Getting Cute

President Bush starts flirting with open advocacy of torture:

When Mr. Bush was asked whether he considered waterboarding illegal, he said he would not discuss specific methods used in the interrogation of suspected terrorists. “It doesn’t make any sense to tell the enemy whether we use those techniques or not,” he said.

“And the techniques we use by highly trained professionals are within the law,” the president said. “That’s what’s important for America to know.”

What doesn't make sense here is the answer. Expressing an opinion on the legality of waterboarding isn't the same as saying whether or not waterboarding is used. And besides which, everybody knows waterboarding is used. But to illustrate the difference, our best understand is that Bush thinks it would be legal for him to order Sean Hannity detained indefinitely and incommunicado without charge, whereupon he'd be subject to torture, and evidence acquired through torturing Hannity could perhaps be used as a justification for wiretapping Rush Limbaugh's phones, but he clearly seems to have decided that he doesn't want to actually do those things.

Comments

Can we dispatch someone to Phnom Penh get a better digital image of that painting?

Posted by southpaw | November 2, 2007 9:25 AM

Beyond that, I'm confused as to how the enemy would be enabled through knowledge of what particular torture techniques the U.S. uses. Could the logic of this be explained? I understand how it doesn't make sense to let them know what surveillance methods are used, but how would knowing what torture methods are used help them?

Posted by John | November 2, 2007 9:28 AM

presumably, The Enemy du jour would learn that we used waterboarding, then send their fighters to be trained in how to resist that kind of torture, just like we do with our soldiers.

Posted by cleek | November 2, 2007 9:31 AM

Exactly. I would think waterboarding becomes somewhat less terrifying if you know you're not going to drown from it. Bush has a point with that, but it's not why he's saying it. It's just an excuse not to admit (incriminatingly) that he's ever allowed it to happen. Unless he's still dumb enough to believe it might still be necessary, of course.

Posted by Bill | November 2, 2007 9:41 AM

If it is true that "everybody knows waterboarding is used", as Matthew claims, then Bush's statement that the techniques we use are "within the law" is in effect a statement that Bush believes that waterboarding is within the law.

Posted by Al | November 2, 2007 9:53 AM

best understand is that Bush thinks it would be legal for him to order Sean Hannity detained indefinitely and incommunicado without charge,

This, of course, is just a flat out lie.

Hannity is an American citizen, and as such is entitled to habeas corpus proceedings.

(And, of course, even non-citizens are given Combatant Status tribunals.)

Posted by Al | November 2, 2007 9:56 AM

If it is true that "everybody knows waterboarding is used", as Matthew claims, then Bush's statement that the techniques we use are "within the law" is in effect a statement that Bush believes that waterboarding is within the law.

If that's what he is saying, he's admitting to a crime that carries a life sentance. If someone screws up and drowns someone it's a capital crime. Nearly every nation on the planet would also be legally barred from extraditing criminals to the United States. That's why you get all the cute "We don't torture" crap.

Posted by Ed Marshall | November 2, 2007 10:00 AM

I would think waterboarding becomes somewhat less terrifying if you know you're not going to drown from it.

Waterboarding isn't just about making somebody think he's going to drown. It's about making somebody feel that he is drowning. Even if you intellectually know your captors are not going to drown you, you still feel like you're drowning. This is why, when American special forces soldiers have been subjected to waterboarding as part of their training, they have been unable to withstand it.

The only reason people like Bush and Mukasey won't admit that the US govt has engaged in waterboarding is that they're worried about legal liability for ordering or committing torture -- not this transparent nonsense about warning our enemies about interrogation techniques. People who know what waterboarding is still can't withstand it when it's done to them.

Posted by Tom | November 2, 2007 10:03 AM

Al is (gulp) correct ... not about the "flat out lie" claim but on the underlying question. Bush, or to be more precise, lawyers in the military, intelligence community, and DOJ, presumably know that, although citizens may indeed be held as enemy combatants, they must be allowed a lawyer and a hearing before an impartial arbiter. See Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

Posted by jason | November 2, 2007 10:10 AM

The issue is moot. Bush whisks people away into secret prisons and doesn't tell anyone about it. If nobody knows where you are (and *if* you are), they're not about to be able to go to a court to ask if the government has them in jail. Habeas corpus requires that the government abide by the rules, and Bush has decided that he needn't play by the rules.

Posted by Jeffrey Davis | November 2, 2007 10:18 AM

Al,From June 9, 2002 to January 3, 2006, Jose Padilla, an American citizen, was held without charges on the orders of George Bush. For the first 21 months of that period, he was held incommunicado.

Posted by Njorl | November 2, 2007 10:30 AM

“It doesn’t make any sense to tell the enemy whether we use those techniques or not,”

Not quite.

It actually makes a lot of sense to make the enemy think you torture. If your enemies think you torture them, when you don't they'll be so relieved (the threat of torture is the invisible bad cop to your good cop ... and, in my limitted experience in a research setting, making someone believe a bad cop exists is highly effective when the cop around turns out to be good), you can catch them off guard and they'll talk.

Moreover, terrorists sign up for martyrdom, maybe, but not for painful torture. Our enemies, contra Bush, are not irrational and unhuman. And their societies, however supportive of terrorists' goals and even methods, are even more human-composed. If some feller gets caught and spills the beans, he'll be treated a lot better if people think he was tortured into it.

Thus, we do have a lot to gain, in terms of interrogation, by making people think we torture even if torture per se is ineffective. However, wars, especially "wars on terror" are often won as much in terms of getting people to like you as anything else. And torture -- even the threat of torture, is bad PR.

Plus, do you really trust that Bush & CO is merely using the threat of torture and not actually torturing? If so, then what's the harm (in fact there would be a benefit) to letting Mukasey say "yeah, waterboarding is torture". If nobody waterboarded, who would get into trouble?

Posted by DAS | November 2, 2007 10:36 AM

This, of course, is just a flat out lie.

Hannity is an American citizen, and as such is entitled to habeas corpus proceedings.

Al might be constitutionally correct, but that doesn't mean George Bush and David Addington necessarily agree with him. Padilla was an American citizen and was subject to the treatment Matt describes. The Bush Administration defended Padilla's treatment at every level of the judicial system, before ultimately dropping the case before it could be fully adjudicated. Thus, in the Administration's eyes, Padilla's treatment was never formally adjudicated as "illegal."

I'm sure the Administration has thought of a variety of ways to distinguish the facts of Padilla from Hamdi - while interpreting Hamdi in the narrowest manner possible. And because Padilla was never formally adjudicated, I assume Addington believes the indefinite detention and torture of certain American citizens remains a legal "gray zone" in which it simply isn't clear what is and is not legal. One of the overriding legal theories in this Administration has been: if you can conduct a given activity without judicial scrutiny, that activity is, by definition, "not illegal." Legally ambiguous, perhaps. But not illegal.

So you are right, Al. Sean Hannity is entitled to habeus corpus protection based on the most recent Supreme Court precedents (Hamdi, etc.). Just because this is true, however, it does not mean that President Bush believes that detaining and torturing Hannity would be illegal. This Administration is not constrained by something as vague as "precedent." They respond only to a specific ruling from the Supreme Court that a specific activity being performed on a specific individual is illegal. Change any detail, no matter how small, and they will argue that it constitutes a new and uncharted situation and that the old precedent does not apply.

Posted by owenz | November 2, 2007 10:38 AM

Waterboarding isn't just about making somebody think he's going to drown. It's about making somebody feel that he is drowning. Even if you intellectually know your captors are not going to drown you, you still feel like you're drowning.

Amplifying that, your body involuntarily and automatically interprets the experience as one of impending death. That triggers a state of absolute, blind physiological panic and terror, regardless of what your mind 'knows.' There is no stronger physiological mechanism than those associated with the drive for self-preservation, and waterboarding exploits that.

Posted by live | November 2, 2007 10:39 AM

Do his affirmations that what we do is within the law ring hollow, like his we wiretap with a judicial order statement from Buffalo in 2003 or 2004?

Posted by MDNY | November 2, 2007 10:58 AM

But to illustrate the difference, our best understand is that Bush thinks it would be legal for him to order Sean Hannity detained indefinitely and incommunicado without charge...

This is getting tiresome. The only group of people who can LEGALLY be held indefinitely and incommunicado are unlawful enemy combatants -- subsequent to a military tribunal finding that they are, in fact, unlawful enemy combatants.

It's one thing to say that Bush doesn't care about the law, or that Bush thinks, like Judge Dredd, that he is the law, or that Bush thinks he's above the law. Those contentions are immanently arguable based on the actions of this administration. But to say that Bush, with his army of lawyers, hasn't assimilated the recent holdings on this subject into his understanding of what is legal is false. Simply, utterly false. In fact, it's so easy to prove that it is false, that in fact Justice and Defense have been forced to adjust their approach to detainees, and that these adjustments are public domain, discoverable, and clear -- well, to continue to say otherwise, to assert over and over that Bush believes it is still legal to detain American citizens indefinitely and incommunicado, or to say that unless we do something it actually is still legal to do this...

Dishonest or lazy, I can't tell which. But it's clearly one or the other, or both. I understand Matt didn't go to law school, but come on.

Posted by JA | November 2, 2007 11:27 AM

DAS is wrong. He says, "It actually makes a lot of sense to make the enemy think you torture."

It makes sense for the enemy to know that he will be treated fairly. Fair treatment (i) encourages people to approach U.S. authorities with information, turn themselves in, not fear capture, etc.; and (ii) shows that the U.S. is a beacon of justice and freedom. These are what we want the enemy to know.

Posted by John H. | November 2, 2007 11:29 AM

Yes, it makes sense to make your enemy think you torture if your goal is to encourage your enemy to fight to the death in every encounter out of fear that surrender will be worse.

Posted by KCinDC | November 2, 2007 11:41 AM

“And the techniques we use by highly trained professionals are within the law,” the president said. “That’s what’s important for America to know.”

Why do I suspect what Bush really means is "That's all what America needs to know"?

Meaning: Oversight, checks and balances etc. are a waste of time and campacities. Trust us.

Posted by Patrick | November 2, 2007 11:44 AM

And in point of fact, it is not clear what the legal status is of waterboarding an unlawful enemy combatant, with the objective of gaining actionable intel (as opposed to, say, punishment or sadism).

Under the Geneva Conventions we could simply shoot them as spies, or hang them as war criminals, and American Constitutional Law doesn't protect them at all (yet). It's not clear to me why taking their lives is okay but causing them mental, impermanent anguish is somehow beyond the pale.

This sounds harsh, and maybe it is, but a President is well within his rights to do this. A finding of "Unlawful Enemy Combatant" is simply, a finding of 'zero value', a finding that this particular person has forfeited all rights, protections and considerations from the civilized and law abiding. If you don't like this, if you think all human life has inherent value and that due process is an inalienable right without borders, call your congressman and get them to revise the law. Get angry, and get active.

But please, for the love of God, stop using ridiculous, impossible hypotheticals to make your point. It's the worst kind of scare tactic: hyperbolic, rabble-rousing, untrue -- and unbecoming of the ostensibly educated, self-described reality-based community.

Posted by JA | November 2, 2007 11:47 AM

Well, one thing is for sure JA hasn't read the Geneva Conventions and is talking out of his @ss.

Posted by novakant | November 2, 2007 12:17 PM

Waterboarding also doesn't leave marks. When you attempt to breathe through the watered skein over your face, the capillaries in your lungs burst. You don't have a visible mark on you, but you're at risk of dying by drowning in the fluids your body is pouring into your lungs. Or, if your torturers stop short, of pneumonia due to the damaged state of your lungs. Not a visible mark, but terrible pain and an increased risk of death in the coming days and weeks.

Posted by Jeffrey Davis | November 2, 2007 12:24 PM

If you don't like this, if you think all human life has inherent value and that due process is an inalienable right without borders, call your congressman and get them to revise the law.

The value of revising yet another law that Bush will ignore is what? Nothing.

Write your congressman and called for Bush's impeachment. He's disgraced our country for far too long.

Posted by Jeffrey Davis | November 2, 2007 12:27 PM

Matt says:"Expressing an opinion on the legality of waterboarding isn't the same as saying whether or not waterboarding is used."

But in a sense it is, if one also asserts, as Bush does, that every interrogation technique we use is legal. For in that case, saying that waterboarding is illegal commits him to saying that it is not one of our interrogation techniques.

However, Bush may say that waterboarding is *legal* without implying anything about whether we use waterboarding.

So I guess we can infer that according to Bush, waterboarding is illegal. For those are the only circumstances under which Bush's expressing his opinion on the legality of waterboarding would tell us something about what interrogation techniques we use.

For some reason I feel that we've reached the wrong conclusion, even though the reasoning seems impeccable...

So in the end Matt is right: not wanting to say (or imply) what techniques are used is not his real motivation for declining to say whether or not he thinks waterboarding is legal (for if it were, we could infer that Bush thinks that waterboarding is illegal, which is, presumably, false).

Posted by ari | November 2, 2007 1:25 PM

If that's what he is saying, he's admitting to a crime that carries a life sentance. If someone screws up and drowns someone it's a capital crime. Nearly every nation on the planet would also be legally barred from extraditing criminals to the United States. That's why you get all the cute "We don't torture" crap.
Posted by Ed Marshall

Like so many Lefties, you confuse crime with war. Interrogating a peson outside war without their lawyer present if asked is a crime. Denying a person outside war a chance to evol the 5th is a crime. Searching a citizens home w/o warrant is a crime. Killing someone without a trial, appeals process, and a death warrant signed by a judge is a crime.

Not so in war, and Lefty insistance that it is "just the same" only shows how mind-numbingly stupid the Left is.

In war, "no lawyers" are the custom. You kill the enemy w/o trial or preferably maim them with a wound that takes several combatants out of action that have to care for the maimed soldier. No "5th" exists, no "4th exists", no enemy freedom of speech, right to habeas or trial by jury exists outside Justice Stevens bizarre world that we are not "really in a war" because AQ and other radical Islamists are not fighting in a "international scope".

Presidents can sign orders to kill and maim enemy. Soldiers in the field can be ordered to kill or maim enemy if trying to take them prisoner is too risky or troublesome to the mission to allow granting Quarter. And granting Quarter may be withdrawn completely from compaigns or battles if the enemy has previously not granted Quarter and humane treatment to people on your side of a war.

But - Ed Marshall - not orders to make enemy "uncomfortable and stressed????".

Would you rather be in a cold cell to being kept without sleep for 3 days?

Waterboarded vs. having your guts scrambled the rest of your life by a AK-47 or M-16 bullet designed to tumble?

Lose a limb or two to shrapnel vs. being killed without mercy?

War sucks. Try one and you'll see. I'd rather be kept in otherwise cozy GITMO room and board than spend a year in lethal 2004-2006 Iraq. I'd take interrogations without real torture and a cold cell over what the Japanese, Chinese, Confederates, Vietnamese, Soviets, NORKs, or radical Islamists do. I'd rather be waterboarded than killed or maimed as I helped to to a pile of Iraqis in the Gulf War.

Unlawful terrorist combatants are barely covered under Geneva and Hague meant for lawful soldiers and innocent civilians. And get very, very few "rights"...they may even be executed w/o trial if need be. Their legal status under the UN Convention on Torture is also something that will be challenges on - as will be the highly subjective embrace of anything that distresses the prisoner as "torture" and anything of the prohibited "humiliation" measures that include the "shame" of being guarded or interrogated by a female, filthy infidels handling Qu'rans without gloves on?

****************
Under the Geneva Conventions we could simply shoot them as spies, or hang them as war criminals, and American Constitutional Law doesn't protect them at all (yet). It's not clear to me why taking their lives is okay but causing them mental, impermanent anguish is somehow beyond the pale.
This sounds harsh, and maybe it is, but a President is well within his rights to do this. A finding of "Unlawful Enemy Combatant" is simply, a finding of 'zero value', a finding that this particular person has forfeited all rights, protections and considerations from the civilized and law abiding. If you don't like this, if you think all human life has inherent value and that due process is an inalienable right without borders, call your congressman and get them to revise the law

Absolutely correct, JA.

Well, one thing is for sure JA hasn't read the Geneva Conventions and is talking out of his @ss.Posted by novakant

He has read Geneva, you stupid Lefty troll. You haven't.

Posted by Chris Ford | November 2, 2007 6:56 PM

And, speaking of Iraq, Michael Yon reports that the Sunni tribes in Baghdad have joined the war against Al Qaeda and that the tribes say that AQ has been killed off in most Baghdad areas, with survivors lucky if the are captured by Americans.

That leaves Dyaliah Provence and a few villages around Mosul where AQ is clinging on. That tribal leaders in Baghdad and Al Anbar say it will only take a few more months to finish the job. Also, the Mahdi Army has begun deal-making, and returning captured Sunnis rather than just drill holes in them with power tools.

This was bin Laden and al Zawahiri's Central Front. It appeared to have collapsed as AQ is being routed and filling up jails for eager, eager Jordanian, Saudi, American, Iraqi interrogators.

There also is early indication - too soon for Petraeus to say it is indeed a real trend - that Iran seems to have abated it's rush of weapons into Iraq to kill Americans, though they are still arming the Hez and Hamas terrorist networks. That Lieberman-Kyl Resolution Hillary signed may have had an effect, along with some captured Iraqi sympathizers of Iran, for some reason, now squealing like pigs on who was bringing in Iranian bombs and rockets..

Posted by Chris Ford | November 2, 2007 7:30 PM

Chris Ford,

You might find this of interest: The Longest Morning: Ambush in Samarra. Matt might also find it interesting too, since it gives an example of the successful use of air power in counterinsurgency.

Posted by Fred | November 2, 2007 8:23 PM

Chris: "He has read Geneva, you stupid Lefty troll. You haven't."

Neither have you, you stupid meocon troll.

Not even the several times I've quoted it extensively in previous threads, apparently.

Who ghost-writes your posts, since you evidently can't read English?

Posted by Richard Steven Hack | November 3, 2007 12:08 AM

Read it and weep, Chris:

Protocol I Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977

3. This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions.

4. The situations referred to in the preceding paragraph include armed conflicts which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations

Section II. Combatants and Prisoners of War
Art. 43. Armed forces

1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct or its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.

2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.

3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.

[In other words, these really ought to apply to any of the Taliban caught in Afghanistan or any insurgents caught in Iraq, since they clearly are either former governments, organizations with a command structure fighting against colonialism, or insurgencies against foreign occupation. - RSH]

Art. 44. Combatants and prisoners of war

1. Any combatant, as defined in Article 43, who falls into the power of an adverse Party shall be a prisoner of war.

2. While all combatants are obliged to comply with the rules of international law applicable in armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war, except as provided in paragraphs 3 and 4.

[In other words, just because your crowd tortures somebody, no, you aren't allowed to be tortured. RSH]

3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:

(a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.

Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 (c).

[Meaning any member of the Taliban or Iraqi insurgencies who carry their arms openly during an attack are combatants. - RSH]

4. A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed.

[In other words, despite NOT being a "prisoner of war", you STILL are supposed to be treated equivalently in terms of the Conventions. - RSH]

5. Any combatant who falls into the power of an adverse Party while not engaged in an attack or in a military operation preparatory to an attack shall not forfeit his rights to be a combatant and a prisoner of war by virtue of his prior activities .

6. This Article is without prejudice to the right of any person to be a prisoner of war pursuant to Article 4 of the Third Convention.

7. This Article is not intended to change the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict.

Part III. Methods and Means of Warfare Combatant and Prisoners of War

Section I. Methods and Means of Warfare
Art. 35. Basic rules

1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.

2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.

3. It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.

Art. 36. New weapons

In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.

[In other words, no, you can't just "maim" people without good reason. "Wounding" is allowed. Burning them with napalm or other incendiary weapons - as the US did in Fallujah - is not allowed. - RSH]

Tough noogies, Chris.

Posted by Richard Steven Hack | November 3, 2007 12:48 AM

How stupid is this Hack?

Plenty.

The US and several other nations never signed the Protocol (1977). We are not bound by it. You never checked on that, did you, con-man?

Others that did sign it noted reservations and exceptions big enough to drive nerve gas warfare and mass torture and execution of enemy soldiers and civilians through the "reservations and exceptions" wiggle hole they created. (Iraq).

Most of the signers rejected the unilateral compliance the idealistic NGO and UN staff drafters added - saying they would comply only if there was reciprocity.

**************************
For the future, there is growing consensus that Geneva must begin to address the question of what "Rights" are to be accorded to transnational terrorists, if any....plus internal terrorists aiding a foreign foe...in addition to existing rules protecting insurgents and lawful soldiers of a nation.

The matter of reciprocity also has to be reviewed - given the perverse incentives of dispensing with Hague and Geneva rules with no punishment only encourages further terrorist brutality towards civilians and lawful combatants.

Posted by Chris Ford | November 3, 2007 5:02 AM

Chrish Fraud, competing with his insane teacher Steve Sailer for the most degenerate poster ever.

Posted by Jennifer | November 3, 2007 9:12 AM

I'm not aware of any connection between Ford and Sailer and suspect that Sailer is opposed to waterboarding. He's certainly opposed to the war in Iraq.

Posted by James Kabala | November 3, 2007 10:07 AM