[Winstonm]

Quote

MARK MAZZETTI
NY Times
Sunday, April 27, 2008

WASHINGTON — The Justice Department has told Congress that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law.

So, the Justice Department is claiming that international law does not apply to the U.S., is that right? Isn't that the kind of claim all rogue states make, like North Korea claiming international waters don't apply to them?

Quote

“The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act,” said Brian A. Benczkowski, a deputy assistant attorney general, in the letter, which had not previously been made public.

Surely, there is inbreeding occuring at the Justice Department - otherwise, how do you get the same thinking? Let me ask Brian a question: You say intent is critical. But what if you torture Joe Blow, believing him a terrorist, then later find out that he's really only a shoe salesman from Cleveland - then what? Was it legal to torture the shoe salesman because there was no intent of humiliation or abuse?

Quote

Some legal experts critical of the Justice Department interpretation said the department seemed to be arguing that the prospect of thwarting a terror attack could be used to justify interrogation methods that would otherwise be illegal.

“What they are saying is that if my intent is to defend the United States rather than to humiliate you, than I have not committed an offense,” said Scott L. Silliman, who teaches national security law at Duke University.

Is there really any other interpretation to make? In other words, it's legal if we say it's legal. Isn't that the bottom line?

And I bet there is no appeal process if you differ with that opinion....

[Gerben42]

Torture is not just "humiliating someone". Torture is criminal. I hope the new president, whoever it is, will fire those responsible for the torture of those "presumed innocent until proven guilty" as his / her first act. I'm afraid legal action is not possible as they are the law...

[kenberg]

The US is somewhat new (well, going on 7 years but still new) to having to deal effectively with organized terrorism. There were some nut jobs in the 60s, but nothing that made us practically strip search airline passengers. Europeans have been dealing with this longer. At least as far as I am concerned, advice is welcome. Is torture, say at the level of waterboarding or worse, not practiced in any of the European democracies? Is there a general consensus within the population? What are the main tools of counter-terrorism in Europe? Etc. I do not mean this as a "so who are you to talk" question. We are in this together and getting together on common standards would be very much in our common interest.
I am not a soldier but I imagine that if I had a terrorist in my hands and I thought I could stop a terrorist attack by kicking him in the balls a few times, I imagine I might do it. That's not saying it shouldn't be illegal or that I shouldn't be prosecuted. I think there are some tough calls here.

[mike777]

"Europeans have been dealing with this longer. At least as far as I am concerned, advice is welcome."

Great question. Just based on my own limited knowledge and doing a quick internet search I noticed numerous Europeans countries have fought dealing with this far longer than us. It seemed the common thread was in numerous countries they have dealt with it for decades and decades and decades before they resolved the issue. In some cases they are still dealing with the same terriosts groups after 30- 40 years or more even today. In other words their battle goes on, without victory yet.


The main theme seems to be it can very often take 30 years or more to deal with this problem. As I mentioned in other threads this sounds like the cold war all over again. Sometimes the cold war as in Korea, Greece, Vietnam and many other countries got HOT in some spots!

If you go back over the history of Europe dealing with terriosm you can find alot of stuff, extremely brutal stuff that they did. This is stuff that happened within our families lifetimes.
1) Look at Greece
2) Look at UK and the whole Northern Ireland issue.
3) Look at Eastern Europe
4) Look at European Russia and how they are fighting terriosts.
5) Look at how long have Spain has been fighting Basque terriosm

[mike777]

Winstonm, on Apr 27 2008, 07:16 PM, said:

Quote

MARK MAZZETTI
NY Times
Sunday, April 27, 2008

WASHINGTON — The Justice Department has told Congress that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law.

So, the Justice Department is claiming that international law does not apply to the U.S., is that right? Isn't that the kind of claim all rogue states make, like North Korea claiming international waters don't apply to them?

Quote

“The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act,” said Brian A. Benczkowski, a deputy assistant attorney general, in the letter, which had not previously been made public.

Surely, there is inbreeding occuring at the Justice Department - otherwise, how do you get the same thinking? Let me ask Brian a question: You say intent is critical. But what if you torture Joe Blow, believing him a terrorist, then later find out that he's really only a shoe salesman from Cleveland - then what? Was it legal to torture the shoe salesman because there was no intent of humiliation or abuse?

Quote

Some legal experts critical of the Justice Department interpretation said the department seemed to be arguing that the prospect of thwarting a terror attack could be used to justify interrogation methods that would otherwise be illegal.

“What they are saying is that if my intent is to defend the United States rather than to humiliate you, than I have not committed an offense,” said Scott L. Silliman, who teaches national security law at Duke University.

Is there really any other interpretation to make? In other words, it's legal if we say it's legal. Isn't that the bottom line?

And I bet there is no appeal process if you differ with that opinion....

I thought torture is illegal and has been illegal for decades or centuries in the USA.
I thought there was just honest confusion and and honest debate over what is the definition of torture.

As for international law, I thought the USA since 1776 often just ignored most if not almost all laws that were international at our choosing. Some simple but horrible examples were the shooting, very often shooting, of Japanese prisoners in WW11. The firebombing of Japan that killed or wounded millions. The list is endless.

I thought every country ignores all or almost all international laws since 1776.

[Gerben42]

There is no strategy to get rid of terrorism other than removing their goals. As long as there are people who want Northern Island back, or Basque independence, or whatever they are fighting for, the terrorist groups behind these goals will not vanish. Lowering yourself to their level by torturing people won't change that.

The US army and allies turned Afghanistan upside down, and yet the Taliban still exists. Even if someone would capture Osama bin Laden, this would not change a thing about Al-Qaeda.

What about torture? People will say anything just to stop the torture. You will make them lie, and they might even confess to crimes they didn't do. That has two effects:

* The liar will be punished for the crime he didn't do.
* The real criminal is still at large.

[mike777]

"* The liar will be punished for the crime he didn't do.
* The real criminal is still at large. "


I have my doubts that torture is ever used as a punishment. I suppose one could debate going back hundreds of years but even then I have my doubts the real goal was punishment. As for today, I really have my doubts the goal of those who use torture is punishment. It may be to get some sadistic twisted pleasure, it may be to get some blind satisfaction of revenge or to try and get information but I doubt the goal or logic is punishment.

In any case my guess is almost all if not all countries have laws against torture.
In other words torture is never a legal form of punishment. Is anyone really arguing it is?

[pclayton]

I read Winston's passage, and I reread it. I can't find the word 'torture' anywhere.

Maybe they are referring to playing Debbie Boone or Milli Vanilli songs for eight hours straight?

[luke warm]

or making someone wear his underwear on his head... at least in 'weird science' kelly lebrock showed up

[Winstonm]

Phil is right in that torture in not spelled out. This is about legality of actions taken.

This is the heinous quote to me:

Quote

“The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act,” said Brian A. Benczkowski, a deputy assistant attorney general, in the letter, which had not previously been made public.

But who would make that decision? How do you determine that the sufferer is intent on terrorist action prior to interrogation? How do you know the confession is valid? Worse, what if the interogator is wrong, and the person is innocent.

These are the types of reasons that there are laws - not so much to prevent an occurence but so the damagaged party will have an outlet for his grievance other than the sword.

When we repeal the rule of law, we really repeal the U.S. way of life.

[kenberg]

Winstonm, on Apr 29 2008, 05:41 PM, said:

Phil is right in that torture in not spelled out. This is about legality of actions taken.

This is the heinous quote to me:

Quote

“The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act,” said Brian A. Benczkowski, a deputy assistant attorney general, in the letter, which had not previously been made public.

But who would make that decision? How do you determine that the sufferer is intent on terrorist action prior to interrogation? How do you know the confession is valid? Worse, what if the interogator is wrong, and the person is innocent.

These are the types of reasons that there are laws - not so much to prevent an occurence but so the damagaged party will have an outlet for his grievance other than the sword.

When we repeal the rule of law, we really repeal the U.S. way of life.

Consider a major natural disaster, say a hurricane that devastates a large urban area. At least at times (I am not prepared to say which times), those who are given the responsibility for restoring order are also given the authority to shoot rather than arrest looters. Do you object to this? Suppose, for purposes of discussion, the magnitude of the event is sufficient so that arresting individual looters and bringing them before a judge is not really viable as a preventive measure, so that the options reduce to shooting looters or accepting widespread looting.

I think we still do this (shoot looters during a disaster), do we not?

The point here is that I think his assertion that context matters is not outside of the traditional view of law. We may very well decide to reject his view, but it is not something unique to him or to this administration.

[Winstonm]

kenberg, on Apr 29 2008, 07:11 PM, said:

Winstonm, on Apr 29 2008, 05:41 PM, said:

Phil is right in that torture in not spelled out.  This is about legality of actions taken.

This is the heinous quote to me:

Quote

“The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act,” said Brian A. Benczkowski, a deputy assistant attorney general, in the letter, which had not previously been made public.

But who would make that decision? How do you determine that the sufferer is intent on terrorist action prior to interrogation? How do you know the confession is valid? Worse, what if the interogator is wrong, and the person is innocent.

These are the types of reasons that there are laws - not so much to prevent an occurence but so the damagaged party will have an outlet for his grievance other than the sword.

When we repeal the rule of law, we really repeal the U.S. way of life.

Consider a major natural disaster, say a hurricane that devastates a large urban area. At least at times (I am not prepared to say which times), those who are given the responsibility for restoring order are also given the authority to shoot rather than arrest looters. Do you object to this? Suppose, for purposes of discussion, the magnitude of the event is sufficient so that arresting individual looters and bringing them before a judge is not really viable as a preventive measure, so that the options reduce to shooting looters or accepting widespread looting.

I think we still do this (shoot looters during a disaster), do we not?

The point here is that I think his assertion that context matters is not outside of the traditional view of law. We may very well decide to reject his view, but it is not something unique to him or to this administration.

I'm not sure I agree with your view of his comparison - it looks to me as if he is saying that there can be times when it is lawful to shoot a potential looter.

As soon as you impose extraordinary measures on a suspect, you are outside the boundaries of lawful means, IMO.

[hrothgar]

mike777, on Apr 28 2008, 06:02 PM, said:

"* The liar will be punished for the crime he didn't do.
* The real criminal is still at large. "


I have my doubts that torture is ever used as a punishment. I suppose one could debate going back hundreds of years but even then I have my doubts the real goal was punishment. As for today, I really have my doubts the goal of those who use torture is punishment.  It may be to get some sadistic twisted pleasure, it may be to get some blind satisfaction of revenge or to try and get information but I doubt the goal or logic is punishment.

In any case my guess is almost all if not all countries have laws against torture.
In other words torture is never a legal form of punishment. Is anyone really arguing it is?

I was trying to figure out just where Mike was going with this ridiculous line of reasoning.

It turns out that he's channeling Antonin Scalia. I just saw Scalia trying to make the following argument:

The 8th Amendment to the US Constitution prohibits "Cruel and Unusual Punishment" (The English Bill of Rights contains the same phrase. The UN's Universal Declaration of Human Rights uses similar language). However:

Torture is not "punishment"

Therefore, the 8th Amendment does not prohibit torture...

[luke warm]

i think torture can be punishment... i also think that sometimes the motive isn't punishment... this is one (and only one) reason i'd never want to have total control of a country... the dichotomy between the safety of my people and the rights i'd want all to have would drive me crazy

it's my philosophical view that torture is wrong in all cases... it's my practical view that i would like to think i could stick to my philosophical view

[kenberg]

hrothgar, on May 1 2008, 05:09 AM, said:

mike777, on Apr 28 2008, 06:02 PM, said:

"* The liar will be punished for the crime he didn't do.
* The real criminal is still at large. "


I have my doubts that torture is ever used as a punishment. I suppose one could debate going back hundreds of years but even then I have my doubts the real goal was punishment. As for today, I really have my doubts the goal of those who use torture is punishment.  It may be to get some sadistic twisted pleasure, it may be to get some blind satisfaction of revenge or to try and get information but I doubt the goal or logic is punishment.

In any case my guess is almost all if not all countries have laws against torture.
In other words torture is never a legal form of punishment. Is anyone really arguing it is?

I was trying to figure out just where Mike was going with this ridiculous line of reasoning.

It turns out that he's channeling Antonin Scalia. I just saw Scalia trying to make the following argument:

The 8th Amendment to the US Constitution prohibits "Cruel and Unusual Punishment" (The English Bill of Rights contains the same phrase. The UN's Universal Declaration of Human Rights uses similar language). However:

Torture is not "punishment"

Therefore, the 8th Amendment does not prohibit torture...

I heard Scalia discuss this some time back. As I understand the argument it goes like this:

Case 1: A person has killed someone, maybe several someones. He is found guilty of doing so.

Case 2: A person has placed a bomb somewhere that will cause many deaths. You have the person in your custody and if you can get him to give you information such as the location of the bomb you can save many lives.


Argument: These two situations are different and the law should recognize the difference.

Practical example: I guess it was maybe two years ago that a plot to hijack several aircraft was successfully dealt with, I believe primarily by British Intelligence (I don't follow these things in detail but this is roughly right). Of course I don't know how they got their information but it would not surprise me if at least some of it came from sources (not necessarily us, not necessarily the Brits themselves) that used techniques not entirely approved of by some posters on this Forum. Should they have averted their eyes from such information? Fruit of the poisoned root and all that?

We do wish (I wish and I believe most wish) to preserve a fundamental restraint in how we treat a fellow human being, or other living creature for that matter, even those who are engaged in efforts to harm us. We also wish to keep our planes from being hijacked and flown into buildings.

I really don't understand how people can see the resolution of this to be a simple matter.

[hrothgar]

kenberg, on May 2 2008, 03:19 PM, said:

I heard Scalia discuss this some time back. As I understand the argument it goes like this:

Case 1: A person has killed someone, maybe several someones. He is found guilty of doing so.

Case 2: A person has placed a bomb somewhere that will cause many deaths. You have the person in your custody and if you can get him to give you information such as the location of the bomb you can save many lives.

Argument: These two situations are different and the law should recognize the difference.

I think that Scalia spends too much time watching "24"...

For what its worth, the typical counter argument to hypotheticals like the ticking bomb scenario is to address these matters on a case by case basis.

1. There should never be government policies authorize torture

2. If government officials decide that torture is necessary they are obviously able to break the law. However, they should do so knowing that they are breaking the laws and might go to jail for this.

3. If a government official makes a decision to torture someone they can petition for a pardon after the fact. They get to make a case that says that this situation was so extraordinary that we had to hook a car battery to this guy's balls.

The torturer has broken the law. This is a clear and established fact. However, we will provide the torturer with an opportunity to make a case why this was so necessary.

There is clear legal antecedents for this type of proceedure. Licoln's suspension of Habeas Corpus is the most often cited example.

[blackshoe]

It would be terminally stupid to refuse to use information because we suspect it was obtained through torture. It would be morally wrong to use torture for any reason. By "torture" I mean "he infliction of intense pain (as from burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure". Note that of the three reasons for torture in this definition, the argument for using it in the "war on terror" admits of only one - to coerce. Yet the common attitude towards torture seems to link all three inextricably. I don't know that I agree with that linking. Nonetheless, I don't agree with the use of torture, either.

I don't like the death penalty much, but I have some sympathy with the attitude expressed by Robert Heinlein's character Juan Rico in Starship Troopers:

Quote

I didn't know if it [executing the murderer of a four year old girl] was right. All I knew was he wasn't going to be killing any more little girls. That suited me. I went to sleep.

I think that attitude applies equally well to terrorists. It still doesn't justify torture.

If torture is not for punishment, then it is correct to assert that the Eighth Amendment does not apply.

[jtfanclub]

blackshoe, on May 2 2008, 09:49 AM, said:

If torture is not for punishment, then it is correct to assert that the Eighth Amendment does not apply.

Right, then the Fifth Amendement applies, that whole not being compelled to witness against yourself thang.

I wonder if it's humanly possible for the writers of the Constitution to make this so clear that even Scalia couldn't use Jesuit techniques to try to OK the Inquisition.

[cherdano]

kenberg, on May 2 2008, 06:19 AM, said:

Case 1: A person has killed someone, maybe several someones. He is found guilty of doing so.

Case 2: A person has placed a bomb somewhere that will cause many deaths. You have the person in your custody and if you can get him to give you information such as the location of the bomb you can save many lives.

Argument: These two situations are different and the law should recognize the difference.

Practical example: I guess it was maybe two years ago that a plot to hijack several aircraft was successfully dealt with, I believe primarily by British Intelligence (I don't follow these things in detail but this is roughly right). Of course I don't know how they got their information but it would not surprise me if at least some of it came from sources (not necessarily us, not necessarily the Brits themselves) that used techniques not entirely approved of by some posters on this Forum. Should they have averted their eyes from such information? Fruit of the poisoned root and all that?

We do wish (I wish and I believe most wish) to preserve a fundamental restraint in how we treat a fellow human being, or other living creature for that matter, even those who are engaged in efforts to harm us. We also wish to keep our planes from being hijacked and flown into buildings.

I really don't understand how people can see the resolution of this to be a simple matter.

Maybe it is not a simple matter, but it is a very clear matter to me. In the culture I come from (a European democracy), using torture is unthinkable. Giving up on this restraint would mean giving up one of the fundamentals "we" collectively believe in.
The fact that so many in the USA (not only among the current administration, but also many in the public debate on this issue) consider torture a reasonable option has been very disappointing for me.

As far as I remember, the English plot was uncovered by investigations by the British police within England. I very much doubt that torture was used at any point in the investigations.

[kenberg]

blackshoe, on May 2 2008, 09:49 AM, said:

It would be terminally stupid to refuse to use information because we suspect it was obtained through torture. It would be morally wrong to use torture for any reason. By "torture" I mean "he infliction of intense pain (as from burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure". Note that of the three reasons for torture in this definition, the argument for using it in the "war on terror" admits of only one - to coerce. Yet the common attitude towards torture seems to link all three inextricably. I don't know that I agree with that linking. Nonetheless, I don't agree with the use of torture, either.

I don't like the death penalty much, but I have some sympathy with the attitude expressed by Robert Heinlein's character Juan Rico in Starship Troopers:

Quote

I didn't know if it [executing the murderer of a four year old girl] was right. All I knew was he wasn't going to be killing any more little girls. That suited me. I went to sleep.

I think that attitude applies equally well to terrorists. It still doesn't justify torture.

If torture is not for punishment, then it is correct to assert that the Eighth Amendment does not apply.

I'm roughly in agreement with you here, and with the post of brothgar as well. However your first two sentences could be construed as "We are so glad you can help us with this information you obtained through torture. Of course we cannot reciprocate because we operate on a higher moral plane than you." It's a little off-putting, but I can live with it. I suspect we will have to live with worse things before this is over.

Btw, I think Heinlein at his best (eg The Moon is a Harsh Mistress) was very good but he got a little batty in his later years (eg Methuselah's Children). Emotionally I accept his general views, practically I would take him with several grains of salt. It was long enough ago when I read his stories, roughly when they came out, that I am not prepared to defend these comments.