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June 10, 2004

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I will take "it depends on what the definition of 'is' is" over "it depends on what the definition of 'torture' is" any day of the week.

Amen.

Does being governed by a bunch of ignorant sadistic right wing religious freaks count as torture?

Sign me and 51% of Americans up for the mother of all class action lawsuits. Oh, wait (Diebold), that'd be unpatriotic.

Never mind, just give me a minimum wage job and a chance to stay out of jail. Thank you sir, may I have some more pudding?

The non-governmental agency definition you cited isn't much different that the definition in the US Torture Act (or the Convention on Torture, either). [see text below]

The significant word is "severe" in the Act. A large section of the now-available DoJ Working Group memo works to define "severe", and the constructon they cast would allow a very big set of hideous acts.

If Bush defined torture along the lines of the DoJ memo, then he could say that he was "upholding the law". So that answer isn't sufficient (as you've indicated) in the presence of some documents that might indicate we have redefined torture in a way that the international community and our own people would surely find offensive.

There really isn't any way to define "torture light" or "abuse" as a permissible technique, and have any hope of preventing torture de facto, since the legal distinctions in the DoJ memo could never be comprehended and observed in a real-world setting.

Note that the US Torture Act includes conspiracy. It seems that the DoJ memo, and the shutdown on information that Bush is displaying may be an attempt to avoid this conspiracy charge.

The US War Crimes Act would also apply to conspiracy, on top of the Torture Act.

Unless Congress or the courts demand to see the actual policy guidance distributed by the DoD, we won't know what has been authorized - unless some more leaks or defendents/witnesses have some evidence not yet public.

Apparently Sy Hersh may have more evidence: see link

Link

The Torture Act is as follows:

TITLE 18 > PART I > CHAPTER 113C > Sec. 2340.

Sec. 2340. - Definitions

As used in this chapter -

(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

(3) "United States" includes all areas under the jurisdiction of the United States including any of the places described in sections 5 and 7 of this title and section 46501(2) of title 49.

(a) Offense. - Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b) Jurisdiction. - There is jurisdiction over the activity prohibited in subsection (a) if -

(1) the alleged offender is a national of the United States; or

(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

(c) Conspiracy. - A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

Sec. 2340B. - Exclusive remedies

Nothing in this chapter shall be construed as precluding the application of State or local laws on the same subject, nor shall anything in this chapter be construed as creating any substantive or procedural right enforceable by law by any party in any civil proceeding.

Some 6/11/04 news posts:

WaPo: Bush: U.S. Expected to Follow Law On Prisoners

Quoting the DoJ memo:
We conclude that the treaty's text prohibits only the most extreme acts by reserving criminal penalties solely for torture and declining to require such penalties for "cruel, inhuman, or degrading treatment or punishment", the department memo said.

(Note that would allow treatment of prisoners that under the Constitution is unlawful)

WaPo: Use of Dogs to Scare Prisoners Was Authorized

"Human rights experts said the use of dogs at Abu Ghraib violates longstanding tenets regulating the treatment of prisoners and civilians under the control of an occupying force, including the Army's field manual, which prohibits "acts of violence or intimidation" by American soldiers."

Jim the torture legislation was written by whom under which administration and what was the exact vote on the legislation.

Finally, Human rights experts per se are not the law.

If I were a tinfoil-hat type, I might see why the Bush League was so opposed to the ICC.

That's some catch, that Catch-22.

It's the best catch there is.

THE PRESIDENT: No, the authorization I issued, David, was that anything we did would conform to U.S. law and would be consistent with international treaty obligations. That's the message I gave our people.

Waitaminnit.

Bush has to authorize his administration's observance of US laws and treaty obligations?

Jim the torture legislation was written by whom under which administration and what was the exact vote on the legislation.

Both questions are irrelevant to the issues surrounding this memo.

This is not the first time I have observed you trying to derail meaningful discussion which is unfavorable to the Bush administration. Timmy. You do it all the time here and on Tacitus--usually by making statements or demanding answers to questions in ways which /sound/ like they are related to the topic at hand, but which are actually meaningless or irrelevant. It's an effective trolling technique when it works, and I'm tired enough of it that I'm calling you on it.

Finally, Human rights experts per se are not the law.

This is true and obvious. That does not render their analysis meaningless--on the contrary, torture and issues germane to it would seem to be, by /definition/, within their sphere of expertise.

I'm a little unclear as to how the ICC could have any jurisdiction whatever, except by treaty. Do you think any treaty giving ICC authority over and above SCOTUS has a chance in Hades of getting two-thirds majority in the Senate? I don't.

If I were a tinfoil-hat type, I might see why the Bush League was so opposed to the ICC.

No tinfoil necessary for this one, JKC. Bush--and, for that matter, many Americans--are vehemently opposed to the idea of Americans being brought to trial before the ICC.

There are legitimate Constitutional, due process, and nationalistic reasons why a person could be reasonably opposed to this. And really, for an honest administration the scare-tactic scenarios of American troops being brought before the ICC for war crimes are non-issues--the ICC has no jurisdiction as long as a country is willing and able to prosecute said crimes.

That said, should anyone in the Bush administration be revealed as guilty of committing, ordering, or authorizing war crimes, do you really think the US is willing and able to prosecute? I'd say the evidence would have to be overwhelmingly damning for it to go that far.

Also, Catsy, we are authorized to invade the Hague if necessary to extract any US nationals held by the ICC.

Also, Catsy, we are authorized to invade the Hague if necessary to extract any US nationals held by the ICC.

Don't remind me. I consider that authorization one of this country's darker moments.

I consider that authorization one of this country's darker moments.

Catsy, if you'll believe this, at the time I remember thinking that this was pure nationalistic scaremongering on the part of the Bush administration. Because I believed - quite sincerely - that the US justice system would not fail to prosecute anyone guilty of war crimes, and therefore the ICC would not actually have jurisdiction.

Yet there is strong circumstancial evidence that indicates Bush may well be guilty of war crimes - and yes, I doubt that the US justice system will investigate or prosecute. I don't even know if it can, if the House and the Senate decline to take action against the President. But the longer this hangs fire, the worse the US looks, and the worse things look for the US. If Bush can prove himself innocent - if this memo was merely drawn up by a bunch of bad apples, as it were, and was promptly rejected with contumely because Bush wanted nothing to do with torture - then he must do so. Because the longer he leaves it the more it looks as if he cannot prove himself innocent because he is guilty.

And believe me, though I want to see Bush out of office and Kerry elected come November, I do profoundly hope that Bush is not guilty of war crimes such as the memo suggests.

Nah, it was clear well before 9/11 that Bush would not support the ICC treaty, and it never had much chance in the Senate. My problem is the immunity agreements we are signing with other countries, in which they promise not to extradite U.S. personal. They are usually, though not always, reciprocal--i.e. we promise not to extradite their citizens in return.

We have signed such agreements with some countries with terrible human rights records. The full list of countries, as of 2003, according to Human Rights Watch, is: Romania (not reciprocal), Israel, East Timor, Tajikistan, Sierra Leone (!), Dominican Republic, Mauritiania, Uzbekistan (!!), Marshall Islands, Palau, Micronesia, Afghanistan, Gambia, Honduras, Sri Lanka, El Salvador, India, Nepal, Djibouti, Tuvalu, Bahrain, Georgia, Azerbaijan, Nauru, Rwanda, Tonga, the Democratic Republic of the Congo (!!!), Albania, Bosnia-Herzogovina, Bhutan, Madagascar, Maldives, Phillipines, Bolivia, Nicaragua, Thailand, Mongolia, Egypt, Uganda, Togo, Gabon, Ghana, Tunisia, Seychelles.

Not all of those have been ratified (by the other countries--the Senate doesn't ratify on our end, as far as I can tell.)

Jes -

John Warner is the only thing keeping our government honest on this one.

Actually Catsy the questions have a purpose. In no small part they narrow the conversation to what is torture and what you are projecting torture to be. It also provides a time line as well as the concurrent thoughts (and situations) of the government when the torture legislation was passed. Always good to have some background as compared to...

But you prefer cherry picking, I don't.

There are two memos in play, the DoJ memo advising the Admin of the parameters of the current law and the DoD memo which seeks to expand the powers of the executive through the separation of powers thread. The first is based upon the reading of current law, the second is a hypothetical as how to expand the scope and parameters of the executive branch.

Finally, on the ICC if you want the US to come under its jurisdiction, I would first suggest a move towards isolation. As the ICC is designed, by its very nature, to second quess.

I suspect a few more people may die, but Americans can just sit back and comment, my oh my, what are those people doing.

just a couple of the things in the memo that caught my eye:

p.5: Art 3 contains an obligation not to expel, return, or extradite a person to another state wher there are substantial ground" for believing that the person would be in danger of beeing subjected to torture. The US understanding realating to this article is that it only applies "if it is more likely than not" that the person would be tortured (emphasis added)

my interpretation: "it's OK to extradite people to countries like Syria if the risk of torture is 50% or less". Now, if we send let's say a hundred people, and we have this guarantee by their government that a quota of no more than fifty will be tortured, then each one has a one chance in two of beeing tortured, right?
Guess that Maher Ahar was dealt a bad hand.

p.14-16 re. 2340(B) "To be sure, one could argue that this phrase ["disrupt profoundly the senses or the personality" in 2340(B)] applies only to "other procedures", not the application of mind-alterating substances. We reject this interpretation because [...] [a]s an adjective [...] See Webster's [definition] [...] "other" signals that the words to which it attaches are of the same kind, type, or class as the more specific item previously listed. [...]". Thus, the pairing of mind-altering substances with procedures calculated to disrupt profoundly the senses or personality and the use of "other" to modify "procedures" shows that the use of such substance must also cause a profound disruption of the senses or personality."

my interpretation: both the mind-altering substances and the procedures must disrupt profoundly the senses or personality; forcing people to take drugs is OK, as long as they don't bad-trip to the point of becoming completely nuts or suicidal. Guess that MK-ULTRA is back... and hat-tip for the semantic hair-spliting of "other"!

Katherine, don't forget the United Kingdom. We're not angels.

I'm well aware that the ICC was designed for war criminals not prosecuted at home. Given that large loophole, I always thought that the concern over American soldiers being held in the Hague for trial over trumped-up, politically motivated charges made little sense. Senior Administration officials, on the other hand...

Suddenly the Bush League's fears make sense. Not that the vast majority of Americans would stand for seeing one of their own held for trial in the Hague.

I'll ask again, Timmy:

Would you support using the same "aggressive techniques" against right-wing extremists to prevent a clinic bombing, gynecologist shooting, or federal building bombing? How about declaring every member of the Army of God or the Aryan Nation "enemy combatants?"

I'll ask again, Timmy:

Well I'm sorry I missed it the first time.

Now your question is, if the Army of God or the Aryan Nation were recruited to wage war on the US, would I support the same aggresive technigues as currently being pursued in the same situations, well yes.

Does the situation dictate the options. Yes again.

Does the law and covenant(s) make distinctions? Again yes.

Are American citizens afforded different protections. Well yes.

Are Iraqi citizens afforded (or should they be afforded) different protections, then non-Iraqi enemy combatants operating in Iraq. Yes again, the non-Iraqi combatants have the same status as those held in Gitmo.

Are you troubled by the differences? No.

Would the use of dogs in Gitmo bother you? The use of dogs does not consitute torture.

Are American who have abused Iraqis, subject to punishment. Yes.

Is abuse the same as torture? No it isn't.

What is your overall objective? No more 9-11s.

Do abusive (stress) techniques work? I don't know.

Are you overly concerned about either the DoJ or DoD memo. Not at the moment.

Is one memo more troubling than the other. The DoD memo is more troubling.

OK, Timmy-

Let me pose this hypothetical:

Would you have a problem with the United States becoming a totalitarian nation if that were the only way to guarantee no repeat of 9/11?

Yes JKC I would have a problem with anything other than a democratic republic.

My turn

If this was a Dem admin, would you have a problem with recent events?

In 1998, when Iraqi regime change was the official policy of this country, did the Clinton Admin mean it? And how did you expect it to be accomplished?

I suspect that Timmy would have a different perspective on the creative use of dogs in this fashion if it were practiced upon himself. Or a loved one. Or even on a captured American soldier.

Let's also not forget that this torture (let's give the P.C. term "abuse" a break, the poor thing is all tuckered out) hasn't been to prevent a 9/11 in most cases, it's been used against innocent people. And from all accounts, the worst is yet to come out, its use on children to force information from parents.

Remember the part in 1984, where Winston Smith is inducted into the Brotherhood, and promises that he would throw acid into the face of a child if it meant furthering the cause of the revolution? At that point it becomes clear that whatever replaced IngSoc would be as bad or worse.

And I think that's just about where we are just about now.

Timmy- the answer to your question is Yes. This would bother me just as much, if not more, coming from a Democratic administration.

As for your second question: not having served in the Clinton administration, I can't tell you how they hoped to effect regime change in Iraq. I'm reasonably confident, though, that the plan didn't involve forcing Iraqi civilians to simulate oral sex on each other in front of private defense contractors.

"Sierra Leone (!), [...] Uzbekistan (!!), [...] the Democratic Republic of the Congo (!!!)...."

Katherine, I'm unclear. You are disturbed by the U.S. unwillingness to sign a treaty that grants rights of return of criminals to these countries because you have greater faith in the justice of their courts than the courts of the U.S.?

Your objection is that these courts are implicitly just? You prefer we grant extradition rights of people to these countries?

I'm missing something, right?

Timmy: The use of dogs does not consitute torture.

Oh? So if I were to sic a dog on you, helpless prisoner that you are in this hypothetical, I could have it rip you to shreds and be in the clear?

double-plus-ungood: Remember the part in 1984, where Winston Smith is inducted into the Brotherhood, and promises that he would throw acid into the face of a child if it meant furthering the cause of the revolution? At that point it becomes clear that whatever replaced IngSoc would be as bad or worse.

Ah, but remember who wrote the book...

Anarch, no it does not. Simply reflect my own experience of a cop with a dog as compared to a cop with shotgun and the sound of the pump.

Timmy (03:56 PM): The use of dogs does not consitute torture.
Anarch (10:06 PM): Oh? So if I were to sic a dog on you, helpless prisoner that you are in this hypothetical, I could have it rip you to shreds and be in the clear?
Timmy (10:33 PM): Anarch, no it does not.

Wow, Timmy, that's a quick reversal: from "the use of dogs does not constitute torture" to "no, it's not okay to use dogs for torture" in seven hours.

I actually see this as a perfect example of how Americans in general are reacting to torture. We've known since January 2003 (those of us who keep our nose to the news) that in US military detention centers, prisoners are being tortured, and no one was being prosecuted for committing acts of torture, not even when the acts of torture culminated in homicide.

But until Joseph Darby released the photographs, those with no imagination beyond their own personal experience (like Timmy, evidently) could not see that torturing prisoners is vilely wrong because they could not envisage how terrible torture is without seeing it.

"Must then a Christ perish in torment in every age to save those who have no imagination?" (George Bernard Shaw, Saint Joan.)

Wow, Timmy, that's a quick reversal: from "the use of dogs does not constitute torture" to "no, it's not okay to use dogs for torture" in seven hours.

Not that I'm defending Timmy's actual argument, Jes, such as it is--but that's not what I got from his second response.

Timmy (03:56 PM): The use of dogs does not consitute torture.
Anarch (10:06 PM): Oh? So if I were to sic a dog on you, helpless prisoner that you are in this hypothetical, I could have it rip you to shreds and be in the clear?
Timmy (10:33 PM): Anarch, no it does not.

In other words, I read Timmy's second response as reaffirming his first statement (The use of dogs does not consitute torture) in response to the "Oh?", not as responding to Anarch's actual question, which Timmy seemed to ignore.

Which, admittedly, is a backhanded defense, but I think you're misrepresenting or misunderstanding him.

Or making people say things they didn't say, which is par for the course.

Or making people say things they didn't say, which is par for the course.

No correct necessary here, I think that's more or less what I meant by "misrepresenting" here. Unless of course you just needed a reason to misrepresent misrepresentation as Jes's habit, in which case you could simply come out and say so.

The treaties are mutual agreements not to extradite nationals from the U.S. and country X to the ICC.

You know, Catsy, I've said it enough times that it should be obvious for what it is now. I'm not going to belabor the point, but it's my opinion that he doesn't argue honestly, nearly always deliberately mischaracterizes what people who hold contrary views say, and often asks them to choose between his opinion or an absurd, monstrous caricature of their own view for rhetorical purposes. People are obviously free to draw their own conclusions and have their own opinions on the matter, but I've seen it enough that it just doesn't fool me anymore.

I don't see how any person could honestly have come to the conclusion that Timmy's two statements were a reversal. And I don't think that any honest people did come to that conclusion.

Assuming that Timmy's response meant "No, the use of dogs does not constitute torture" -- which I have to say wasn't clear to me either -- could you please explain the difference between inducing a dog to maul the prisoner and inflicting those wounds personally?

Gary Farber: Katherine, I'm unclear. You are disturbed by the U.S. unwillingness to sign a treaty that grants rights of return of criminals to these countries because you have greater faith in the justice of their courts than the courts of the U.S.?

I'm hesitant to jump in here, since you folks clearly know far more about this stuff than I, but what I read in Katherine's comment was that we have signed agreements with these countries not to extradite their citizens to international courts. So she's disturbed that we won't send their folks up the river for boiling folks alive because we don't want them to turn ours in for sodomizing prisoners with flashlights. Or something like that.

Oops, how did I miss Katherine's response above?

Catsy: In other words, I read Timmy's second response as reaffirming his first statement (The use of dogs does not consitute torture) in response to the "Oh?", not as responding to Anarch's actual question, which Timmy seemed to ignore.

That could be. I did leap to the conclusion that Timmy was answering Anarch's question in the immediately-previous comment, and if he was, it did seem to constitute a reversal of his previous statement.

Phil, argue against my conclusions if you like, but I'd prefer if you didn't engage in personal attacks onblog: the place for that is in private e-mails.

could you please explain the difference between inducing a dog to maul the prisoner and inflicting those wounds personally?

Judging from Timmy's previous comments, I'd guess he'd say that there's no difference, but also that both these acts would better be described as abuse than torture. I suppose I'd agree that it's best to be careful with our language and distinguish among "torture", "abuse", and "humiliation", as they're not synonymous.

Whoops, sorry for the inadvertent handle-change there. Got hit with a nasty trojan and had to clean house, thus my browser no longer remembered my personal info, and my own memory doesn't hold up well without electronic support.

kenB, why would a dog deliberately set on to maul a prisoner be "abuse" when the same actions carried out directly by a guard would be "torture"?

Jes, what I was saying (actually, what I was saying that Timmy was probably saying) was that the same actions carried out by a guard would not be torture either.

I think there is a distinction between abuse and torture, although I'm having a hard time pinning down exactly what it is (and certainly to the victim there's little enough difference). To my mind, torture is slow and purposeful, and the quintessential torturer has spent time and effort coming up with methods and devices which will inflict the maximum amount of physical and psychological pain. But I'm prepared to accept that my definition isn't the, uh, definitive one.

Jes, what I was saying (actually, what I was saying that Timmy was probably saying) was that the same actions carried out by a guard would not be torture either.

Well, I guess there's not a lot of point *grin* in the two of us discussing what Timmy was probably saying...

Shall I pre-emptively Karnak you both? ;)

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