to look bewildered and shaking his/her head in disbelief. try it, its fun.
-proud liberal
@Steve A.R. above:
"The prior (Bush) administration isn't being targeted for violating the law, but for policy differences of those on the left, with those policy differences being masked by the left as violations of the law."
Really? Violating the Convention Against Torture (Signed by President Reagan 18 Apr 1988 and Ratified by Congress 21 Oct 1994) is not breaking the law? Funny, but I'm pretty sure that an internaional treaty, signed by a President and ratified by Congress, become sthe highest law of the U.S., or did someone do away with Article Six of the U.S. Constitution and not tell me (specifically the second paragrpah: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.)
These are not "policy differences" but rather willful acts of subversion of the law.
Philip H:
Really? Violating the Convention Against Torture (Signed by President Reagan 18 Apr 1988 and Ratified by Congress 21 Oct 1994) is not breaking the law?
There are legal experts who disagree with that premise. Just because you say they broke the law doesn't mean they did.
But it really isn't about that, is it? It's about only holding Republicans to a particular standard while letting Democrats who either did nothing or were supportive of the Bush policy, until it was politically expedient for them to stop doing so (something that even A.L. agrees happened), off the hook.
No Steve, it's not. If there are Democrats who are guilty of committing crimes regarding torture, I believe they need to be prosecuted. Period. Infact, find something in my writing - anywhere - that says I only want Republicans prosecuted. You won't, but try . . .
I also believe that since the torture policy was authorized and implemented by a republican Administration, there are more Republicans then Democrats who need to be prosecuted.
And as to your legal scholar strawman - the only way to settle that is to let the investigations, prosecutions and trials go forward. That, in the American system of law, is how we determine what the law actually is. Writing secret memos is not how we do it.
legal experts that disagree with the premise of the cat treaty? are you fucking kidding me steve? oh, and democrats that were complisit need to be punished too, and to suggest otherwise is a fairytale invention by you, as usual.
reagan, your supreme diety signed it. now go piss up a rope.
Philip H:
No Steve, it's not. If there are Democrats who are guilty of committing crimes regarding torture, I believe they need to be prosecuted. Period. Infact, find something in my writing - anywhere - that says I only want Republicans prosecuted. You won't, but try . . .
Then you are in a minority because most Democrats believe the CIA lied to Pelosi, giving her a pass, despite the fact that she's changed her story at least three times in the last month. And it's a good bet that Congressional Democrats won't hold her to account for her actions by having her testify under oath, and she's already said she sees no reason to testify. As you can see, Democrats are the ones politicizing this to avoid having to explain their past positions. What's worse is that these same Democrats will not be punished by the electorate and be voted back into office. So while your personal call to investigate all is admirable, those who vote for Democrats, and the Democrats in Congress, don't care what you think.
Steve,
While I generally ignore your up-is-down idiocy, there is one point that you simply cannot get your head around. There are laws (numerous ones) that make it a criminal offense to order or carry out torture. There are no laws that make it illegal to fail to protest when someone else informs you of their plans to use torture. So, at worst, Pelosi is guilty of lacking sufficient spine, not criminality. The same is not true of the people who ordered and executed these acts of torture. There is no equivalence there.
Furthermore, even assuming Pelosi was accurately briefed on what was happening (which is real question mark given statements by others who were supposedly briefed, like Bob Graham), she was legally forbidden from sharing what she was told, even with her staff and lawyers. That means that even if she wanted to do something about it, there's not really anything she could have done, particularly from her perch in the minority party.
No one on the left is saying Pelosi should be immune from criticism or investigation, just that her knowledge of what happened is, at best, tangential to the heart of the inquiry. If she was informed that torture was taking place and did nothing, she acted cowardly. But it's not illegal to act cowardly. It is illegal to order torture.
Dude, you bring up some excellent points. Well done!
RT
www.privacy-center.de.tc
SteveAR doesn't give a crap about "illegal", if Republicans are involved.
A.L.:
There are no laws that make it illegal to fail to protest when someone else informs you of their plans to use torture.
There's actually a federal law on the books.
That means that even if she wanted to do something about it, there's not really anything she could have done, particularly from her perch in the minority party.
You keep bringing that up, especially the minority party part. We aren't talking about someone who witnesses a mugging and does nothing, but a federal elected official who is part of the co-equal branch of government and who has actual responsibilities, not someone put into office to be window dressing.
Furthermore, even assuming Pelosi was accurately briefed on what was happening..., she was legally forbidden from sharing what she was told, even with her staff and lawyers.
You keep saying that too. Except this PDF file shows that one staff member was at these briefings, probably to help her sort things out.
It is illegal to order torture.
We aren't in disagreement here. The question on my side is did the U.S. government under the Bush administration actually commit torture? Many say yes, many say no. If the answer is yes, then who was responsible for ordering and authorizing it? Within the realm of the federal government, that means both the Executive Branch and Legislative Branch, and all members within those branches have to be investigated. And for those who weren't directly responsible (Congress), were they accessories (which is also a crime, more serious than misprision)? Then we have to ask if what we did was actually torture in the context of three things: the attacks on 9/11, what was the point of waterboarding (to stop another attack or some other reason), and the fact that we waterboard many members of the U.S. military.
So I don't have a problem with a so-called "Truth Commission" provided everybody involved is called to task, not just those with an (R) next to them, and it actually accomplishes something. Based on everything I've read about this, that isn't going to happen with this administration or this Congress, and that makes it a political issue, not a legal issue. So as far as I and many other conservatives are concerned, an investigation or commission is nothing more than a waste of time. That, and we take what the U.S. did to the terrorists in the context of the items I mentioned above.
You can call me a "torture enabler" or other names if you want. But it isn't true.
SteveAR,
Your laughable misunderstanding of what misprision of a felony is I'll leave someone else to comment on.
You seem to be laboring under the illusion that, Nancy Pelosi, even now, could order someone in the Executive branch to do something, and they'd have to obey. Not so, and especially not when the congressperson is in the minority. Congress members' authority is limited to asking for information, and this authority isn't absolute.
As I've suggested before, perhaps you should bone up on what the actual governmental duties and authority are before making an ass of yourself.
If you persist in defending torturers and those who authorized torture, that makes you a "torture enabler." Denial of a fact does not alter that fact.
"Then we have to ask if what we did was actually torture in the context of three things: the attacks on 9/11, what was the point of waterboarding (to stop another attack or some other reason), and the fact that we waterboard many members of the U.S. military."
Steve, Ok, so now we get to the crux of your argument. As I read it 1) we get do what ever we want (federal and International law be damned) because we were attacked on our own soil; 2) we can do what ever we want if there is a "ticking bomb" or other scenario; 3)It's not torture since we do it voluntarily to our own military? Did I get that right?
Its so sad to se eyou argue that as an American citizen. If we are a nation of laws, if we are the shining beacon on the hill that draws so many from teh four corners of the world, then WE DO NOT get to do whatever we want when we are attacked on our soil; WE DO NOT get to do what ever we want just because a very select few of our military VOLUNTARILY submit to the same thing as part of their training: WE DO NOT get to do what we want because there MIGHT be a greater good that is accomplished.
Your is the thought process of an authoritarian regime, not a represenative, federal democracy.
And as for voting and Democrats - this registered Democratic voter all too happily searches for politicians to replac ethe current cabal - and finds none worthy.
Philip H:
If we are a nation of laws, if we are the shining beacon on the hill that draws so many from teh four corners of the world,...
First off, we are not a nation of laws, but a nation of people, with laws that the people have to follow. If the laws put the people at risk, then a reasonable assumption would be that it is a bad law. Then it doesn't matter if we are "the shining beacon on the hill that draws so many from teh four corners of the world" since we'll end up going the way of the Shakers.
...then WE DO NOT get to do whatever we want when we are attacked on our soil;...
This country has done things that many consider horrible (e.g., dropping the A-bombs on Japan, something I think was necessary; putting 180,000 Japanese in relocation camps, which I thought was unnecessary) after being attacked on our soil. Therefore my argument is valid.
...WE DO NOT get to do what we want because there MIGHT be a greater good that is accomplished.
I would agree if you are talking about what the Bush and Obama administration did in regards to the bank and auto bailouts, as well as Obama's Porkulus, and Obama's handling of both Chrysler and GM. But in the context of my statement (the "ticking bomb"), national security is not just a "greater good"; the survival of our nation of people is job one of the federal government, especially when that nation is at war (which we are).
...WE DO NOT get to do what ever we want just because a very select few of our military VOLUNTARILY submit to the same thing as part of their training:...
That isn't the point, though. If we waterboard members of our own military, then is waterboarding actually torture? Because torture, not waterboarding, is the criminal act. I'm not making a "because they do it, we can do it" argument, because the torture the enemy commits on our people is actually torture: burning our people, setting our people on fire while they are still alive, sawing (not chopping) off the heads of our people. We don't even come close to doing anything remotely resembling this barbaric behavior. Those acts by the terrorists can be summed up in one word, torture.
It's not as though the U.S. waterboarded, "tortured", every single person captured. Some bad things did occur (Abu Ghraib), and those who perpetrated these crimes were punished. I don't accept, for two reasons, those claims from others that have been released to say they were tortured: some of those that were released are actually terrorists and they are just using the terrorist playbook to lie (since they are the enemy, I will consider them to be lying before thinking members of the U.S. government are lying); some of those that were released are trying to use the courts to nefariously get money (with help from shysters who see their own bank accounts swell). Some might have believed they were "tortured"; but with the U.S. at war, I'm going to give deference to the U.S. on this.
No other adminstration in history was ever charged with war crimes for their actions trying to defend the nation during a war following an attack on the U.S. As is known now (without the release of any further classified information), three terrorists were waterboarded, the last time being five or six years ago, and the administration that did it, ended it. There is a great lack of perspective on display by Democrats and the left, in my opinion, in the continued attempt to paint America under the Bush administration as a "torture" country. This idea, in my opinion, is based on politics, not the law.
"Furthermore, even assuming Pelosi was accurately briefed on what was happening (which is real question mark given statements by others who were supposedly briefed, like Bob Graham), she was legally forbidden from sharing what she was told, even with her staff and lawyers."
Actually, that is not true, by the way.
MLS,
Please provide a link to where the conditions under which she was briefed are laid out.
We'll see if they're believable.
Haven't seen this myself but if its true, great!
"The left, Democrats in Congress, and elements in the Obama administration are actively seeking to put Cheney and a number of others in the Bush administration (as well as the former President himself) in prison."
I live in Europe; I hope that human turd called Cheney comes here and gets arrested. Pinochet did.
Thanks, SteveAR, for all the antediluvian arguments for torture. They've all been used before and they all stink. E.g. "we waterboarded our trainees". Yes, to teach them to resist torture!
Toby:
E.g. "we waterboarded our trainees". Yes, to teach them to resist torture!
I'm wouldn't doubt that it's a bit more complicated than that.
I also provided a list of the hideous means of torture that this current terrorist enemy does to our soldiers. You aren't expecting me to believe that we do those things, e.g. sawing their heads off, to teach them to resist the torture by the terrorists, are you? It might be a bit counterproductive (/snark).
C2- see my discussions of the issue at pointoforder.com.
MLS,
Geez, learn to create a hyperlink. Examples can be found via google.
I scanned down through about three posts before I think I found what you refer to.
It's a house of cards, primarily built from an argument from ignorance: "we don't know of any legal requirement for not disclosing the information."
Your analysis of the legality of leaking the contents of the briefings reminded me quite forcibly of the Bybee memos claiming that torture was, indeed, not illegal.
Until a full accounting is made, we won't know under what conditions Pelosi was allowed to speak of the materials in the briefings.
The sooner it begins, the sooner we can dispense with all this circular inference and find out what happened, who knew, and the extent of their culpability.
By the way, I'm wondering if, for the foreseeable future, every post by A.L. is going to turn into a discussion, in the comments, of Pelosi's role.
Frankly, it's getting old.
C2- as Al Cumming, CRS’s expert on intelligence and national security (and former general counsel to the Senate Select Committee on Intelligence) has noted, “there is apparently no provision in law restricting whether and how the leaders of the committees share with the membership information pertaining to intelligence activities that the executive branch has provided to the chairmen and ranking members.” I guess one way of interpreting that is to say that Cumming is “ignorant” of a legal provision that may or may not exist.
Now I grant you that the absence of an apparently applicable legal provision doesn’t foreclose the possibility that the executive branch could advance a theory that such information-sharing is illegal. We know that OLC lawyers can be quite creative. The problem is that there is no evidence that the executive branch has advanced such a theory, nor is there any plausible theory that comes to mind. If you want to suggest one, please do.
Until then, I remain “ignorant” of any support for AL’s statement that it was “legally forbidden” to share the information.
Sorry for the lack of a link. My technological capabilities are rather limited.
Oops, sorry, I meant that Cumming was the former SSCI staff director.
MLS,
Until we know what agreements were in place at the time between the briefing authority and those briefed, which might include statements they were required to sign, we can only wallow in our ignorance.
So when you said, in response to A.L.'s statement that it was "legally forbidden" -- which I suspect is pretty close to the truth, but probably should have been presented as not absolutely certain -- that it was not true, what you actually meant was that you didn't have any evidence that it was true.
As for your other ignorance, here's three ways:
1. You can use the Name/URL method. Look down below the comment box. Click Name/URL, put your name and the URL in. Then people can click on your name to see it.
2. Use tinyurl (google search will tell you how).
3. Type the HTML code in: First, the left arrow key (shift comma), the letter A, a space, the string "href=", (do not put quotations around it), followed by a double quote (shift single quote), followed by the URL, followed by another double quote, followed by a right arrow (shift period), followed by the phrase you want the readers to see (I usually use "this"), followed by left-arrow, forward slash (under your right pinky), the letter A, and a right-arrow. It's a lot easier than it sounds. You can also look at the page source to see the code.
Like this: < a href="your link" > this < / a > (but without the spaces except the one before the href.)
Go ahead, test it out. You can see it using "preview."
I'm pretty sure that, thanks to the Pelosi brouhaha and her willingness to have an investigation, our ignorance about how the Bush administration controlled those whom it briefed is going to get educated. I would point out that one of the noted abilities of that administration (which was so incompetent in so many other areas) was their control over leaks. Says something about their methods.
If we are a nation of laws, if we are the shining beacon on the hill that draws so many from teh four corners of the world,...
First off, we are not a nation of laws, but a nation of people, with laws that the people have to follow. If the laws put the people at risk, then a reasonable assumption would be that it is a bad law. Then it doesn't matter if we are "the shining beacon on the hill that draws so many from teh four corners of the world" since we'll end up going the way of the Shakers.
"[T]he very definition of a republic is 'an empire of laws, and not of men.'"
John Adams
"[B]y which the world may know, that so far as we approve of monarchy, that in America the law is king. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other."
Tom Paine
"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."
Ben Franklin
nerpzillicus:
A valiant attempt to take what I said out of context, and then to take out of context sayings by great Americans.
Here's one you forgot:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
It says "We the People", not "We the Law".
Ah, but SteveAR, just because people created the law, are the people free, then, to ignore the law as they like? And are those who have sworn to uphold the Constitution and the laws free to break the laws and violate the Constitution just because they, themselves, have nobody enforcing their oaths?
The physical analogy is when we put up a concrete wall. The wall is created by people, but those who attempt to walk through it will probably learn a hard lesson. But if a dishonest individual puts a hole in the wall, that person is not the only person who can walk through it.
By the way, taking the Constitution out of context right after accusing someone else of taking quotes out of context is hilariously ironic.
And Nerp's quotes were in context.
C2H50H:
Ah, but SteveAR, just because people created the law, are the people free, then, to ignore the law as they like? And are those who have sworn to uphold the Constitution and the laws free to break the laws and violate the Constitution just because they, themselves, have nobody enforcing their oaths?
No and no. But you have to ask yourself what laws are being violated? As I mentioned, in war, Presidents and the U.S. government have allowed things to happen that were considered possible violations of the law, or some group's civil rights, and they were never considered war criminals.
1. Lincoln's suspension of habeas corpus. The Constitution is clear on how this is to be done, and Lincoln didn't do it. Yet nobody considers him a war criminal, and many believe he was just adhering to his commander in chief responsibilities.
2. Sherman's March. I note this because Bill Ayers referred to it as an act of terrorism. Devastating it was, especially to warmaking capabilities of the Confederacy, but not nearly as horrific as it has been portrayed. Ayers is an idiot and an utter moron.
3. The Spanish-American War. Here was a declared war based on questionable reasons. Nobody considered or considers McKinley or the Congress that declared war to have been a war criminals.
4. FDR putting 180,000 Japanese in America in relocation camps. This was horrific and unnecessary. Worse, the Supreme Court upheld it with Korematsu (which has yet to be overturned). However, I'm not one who would call FDR a war criminal for this. Inappropriate, but not criminal.
5. Dropping the atomic bombs. Horrific and absolutely necessary. The loss of life was regrettable, but occurs during a war the U.S. didn't start. Plus, it saved an estimated million American lives and millions more Japanese lives. But Harry Truman was no war criminal.
6. Vietnam. Nixon gets most of the blame, but it was LBJ who really ramped things up, especially after the Gulf of Tonkin. Nobody thinks to this day of charging LBJ's Defsec Robert McNamara, who is still alive, for war crimes due to his efforts to expand the war far beyond what the Eisenhower and Kennedy administrations had established.
7. Somalia and Bosnia. Clinton changed the humanitarian effort started under George H. W. Bush to a UN-sponsored nation building effort, all with approval from Congress. Yet, Clinton's policies led to the disaster at Mogadishu, not to mention a large number of deaths of Somali civilians. Clinton also had the U.S. Air Force bomb (some say illegally) Montenegro during the Bosnian war (which wasn't explicitly authorized by Congress; he was fortunate it ended within the timeframe specified in the War Powers Resolution), killing many civilians. There's no talk of bringing Clinton, nor those members of Congress authorizing Clinton's change to the Somalia operation, up on charges.
As you can see, many of the laws are ambiguous, as are the laws regarding torture. The point is whether or not waterboarding three terrorists six years ago constitutes a crime (terrorists who are part of the group that is at war with the U.S. and attacked this country), and who should be held responsible for the waterboarding. If waterboarding is considered torture, a crime, then all those in the government who were responsible for doing it, ordering it, and those who were accessories to it, should be held to account. But I am of the opinion that waterboarding is not a crime based on what I've said earlier in this thread, and that this attack on the Bush administration is utterly ridiculous, and those doing this are doing so for political reasons, and not anything related to the law. As I've mentioned, I've read legal experts (one of which I linked to above) who think this way as well.
And Nerp's quotes were in context.
No they weren't.
SteveAR-
I am curious how you can even support your "valiant" accusation that I took your quote (or anybody else's) out of context. It seems pretty black and white. Please elaborate. I wait with baited breath. (otherwise, I would appreciate an apology for your libel. Another quote I would suggest for you is "discretion is the better part of valor".)
In response, I could simply state the Supremacy clause, but really, what's the point? You seem to be completely unable to look at anything but through a partisan lens, and your understanding of our republican government is, at best, ignorant, and at worse, perverse. For instance:
...WE DO NOT get to do what we want because there MIGHT be a greater good that is accomplished.
I would agree if you are talking about what the Bush and Obama administration did in regards to the bank and auto bailouts, as well as Obama's Porkulus, and Obama's handling of both Chrysler and GM. But in the context of my statement (the "ticking bomb"), national security is not just a "greater good"; the survival of our nation of people is job one of the federal government, especially when that nation is at war (which we are).
Is absolutely backwards. Love it or not, the bailouts and the stimulus bills are lawfully passed legislation, approved by the people's representatives. Whether they are or are not good policy is completely separate from whether they are legitimate. On the other hand, the torture of people is against the law. Whether torture is or is not good policy is beside the point, it is (currently) illegitimate and illegal.
That really is all there is to it.
And, cause I am a glutton for punishment, let's correct the record a bit:
1) misprison of felony - See United States v. Johnson, 546 F.2d 1225 (5th Cir. 1977) at 1227 ("The mere failure to report a felony is not sufficient to constitute a violation of 18 U.S.C.A. § 4."
2) If a law is a bad law, then the people, through their representatives, should change it. But no one is simply allowed to break the law - unless they are willing to face the consequences. I would have a lot more respect for the torturers if they would simply say: "yes, what we did was illegal, but we thought it was necessary to protect the nation." Would it be enough? I don't know.
3) Pelosi - the republicans badly gambled on this one. They thought, if they could simply throw some blame the dems way, they would back down on any investigations, and let sleeping dogs lie. Pelosi has upped the ante back, and now we see the bluff - the republicans on the Sunday talk shows already are saying "how dare the speaker shame the good name of the CIA... but we need to follow the President's example and look forwards, not backwards." They don't want any investigations, but their seemingly pathological desire to try and win talking points has backfired. By heating up the rhetoric, they are creating an atmosphere more conducive to investigations. I seriously don't know what the republicans are thinking any more. Cheney is playing it rather smart - he knows most dems are spinally-deficient, so if he browbeats them enough about security, they'll back down. I would have thought most republicans were smart enough to know the cowardly dems don't want to do investigations, they want health care, carbon stuff, and whatnot. But instead of moving on (as Obama has now given them countless changes to do) they had to take shots at the speaker, further escalating the stakes.
From my point of view, this is win-win. If Pelosi has lied, she goes down, but we have investigated the torture and revealed the hellish Kafkaesque nation we've been for eight years. If Pelosi is telling the truth, she is vindicated, but we have investigated the torture and revealed the hellish Kafkaesque nation we've been for eight years.
In either case, the important part (to me) is the second half of the sentence. So please, keep the heat on the speaker. Since liberals can't get dems to do the right thing, maybe republicans can.
SteveAR,
I fail to understand the reasoning that says that, because people long dead may have done something which, by today's measure, would be illegal or considered immmoral, there is some excuse.
We have to judge people legally on the basis of the laws they operated under. Under the law of the land in 2002-2003, Bush, Cheney, and their little band of torturers broke those laws.
Has there ever been a legal issue in which no lawyer could be found to take either side? It isn't a question of "legal experts", but judges and juries, which those in the Bush administration are desperate to avoid.
If I do not respond to whatever tripe you spit out in response, do not imagine that implies anything.
nerpzillicus:
On the other hand, the torture of people is against the law. Whether torture is or is not good policy is beside the point, it is (currently) illegitimate and illegal.
You keep deflecting the issue by using the word "torture" as if the U.S. actually engaged in it. The U.S. waterboarded three Al Qaeda terrorists six years ago, and did so to defend the nation from a further attack by the other Al Qaeda terrorists. My argument is that it isn't torture. The terrorists weren't harmed physically, they weren't harmed mentally, they weren't degraded (any more than those terrorists had already degraded themselves by becoming verminous terrorists).
1) misprison of felony - See United States v. Johnson...
I saw that. Again, we aren't talking about a witness to a mugging, but an elected official with responsibility. If there was a crime, she wasn't just a witness, but an accessory.
3) Pelosi - the republicans badly gambled on this one. the republicans on the Sunday talk shows already are saying "how dare the speaker shame the good name of the CIA... but we need to follow the President's example and look forwards, not backwards." They don't want any investigations, but their seemingly pathological desire to try and win talking points has backfired.
Pelosi was the one who gambled, and it's misfiring. The Republicans are gambling that they can she that she is nothing more than a shameless partisan, more interested in her own power and party than in America. A few Congressional Republicans uttered such idiocies about "not looking back", but many others haven't stopped and are rightly keeping the pressure on Pelosi. She said the CIA lied to her and Congress (and forget about that useless statement she issued the next day), and she needs to be called on it repeatedly until she puts up.
C2H50H:
I fail to understand the reasoning that says that, because people long dead may have done something which, by today's measure, would be illegal or considered immmoral, there is some excuse.
McNamara isn't dead. Clinton isn't dead. The members of Congress (Democrats and Republicans) who authorized Clinton's Somalia operation (which was different than the strictly humanitarian Somalia operation of Bush 41) are probably mostly alive. Yet those ready to hold Bush responsible for war crimes are never willing to hold any of these people responsible for any potential war crimes.
Under the law of the land in 2002-2003, Bush, Cheney, and their little band of torturers broke those laws.
Again, you bandy that word "torture" around as if I agree that is what the U.S. did. I contend that waterboarding and the other enhanced interrogation techniques aren't torture. You don't just frivolously get to put people on trial for a particular crime if no crime existed. And if those who were on board with the Bush policy back then, but are now, because it is politically expedient, willing to punish the same administration but not themselves, then this whole thing isn't being done for legal reasons, but political ones.
A few threads ago (Terrorist Recruiting) an anonymous commenter queried whether SteveAR is a cultist or a sophist. I think this last post shows him to be a sophist. Just so you know, Steve, your effect on the debate here does not have the outcome you probably wish for. Unlike the wingnuts, most of us here appear to find substantive debate and discussion stimulating. We do not regard poorly reasoned argument as a threat. Rather, your posts seem to have performed an interesting role as a catalyst for further thought. So, while I have no regard for what you intended to achieve, I can only applaud you for the role you actually perform. Have a nice day.
Bill Keane:
Rather, your posts seem to have performed an interesting role as a catalyst for further thought. So, while I have no regard for what you intended to achieve, I can only applaud you for the role you actually perform.
I aim to please.
Just so you know, Steve, your effect on the debate here does not have the outcome you probably wish for. Unlike the wingnuts, most of us here appear to find substantive debate and discussion stimulating.
You'll find that I am not in agreement with that assessment. My supposedly poorly reasoned arguments are still better than the proof the left doesn't use to show how waterboarding is actually torture. Sure they use snippets of this person or that person saying waterboarding is "torture", but that would be tantamount, in a court of law, to hearsay as opposed to hard evidence or reasoning. They just call it "torture" and are done with it.
To each their own.
SteveAr-
On the other hand, the torture of people is against the law. Whether torture is or is not good policy is beside the point, it is (currently) illegitimate and illegal.
You keep deflecting the issue by using the word "torture" as if the U.S. actually engaged in it. The U.S. waterboarded three Al Qaeda terrorists six years ago, and did so to defend the nation from a further attack by the other Al Qaeda terrorists. My argument is that it isn't torture. The terrorists weren't harmed physically, they weren't harmed mentally, they weren't degraded (any more than those terrorists had already degraded themselves by becoming verminous terrorists).
You are the one consistently changing the issue being debated. You claimed:
I would agree if you are talking about what the Bush and Obama administration did in regards to the bank and auto bailouts, as well as Obama's Porkulus, and Obama's handling of both Chrysler and GM. But in the context of my statement (the "ticking bomb"), national security is not just a "greater good"; the survival of our nation of people is job one of the federal government, especially when that nation is at war (which we are). I took that as an assertion that, due to the circumstances, the government was permitted to torture. If these activities are not torture, the statement is superfluous – of course we can legally interrogate detainees (who are not POWs of a foreign force under Geneva). There really is no dispute. The whole argument of necessity only arises if the actions taken by the government were illegal torture, and the proponents want to defend themselves with necessity (they are permitted to break the law when the security of the nation is at risk).
So, on one hand, we can debate whether what was done was illegal under the law. Or, we can debate whether the executive has the power to violate the law if the circumstances demand. But you are jumping back and forth, which does not permit a sensible debate. My question then is simple: Assume, for the purposes of this question only, that what was done to detainees was torture, and violated the torture statute. Do you believe the executive is permitted to violate the law depending on the circumstances (Nixonian “if the President does it, its not illegal)? Or do you believe the executive can violate the law, but then must answer for his or her actions, or have the people ratify his or her illegal actions?
1) misprison of felony - See United States v. Johnson...
I saw that. Again, we aren't talking about a witness to a mugging, but an elected official with responsibility. If there was a crime, she wasn't just a witness, but an accessory.
If you had seen that, you'd know your claim the Pelosi could be guilty of misprison of felony does not hold water. Pelosi would have had to take affirmative steps to conceal the actions of the principle criminals (and the underlying acts would have had to have been a crime. I assume you acknowledge you were wrong here.
If you want to contend she breached some duty she had as an elected official, I'd probably agree. I just don't know if that alone is criminally sanctionable. And the Republicans better hope not, the way they have shredded the Constitution the past eight years, when they had a duty to uphold and defend it.
3) Pelosi - the republicans badly gambled on this one. the republicans on the Sunday talk shows already are saying "how dare the speaker shame the good name of the CIA... but we need to follow the President's example and look forwards, not backwards." They don't want any investigations, but their seemingly pathological desire to try and win talking points has backfired.
Pelosi was the one who gambled, and it's misfiring. The Republicans are gambling that they can she that she is nothing more than a shameless partisan, more interested in her own power and party than in America. A few Congressional Republicans uttered such idiocies about "not looking back", but many others haven't stopped and are rightly keeping the pressure on Pelosi. She said the CIA lied to her and Congress (and forget about that useless statement she issued the next day), and she needs to be called on it repeatedly until she puts up.
Please cite to who the “most” that are not saying “let's move forward.” On Sunday alone, I saw McConnell, and Kyl hint they want to avoid investigations. Steele and Gingrich want investigations, (though Steele's comments were, in standard operating procedure, incomprehensible and contradictory), but only if they are somehow limited to Nancy Pelosi only. I think you are incorrect on where the republicans are. They may have been calling for some kind of investigation of Pelosi earlier, but they're walking back their bluff now, since an investigation into her would necessarily force an investigation of the whole sordid affair, which is the last thing any of them want. Here's the timeline
1)Pelosi, about a month ago, hints she may want a truth commission.
2)Republicans, in response, bring up the perfectly valid issue of the briefings she received, demanding some kind of investigation, but for the perfectly invalid reason that they simply wanted to see if they could shut down any investigation by creating collateral damage in the form of the speaker should the investigations go forward
3)Pelosi claims the CIA misled her, dems note that if true, it would be a crime
4)Ante upped, Republicans begin walking things back
Pelosi, inarguably, has placed herself in a box, with only two escape routes – investigations that will expose or vindicate her, or the Republicans backing off completely so she can sweep the whole matter under the table. If you want pressure to continue on Pelosi, I fully support you. The dems will back off as soon as they can find a way to spinelessly get out of this. I want the truth (not just about Pelosi and the equally craven and spineless Rockefeller), so please push your republican representatives to keep the heat on. But, I'd hurry and talk to McConnell and Kyl, who seem all too ready to let it go, if I were you.
SteveAR-
I fail to understand the reasoning that says that, because people long dead may have done something which, by today's measure, would be illegal or considered immoral, there is some excuse.
McNamara isn't dead. Clinton isn't dead. The members of Congress (Democrats and Republicans) who authorized Clinton's Somalia operation (which was different than the strictly humanitarian Somalia operation of Bush 41) are probably mostly alive. Yet those ready to hold Bush responsible for war crimes are never willing to hold any of these people responsible for any potential war crimes.
That's cause most of your examples stink.
1. Lincoln's suspension of habeas corpus. The Constitution is clear on how this is to be done, and Lincoln didn't do it. Yet nobody considers him a war criminal, and many believe he was just adhering to his commander in chief responsibilities.
Most lawyers I know fully acknowledge Lincoln overstepped the letter of the law on this one. Congress later ratified his actions, though. And he did it publicly and openly, challenging those who disagreed to debate him on the merits, leading to the famous “Are all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?” But, in that statement alone, Lincoln acknowledged he broke the law, but claimed it was necessary. We still don't see that kid of conviction of principle from the Bush people or conservatives in general. Instead, it's this wishy washy, have it both ways stuff where the tactics weren't torture, but we are justified in doing them anyway. As described above, this is an incoherent argument, an attempt to hedge some bets and muddy the waters.
2. Sherman's March. I note this because Bill Ayers referred to it as an act of terrorism. Devastating it was, especially to warmaking capabilities of the Confederacy, but not nearly as horrific as it has been portrayed. Ayers is an idiot and an utter moron.
Only conservatives seem to cite to Bill Ayers as a man of importance. But that aside, Sherman, did not torture people (besides allowing his lieutenants under him to let the slaves who had been released on the march to die or be killed by Union actions), and simply destroyed property, communication, and transportation lines. Clearly not terrorism, although perhaps war crimes, since the destruction of fields was directed (mostly) at the civilian population. But I don't know enough about this to really make a claim about the legality of Shermans' actions, however I'll note the objections to his conduct do not involve his treatment of detainees.
3. The Spanish-American War. Here was a declared war based on questionable reasons. Nobody considered or considers McKinley or the Congress that declared war to have been a war criminals.
A legally declared war isn't a war crime? Wow, that's incredible! People do argue it was unnecessary and imperialistic, but why would it be a war crime? There was no UN mandate limiting the occasions for armed action.
4. FDR putting 180,000 Japanese in America in relocation camps. This was horrific and unnecessary. Worse, the Supreme Court upheld it with Korematsu (which has yet to be overturned). However, I'm not one who would call FDR a war criminal for this. Inappropriate, but not criminal.
I don't think there is anyone (besides Michelle Malkin) that argues this was Okay. Again, did FDR break any laws? (no, Congress authorized the action). Further, reparations and apologies have been made, clearly indicating the action was wrong. Here you say it was unnecessary, and modern American surely consider it to be an abridgment of Japanese-American rights. Criminal? I don't know. Illegal? most definitely.
5. Dropping the atomic bombs. Horrific and absolutely necessary. The loss of life was regrettable, but occurs during a war the U.S. didn't start. Plus, it saved an estimated million American lives and millions more Japanese lives. But Harry Truman was no war criminal.
I certainly think you will fail to find a consensus on this one. But again, you are arguing necessity as a defense prior to determining whether an action is a crime. If dropping the bombs was not illegal, we don't have to argue necessity. Only if it was a crime do we need to get into that.
6. Vietnam. Nixon gets most of the blame, but it was LBJ who really ramped things up, especially after the Gulf of Tonkin. Nobody thinks to this day of charging LBJ's Defsec Robert McNamara, who is still alive, for war crimes due to his efforts to expand the war far beyond what the Eisenhower and Kennedy administrations had established.
Why would expanding a war be a war crime? Do you know what a war crime is?
7. Somalia and Bosnia. Clinton changed the humanitarian effort started under George H. W. Bush to a UN-sponsored nation building effort, all with approval from Congress. Yet, Clinton's policies led to the disaster at Mogadishu, not to mention a large number of deaths of Somali civilians. Clinton also had the U.S. Air Force bomb (some say illegally) Montenegro during the Bosnian war (which wasn't explicitly authorized by Congress; he was fortunate it ended within the timeframe specified in the War Powers Resolution), killing many civilians. There's no talk of bringing Clinton, nor those members of Congress authorizing Clinton's change to the Somalia operation, up on charges.
See six. Bad consequences from good intentions do not a war crime make. Intentionally torturing people, that's a war crime. Intentionally targeting civilian populations, war crime. Genocide, ethnic cleansing, etc, war crime. Half assed armed conflicts which go badly for you – incompetent, poorly thought out, perhaps impeachable under domestic law, but not a war crime.
These comparisons are poor. If you want to present a case for war crimes for particular activities by any of these parties, be my guest. We'll weigh the evidence and decide if the act fits the crime. But the treatment of detainees is completely independent of any of these actions. We have a statute, we have actions, either they are illegal or not. Based on the preliminary evidence, you have one opinion, and many, many others have the opposite. I think it is clear that an investigation is necessary to clear up the dispute. Don't you agree?
Nerp,
I think you have a greatly inflated estimate of a certain party's reading and comprehension skills. I would suggest that we break it down into a simple, question-and-answer format that won't tax the abilities or patience.
To the person or persons who think there was no torture:
1. Do you agree or disagree that the whole reason for the SERE program (and its predecessors) was to prepare those who might fall into the hands of a Cold War enemy for the treatment they might receive? (Yes or No.)
2. Was the Bush administration's EIT based on SERE techniques? (Yes or No.)
3. Were those methods, which included the various sleep-deprivation, stress positions, disorientation, threats of execution, and waterboarding, torture when the (put your favorite here: North Vietnamese, North Korean, etc) did this to captured American pilots? (Yes or No.)
4. Look at the definition of torture under US federal law. According to the Title 18, Part 1, Chapter 113C, Section 2340, the elements of torture consist of:
a) it is an action performed by the agents of a government or other authority. Was this met, under the Bush administration? (Yes or No.)
b) it is performed in order to obtain information or a confession. Was this condition met? (Yes or No.)
c) It consists of the intentional infliction of pain or suffering, or the threat of same, or the threat of imminent execution. Was this condition met? (Yes or No.) Is waterboarding specifically designed to simulate drowning? (Yes or No.) If not, what is its purpose, and why do people who have undergone it say that they thought they were drowning?
By the way, the people who make the "SERE was used on Americans" excuse are missing the parts about the SERE trainees being under physical control (they can refuse to participate, at least in theory) and also the part about it being done to get information or a confession (there's no serious component of that in SERE training.)
History provides the answer to questions 1, 2, and 3. Yes, in all three cases.
The answers to the questions in part 4 are also pretty obvious.
The answer is inescapable, logically, so let us have the investigation and find out who knew, who participated, who authorized, and let them then plead their extenuating circumstances (if any) in public.
It's the least we can do.
nerzillicus:
A couple of cleanup points.
Again, did FDR break any laws? (no, Congress authorized the action).
The only action Congress took was in declaring war on Japan. FDR had the Japanese relocated via Executive Order 9066, which was upheld by the Supreme Court in Korematsu. Congress had nothing to do with it.
War Crimes. I've heard the left try to tie Bush to war crimes on everything from torture, intentionally attacking civilians, and lying to start the war against Saddam's Iraq (which as far as I'm concerned wasn't the case), which was a congressionally authorized war. The items I put up were all past actions where various administrations and Congresses did similar and possibly worse things, yet nobody has held them to the same standards.
As far as pressure on Pelosi, you can add Pete Hoekstra as someone who will continue to put pressure on. I imagine more Republicans in the House will too, more so than those in the Senate.
Now to the meat.
So, on one hand, we can debate whether what was done was illegal under the law. Or, we can debate whether the executive has the power to violate the law if the circumstances demand.
Here's the deal. The Constitution imparts on the President to be the commander in chief of the military and to defend the Constitution and the people whose rights are guaranteed. This is especially true during wartime. As was the case with Lincoln and FDR, extraordinary measures during wartime need to be decided upon in order for the President to conduct that war to a successful and victorious conclusion. These measures are not allowed any other time, or allowed if they have nothing to do with the war effort. With that in mind, and with the job required of the President, there is almost anything a President can do (things which have been done in the past), unless especially egregious (which waterboarding three terrorists isn't), without it being a violation of the law, whether U.S. or international law.
It's tantamount to being akin the office of dictator in the Roman Republic (prior to Sulla's dictatorship) where the dictator could do absolutely anything while in that office without fear of prosecution. It was only invoked during a crisis, usually an invasion by an enemy. This country's Founders knew of this and incorporated most elements of that office into the President during wartime, and the Supreme Court has upheld many seemingly dictatorial measures taken by wartime Presidents over the last 227 years since the Constitution was ratified.
So, in my opinion, there are a very strict set of circumstances that have to have occurred where a wartime President can issue orders, provided they aren't horribly egregious, that he couldn't issue any other time. Our war against Al Qaeda, especially after 9/11, met those circumstances.
With that, the question of whether or not waterboarding is torture comes into play. Since waterboarding doesn't result in any physical or mental damage to a person, nor is it degrading, I don't see how it is torture when it was used to prevent another attack on the U.S., which, as I mentioned, is something the President is supposed to do. Therefore, it was not egregious to order the waterboarding of these terrorists to prevent their group from perpetrating another 9/11.
Any law that is as superfluous as the torture law (meaning, it doesn't list specifics), U.S. or international, is a law a wartime President should stretch to the limit if the President is to be in compliance of his oath and dutes, that is, an avoidance of putting the people of this nation while it is at war at an unnecessary risk. It doesn't matter if the President's last name is Washington, Lincoln, Roosevelt, Clinton, Bush, or Obama.
the Supreme Court has upheld many seemingly dictatorial measures taken by wartime Presidents over the last 227 years since the Constitution was ratified.
222 years, not 227.
SteveAR-
A couple of cleanup points.
Again, did FDR break any laws? (no, Congress authorized the action).
The only action Congress took was in declaring war on Japan. FDR had the Japanese relocated via Executive Order 9066, which was upheld by the Supreme Court in Korematsu. Congress had nothing to do with it.
The point, though I admit not eloquently stated, was that no statute was violated, and FDR believed he had authority to act, as commander in chief, to prosecute the war declared by Congress. No positive law (other than the Constitution itself) prohibited his action. Torture is barred by positive law, and although Congress gave the President authority in the AUMF to prosecute the wars, it did not repeal the torture statute. That is the difference of which I speak – sort of the Youngstown Steel test, in WWII, FDR's actions did not contradict an act of Congress, here, if torture occurred, it did. FDR's power was in the middle level of Youngstown (no authority one way or the other) while Bush's was at the low ebb (actions contrary to statute). More accurately, I should have said Congress was silent as to the appropriateness of FDR's actions.
War Crimes. I've heard the left try to tie Bush to war crimes on everything from torture, intentionally attacking civilians, and lying to start the war against Saddam's Iraq (which as far as I'm concerned wasn't the case), which was a congressionally authorized war. The items I put up were all past actions where various administrations and Congresses did similar and possibly worse things, yet nobody has held them to the same standards.
Riiiiiight..... but we're talking torture here. Not questionable war premises, not civilian attacks. I think there should be an intense investigation as to the cooking of the books on war, but I am not clear if whatever may have occurred would have constituted a war crime. Moreover, I do not currently have sufficient evidence that there were civilian centered attacks ordered by Bush. No one is bringing that up here. You will find arguments are easier to follow, and more productive, if you don't bring up red herrings not offered by anyone here (and since this is you an me debating, I most certainly have not made any of these claims. So, I'd just ask you to stay on topic here. Because the topic is the treatment of detainees, I did not feel many of your examples were very convincing. If you want a separate discussion of whether any of these actions by President Bush constitute war crimes, that'd be fine. But they are not related to torture, and only serve to muddy the waters of that debate.
As far as pressure on Pelosi, you can add Pete Hoekstra as someone who will continue to put pressure on. I imagine more Republicans in the House will too, more so than those in the Senate.
Cool. I hope you're right. Let's get some truth commissions going!
Now to the meat.
So, on one hand, we can debate whether what was done was illegal under the law. Or, we can debate whether the executive has the power to violate the law if the circumstances demand.
Here's the deal. The Constitution imparts on the President to be the commander in chief of the military and to defend the Constitution and the people whose rights are guaranteed.
I'd mostly agree. I think some people blow out of proportion the office of Commander in Chief (since I think it was simply to place the army and navy under civilian control), and would say the Constitution requires the President not only to be Commander in Chief, and not only defend the Constitution, but to preserve and protect it, and “take Care that the Laws be faithfully executed.” I would also contend the plain text of the Constitution does not contain an "off” switch during war.
This is especially true during wartime. As was the case with Lincoln and FDR, extraordinary measures during wartime need to be decided upon in order for the President to conduct that war to a successful and victorious conclusion. These measures are not allowed any other time, or allowed if they have nothing to do with the war effort. With that in mind, and with the job required of the President, there is almost anything a President can do (things which have been done in the past), unless especially egregious (which waterboarding three terrorists isn't), without it being a violation of the law, whether U.S. or international law.
Doh! Now we disagree fundamentally. I would argue the President is never “allowed” to do a thing, but certainly, if he or she truly believes something must be done, can do it and face the consequences of his or her decision. Thus, FDR's internment was illegal, and the Court should have declared it so, and if the Congress decided it to be a high enough crime or misdemeanor, impeached and convicted him. Likewise, Lincoln's suspension of habeas was illegal, and the same could have happened (Indeed, Taney did rule against him on habeas). FDR's situation was disappointing, since everyone now acknowledges it was illegal and wrong, and those involved have been compensated and apologized to. Lincoln's actions (including the seizure of ships prior to Congress returning to session to declare war) were later ratified by the Congress. Thus, I kinda support the argument that a President can act contrary to the law in the short term in an emergency, until the Congress can pass positive law authorizing the activity, and thus ratifying the previous illegal acts. But, in the end, Congress must pass law permitting the unlawful acts of the President. This is the necessity defense – Lincoln did not have the authority to blockade the South, but the action he took was later ratified by the Congress, and thus was deemed appropriate, even if technically illegal. But at no time should anyone maintain the President has the authority to do these things, he or she only can make the choice to do them and hope the people's representatives agree with his argument of necessity.
President Bush did not seek positive law to allow him to torture. Nor did he seek a suspension of the Torture statute, nor some kind of AUMF for interrogations. His course was more Nixonian, and IMO, extraordinarily dangerous.
It's tantamount to being akin the office of dictator in the Roman Republic (prior to Sulla's dictatorship) where the dictator could do absolutely anything while in that office without fear of prosecution. It was only invoked during a crisis, usually an invasion by an enemy. This country's Founders knew of this and incorporated most elements of that office into the President during wartime, and the Supreme Court has upheld many seemingly dictatorial measures taken by wartime Presidents over the last 227 years since the Constitution was ratified.
First, where's the evidence of this in the text of the Constitution? Second, Besides Korematsu, please name some SCOTUS cases upholding illegal acts of the President (without subsequent ratification by the Congress). Third, I think some Founders would disagree:
"I said to [President Washington] that if the equilibrium of the three great bodies, Legislative, Executive and Judiciary, could be preserved, if the Legislature could be kept independent, I should never fear the result of such a government; but that I could not but be uneasy when I saw that the Executive had swallowed up the Legislative branch." --Thomas Jefferson: The Anas, 1792. ME 1:318
The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature - Hamilton, Federalist 69.
Sorry, I don't see it. We are a nation of laws, not men. A state of war does not mean the President can break the law. The President can choose to if he deems it necessary, but there is no ex ante immunity for his actions.
So, in my opinion, there are a very strict set of circumstances that have to have occurred where a wartime President can issue orders, provided they aren't horribly egregious, that he couldn't issue any other time. Our war against Al Qaeda, especially after 9/11, met those circumstances.
With that, the question of whether or not waterboarding is torture comes into play. Since waterboarding doesn't result in any physical or mental damage to a person, nor is it degrading, I don't see how it is torture when it was used to prevent another attack on the U.S., which, as I mentioned, is something the President is supposed to do. Therefore, it was not egregious to order the waterboarding of these terrorists to prevent their group from perpetrating another 9/11.
See, again, I just don't understand why you are conflating the two arguments. Either the techniques breach the torture statute:
(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
or they don't. I would argue waterboarding very clearly causes the threat of imminent death (18 U.S.C. 2340 (2)(C), and is therefore clearly torture. The other activities are most likely also torture. But if they are not, then the “egregiousness” of it doesn't matter. It was legal, since the actions were not torture. If on the other hand, the actions were torture, you seem to be asserting that the President has a special power to break the law in a time of war. Again, you can argue that, but the President doesn't need to assert any special power to break the law when he hasn't broken it. So your argument should be:
1)it wasn't torture
2)even if it was torture, it was permissible due to the state of war.
That's the real argument. However, people don't like this argument, because step two forces people to acknowledge torture and lawbreaking. Instead, rhetorically, a proponent wants to say it wasn't torture, just harsh (therefore not conceding any lawbreaking), while at the same time mentioning a time of war (an emotional ploy to distract from the analysis of the illegality of the acts), even though they are mutually exclusive. If the techniques are not illegal, then the President should be able to do them at any time, whether there is a state of war or not. Further, the logical conclusion is that one could do these legal acts to any detained person, even American citizens. Since they are not illegal, why wouldn't the President have these techniques performed on any federal detainee, be they terrorist, rapist, child molester, murderer, or pot smoker? But that logical conclusion is exactly why the “time of war” crap has to be thrown in as a defense to a non-crime. Because no one will buy that you can do this to any prisoner or detainee, it is clearly illegal. But proponents do not want to concede the illegality of the acts, so they confuse the issue with war powers, even though the President would not have to assert any magical “Commander in Chief I can do anything I want cause it is a time of war” power unless the underlying act is actually illegal. Therefore, you should argue one or the other exclusively, but combining them does not make any logical sense, and instead appears to simply be a rhetorical device to prevent conclusive determination of the issue.
Any law that is as superfluous as the torture law (meaning, it doesn't list specifics), U.S. or international, is a law a wartime President should stretch to the limit if the President is to be in compliance of his oath and duties, that is, an avoidance of putting the people of this nation while it is at war at an unnecessary risk. It doesn't matter if the President's last name is Washington, Lincoln, Roosevelt, Clinton, Bush, or Obama.
That's not what superfluous means:
superfluous (adj)
1. being more than is sufficient or required; excessive.
2. unnecessary or needless.
You are arguing the statute is vague, not superfluous. More importantly, the President's oath is to preserve, protect, and defend the Constitution, and his duties include taking care that the laws are faithfully executed. I would say engaging in torture is a violation of those duties. It is also a crime.
nerpzillicus:
FDR believed he had authority to act, as commander in chief, to prosecute the war declared by Congress. No positive law (other than the Constitution itself) prohibited his action.
But that's the point. FDR issued an Executive Order to violate the 4th, 5th, and 14th Amendments, and nobody blinked, not even the Supreme Court. He justified it as part of the powers given to the President in the Constitution after the nation was attacked to start WWII, to avoid another attack. These are the same reasons Bush justified his own Executive Order authorizing enhanced interrogation. Why did they do this? Because the societal consequences of not preventing a second attack would have been far more damaging to the nation, the people, and the government. This isn't just a "greater good", as you had mentioned before, but a case of national survival.
On to the rest.
I would argue the President is never “allowed” to do a thing, but certainly, if he or she truly believes something must be done, can do it and face the consequences of his or her decision.
Again, I reiterate the consequences of prosecuting a President for defending the nation from a second attack. You go on to cite FDR and Lincoln and what could have happened to them for what they did (Lincoln is reported to have threatened Taney with imprisonment, and the country would have backed Lincoln). I fundamentally disagree. Even after Lincoln's and FDR's transgressions, the nation survived and improved. So the argument that the Bush administration's actions will ruin the rule of law and the rights of citizens isn't backed up by history.
I would argue waterboarding very clearly causes the threat of imminent death..., and is therefore clearly torture. The other activities are most likely also torture.
I don't see it, especially with the way it was implemented (doctors on sight). I wouldn't recommend doing it except in regards to keep another attack on the U.S. from occurring, but I don't call it torture.
Here's another thing. Sec. 2(a) of the 2001 AUMF said the following:
In General.—That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Had another terrorist attack occurred on U.S. soil, I would argue that this would have been an impeachable offense had the President not taken every effort, short of actually torturing anyone, to stop it. Because another attack didn't happen, President Bush fulfilled the AUMF, and that waterboarding these three terrorists constituted "necessary and appropriate force", especially, as I mentioned, I don't see waterboarding as torture.
nerzillicus, you also mentioned Youngstown Sheets. One of the items prominently mentioned is that Truman's actions were deemed unconstitutional because Congress had not explicitly authorized using U.S. troops to fight the Korean War (the War Powers Resolution was about 20 years off, and there was no comparable AUMF as was the case with our war against Al Qaeda). As commander in chief, Truman had the authority to send troops to fight, but not to put the whole country on a war footing as was the case during WWII. I would contend that had FDR done the same thing during WWII as Truman did later, the Court would have upheld the action based on Congress's declaration of war.
SteveAR,
Since Nerp has apparently given up on you, perhaps you could answer the question: if the purpose of waterboarding is not to simulate drowning, and the threat of imminent death, what's in it for the person to whom it is done?
Bonus question: do you think they told the victim, "OK, Kalid, we're going to waterboard you again, but don't worry, that guy over there is a doctor."?
I must point out that you also don't see electrons, but without them you wouldn't be reading this. Not seeing something means nothing.
C2H50H:
if the purpose of waterboarding is not to simulate drowning, and the threat of imminent death, what's in it for the person to whom it is done?
To not have it done anymore. I've never had it done to me, but it seems like it is very unpleasant.
I've never been arrested either, but that also seems like it is unpleasant, so I avoid situations, like breaking the law, that may get me arrested.
Bonus question: do you think they told the victim, "OK, Kalid, we're going to waterboard you again, but don't worry, that guy over there is a doctor."?
Maybe. Maybe not. I would think the doctor is there to protect the interrogator from harming or killing the terrorist. I would also think there is someone with medical knowledge around when our military people are waterboarded during training, to avoid the trainee from being harmed or killed accidentally.
I must point out that you also don't see electrons, but without them you wouldn't be reading this. Not seeing something means nothing.
I'm not sure what your point here is.
SteveAR,
I guess you don't understand the question. Let me restate it. If the purpose of waterboarding is not to make the victim believe, involuntarily (as even those who have undergone it of their own free will have said) that he is about to die, then what is its purpose?
A person being waterboarded cannot talk and admit anything. They can't say, "The bomb is at so-and-so." This means it must be the threat of future waterboarding that makes them talk. Ask yourself what the mere threat of could make you say anything.
Any answer to that question which involves pain or suffering, or the threat of imminent death is torture, prohibited by statute.
The purpose of the "electron" question was to point out that your argument "I don't see it" is an argument from ignorance.
And I don't believe that you can entertain for an instant the thought that the victims were told there was a doctor standing by.
I have a lot to do today, but I did want to say this before I return-
SteveAR-
The problem with discussing the doctor is that you are looking at the situation through the wrong eyes. Of course, those interrogating do not want to cause the death of the detainee, that would defeat the purpose of the torture (I assume the interrogators are not sadists, they genuinely want info). So, the question is whether the techniques caused the detainee to fear death. Otherwise, nothing is torture, since no one doing this actually wants the detainee to die, they only want him to fear death.
For instance, the classic law school example - a person with an unloaded gun draws it on someone in a threatening manner. The person is still guilty of assault, even though he knew he couldn't really threaten the life of the other individual, since he knew the gun had no bullets. But the victim had a reasonable fear of harm. Same principle hear. The interrogators clearly intended to cause a fear of death or to distort the senses - there is no other purpose to the techniques (as C2H50H points out). The entire purpose of the exercise is to cause the victim to feel exactly what is prohibited in the statute. The torturers knowledge that the acts were controlled is irrelevant.
C2H50H:
And I don't believe that you can entertain for an instant the thought that the victims were told there was a doctor standing by.
Sure I can. But I don't know for sure, which is why I answered the way I did.
Any answer to that question which involves pain or suffering, or the threat of imminent death is torture, prohibited by statute.
nerzillicus, this is for you too. Assuming for a moment you are right (and I make this assumption because in reality, your logic proving that waterboarding is torture escapes me), and there had been another terrorist attack that didn't kill 3000 civilians, but 30,000 civilians. What do you believe would have been the ramifications of that, knowing that President didn't use every means to stop it after what had already happened on 9/11? Would you say, "at least we kept to the greater good of not torturing a terrorist who knew about the attack"? Do you think the rest of the American people would do that?
The purpose of the "electron" question was to point out that your argument "I don't see it" is an argument from ignorance.
And I would argue that you are doing the same thing with regards to our terrorist enemies who want to kill U.S. civilians on U.S. soil. I would also argue that you are also blind to what it takes to stop the terrorists the U.S. is at war with.
One other point. A statute is meaningless if it violates the Constitution. If the statute hamstrings the President's duties to protect the Constitution and the people of the United States, then the statute will be overturned. You could argue that the President could have challenged the statute in the courts. Except for the fact that there is a war on (and the torture statute was passed in 1994, when the U.S. wasn't in a state of war), and waiting years for the challenge to be resolved isn't what the Founders had in mind for the President's wartime powers.
SteveAR,
I see that you are, although in a wishy-washy way, ceding the argument that what was done to the detainees was torture.
On to the second issue, which is that, even if the President or his agents broke the law, it was justified by the "oh-my-god-we're-all-gonna-die! argument".
You've espoused the "article II" defense, which effectively makes the president a dictator any time he claims a state of war, which means you've thrown the rule of law out the window.
That's hardly convincing, nor is the "if he hadn't, and more attacks would have happened, it would have been dereliction of duty!" defense sensible. As has been pointed out to you more times than I can count, the President's oath is to defend the Constitution. While I would not put anything past Congress, if they didn't impeach Bush over the obvious dereliction involved in 9/11 after the discovery of the "Bin Laden Determined to Attack Within the US" memo and its mishandling by the Bush administration, they wouldn't have impeached him in case of another attack (and there was one: the Anthrax letters).
May I point out that the "article II" defense has gone down to profound defeat in the SCOTUS every time it's made it there? Were it not for the increasingly desperate use of the "National Security" rule to prevent lawsuits from proceeding, it's likely there would no longer be anything left but shreds and tatters of the issue.
Thus, the "article II!" defense of lawlessness on the part of the executive is nothing but a smokescreen hiding behind a fog of "National Security." It's not so much a defense as a refusal to mount a defense, but let it go.
Consider the actuality:
Although the necessity of torturing people to prevent another 9/11 is what was claimed, that is not what actually happened. What actually happened, as we are learning more and more clearly every day, is that torture was applied, from the very beginning, to try and establish a link between Iraq and 9/11, Hussein and AQ.
That, indeed, is the fundamental problem with torture.
If the President or his agents can decide that it is necessary to torture, and then torture someone to make them admit whatever it is desired, then the President has the ability to manufacture information to order. They can, therefore, use torture (as in the Iraq case) to create the appearance of an existential threat to the USA, justifying more torture. That's a plot that's straight out of Orwell.
This type of crime is especially corrosive to Democracy, namely that it is a poison dart aimed at the heart of having an informed citizenry. As in the case of obstruction of justice by an official in a case involving criminal acts by officials, it is a crime which cannot be ignored, cannot be forgiven.
If a person can be tortured, then a person can be forced to falsely incriminate himself or others. Nobody can ever truly trust a witness, because that witness may have been forced to testify under threat of torture.
Torture, therefore, is not merely a war crime, it is a criminal act which is particularly anti-democratic. While the capture and imprisonment without trial of people is also criminal, it pales by comparison.
As to the laughable idea that AQ ever represented a serious threat to this country, even after 8 years of wonderful recruiting, thanks to the Bush administration, it's still rather small when compared to the American mafia, yakuza, or the Mexican drug cartels (the last of which is unquestionably better armed). As in the case influenza, it's the response to the problem, not the problem itself, that does the most damage.
C2H50H:
I see that you are, although in a wishy-washy way, ceding the argument that what was done to the detainees was torture.
First, no I didn't. Second, I ended my last command with a contention that the torture law as written is unconstitutional.
...they wouldn't have impeached him in case of another attack (and there was one: the Anthrax letters).
You don't know that. Nobody does, because there wasn't a 9/11 attack, or something worse, that happened. Additionally, nobody knows who sent those letters with the anthrax.
Although the necessity of torturing people to prevent another 9/11 is what was claimed, that is not what actually happened. What actually happened, as we are learning more and more clearly every day, is that torture was applied, from the very beginning, to try and establish a link between Iraq and 9/11, Hussein and AQ.
Again, you don't know that. Some have speculated that this was the case, but they don't offer evidence or proof. Plus, Cheney filed an FIOA request to have the interrogations regarding waterboarding declassified to show that terrorist attacks were thwarted. The Obama administration denied the request with a flimsy and ridiculous excuse (Obama can do this anytime he wants; it's one of the prerogatives of being the President). So until everything comes out, there is no way to know what came out of those sessions. It's all theory.
As to the laughable idea that AQ ever represented a serious threat to this country,...
That is the pre-9/11 mentality that kept this country from stopping that terrorist attack. We were luck a full complement of people weren't in the WTC when those planes hit, otherwise upwards of 50,000 could have been murdered.
By the way, House Republicans put forth a resolution to investigate the CIA to corroborate or dismiss Pelosi's charges that they lied to Congress. All Democrats and two Republicans (Ron Paul and Walter Jones; go figure) voted against it. I guess politics won out.
I will leave you with your own statement:
I must point out that you also don't see electrons, but without them you wouldn't be reading this. Not seeing something means nothing.
SteveAR,
I'm not the person who was in charge when told of a threat from AQ who ignored it. I never doubted that AQ was a terror threat, and, as soon as I saw the planes hit the WTC, I told those around me, "it's al qaeda." I didn't even have the benefit of the briefings Bush, Rice, and Cheney had.
Back to Pelosi again? Like a dog, you apparently can't pass a rotting carcase without rolling in it one more time.
You were the person who was whining here about partisan investigations targeted at only some people, and you are now touting a proposition to investigate only Pelosi versus the CIA?
Hypocrite.
C2H50H:
I never doubted that AQ was a terror threat,...
Yes, but you seem to disagree with how the U.S. is fighting them.
You were the person who was whining here about partisan investigations targeted at only some people, and you are now touting a proposition to investigate only Pelosi versus the CIA?
Did you read the language of the resolution? It states that the Speaker said the CIA lied to Congress, which she did do. The resolution states they want to investigate the CIA to see if it was true. How is that wording partisan? It doesn't say anything about investigating Pelosi.
What is partisan and hypocritical is that every single Democrat voted against investigating. All after screaming about wanting a "truth commission".
i think when mentioning 9/11 it should be noted that it was inside job, all actors involved are traitors, the pentagon was hit with a missile, and bush was a meat puppet front man for a cartel of thieves. cheney heads that cartel; or atleast holds high rank. this is not a left/ right issue.
people like stevear are the worst because they apologise for obvious lawlessnes; but lefies are responsible too, they are complicit by not demanding more of their leaders.
playground
SteveAR,
"hypocrisy" is defined as stating something while doing the opposite. Since an investigation to determine if the CIA or Pelosi lied would not get us anywhere near the truth of how the Bush administration came to torture prisoners, it's not hypocrisy to vote against a Pelosi investigation while arguing for a "truth commission."
On the other hand, whining about how "Democrats only want to investigate Republicans" while supporting an investigation whose very purpose is to investigate one Democratic politician is a perfect example of hypocrisy.
I think we can judge the Bush administration's response to AQ by:
1. It failed, even after multiple warnings, to take proactive action. Result: 9/11 (not saying it's entirely their fault, but it happened 9 months into their term).
2. It then went to war against a country that had no part in 9/11. Have you noticed that this didn't help the AQ effort?
3. It tortured prisoners. This is illegal, immoral, and counterproductive, as I have explained to you at great length, and with arguments that you have not been able to answer. Furthermore, have you noticed that torture hasn't helped? Have you noticed that a large, and growing number of us do not believe Cheney about the people that torture supposedly saved, because, when examined, it has turned out in every case to be false?
I have hopes for competent leadership to turn the situation around and make some lasting headway against AQ (as opposed to killing another half-dozen of "AQ number three's").
C2H50H:
Since an investigation to determine if the CIA or Pelosi lied would not get us anywhere near the truth of how the Bush administration came to torture prisoners, it's not hypocrisy to vote against a Pelosi investigation while arguing for a "truth commission."
Excuse me but I think we already know the truth of how the Bush administration implemented the enhanced interrogation of terrorists, which you call "torture". The issue is, if enhanced interrogation is torture (I don't agree), who else in one of the other co-equal branches of government condoned it, and whether members of Congress could be considered accomplices. Not just Pelosi and Democrats, but everyone. A truth commission. That is what the left says it wants. Just because Republicans introduced a resolution to implement a truth commission doesn't mean it's partisan. Not voting for a truth commission because it was introduced by Republicans (that is deduced by the fact that every Democrat voted against it) is highly partisan and very hypocritical.
On the other hand, whining about how "Democrats only want to investigate Republicans" while supporting an investigation whose very purpose is to investigate one Democratic politician is a perfect example of hypocrisy.
Again, the resolution is to investigate the CIA, not Pelosi. Putting it the way you did is not true.
Neither the GPO or Thomas websites have the official text of the resolution out yet (I viewed a copy from Redstate, which I linked to above), but it is H.RES.470 if you want to search for it later.
Have you noticed that a large, and growing number of us do not believe Cheney about the people that torture supposedly saved, because, when examined, it has turned out in every case to be false?
Cheney can tell you 1 and 1 is 2, prove it, and you still wouldn't believe him. So that is immaterial. Plus, every case hasn't been examined, as the Obama administration's refusal to fulfill Cheney's FOIA request shows. Not to mention that much of the "torture" memos that Obama released were heavily redacted. This "examination" is woefully incomplete.
I'll rebut the rest of your comment if I have time.
SteveAR-
FDR believed he had authority to act, as commander in chief, to prosecute the war declared by Congress. No positive law (other than the Constitution itself) prohibited his action.
But that's the point. FDR issued an Executive Order to violate the 4th, 5th, and 14th Amendments, and nobody blinked, not even the Supreme Court. He justified it as part of the powers given to the President in the Constitution after the nation was attacked to start WWII, to avoid another attack. These are the same reasons Bush justified his own Executive Order authorizing enhanced interrogation. Why did they do this? Because the societal consequences of not preventing a second attack would have been far more damaging to the nation, the people, and the government. This isn't just a "greater good", as you had mentioned before, but a case of national survival.
This seems incorrect – everyone has since blinked. Investigations were done, apologies made, reparations paid. FDR acted illegally, and, while nothing can make up for the injustice at the time, the error has been acknowledged and an attempt to ameliorate it has occurred. I think you should stay as far away as possible from the Japanese Internment example, as it cuts against you – true, few had the cojones at the time to stand up to the act, but in hindsight, everyone now recognizes it as wrong. Indeed, immediately after September 11th, the Bush administration began rounding up persons of Arab descent, and holding them. To their credit, they quickly reversed course on arbitrary detention, and began a more targeted (still not legal) approach.
In hindsight, the same will happen here. What was done was wrong, and the American people have begun recognizing that fact. Unlike Lincoln's blockade, people do not look back on FDR's actions (wrt Japanese Interment) as a justified or an appropriate ultra vires act, which is later ratified. Instead, they see his act, and Korematsu, as illegal and bad law, respectively. Bush's actions will be viewed the same.
On to the rest.
I would argue the President is never “allowed” to do a thing, but certainly, if he or she truly believes something must be done, can do it and face the consequences of his or her decision.
Again, I reiterate the consequences of prosecuting a President for defending the nation from a second attack. You go on to cite FDR and Lincoln and what could have happened to them for what they did (Lincoln is reported to have threatened Taney with imprisonment, and the country would have backed Lincoln). I fundamentally disagree. Even after Lincoln's and FDR's transgressions, the nation survived and improved. So the argument that the Bush administration's actions will ruin the rule of law and the rights of citizens isn't backed up by history.
I have not gotten into the appropriate consequences for the actions – there are no consequences for actions that aren't illegal. In FDR's case, the nation improved because we recognized what he did was wrong. In Lincoln's case, we also recognize what he did violated the letter of the law, but thankfully we have never been in such dire circumstances since to worry about the precedent it established (plus, as repeatedly stated, the Lincoln's actions were later ratified by Congress, giving them more legitimacy.
I would argue waterboarding very clearly causes the threat of imminent death..., and is therefore clearly torture. The other activities are most likely also torture.
I don't see it, especially with the way it was implemented (doctors on sight). I wouldn't recommend doing it except in regards to keep another attack on the U.S. from occurring, but I don't call it torture.
Why? How is this logical? If it isn't torture, and it isn't illegal, why wouldn't we do it in every situation? If there is a guy who may have kidnapped someone, shouldn't we waterboard to find the victim's location? If a guy has accomplice murderers, shouldn't we insect box him to find the truth? This is where the defense of these actions is shown to be false. If it ain't torture, why wouldn't supporters push for these techniques to be used all the time, to the most petty of criminals? There's nothing illegal about it, right? But most people would have an adverse reaction to treating normal suspects this way. That's why this is a rhetorical battle as opposed to a logical one. Logically, the acts are torture and should be banned in all cases, or the acts are legal, and there is no reason not to use them at every opportunity. But because supporters know the American people would not support the techniques against run-of-the-mill suspects, they won't follow their assertions to their logical conclusions. That's because (although it can be shown through logical legal argument also) the illegality of these techniques is manifest, and a normal person can feel that right away. Thus the rhetorical device of “but they're terrorists” is pulled out, to add an emotional weight to the argument, to counterbalance the instinctual repulsion for treating people this way. That, more than anything else, is how you can know the proponents claiming this is legal are full of BS. If you need to limit those who are exposed to these techniques to a certain class of people (putting aside whether the class definition is accurate, or actually so limited in practice), and exempting everyone else, the argument necessarily is propped up on something other than reason. The technique is or is not torture, whether it is performed on Osama bin Laden, or a shoplifter.
Here's another thing. Sec. 2(a) of the 2001 AUMF said the following:
…
Had another terrorist attack occurred on U.S. soil, I would argue that this would have been an impeachable offense had the President not taken every effort, short of actually torturing anyone, to stop it. Because another attack didn't happen, President Bush fulfilled the AUMF, and that waterboarding these three terrorists constituted "necessary and appropriate force", especially, as I mentioned, I don't see waterboarding as torture.
…
Any answer to that question which involves pain or suffering, or the threat of imminent death is torture, prohibited by statute.
nerzillicus, this is for you too. Assuming for a moment you are right (and I make this assumption because in reality, your logic proving that waterboarding is torture escapes me),
Well, we are getting somewhere, since we are at least putting the necessity defense after an acknowledgement of torture (I understand you are assuming it here, I am not trying to imply you have accepted my argument). So let's start with why waterboarding (and indeed sleep deprivation, insect box, and walling) are torture under the statute.
The statute is simple:
“torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical controlthree elements:
1) act committed by person acting under color of law – check, I don't think there is a dispute on this.
2) Specifically intended to inflict severe physical or mental pain or suffering – the dispute
3) upon another person within his custody or control – check, again no dispute.
So, severe physical pain is difficult to quantify, therefore let's see if any of the things qualify as mental pain and suffering:
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;- One could argue walling constitutes the threat of sever physical pain, since before the detainee hits the false wall, he certainly fears being thrown against a wall
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;- This is sleep deprivation in a nutshell, and putting people in small boxes (and probably walling when blindfolded too). The entire purpose is to make a detainee lose sense of themselves and their surroundings. The goal is to profoundly disrupt the senses – if it wasn't they wouldn't do it.
(C) the threat of imminent death; orThe point of the waterboard is to make a person fear he is about to drown. It is a threat of imminent death. In fact, ironically, the last few of the 183 waterboardings may be less likely to be considered torture, since by then, the detainee potentially could be said not to have a reasonable fear of imminent death, since he had already gone through it so many times before. But, clearly, the purpose of the waterboard is to make a person fear he or she is drowning. Why would one be fearful of drowning? Because drowning = death. QED.
We really don't need to go on, since we have fairly convincingly demonstrated that at least a few of the techniques were committed with the intent to cause the threat of physical harm, the application of techniques to profoundly disrupt the senses, and the threat of imminent death. I really don't see how anyone can argue these techniques do not meet the statute's definition. Tangentially, as has been said before, I question the efficacy of the techniques if they fail to provoke the responses explicitly prohibited by the statute.
So, we tortured.
and there had been another terrorist attack that didn't kill 3000 civilians, but 30,000 civilians. What do you believe would have been the ramifications of that, knowing that President didn't use every means to stop it after what had already happened on 9/11? Would you say, "at least we kept to the greater good of not torturing a terrorist who knew about the attack"? Do you think the rest of the American people would do that?
Now we are to necessity. The Executive has broken the law – was that breach permissible due to the circumstances? One may argue reasonably, yes, to prevent another horrific attack, torture had to occur. However, the Bush administration should have the conviction to acknowledge the law-breaking, and defend themselves on this ground. On the other hand, if torture was used, let's say, to try and elicit testimony of a connection between Iraq and Al-Qaeda, would that have been a justified breach of the law? The President takes a chance when he breaks the law. If it was necessary, then he can prove the breach was justified; if not, too bad. What we are starting to find out is the odds that these techniques were a) useful, b) productive, and c) performed because of legitimate fear of fresh attacks, is in great doubt. Therefore, I actually agree with the former Vice-President – let's release the results of the torture, and not just the torture to Abu Zubaida, but also that to Binyam Mohamed. Let's see what kind of dastardly plots were discovered. Let's also have a nationally televised, prime time speech by Ali Soufan about how one should interrogate.
As I said before, I would have a lot more respect for these people if they would simply acknowledge what they did was wrong, but they thought it necessary. The fact that they make BS arguments to avoid acknowledging the first part makes me suspect they'll be unable to show the second.
One other point. A statute is meaningless if it violates the Constitution. If the statute hamstrings the President's duties to protect the Constitution and the people of the United States, then the statute will be overturned. You could argue that the President could have challenged the statute in the courts. Except for the fact that there is a war on (and the torture statute was passed in 1994, when the U.S. wasn't in a state of war), and waiting years for the challenge to be resolved isn't what the Founders had in mind for the President's wartime powers.
And now we get to the crux of it. There are those who believe the President has super-secret-special-war powers written in invisible ink on the Constitution. (ironically, these people tend to be the same people who decry “activist judges” and demand textualism, originalism, strict constructionism, etc etc etc.) Please explain how Congress does not have the power to regulate the government and the handling of captures. Please also explain the Federalist quote above, which makes it clear the President's only role as commander in chief is to be the head of the armed forces, and keep them under civilian control. Please explain where the “take care that the laws are faithfully executed” escape clause is in the Constitution. Lastly, please explain why we fought a war against a tyrant, only to create a tyrant in the executive branch once he can wrap himself in the mantle of a war.
Where is the evidence that the Founders intended the President to be able to break the law in war time? Unlike you, I have actually quoted founding era opinion on the rule of law. Please cite your basis for this contention.
PS, the torture statute is, in no way imaginable, unconstitutional.
Cheney can tell you 1 and 1 is 2, prove it, and you still wouldn't believe him. So that is immaterial.
Damn straight – if he told me the sky was blue, i'd look out the window to check. It's not because he's a republican, it's because he has developed a reputation as a liar.
Plus, every case hasn't been examined, as the Obama administration's refusal to fulfill Cheney's FOIA request shows.
Stop citing “Obama adminstration's refusal to fulfill Cheney's FOIA request” as if that is some great example of how he is hiding the exonerating evidence for Cheney. I understand how you view the world, and perhaps you just can't see any other motives in others besides blind partisanship, but I promise you this isn't the reason why they haven't come out yet. First, the refusal is pretty standard. Second, there are a lot of doubts about what ALL of the memos will show. Cheney can cherry-pick two he thinks will help the cause, but the big picture will be different, I bet. But most importantly, Obama doesn't want to let these things out, not because Cheney is right (he isn't), but because he has stuff he wants to do, and doesn't want to waste his time investigating the past. Those (like me) on the truth commission side, are trying to drag Obama, kicking and screaming, into investigations. He is fighting it tooth and nail. If he really wanted to have partisan witch hunts he could have done them already. Investigations take time and eat up political capital. Just look at how little Reagan could accomplish in his second term after Iran-Contra, or how little Clinton could do with Lewinsky. Obama knows this, and even though the investigations would not involve him, they would eat up the oxygen in the room for the rest of his agenda. So, your posts really show a lack of understanding of the true motivations here – Obama doesn't want investigations either way – whether they would vindicate or damn Bush/Cheney. He wants to do his agenda. That's why there is all this look forward, not to the past crap coming from the administration. He thinks if he halts all the illegal stuff, we can just walk away.
Not to mention that much of the "torture" memos that Obama released were heavily redacted. This "examination" is woefully incomplete.
Did you read the memos? Even look at them? The very first thing I thought when I saw them was “Wow, I thought Obama would whitewash this, but he really barely redacted anything.” This statement either shows extreme dishonesty, or extreme ignorance. Say what you want about the memos - there is perhaps nothing more inaccurate than calling them “heavily redacted.”
C2H50H and nerpzillicus:
Here's the political reality. You can argue about the rule of law and so on, but it doesn't matter. Had another similar or worse attack occurred after 9/11 while Bush was President, and it turns out that he hadn't done enough to prevent it, his political capital would have been gone (he lost almost all of it after Katrina and when Iraq went sour until he put Petraeus in charge there). The people would have demanded his head and Congress, both Republicans and Democrats, would have demanded his resignation.
Obama has a similar problem now that he is President if a major terrorist attack occurs on our soil. The people will say we got hit on 9/11, we didn't get hit for the remainder of the time Bush was in office, but Obama reduced U.S. capabilities to stop another attack. Do you think the people will blame Bush? Using the argument that 9/11 occurred on Bush's watch, another terrorist attack that may happen over the next four or eight years will be on Obama's watch and he will get the blame (whether he wants it or not), and especially since he is supposed to be a wartime President operating under the 2001 AUMF. His political capital will be gone, and there will be nothing he can do to get it back. Obama's supporters will try to paint a rosy picture on why Obama shouldn't be blamed, but that won't matter to the people, especially since it has happened already.
SteveAR-
Here's the political reality. You can argue about the rule of law and so on, but it doesn't matter. Had another similar or worse attack occurred after 9/11 while Bush was President, and it turns out that he hadn't done enough to prevent it, his political capital would have been gone (he lost almost all of it after Katrina and when Iraq went sour until he put Petraeus in charge there). The people would have demanded his head and Congress, both Republicans and Democrats, would have demanded his resignation.
Obama has a similar problem now that he is President if a major terrorist attack occurs on our soil. The people will say we got hit on 9/11, we didn't get hit for the remainder of the time Bush was in office, but Obama reduced U.S. capabilities to stop another attack. Do you think the people will blame Bush? Using the argument that 9/11 occurred on Bush's watch, another terrorist attack that may happen over the next four or eight years will be on Obama's watch and he will get the blame (whether he wants it or not), and especially since he is supposed to be a wartime President operating under the 2001 AUMF. His political capital will be gone, and there will be nothing he can do to get it back. Obama's supporters will try to paint a rosy picture on why Obama shouldn't be blamed, but that won't matter to the people, especially since it has happened already.
I'm not sure how to respond. It does seem that you have conceded the point that we tortured, and are in full-blown necessity defense mode. But you aren't even in necessity mode, you are in more of a Schmittian power mode, even beyond Pericles. So breaking the law is okay to save your political ass, now? Was Watergate okay? When we were talking protecting lives, that was one thing, which while I disagree, I can respect the passions of the other side. But breaking the law because if an attack happens, the fallout will be politically negative? Your “political reality” is an argument for the rule of law, not against it. If the President can do anything to protect himself politically, then we are a nation of men, not laws. We might as well go back to 18th century Britain, and submit back to the King. If there is someone criticizing Obama for something, can he just lock him up persona non grata at Bagram, since his political capital could be diminished by discussion by critics? I hope you are not really making this argument. Commander in Chief, Article II, save lives, highest duty to protect American people – while crummy legal argument, at least it has some moral authority. But the President can break the law so he doesn't get impeached or lose an election – let's hope we haven't gotten there. If we have, the Republic is dead.
SteveAR,
I agree with Nerp.
If the rule of law does not matter, then this country, as the founders envisioned it, has ceased to exist. Dimwitted, craven, and puerile people may still live in the geographic area, but the spirit, the rationality, the dedication to the principles upon which this nation was founded, are gone.
I think you will find, over time, that the vast majority of Americans don't share your fears, your paranoia, and your delusions.
Meanwhile, do try and hold your fudge, for the sake of the people around you.
nerpzillicus:
It does seem that you have conceded the point that we tortured,...
I haven't. Waterboarding isn't torture. But you can't be convinced of it. Even when shown how it isn't torture, you still say it's torture. Even if I show you further legal arguments that show it isn't torture, you still say it's torture.
So breaking the law is okay to save your political ass, now?
That isn't what I said at all. What I did say regarding losing all political capital means that a President who loses it becomes completely ineffective in the job and should quit since nobody, not even members of the President's political party in Congress, would listen to him or her. That is all I meant by my statement.
SteveAR-
With all due respect, I haven't seen your legal arguments that it isn't torture, I am the only one to analyze the statutory language, and I have not seen a response from you to my analysis. It seems you can't be convinced that it is torture, which, quite honestly, I feel I have demonstrated fairly well.
That isn't what I said at all. What I did say regarding losing all political capital means that a President who loses it becomes completely ineffective in the job and should quit since nobody, not even members of the President's political party in Congress, would listen to him or her. That is all I meant by my statement.
Fine, I agree with that from a functional perspective, but you said the rule of law doesn't matter. If it doesn't matter, than breaking the law to save your political ass is okay, right?
SteveAR,
As an old Illinois hand, you may appreciate this.
For the benefit of those who don't have time, the headline says it all: "Mancow Waterboarded, Admits It's Torture".
Mind you, this was a person who wanted to claim it wasn't. That was before he experienced it.
To quote a wise person, "Experience is a harsh teacher, but a fool will learn from no other."
nerpzillicus:
With all due respect, I haven't seen your legal arguments that it isn't torture,...
Earlier, you said the following about the torture statute:
2) Specifically intended to inflict severe physical or mental pain or suffering
As defined in 18 U.S.C. § 2340:
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
It then goes on to list the items you mentioned above. But the key here is that the law defines "severe mental pain or suffering" as creating "prolonged mental harm", not just "mental pain or suffering". Has anyone determined that prolonged mental harm was done to any of the three who were waterboarded?
Let me add to this. We aren't talking about ordinary criminals, even murderers, who can be prosecuted via the regular court system. We are talking about terrorists, who are at war with us, and who make it their work to murder as many Americans, civilians and soldiers, as they can. This is the mental state of the three we waterboarded. If that is the case, could what we did to them have created any prolonged mental harm considering the mental state they were in before any enhanced interrogation occurred? This isn't saying that they were insane, but that they were sane before we captured them and after we waterboarded them.
The other item then has to do with specific intent. Andy McCarthy (and I've referenced him before) covers this in a replay of AG Holder's testimony where he gets tripped up on the definition of torture. He concludes:
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.
Read his whole post.
If torture is a specific intent crime, and if the specific intent of the enhanced interrogation was to save the lives of Americans and not to inflict severe physical pain, and if the enhanced interrogation didn't cause any prolonged mental harm as defined in the statute, then are the enhanced interrogation techniques (ie., waterboarding) torture? I don't think so, unless it can be proven that enhanced interrogation caused any prolonged mental harm. And I don't see how that can be done considering the mental state of the terrorists, the crimes the terrorists committed, and why they committed them.
SteveAR,
It is extremely dishonest to quote only part of another person's argument and then pretend to refute that, as if it were the whole.
As was pointed out to you by both Nerpzillicus and myself, the definition of torture includes the threat of imminent death. This is precisely what waterboarding is.
I cannot believe you are accurately quoting McCarthy, because that would imply that he's a complete incompetent. But, in case you are, the elements of torture were given to you above. What Holder said, in the course of a hearing, is no more the definitive answer than a verbal statement by a judge. He got it wrong, or was misquoted. Possibly he did not anticipate such a stupid question from Congress. I'm sure he's learned from this experience.
The torture definition's only mention of intent is that referring to using it for obtaining information or a confession (neither of which is the case in SERE training, so Holder is on the right wavelength there, that intent is a component of the crime.)
Nothing in the definition refers only to "inflict severe physical pain", so there is no need to prove this.
Finally, it is beyond stupid to pretend that, if a crime is committed for "good intentions" then it is not a crime.
C2H50H:
It is extremely dishonest to quote only part of another person's argument and then pretend to refute that, as if it were the whole.
I quoted the key part of the law that was in question. That wasn't dishonest. He put in what he thought was the law, I linked to the law, and copied what that section actually said. I didn't dispute the other parts he put in because they were generally right. Considering what I based my argument on, what I did was entirely relevant.
The definition of torture requires that the person being interrogated must suffer from either severe physical or mental pain. Severe mental pain is defined in the law as having caused prolonged mental harm. Considering the mindset of these terrorists, I don't see how anyone can show any prolonged mental harm was done by waterboarding them. Unless that is proven, then waterboarding is not torture.
I cannot believe you are accurately quoting McCarthy, because that would imply that he's a complete incompetent.
Well, that's an opinion I don't share. Plus if you read his piece (and others on that he's written on this subject), the DoJ under Holder has used the arguments McCarthy points out in some very recent cases. So it isn't as if McCarthy is pulling something out of his butt.
Finally, it is beyond stupid to pretend that, if a crime is committed for "good intentions" then it is not a crime.
Intent is extremely important. It's what keeps a person who kills someone else in self-defense from being charged with a crime (murder, manslaughter, etc.).
SteveAR,
Here's a clue. When a definition of, say, torture, says "... or ..." it means there's more than one way for an action to satisfy the elements of torture.
Pretending there's only one way to satisfy this definition is either woefully stupid or profoundly dishonest.
I wonder why you can't actually link to a definition, under US law, that agrees with your (incomplete and therefore incorrect) definition?
McCarthy is nothing but a partisan hack.
Compounding the idiocy of your previous comment, you now made a ridiculous statement about intent in homicide.
While intent is an important component of crimes, it's hilarious to bring it up in the context of self-defense.
Intent of the of the person charged for homicide is NOT the issue in a self-defense, Steve. The belief of the person that he was in imminent lethal danger is an issue, but that is not intent. (The only question of intent here would be the intent of the attacker you killed.)
Intent is important in distinguishing between first-degree murder, second-degree murder, and manslaughter -- but, in every case, it's still a crime.
Let me sum up the arguments thus far:
1. You've changed the definition of torture several times, never getting it right. Sometimes, as in the last case, you got it spectacularly wrong.
2. You've argued "Article II!" a few times, but never with much coherence.
3. You've argued that the rule of law doesn't matter (!). Several times.
4. You've regurgitated the BS about Pelosi multiple times and had it stuffed down your gullet each time.
This brings to my last question. Given that you've repeated your arguments multiple times without success, and you seem to have no new ones, and all Nerp and I have had to do lately is point out the new errors you keep making, ... -- how many times are you going to chase this squirrel around the tree?
Let me add to this. We aren't talking about ordinary criminals, even murderers, who can be prosecuted via the regular court system. We are talking about terrorists, who are at war with us, and who make it their work to murder as many Americans, civilians and soldiers, as they can. This is the mental state of the three we waterboarded. If that is the case, could what we did to them have created any prolonged mental harm considering the mental state they were in before any enhanced interrogation occurred? This isn't saying that they were insane, but that they were sane before we captured them and after we waterboarded them.
Hitler and the Nazis were at war with us, they were tried. (Not Hitler, of course). I will not assume to know the mental state of Kalid Sheik Mohamed – my concern has always run to the innocent people we tortured, like Binyam Mohamed. Since he can pretty easily show he has had prolonged mental harm, even if this was an element (and it's not), it's fairly easy to prove.
The other item then has to do with specific intent. Andy McCarthy (and I've referenced him before) covers this in a replay of AG Holder's testimony where he gets tripped up on the definition of torture. He concludes:
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.
Read his whole post.
If torture is a specific intent crime, and if the specific intent of the enhanced interrogation was to save the lives of Americans and not to inflict severe physical pain, and if the enhanced interrogation didn't cause any prolonged mental harm as defined in the statute, then are the enhanced interrogation techniques (ie., waterboarding) torture? I don't think so, unless it can be proven that enhanced interrogation caused any prolonged mental harm. And I don't see how that can be done considering the mental state of the terrorists, the crimes the terrorists committed, and why they committed them.
McCarthy reminds me of Lionel Hutz or Dr. Spaceman. I would like him to try his argument in a felony murder trial - “your honor, my client's intent was to rob the register, not shoot the clerk, so he can't be guilty of murder – he didn't have the specific intent.” Winning argument!!
The interrogator's intent was to create severe physical or mental pain and suffering to get information. This argument is not worth the electrons its written in. Does NR just hand out jobs to anyone who can breathe and say profoundly stupid things?
(P.S. The real reason why SERE training isn't torture is because of the third element of the definition of torture – control or custody. Since armed service members can choose not to have the training (at the cost of their wings, I believe), it is clearly different than someone in custody.)
With all due respect, I haven't seen your legal arguments that it isn't torture,...
Earlier, you said the following about the torture statute:
2) Specifically intended to inflict severe physical or mental pain or suffering
As defined in 18 U.S.C. § 2340:
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
It then goes on to list the items you mentioned above. But the key here is that the law defines "severe mental pain or suffering" as creating "prolonged mental harm", not just "mental pain or suffering". Has anyone determined that prolonged mental harm was done to any of the three who were waterboarded?
Now we're talking. This is the key provision the apologists fall back on. However, your reading is not true to the test of the statute. This requires a careful reading of the text:
“severe mental pain or suffering” means the prolonged mental harm caused by or resulting from...
Unlike what you said ("severe mental pain or suffering" as creating "prolonged mental harm"), the statute does not need proof any action causes “prolonged mental harm.” The statute takes it for granted that prolonged mental harm is caused by any of the four acts. This is a serious flaw in the statutory analysis performed by the OLC.
I;ll give you the example from the article by Kate Riggs in the Harvard Human Rights Journal:
The statute strongly suggests that prolonged mental harm inescapably results from each of the four predicate acts, and is not a separate element to be considered when determining an act as torture. Consider the difference between the following sentences:
Sentence A: “He is responsible for harm resulting from his actions.”
Sentence B: “He is responsible for the harm resulting from his actions.”
Sentence A connotes conditionality and abstract responsibility—if any harm results from his actions, then he is responsible. Sentence B connotes an affirmation of certain responsibility—he is responsible for the harm that inevitably results (or has already resulted) from his actions. The insertion of the extra word is puzzling and arbitrary unless the drafters of the statute perceived such a difference in connotation between including and omitting the definite article.
The plain text does not support your contention that there needs to be proof of prolonged mental harm. Rather, a natural reading of the statute makes it clear that “prolonged mental harm” is presumed to occur when any of the predicate acts have been performed on a person.
Furthermore, there is plenty of evidence that these acts have negatively affected the people upon which they were performed.
AL- I note the following introduction from Glenn Greenwald’s post yesterday:
“In the wake of Obama's speech yesterday, there are vast numbers of new converts who now support indefinite "preventive detention." It thus seems constructive to have as dispassionate and fact-based discussion as possible of the implications of "preventive detention" and Obama's related detention proposals (military commissions).”
Where do you stand on this issue? I disagree with Greenwald on this (and, presumably, many other things), but I welcome his call for a “dispassionate and fact-based discussion” on the subject. In other words, lets drop the Obama-good, Cheney-bad nonsense and discuss an actual idea on the merits.
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