Saturday, December 20, 2008

Torture & Asylum Law, or How I Became an Anti-Torture "Absolutist"

I have promised my readers--all two of them at this point--substantive posts on immigration issues. Consider this "war story" the first, and an explanation how I became such an absolutist on the torture issue.

An alien refugee in immigration court has three separate legal grounds to seek relief from "removal" (the current legal term for "deportation") due to persecution in the home country. They are:
  1. "Asylum" based on past persecution and/or reasonable fear of future persecution on account of a "protected ground" such as political opinion;
  2. "Withholding of Removal," based on proof that the alien faces a substantial risk (greater than 50%) of severe injury or death because of persecution on a protected ground if removed; and
  3. "Withholding under the Convention Against Torture" (CAT) formally known as the "United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment." The United States is a signatory to the Convention and is thus bound by this treaty because it is now part of American law.
CAT defines "torture" as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. [My emphasis]
One files an asylum claim in immigration court using an I-589 Form, and in almost all I-589 cases the battle is over whether the alien is entitled to asylum (it is a discretionary remedy and normally has a one year filing deadline) or straight withholding of removal relief. Only rarely does the question whether particular mistreatment is "severe" enough to be considered "torture" become a real issue because the other forms of relief are broader and preferable to CAT. Still, every asylum advocate claims CAT as a last line of defense, even if proof of direct involvement in torture by a foreign government official is hard to find.

A new asylum case is referred to me by an NGO in New York. The case comes from Sri Lanka, the island nation south of India where the Sinhalese majority and Tamil minority have been been locked in a violent ethnic conflict for over 25 years. My client is a man in his 20s who writes a long polemic advocating partition, so that the Tamils can have their own nation-state on the northern half of the island.

The client's story is that he is arrested by uniformed state security forces and taken to a large hut in a remote area outside of town. There he is interrogated about his political beliefs, activities and associations, and is punished for writing his pamphlet. He is repeatedly threatened with summary execution by one of the uniformed men, who waves a pistol in his face. He is also repeatedly struck during a long interrogation in which the men curse at him for being a Tamil separatist.

That evening a rope is tied to the man's handcuffs, and the other end is thrown over a ceiling beam. The security men pull on the rope to hoist the man up, then tie it off so that he is left with his feet barely able to touch the ground. While he is in this position one of the security men urinates into a saucer, puts it to the man's lips, and tries to force him to drink.

The man is let go the next morning, but told to report to a government security office in a week's time. Instead, his family hires a smuggler to get him out of the country on false papers, and the smuggler gets him on a flight to New Jersey. At Newark Airport he claims asylum and is immediately cuffed hand and foot by our immigration service and transported to the Elizabeth Detention Center where he will be "detained" (jailed) until one of the two immigration judges permanently stationed at the facility hears and decides his case.

After a jail visit and initial client interview it's my job to assist him in preparing his I-589. It looks like there's a good CAT claim. There's evidence of government agent mistreatment and the purpose is both interrogation and punishment. The one open question is whether the mistreatment is bad enough to qualify under CAT as "severe pain or suffering, whether physical or mental."

My legal research causes my to conclude that the man's ordeal arguably meets the CAT tests for both physical and mental torture. Beatings and suspension qualify as physical torture, see Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir. 2001). The threat of imminent death meets the test for mental torture. 8 C.F.R. § 208.18.

There is an open question whether this one incident is sufficiently lengthy in duration or has resulted in "prolonged mental harm" severe enough to qualify as torture under CAT, but there's a case to be made here, without doubt, and I'd rather be on my side of the argument than the Government's.

As so ofter happens, we never reach the CAT issue at the final bearing before the immigration judge. The court denies asylum as a matter of discretion because it does not like the tenor of the client's writings, but it grants withholding of removal, and the question of relief under CAT falls by the wayside.

What doesn't fall by the wayside are my own questions about what our Government is doing to other "detainees" in Guantanimo, Abu Gharib and elsewhere. If I'm able to argue that what my client suffered at the hands of Sri Lankan security forces is torture, how can I pretend that the reports of what our miltary has done to suspected terrorists and insurgents isn't torture as well?

Why is being made to stand for eight hours, being subjected to "belly slaps," being threatened by dogs, being stripped naked and smeared with simulated "menstrual blood" over a prolonged period of time not torture?

I am not able to shake the conclusion that the actions reportedly done by our military, the so-called "harsh interrogation techniques," clearly meet the definition of torture under CAT and that any argument by Bush Administration lawyers to the contrary is pure sophistry. It just "blows me away" that the kinds of things foreign governments do to some of my alien clients, for which I am seeking the protection of U.S. law, are the same kinds of thing our Government is doing to aliens in its custody, while claiming that it's "legal."

Once this realization sinks in I find it impossible to avoid becoming an anti-torture absolutist. Our nation has no business engaging in any conduct that can be considered torture, regardless of motivation or cause. It's that simple, and the only position possible for a person who believes in morality and the rule of law in America.

26 comments:

  1. I'll respond to a couple of those points. First of all, what constitutes torture is not at all clear. Reasonable people can disagree, and many of the so-called "enhanced interrogation" techniques are borderline, depending on intensity, duration, etc. For example, the items you cite:

    1. being made to stand for eight hours. Not torture in my opinion. I'm not sure if I've ever stood for eight straight hours, but I know i've stood for at least six without a break. Not fun, but not torture.

    2. being subjected to "belly slaps." That sounds like a torture technique to me, even if it is mild.

    3. "being threatened by dogs" Threatened isn't torture, it's a threat. Being bitten by dogs would be torture.

    4. being stripped naked and smeared with simulated "menstrual blood". I don't see that as torture. Disgusting and humiliating, but not torture.

    And I'm not arguing that we haven't crossed the line and used some borderline techniques that do constitute torture. But it's not as clearcut as you are portraying it.

    "Our nation has no business engaging in any conduct that can be considered torture, regardless of motivation or cause"

    There's always exceptions. I can think of a couple national security situations where I'd make an exception, and at least one domestic policing situation.

    "It's that simple, and the only position possible for a person who believes in morality and the rule of law in America."

    Not true. Most people who would make exceptions in certain cases also believe in morality and the rule of law. I would be willing to bet that the vast majority of people believe that exceptions exist to most rules, including laws.

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  2. Hey DaveC,

    Defining torture is actually pretty easy.

    If you would not want one of your Soldiers, Airmen, Sailors or Marines subjected to any particular "enhanced technique" --- THEN IT IS TORTURE. And if the abstraction of "the troops" is too basic, then how about this. Would you find it acceptable for ANY of the techniques you cite to be used on your son, your daughter, your wife????

    Geneva III defines and mandates the treatment of prisoners taken, specifically prohibiting:
    * violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
    * taking of hostages;
    * outrages upon personal dignity, in particular humiliating and degrading treatment;
    * the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

    What national security exceptions would you make? The ticking time bomb? The dying hostages? Torturing (or "enhanced interrogating") prisoners is not going to help you in these situations. These techniques merely return to you the information you want to hear - not the information you need to hear.

    Don't believe me? The take a look at what a successful interrogator is saying.

    But, even more fundementally, the Bush Administration took upon itself to violate U.S. and international law --- in the name of the American People. By doing so, they gave license to everyone else on the globe to make outrages upon our persons - should we ever end up in their clutches. And, in doing so, they severely impaired our reputation and the soft power critical to our nation in countering the radicalizing propaganda spread by jihadis worldwide.

    Simply put, our torturing never provided any useful information, did deliver tons of worthless bits and pieces that wasted the time of our security professionals, put our deployed forces in greater danger and debased our good name and honor. Those responsible should be held accountable.

    If indeed, "most people who would make exceptions in certain cases also believe in morality and the rule of law," then those responsible will be acquitted.

    SP

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  3. "Defining torture is actually pretty easy."

    No, actually it isn't. That's why there is so much disagreement about what constitutes torture.

    "What national security exceptions would you make?"

    Known terrorist leaders like KSM would be one example, depending on the circumstances. It shouldn't be a first resort, but given an inability to rapidly obtain information by other means, I would consider torture in that particular case.

    "Torturing (or "enhanced interrogating") prisoners is not going to help you in these situations. These techniques merely return to you the information you want to hear - not the information you need to hear."

    Nonsense. Information is either good or bad, regardless of how it is obtained. You can get bad information from any interrogation technique, including torture. Some information can be confirmed independently. Good information gained thru torture is still good information. The entire "torture doesn't work" argument is completely illogical and factually incorrect.

    "Simply put, our torturing never provided any useful information"

    Sorry if I don't accept your unfounded assertion. You don't have the slightest means of determining this. Do you have unfettered classified access to all information that we obtained thru waterboarding? Neither of us have any idea whether or not we gained useful information. And no, politically biased assertions from one side or the other don't count as evidence.

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  4. Serving Patriot,

    Btw, you can see my post Torture in Germany for a clear example of how even the threat of torture quickly produced accurate information in one case. Save the "torture doesn't work" argument for those who already agree with you, and prefer to stick their heads in the sand and deny reality.

    There are many good arguments against torture, and even though I'm willing to make exceptions, I certainly don't like the idea of having our government torturing people. It's not a good path to go down, and I recognize the slippery slope implications of allowing exceptions. And I'm not sure what the mechanisms should be to allow exceptions and how to prevent abuse. But I don't pretend that it can't work, and I'm unwilling to rule it out in every case.

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  5. "And I'm not sure what the mechanisms should be to allow exceptions and how to prevent abuse."

    It's called the law.

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  6. "It's called the law."

    I don't think the law can cover all eventualities.

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  7. DaveC,

    Do you have unfettered classified access to all information that we obtained thru waterboarding?

    Ahhh, but there is the rub no?

    You note that neither of us have this information. That may be true and it may not be true. In fact, the lack of sunshine in the torture policies of this Administration is a major problem. "Trust us" simply does not cut it.

    But, I will accept the words of those who have had such access. And what they say is that using torture does not work. It produces no useful information and it generates more extremists. Moreover, its use is contrary to our laws and international obligations. And most importantly, it places our soldiers at more risk for reciprocal treatment.

    Experienced criminal justice interrogators, on the other hand, are successful in obtaining valuable and corroborated information, as well as confessions that are usable in a court of law to extract justice. It was using such techniques that the most famous evil-doer in Iraq, Abu Musab al-Zarqawi was found - and killed - with extreme prejudice.

    But hey, don't believe me. Simply ask yourself. What really is the torture used for? Gaining information of simply coercing recalcitrant people? If torture is so useful, then I guess you have no problem when your local police department decides that your son/daughter has "actionable information" about some local murderer or predator and that, because they "won't tell what they know," they deserve a few electric jolts to the genitals. Or the be shackled in a stress position for hours and days. Or to have you brought in front of them for a beating.

    The great principle of America is that the LAW IS KING. When we allow law-breaking - or excuse it from fear and/or ignorance - then we demote the rule of law and make men kings instead.

    That is not the America I serve.

    SP

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  8. Serving Patriot,

    "In fact, the lack of sunshine in the torture policies of this Administration is a major problem. "Trust us" simply does not cut it."

    Different issue, but I agree with you here. The whole thing was badly handled in almost every respect.

    "But, I will accept the words of those who have had such access. And what they say is that using torture does not work."

    Some say that, some say the opposite.

    "It produces no useful information"

    This is pure nonsense. I can give you specific instances where torture worked to produce useful information. The idea that torture can't produce useful information is simply factually untrue. That should be obvious, but apparently not.

    " and it generates more extremists."

    That's debatable; but it's a is a different type of utility argument that has nothing to do with whether or not it can get good information. It's a cost vs. benefits calculation.

    "Moreover, its use is contrary to our laws and international obligations"

    True, but that's irrelevant if the situation requires that an exception should be made -- that's why it's an exception.

    "And most importantly, it places our soldiers at more risk for reciprocal treatment."

    I find that line of argument very weak. The vast majority of captors who would torture our soldiers would do so regardless. And again, if a particular need for information is so great that we are willing to break our own laws to get it, then an increased risk to our soliders is probably going to have to be accepted in that case.

    "Experienced criminal justice interrogators, on the other hand, are successful in obtaining valuable and corroborated information"

    Torture is just another form of interrogation. It can get corroborated information just like any other method. Again, this is basic logic. Everything depends on the interrogator, the interrogatee, and the information in question.

    "as well as confessions that are usable in a court of law to extract justice."

    Different issue, and more applicable to law enforcement situations. And again, the circumstances in which I'd consider using torture make the eventual result in the court system a lesser concern.

    "It was using such techniques that the most famous evil-doer in Iraq, Abu Musab al-Zarqawi was found"

    No one is arguing that we shouldn't use standard, legal interrogation methods, or that they can produce better results in many cases than torture. But again, we are talking about exceptional situations only -- for example when conventional interrogation produces nothing but silence.

    "What really is the torture used for? Gaining information of simply coercing recalcitrant people?"

    Two different things. It can be used for either. The fact that it is often used for punishment or to force confessions does not mean it cannot also extract useful information.

    "I guess you have no problem when your local police department decides that your son/daughter has "actionable information" about some local murderer or predator and that, because they "won't tell what they know," they deserve a few electric jolts to the genitals. Or the be shackled in a stress position for hours and days. Or to have you brought in front of them for a beating."

    Nice strawman you've built there. You are comparing a known terrorist leader to some suspect civilians? I'm not in favor of ever using torture on innocents or on mere suspects. I think the administration went way too far with its treatment of suspects. For the purposes of the administration's actions, I'm only defending their actions in the case of KSM and the other two AQ leaders who were waterboarded.

    "The great principle of America is that the LAW IS KING. When we allow law-breaking - or excuse it from fear and/or ignorance - then we demote the rule of law and make men kings instead."

    The law can't anticipate all situations, and sometimes might have to be broken. That's the whole idea about rules having exceptions.

    Most arguments that pretend torture can't work simply deny basic facts, evidence and logic. For example, almost everyone agrees that criminals can sometimes be induced to divulge information by the threat of prison. That information can be false -- the prisoner lying or telling what he thinks the interrogator wants to hear -- or it can be true. It can be specific and verifiable, or it can be verified in a more roundabout way by other evidence. Therefore is clear that threatening someone can produce information which can be either good or bad. In the same way the threat of torture can extract information. Once applied it is still a threat, a threat that it will be done again, or escalated.

    I know opponents of torture like to pretend that torture doesn't work because they think it strengthens their case, when it actually weakens it. Making a utilitarian argument is a very bad idea, since it can be demonstrated that torture can produce good information. Moral, legal, cost/benefit, and other arguments against torture are much stronger. One of the strongest arguments against it is one you made above: can we trust the government with the power to torture?

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  9. "I don't think the law can cover all eventualities."

    Actually, that's it purpose. If the law doesn't "cover all eventualities," a body called the U.S. Congress is supposed to amend the law to address the "new eventualities," subject to another body, the Supreme Court, ensuring that the laws enacted by the Congress (and signed by the President) are consistent with "the supreme law of the land," i.e. the U.S. Constitution.

    The President, as head of the Executive Branch, is supposed to "take care that the laws are faithfully executed."

    The President, the Vice President, counsel to the vice president, and various lawyers in the "Office of Legal Counsel" are not supposed to make up new laws (I'm trying to be very polite here, BTW) in secret that are clearly in violation of what's already on the books.

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  10. Redhand,

    One reason we don't agree on this issue is because we don't have the same underlying assumptions. As a lawyer, you seem to have a much higher level of veneration for the law than I. I see the law as a series of rules that we've imposed on ourselves -- mostly for good reason -- but which might have to be broken in certain situations.

    "The President, as head of the Executive Branch, is supposed to "take care that the laws are faithfully executed.""

    I agree. But again, what I'm arguing is that there can be cases in which it might be necessary for the president to break or bend the law to protect the country. I'm not making the Dick Cheney/Nixon argument that whatever the president does is then legal.

    "are not supposed to make up new laws (I'm trying to be very polite here, BTW) in secret that are clearly in violation of what's already on the books."

    What new laws are you talking about? I see what they did as far as interrogation practices as an extremely loose interpretation of existing laws. As I understand it they were doing two things simultaneously:

    1. Arguing that "enhanced interrogation" techniques were not torture, and were therefore legal to use.

    2. Making a case that the various prisoners were neither POWs or criminals, but a special "enemy combatant" category which required different rules.

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  11. As a lawyer, you seem to have a much higher level of veneration for the law than I.

    Well, it's not just a matter of profession. Law is at the heart of this problem and there's simply no getting away from it. When high government officials start going down the laws "might have to be broken in certain situations" path we've taken the first step to dictatorship.

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  12. Redhand,

    Thanks for hosting this small conversation. After taking some time to read thru the UNRR's postings, and his ridiculous defense of "torture that works" based on one police case in Germany, I've decided that its pointless to continue to argue with him on this issue.

    Lets just leave it thusly. Besides being illegal, torture is a moral wrong for which no exception should be made. Yes, UNRR, that makes me a MORAL ABSOLUTIST on this issue (just as you are). Your attempts to convice me that torture works fall upon my deaf ears.

    I will offer you this though. I will continue to do what I can to ensure that your rights, not only as a citizen but as a human, are never abridged by your own government should you ever be detained. For to abuse, mistreat and torture those in our government's detention only lowers our nation to the same scummy level we deplore in oh so many other nations. But, it remains your right to advocate this heinous treatment. And I will continue to serve in your nation's service to protect that right -- no matter how vile I find your advocacy and how misguided your reasoning.

    Oh, an the next time you are pulled over for speeding, please please please tell the trooper that you were simply "making an exception" to the established traffic laws. Because, as you say, what's the point of having laws without exceptions.

    SP

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  13. Thanks for hosting this small conversation.

    My pleasure. I thought my perspective was of interest because there are few attorneys I know who actually practice in "torture law." I think immigration lawyers are the only ones in the private sector who have any real exposure to it at all.

    After taking some time to read thru the UNRR's postings, and his ridiculous defense of "torture that works" based on one police case in Germany, I've decided that its pointless to continue to argue with him on this issue.

    I've debated with him countless times at The Politburo Diktat and have never persuaded him to my point of view on anything, although he has conceded to understanding where I'm coming at least once. He's infuriating, but polite if you're polite to him.

    I'll be posting on more immigration issues next year, including some aspects of asylum law and its relationship to "terrorism" where the Bush Administration has dropped the ball almost as badly as in the torture arena.

    BTW, what branch of the service do you work in. I was in the Navy from 1971-1974.

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  14. Redhand,

    I'm a fellow swabbie! Thanks for your service - then and now!

    SP

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  15. Serving Patriot,

    "his ridiculous defense of "torture that works" based on one police case in Germany, I've decided that its pointless to continue to argue with him on this issue."

    It's based on far more evidence than than only one incident, along with logic and basic commonsense, which you appear to dismiss entirely. And incidentally, if there is even one instance in which torture can be shown to work (and there are many more than just one), then any argument based on torture not working goes right out the window.

    "Lets just leave it thusly. Besides being illegal, torture is a moral wrong for which no exception should be made."

    I recognize that position, but there are other views -- including mine.

    "Your attempts to convice me that torture works fall upon my deaf ears."

    I know, it's difficult to argue logic and fact with people who prefer their own reality. I'm sure all those who have given up information under torture throughout history would be interested to know that it doesn't work. Go tell the French torturers in Algeria who found bombs and bomb-making equipment thru information gained under torture that it doesn't work. No doubt the German officers implicated in the July 20 plot by information obtained thru torture -- some of whom were indeed involved in the plot -- would be amazed to find that torture doesn't actually work. I'm sure the conspirators in the Cadoudal plot to assassinate Napoleon, who were identified by information gained through torture, which was then confirmed by ordinary police work, would be shocked to learn that their fellow conspirators really didn't give them up under torture. But I guess you know better, because hey, you've got the politically-biased opinions of a few current U.S. interrogators to rely on. That negates all of history.

    "For to abuse, mistreat and torture those in our government's detention only lowers our nation to the same scummy level we deplore in oh so many other nations."

    No, it doesn't. A few exceptions under extraordinary circumstances is not the same thing as a general policy. We could have burned KSM with hot pokers, shocked him, put him on a rack, or done any other torture you care to name far in excess of waterboarding, and it still wouldn't lower us to the moral equivalent of our enemies.

    "But, it remains your right to advocate this heinous treatment. And I will continue to serve in your nation's service to protect that right -- no matter how vile I find your advocacy and how misguided your reasoning."

    I'm not advocating it. I'm making a very specific argument which you choose to ignore in favor of your own strawmen. I'm making the case that it may sometimes be necessary under certain conditions. And I'm not making that argument enthusiastically, since I recognize the inherent dangers.

    "no matter how vile I find your advocacy"

    The horror that someone might actually challenge your assumptions. And your notions of my "advocacy" appear to be based mainly on your own strawmen.

    "Oh, an the next time you are pulled over for speeding, please please please tell the trooper that you were simply "making an exception" to the established traffic laws. Because, as you say, what's the point of having laws without exceptions."

    The next time you have to race your pregnant wife to the hospital because she went into labor, I'm sure you'll gladly accept a ticket for speeding. Because of course we can't ever make exception to laws.

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  16. "I've debated with him countless times at The Politburo Diktat and have never persuaded him to my point of view on anything,"

    Redhand,

    I could probably say the same about you. If I don't have a strong opinion about something, and don't think I can defend it, then I don't argue about it.

    As someone who was once a history PhD student, one of the things I learned was to attack sweeping statements of any kind -- they are almost never correct with regard to history. (See how I put that "almost" in there? I try to avoid sweeping statements myself.)

    Someone saying "torture doesn't work" is the kind of sweeping statement that is like a giant red flag to me, especially since it is historically ignorant. It's not the same thing as saying "torture isn't the best method of gaining intelligence." or "torture is usually counterproductive" or any other statement that is debatable. For a sweeping statement to be correct, it has to be correct in every time and every case throughout history with no exception.

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  17. A few exceptions under extraordinary circumstances is not the same thing as a general policy. We could have burned KSM with hot pokers, shocked him, put him on a rack, or done any other torture you care to name far in excess of waterboarding, and it still wouldn't lower us to the moral equivalent of our enemies.

    This, David C, is what's known in the trade as a "whopper."

    What I find amazing, but will say no more because no one can get through to you, is that waterboarding is illegal regardless of its "effectiveness." In 1947, a Japanese soldier who used water boarding against a U.S. citizen during World War II was sentenced to 15 years in U.S. prison for committing a war crime. It it was not OK then, it sure as hell isn't now, regardless what Cheney and his legal hoors say.

    Also, these statements strung together are nonsense: I'm not advocating it. I'm making a very specific argument which you choose to ignore in favor of your own strawmen. I'm making the case that it may sometimes be necessary under certain conditions. And I'm not making that argument enthusiastically, since I recognize the inherent dangers.

    You really are trying to have it both ways saying you're not "advocating" it at the same time you helpfully suggest that it "may sometimes be necessary under some circumstances."

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  18. Redhand,

    "What I find amazing, but will say no more because no one can get through to you, is that waterboarding is illegal"

    You've gotten through to me just fine. I just disagree on certain points. Where did I say that it is legal? I agree with you that it's illegal. I'm not making a legality argument -- I'm not the Bush administration. There are plenty of people who argue that waterboarding isn't torture, but I'm not one of them. In my opinion it is definitely a form of torture.

    "You really are trying to have it both ways saying you're not "advocating" it at the same time you helpfully suggest that it "may sometimes be necessary under some circumstances.""

    I'm arguing that there may be circumstances where we have to break our own laws, not that we should create laws to legalize torture in certain instances, or that we should pretend that torture really isn't torture so we can do it legally.

    To put it another way, although I think the KSM situation was a case where resorting to torture was justifiable, that doesn't make it legal. Something can be necessary or justifiable but still illegal.

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  19. Well Redhand,

    It looks as if the history doctor is finally conceding that he advocates illegal activity by his own government. Sometimes, he says, it is "justifiable".

    I guess that means that those who make such "justifiable" decisions are also willing to stand by them, be accountable for the consequences of their actions, and, as they say, "be willing to do the time if you're going to do the crime."

    Personally, I would just prefer that agents of my government NOT BREAK THE LAW. If they find that there are such compelling circumstances, then the executive branch merely needs to advocate the legislative and have the laws changed. Heck, even this administration has done this repeatedly over the past eight years (PATRIOT ACT x2, FISA amended, Military Commissions Act) and yet they still complain about how pesky it is to FOLLOW THE LAWS (usually only when their illegal --but "justified"?-- actions are exposed).

    Whatever.

    I remain unconvinced that ANY exigent circumstance excuses the use of torture by the government upon those it detains. And those agents of the government whom feel justified in breaking the law, then they should be held accountable in a court of law. And simple accountability is what many of our fellow citizens have been clamoring for from the beginning. Yet, even at this late date, the current administration hides from the incoming Administration the essential "legal" analysis it wrote to "justify" the President's unlawful conduct. Do they still feel their unlawful conduct justified? They certainly are avoiding any accountability in a court of law!

    As to the weak "torture works" examples - I am unswayed. Instead of gaining actionable intelligence, torturers extracted blood and life, perhaps from bona fide suspects, but also from plenty of innocent and unknowledgeable bystanders. Too often, I see torture confused with revenge (feels so good) and control (be so scared) -- and not from any sort of actual need for usable/useful information.

    And as for the French 4th Republic paratroopers... how well did that work out for France? Algeria was the end of the post-WW2 government, brought on by the internal revulsion of that nation's use of means and methods contradictory to its laws and ideals. And what effects are felt even today between France and Algeria? I remain far from convinced - perhaps even traditionalist when it comes to the use of torture (at least I have G. Washington and A. Lincoln on my side).

    SP

    And DaveC -- I'd be willing to bet that instead of the ticket, the cop would take your wife to the hospital himself!!! Much safer that way anyhow... the cop being a trained, high speed driver and all.

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  20. "he advocates illegal activity by his own government. Sometimes, he says, it is "justifiable"."

    I already said that I believe there are exceptions to most rules. So yes, in some exceptional cases I think the government may be justified in breaking our own laws.

    "I guess that means that those who make such "justifiable" decisions are also willing to stand by them, be accountable for the consequences of their actions, and, as they say, "be willing to do the time if you're going to do the crime.""

    Yes. In my opinion, the president should have taken full responsibility. That's one of the big problems I have with the Bush administration. I do not agree with their attempts to blur the line between what is and is not legal in order to evade responsibility.

    " Do they still feel their unlawful conduct justified? They certainly are avoiding any accountability in a court of law!"

    You are kind of missing the point. They don't believe their conduct is illegal at all. That's why they stayed in gray areas and got expert legal opinions on their actions. And Dick Cheney thinks anything the executive does during wartime that involves national security is automatically legal. Just because you & I think some of their actions were illegal, doesn't mean they have to agree.

    "As to the weak "torture works" examples"

    There's nothing weak about them. You just wish to deny reality. Unfortunately torture can work and has worked. There are numerous examples throughout history. It is indisputable that good information can sometimes be gained by threatening a prisoner.

    Consider this... You are a prisoner and you know that your organization has an arms cache located at 123 Main St. If you tell the interrogator that the arms cache is at 123 Main St., they can go there and confirm it. It doesn't matter in the slightest how they get that information out of you. Now they might not get that information. You might lie, or you might say nothing. Torture might not be the best way to get that information out of you. But if you do say "123 Main St.," that's the correct information. If they got it out of you thru torture it doesn't stop being correct information, and the arms cache isn't going to disappear.

    " Too often, I see torture confused with revenge (feels so good) and control (be so scared) -- and not from any sort of actual need for usable/useful information."

    That's true, but has nothing to do with the ability of torture to gain information when used for that purpose.

    "And as for the French 4th Republic paratroopers... how well did that work out for France?"

    Again, that's a different issue. That's a torture may be effective tactically but cost you the war strategically argument. That's certainly a valid objection to the use of torture.

    "And DaveC -- I'd be willing to bet that instead of the ticket, the cop would take your wife to the hospital himself!!! Much safer that way anyhow... the cop being a trained, high speed driver and all."

    Maybe so, but that wasn't my point, which is that sometimes we make exceptions to laws. Illegal doesn't necessarily equal immoral.

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  21. It looks as if the history doctor is finally conceding that he advocates illegal activity by his own government. Sometimes, he says, it is "justifiable".

    I have been following the discussion. You know where I stand.

    I thought you made a good point about the French Paras and Algeria: The Battle of Algiers and all that. The film attracted the attention of the Pentagon in 2003, but not enough for us to avoid Abu Gharib.

    Dick Cheney continues to depress me. He's like the crazy old aunt upstairs that the family doesn't want anyone to know about, except that he regularly appears on TV to spout his insanity (with the approval of the "head of the family") and he has had immense power under Bush.

    By rights, both of them should be prosecuted after they leave office, but it will never happen, I guess. I will just be glad when this lawless Presidency is over. Less than a month now!

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  22. Redhand,

    By rights, both of them should be prosecuted after they leave office, but it will never happen, I guess. I will just be glad when this lawless Presidency is over.

    So will I.

    But, I become even more determined in my view that criminal investigations and prosecutions take place for Administration officials who continue to hold the view that they were "justified" in breaking our laws.

    If they are so "justified," then they will be vindicated. If not, they will be accountable. Either way, it is a win for the citizens - those who must know and understand what is done in their collective name.

    Without accountability, there is no responsibility. And if there is no responsibility, what the heck do we have a republic for anyways?

    SP

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  23. What I think will happen is that we will have a "Truth & Reconciliation Commission" on the model established by the Republic of South Africa .

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  24. Maybe.

    But I'm more of the mind to endorse Scott Horton's program -- a commission that develops facts/findings and the opportunity to prosecute based upon the commission's findings.

    SP

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  25. "Justice after Bush: Prosecuting an outlaw administration" by Scott Horton : Boy, was that a great article, though it makes my flesh crawl to see the USA being fairly compared to fragile "democracies" like South Africa, Chile and Argentina!

    These two paragraphs are pure gold, a spot-on assessment of what the Bush years have been all about:

    This administration did more than commit crimes. It waged war against the law itself. It transformed the Justice Department into a vehicle for voter suppression, and it also summarily dismissed the U.S. attorneys who attempted to investigate its wrongdoing. It issued wartime contracts to substandard vendors with inside connections, and it also defunded efforts to police their performance. It spied on church groups and political protesters, and it also introduced a sweeping surveillance program that was so clearly illegal that virtually the entire senior echelon of the Justice Department threatened to (but did not in fact) tender their resignations over it. It waged an illegal and disastrous war, and it did so by falsely representing to Congress and to the American public nearly every piece of intelligence it had on Iraq. And through it all, as if to underscore its contempt for any authority but its own, the administration issued more than a hundred carefully crafted “signing statements” that raised pervasive doubt about whether the president would even accede to bills that he himself had signed into law.

    No prior administration has been so systematically or so brazenly lawless. Yet it is no simple matter to prosecute a former president or his senior officers. There is no precedent for such a prosecution, and even if there was, the very breadth and audacity of the administration’s activities would make the process so complex as to defy systems of justice far less fragmented than our own. But that only means choices must be made. Indeed, in weighing the enormity of the administration’s transgressions against the realistic prospect of justice, it is possible to determine not only the crime that calls most clearly for prosecution but also the crime that is most likely to be successfully prosecuted. In both cases, that crime is torture.

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