Define Torture

[Annie]

Good idea, links natch:

http://instapundit.com/archives/026698.php

November 07, 2005

I DON'T KNOW WHETHER I AGREE with the McCain bill completely -- I'm against torture, but torture consists in applying electrodes to people's testicles, not "mocking their religion," wrapping them in Israeli flags, or frightening them with fake menstrual blood, and the McCain bill may be read as forbidding those non-torture activitities. They might be a bad idea, for a variety of reasons, but they're not torture, and one of the reasons the "torture" issue has gotten less traction than it might have is that too many people have blown their credibility by conflating things they don't like with things that are of a different order entirely -- and by letting their desire to bash Bush, or to distance themselves from him, become all too obvious.

But I think that it's Congress's role to define this sort of thing, which means legislation. The President may have this power in the first instance when Congress doesn't act (I think the area falls in what's known as "Jackson Category Two" after Justice Jackson's Youngstown concurrence), but Congress ought to act once there's time, and there's certainly time now. There was, in fact, time before the 2002 and 2004 elections. Having Congress act also forces members of Congress to take responsibility -- both for what behavior they approve, and for what behavior they forbid. That's a good thing.

But regardless of what rules Congress adopts, I'm certainly against the Cheney proposal to exempt the CIA.

First of all, if this sort of thing is too wrong for Americans to do, it's too wrong for any Americans to do, period. Right? Second of all, if we are going to trust any agency with such extraordinary powers, surely it shouldn't be the CIA, which has established, repeatedly, that it's not to be trusted, either in terms of competence or in terms of, well, trustworthiness. I'd sooner entrust the power to the District of Columbia parking enforcement people. At least they're respected for their zeal.

Earlier thoughts here, here, and, from 2001, here.

UPDATE: J.D. Johannes thinks I'm wrong:

I think we are making a huge tactical mistake on the torture issue.

I think sadism, intentional infliction of pain for the sake of amusing the perpetrator, should be a felony/courtmartial offense.

Torture may not be the most effective interrogation technique, but the threat of it can be very, very effective.

If terrorists know for a fact they will never ever have to face physical pain, discomfort or cognitive disruption through humiliation and capricious situations, they are less likely to give up the information needed to prosecute the war.

Unlike most journalists and policy makers, I have looked into the eyes of real life terrorists. One was a member of the Green Battalion. The Green Battalion is known for their propensity to saw people's heads off.

A person who is that deranged, is not going to break under the threat of confinement and mere questioning.

To break a person like that, you need to break their mind through the creation of an arbitrary and capricious world where the possibility of things getting much, much worse is always a possibility in their mind.

If the terrorists know exactly how far we can go, there will be a fixed point, a limit, and the ability to create an arbitrary and capricious world is reduced.

There are no guaranteed costless decisions here.
posted at 07:36 PM by Glenn Reynolds

 

[Gunny]

reading psychoblues' ramblings ....

 

[Annie]

reading psychoblues' ramblings ....

Exactly. That was the problem with Abu Ghraib, there may have been crimes committed, perhaps. At the same time, the pics were inflammatory beyond what was done. Humiliation, undoubtedly. Torture-with the dogs, for sure. Beyond that? Not so sure.

Now from that, the left wants to extrapolate to war crimes. Give me a break.

 

[Gunny]

Exactly. That was the problem with Abu Ghraib, there may have been crimes committed, perhaps. At the same time, the pics were inflammatory beyond what was done. Humiliation, undoubtedly. Torture-with the dogs, for sure. Beyond that? Not so sure.

Now from that, the left wants to extrapolate to war crimes. Give me a break.

I have no problem with using psychological coersion to extract information. I also believe there is a difference between physical torture and physical discomfort used to aid in psychological coersion.

I agree, the left has made a mountain of a molehill. Problem is, we need to quit reacting to their rants by providing the sacrificial lambs.

I do however believe what was done at Abu Ghraib was criminal. It served no real purpose except to humiliate prisoners randomly. Coersion should be used specifically by intelligence personnel against specific persons suspected of possessing information valuable to the war effort.

 

[Bonnie]

Exactly. That was the problem with Abu Ghraib, there may have been crimes committed, perhaps. At the same time, the pics were inflammatory beyond what was done. Humiliation, undoubtedly. Torture-with the dogs, for sure. Beyond that? Not so sure.

Now from that, the left wants to extrapolate to war crimes. Give me a break.

Because the left is fair and only wants what's best for our country

 

[Gunny]

Because the left is fair and only wants what's best for our country

in a fascist sort of way......

 

[manu1959]

this is all crap...i have been to frt parties where worse things have happened...

 

[Gunny]

this is all crap...i have been to frt parties where worse things have happened...

Hell, I went through Marine boot camp ......

 

[Annie]

Because the left is fair and only wants what's best for our country

 

[manu1959]

Hell, I went through Marine boot camp ......

they may be worse that my rookie hazing playing soccer......bunch of fereners in short pants......

 

[Bonnie]

Will Old Rulings
Play a Role
In Terror Cases?

By JESS BRAVIN
Staff Reporter of THE WALL STREET JOURNAL
April 7, 2005;


Older article but I thought it was interesting
http://online.wsj.com/public/resources/documents/SB111282904090900187.htm

In the annals of law, the case of Masatomo Kikuchi is all but forgotten.

The former Japanese prison guard was tried by the Allies after World War II for war crimes. In 1947, a U.S. military commission, citing the Geneva Conventions and customary international law, convicted him of compelling prisoners of war to practice saluting and other military exercises for as long as 30 minutes when they were tired. His sentence: 12 years of hard labor.

For decades, records of the Kikuchi case and hundreds of other postwar tribunals lay forgotten in archives and government offices around the world. But now they could assume new significance for one of the most contentious aspects of the war on terrorism: the U.S.'s treatment of prisoners.

Hundreds of suspected terrorists and enemy fighters have been captured since the fall of 2001 and housed at Guantanamo Bay, Cuba, and elsewhere. The Bush administration has determined these captives aren't protected by the Geneva Conventions. But the administration has faced a wave of legal challenges to that view, and suffered several defeats so far. Today, government lawyers will ask a federal appeals court in Washington to reverse a November ruling that found the Geneva Convention protects prisoners held at Guantanamo and ordered an immediate halt to military commission proceedings against detainees because they didn't comply with the treaty.

ONLINE EXCLUSIVES



• What War Captives Faced in Japanese Prison Camps, and How U.S. Responded

• Military Commissions, Then and Now




The legal battle is likely to end up at the Supreme Court, and, depending on its outcome, could compel the U.S. to devise a new road map for prisoner treatment. The rulings from the years immediately after World War II lay out the most complete picture available of the way the U.S. viewed treatment of prisoners of war back then, when modern international humanitarian law was laid down. The question is, do these cases apply today?

Critics of the Bush administration's policy on terror-related prisoners argue they do. "These are the foundational cases," the first to apply international law to questions of prisoner treatment during armed conflict, says David Cohen, a 56-year-old professor of classics and rhetoric at the University of California, Berkeley, who also teaches classes on war crimes. He has spent the last 10 years collecting the documents from archives and government offices, adding millions of pages to existing records and unearthing the case of Mr. Kikuchi.

The records make it clear that after World War II, U.S. military prosecutors and judges set out to establish a precedent barring any prisoner mistreatment, by aggressively pursuing and punishing even comparatively small offenses.

"These things of minor importance are the very things which caused the Allied prisoners of the Japanese so great discomfort," prosecutor Robert Neptune told a military commission in October 1948. Army judges agreed. One wrote, "Extreme brutality or serious injury to the victim is not a necessary element" for guilt.

The files are an "extremely valuable and persuasive authority that has not really figured in the debate so far," says Scott Horton, chairman of the international-law committee for the New York City Bar Association. He and other critics have begun to cite them in some of the dozens of legal challenges to the administration working their way through the courts -- though it remains up to the courts themselves whether to invoke them as precedents.


Neal Katyal, a Georgetown University law professor who represents a Guantanamo prisoner, says the records "show that our own government once took the position that the treatment that current Guantanamo detainees face" amounted to war crimes. Says Mr. Katyal, who is scheduled to argue before the appeals court today, "Can you really say that the laws of war require less now than they did in 1945?"

But David Rivkin, who served as a White House and Justice Department official in the Reagan and first Bush administrations, argues that the cases don't disprove the administration's views of suspected al Qaeda and Taliban fighters. Since they have no right to wage war under existing treaties, they have no rights upon capture, he says.

Historically, such "unlawful" combatants "not only would not get POW status, they were executed on point of capture," he says. Under the "traditional paradigm, if you were a lawful combatant, you got everything. That has nothing to do with how unlawful combatants were treated."

Mr. Rivkin says the cases are helpful, though, in illustrating certain doctrines, such as "command responsibility," the legal theory under which superior officers can be held accountable for the misdeeds of their troops. In cases in which the U.S. acknowledges that prisoners have been abused, such as at Baghdad's Abu Ghraib prison, only low-ranking personnel have faced prosecution so far.

"I have no doubt that in due course more senior people will be charged," he says. "If we were holding this conversation two years from now and we weren't prosecuting anyone higher up," it would be hard to argue the U.S. was being consistent with its World War II precedents.

One Pentagon legal expert says the World War II-era cases are of uncertain relevance to the treatment of prisoners, because President Bush has determined they do not qualify for international-law protections. "The distinction here is that these [suspected Taliban and al Qaeda fighters] are not members of the military services of a government," the official says.

A Defense Department spokesman declined to comment.

All sides acknowledge that the situation after World War II isn't a precise parallel to today. Many Japanese war criminals clearly were guilty of heinous acts, such as forcing thousands of prisoners of war on death marches, beheading prisoners and presiding over mass starvation. Some of the convicted guards used severe tactics such as beatings and sleep deprivation to make prisoners talk. The charges are far deeper and more wide-ranging than anything the U.S. has been accused of today.

But the archives also make clear that some of the practices employed by the U.S. today resemble those that U.S. military commissions condemned when Americans were on the receiving end. The U.S. considered as war crimes such tactics as solitary confinement, sleep and sensory deprivation, manipulation of meal schedules, forcing men to answer questions while naked or restrained in painful "stress positions," and failing to register prisoners with the International Red Cross. Today, all have been approved or practiced at Guantanamo and other U.S. facilities.

The records, many of them from tribunals held at Yokohama, Japan, between 1946 and 1949, show that many defendants, like Mr. Kikuchi, received long sentences for lesser infractions, in keeping with the U.S.'s aggressive approach to prosecutions. Some of the justifications now offered both by low-level American soldiers and top officials echo those raised, with little success, by Japanese defendants called to account before American courts.

U.S. tribunals dismissed defense arguments that Japanese practices were necessary for disciplinary or interrogation reasons, that American prisoners were treated no worse than Japanese soldiers, that Japan hadn't ratified the Geneva Conventions and wasn't therefore bound by them and that, in any event, many American prisoners had forfeited POW status by bombing cities or committing acts of sabotage.

The U.S. also held senior officials accountable for actions of their underlings; the Tokyo tribunal, for instance, sentenced former Japanese foreign minister Mamoru Shigemitsu to seven years even though he was an acknowledged leader of the Japanese peace faction and had sought to investigate Allied complaints of prisoner mistreatment during the war. The tribunal found punishment warranted because "he should have pressed the matter, if necessary to the point of resigning."

 

[manu1959]

just remember....he who wins makes the rules.

 

[Bonnie]

just remember....he who wins makes the rules.

One like me has to wonder just how we will win with all these useless distractions. Hope someone in the DOD is focused...

 

[manu1959]

One like me has to wonder just how we will win with all these useless distractions. Hope someone in the DOD is focused...

those that choose to be will be.....there are people just like you there that will ensure that the right thing happens

 

[Hagbard Celine]

Laws should be carefully and narrowly tailored so that they can't be interpreted in any way other than how their writers meant for them to be interpreted.

 

[manu1959]

Laws should be carefully and narrowly tailored so that they can't be interpreted in any way other than how their writers meant for them to be interpreted.

if the queen had balls she would be king

 

[Hobbit]

Laws should be carefully and narrowly tailored so that they can't be interpreted in any way other than how their writers meant for them to be interpreted.

Good luck. There are people who get million dollar a week salaries convincing people to see the law a different way, and there are more of them than people writing the law, and those writing the law don't get paid as well. I mean, let's look at something as simple as the commandment "Thou shalt not murder," which is regarded from a purely academic standpoint as the closest English translation to the original Hebrew text. There are theologians who spend their entire lives arguing with each other on the meaning of the word murder. Despite the fact that when the Hebrew world is examined, the definition is pretty clear, you've got all these people who claim all that divine inspiration stuff for the original writers has been extended to the translators. Then you get them arguing semantics over whether war or self-defense killings are murder. Then you get people arguing that it applies to animals. It doesn't matter how well defined it is or the clear context, somebody out there will be convinced that it means something else.

As far as defining torture, let's go back to my boot camp days. I was forced to run on both legs, despite the signed word of a liscenced orthopedic specialist who said it was breaking from a stress fracture. This was a significant risk to my health, especially considering embolisms and slashed arteries that sometimes accompany a stress fracture breaking completely through the bone. These guys didn't get so much as removed from their command posts at the academy. Now, what does it say to me when politicians seek jail time for abusing the Koran given to a F*CKING TERRORIST when they really don't care what happens to me, a voting, tax-paying citizen.

 

[Mr. P]

Define Torture

Whatever means, measurers or methods that achieve the goal of attaining information from the enemy.

 

[Gunny]

Whatever means, measurers or methods that achieve the goal of attaining information from the enemy.

I prefer the .45 to the temple method. Talk or die. Both time and cost effective. :2guns:

 

[manu1959]

I prefer the .45 to the temple method. Talk or die. Both time and cost effective. :2guns:

back of the right knee.....back of the left knee.....right wrist....left wrist...right elbow...left elbow....forehead.....next