« Wow | Main | Grand New Party » Torture: It's Wrong25 Jun 2008 10:42 am NYT: "A bipartisan group of 200 former government officials, retired generals and religious leaders plans to issue a statement on Wednesday calling for a presidential order to outlaw some interrogation and detention practices used by the Bush administration over the last six years." Yes it seems that the Genghis Khan view of the matter is gaining popularity vis-à-vis the Bush position. John McCain, meanwhile, is kinda sorta against torture unless the CIA does it in which case it's fine. Comments (123)
Be more cool and objective. Your emotions cloud your ability to make reasonable and rational points. 
That's less than fair. McCain's anti-torture record is pretty good. He caved on the CIA in that bill because it was the only way to get it through. Someone who often makes the case for realistic, passable legislation instead of what-would-be-coolest should appreciate that.
Attached is a link to a related story. http://scienceblogs.com/dispatches/2008/06/retired_general_bush_administr.php#more The retired general who wrote the report concluded that war crime charges were warrented against high government officials who ordered these activities. We will see the back of our own ears before that happens.
Be more cool and objective. Your emotions cloud your ability to make reasonable and rational points. Becasue we should all be cool and objective about the government of the United States, which represents all of us, committing vile crimes in our names. Yes, each and every American citizen has been dishonored by the torture policies of our government, but we need to be cool about it. Previous generations sacrificed their lives and fortunes (but not their honor) in the struggle against torturers, but the present government of the United States spits in the eyes of the heros of Normandy, Midway, the Ardennes and Guadalcanal--and for what? For mere cowardice and political advantage! But heaven forbid we should get upset about it.
Routine cheap shot, Matt. McCain is against torture. Almost everybody who counts is against torture. We don't condone, or conduct, torture as an official policy--never have, never will.
Here's another link to an article by Andrew Sullivan relative to an email he received from a marine in Iraq. http://andrewsullivan.theatlantic.com/the_daily_dish/2008/06/torture-in-iraq.html Here's a money paragraph from the article. "You see, he did a no-notice walk thru inspection of one of the Iraqi's barracks and found a poor fellow hanging by his feet from the ceiling. The Iraqi soldiers were whipping his soles and heels trying to get him to turn in his neighbors for being, or helping, insurgents. Well, after a few minutes of this, he was giving up his whole neighborhood. Was it true? Who knows?" As I have previously stated, torture to obtain information is ineffective unless there is corroboration. This is particularly true if it turns out that the victim doesn't have the information desired, in which case he/she will say anything to get the treatment to stop. Bad information usually turns out to be worse then no information.
We don't condone, or conduct, torture as an official policy--never have, never will. Because we change the definition of "torture" so that it doesn't include what we want to do. I propose we waterboard Mr. Powell until he acknowledges that torture has been carried out by official US government policy . . .
Great! Now, "presidential orders" can "outlaw" something. That sure is progress, against creeping authoritarianism.
There is no clear definition of torture in either U.S. or international law. Until there is, no ban on torture will be very effective. In the ticking time bomb scenario, we almost certainly would use torture. No law in the world would stop us.
"Routine cheap shot, Matt. McCain is against torture. Almost everybody who counts is against torture. We don't condone, or conduct, torture as an official policy--never have, never will." Have you missed the past seven years? The only way we can say we don't torture is by redefining torture in such way that it has never occurred in history. Under our new definition, the Khmer Rouge never tortured anyone. Nor did the Spanish Inquisition. As for McCain being against torture, that's just silly. McCain's policy is to pay lip service against torture and then vote for it. At least McCain hasn't claimed he was tortured recently. It would be hard for him to do so given that he voted to legalize the treatment he received. If McCain opposes torture, it's only when he's on the receiving end of it.
There is no clear definition of torture in either U.S. or international law. Until there is, no ban on torture will be very effective. False and a lie. There are clear and precise definitions of torture in both areas of law. See, e.g., the definition of torture in international law: U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 1: 1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. And in American law: Federal Anti-Torture Statute, 18 USC Sec. 2340A. 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;
"The only way we can say we don't torture is by redefining torture in such way that it has never occurred in history" Oops, that's not quite correct. Progressive amputation would be illegal under the Military Commissions Act. Only the South Vietnamese used that technique, and it was done with our tacit approval. So we essentially have defined torture in such a way that only we and the South Vietnamese have ever done it. But the Nazis, the Khmer Rouge and Soviets are off the hook. Feels good, doesn't it?
See also 1985 Inter-American Convention to Prevent and Punish Torture. Article 2. For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.
Stefan, quoting: For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person How severe does the suffering have to be to qualify as torture, Stefan? How do you measure that? How are courts to decide whether a particular level of intentionally inflicted suffering is "severe" or "non-severe?" It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. So if we pass a law stating that waterboarding is a "lawful sanction," then it's not torture when used in that way. Is that it?
TRAINZ AND PPL IZ TORTUR! DO NOT WANT!
How severe does the suffering have to be to qualify as torture, Stefan? How do you measure that? How are courts to decide whether a particular level of intentionally inflicted suffering is "severe" or "non-severe?" Common sense and legal precedent would seem sufficient. It's not as if there isn't a well-developed judicial history here. We can, for example, look to the Nuremberg trials, or to the US trials of Japanese war criminals for their tort...excuse me, their enhanced interrogation of American soldiers during WWII. How about this test: if it was done to an American POW held by a foreign power, would it bother you? If, say, an American POW was stripped naked, had his genitals sliced with a razor, was forcibly drowned until he almost died, suffering permanent damage to the lungs, and was chained by his arms to the ceiling for days on ends until he developed permanent nerve damage, would that be severe? If he was repeatedly beaten on the legs until they were reduced to a bloody, pulpy mass with every bone broken, would that be severe?
"So if we pass a law stating that waterboarding is a "lawful sanction," then it's not torture when used in that way. Is that it?" Wrong. When we sign treaties, they become the law of the land (it's in our Constitution, look it up). We are bound by the Geneva Conventions if we sign up to it. We could remove ourselves from that treaty if we wanted to, but it would take an official act of Congress to do so. But it sure wouldn't look good, would it? It would be honest, however.
So if we pass a law stating that waterboarding is a "lawful sanction," then it's not torture when used in that way. Is that it?" Why stop there? Why not also legalize rape as a legal sanction? Or chopping off the criminal's hands? Or stoning to death? In fact, why not go all the way and just adopt Sharia law?
Stefan, Common sense and legal precedent would seem sufficient. Whose "common sense?" Whose "legal precedent?" There is obviously a huge diversity of opinion and a huge variety of precedents regarding acceptable interrogation and punishment practises. But the definitions you quoted don't even mention "common sense" or "legal precedent" anwyay. They define torture in terms of "severe" suffering, not in terms of precedents or "common sense," so the fundamental question is what "severe" means in this context. How about this test: if it was done to an American POW held by a foreign power, would it bother you? Brilliant. There's a clear legal line: Does it "bother me." Of course, even if any clear legal sense could be given to the question "Would it bother you?" it's irrelevant. I personally might be "bothered" by the infliction of even a "non-severe" amount of suffering on someone if I thought it were unjust, but that wouldn't make it torture under the definitions you quoted. The fact that you find yourself appealing to terminally vague standards like "common sense" and being "bothered" by something in your attempt to come up with a clear definition of torture is a clear illustration of the inherently ambiguous nature of the concept.
There is no clear definition of torture in either U.S. or international law. Until there is, no ban on torture will be very effective. Mixner, stick to transportation. FYI, I've litigated torture cases. And at no time did the defendants even ARGUE that the definition was too vague to be enforced. In fact, there are decades of US and international caselaw on the definition of torture. Further, a defendant in the first case brought under the US criminal torture statute made a void-for-vagueness challenge to the statute, and it was rejected by the District Court, which specifically held that the statute was enacted to bring the US in compliance with the Convention Against Torture and that international law definitions of torture were sufficiently clear to give a reasonable person notice of what was prohibited. Just because the right wing talk show hosts you listen to tell you that torture has no definition doesn't mean it is true. They lie to you Mixner, and you need to learn to check things out (or listen to some experts) before believing them.
This is anecdotal, but it might offer some insight. My father's best friend was a man who had fought for the Nazis during the second world war. It wasn't his choice, he was forced to join the army when he was 14 years old. And he readily admitted that he was a very poor soldier. Fortunately for him, he was quickly captured by the Americans. And he was treated very well. So well that he left his country when he was 16 years old and moved to America. He got an engineering degree and became what my father considered to be one of the best engineers ever. And very few people could ever earn my father's respect as an engineer. I got a chance to ask him why he did it. He said that if a country could treat it's POW's so well, it must be a great country, and it deserves the support of the entire world. And he would do anything to support such a country. So he did. And he did it damn well. Maybe we should consider that.
Whose "legal precedent?" Umm, American legal precedent. Unless you'd prefer Saudi Arabian, Nazi German, or Soviet Russian legal precedent, which it seems you might.
dilan esper, FYI, I've litigated torture cases. And at no time did the defendants even ARGUE that the definition was too vague to be enforced. In fact, there are decades of US and international caselaw on the definition of torture. Great. So please state the clear definition of torture that these decades of case law have yielded. Further, a defendant in the first case brought under the US criminal torture statute made a void-for-vagueness challenge to the statute, and it was rejected by the District Court, which specifically held that the statute was enacted to bring the US in compliance with the Convention Against Torture and that international law definitions of torture were sufficiently clear to give a reasonable person notice of what was prohibited. So what is prohibited? If you deprive your suspect of sleep for a day, is that torture? Two days? A week? If you subject him to conditions of abnormal cold or heat, is that torture? How cold? How hot? How long must he be exposed to these conditions for the action to qualify as torture? If you slap him lightly across the face one time, is that torture? How about a hard slap? Repeated slaps? At what point do any of these actions, or the countless others that can be used to inflict various types and degrees of suffering on an uncooperative prisoner, cross the line from legitimate interrogation techniques to torture? Since you assure us there is no ambiguity and that this has all been worked out in case law, you should have no trouble answering these questions.
There is obviously a huge diversity of opinion and a huge variety of precedents regarding acceptable interrogation and punishment practises.Whose "legal precedent?" There is a huge diversity of opinion and a huge variety of precedents regarding acceptable interrogation and punishment practises the same way that there is a huge diversity of opinion and a variety of precedents regarding what is considered rape. That is, there's 95% of the world that knows what is and isn't evil and then there's 5% of perverts who get a sick thrill from it.
Mixner: United States v. Emmanuel, 2007 US 2002452 (S.D. Fla. July 7), upholding the Torture Act against a vagueness challenge. As for what's prohibited, here are some representative cases that I compiled for another person who, like you, was repeating the right-wing lie that torture is impossible to define: Battering a person with a hammer (http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/10/24/BABADIGEST3.DTL&feed=rss.bayarea) Stripping a person nude and tying her to a post (see Abebe-Jira v. Negewo, 11th Circuit, 1995) Sustained beating, electric shocks, tying people up, and long-term stress positions (see Simpson v. Lybia, D.C. Circuit, 2003) Brutal rape, forced impregnation, and forced prostitution (Kadic v. Karadzic, 2nd Circuit, 1995) In contrast, using dangerous herbicides does not constitute torture. (Arias v. Dyncorp, D.C. Circuit, 2007). Note, those are just US cases under our laws against torture. There is also plenty of international law on this subject; I suggest you consult an international human rights law treatise and you will see a series of cases going back to Nuremburg. Finally, I would note that many criminal statutes contain the sort of broad language that the Torture Act and Torture Convention contain. For instance, murder is often defined as the intentional killing of a person with "malice aforethought". Disorderly conduct statutes are famously broad. The way our legal system works is that with respect to malum in se (traditionally prohibited) crimes (including torture, a form of aggravated assault), it is left to courts to determine the details of what is prohibited and what isn't. We do this precisely so that bad actors won't try to rely on legal technicalities to declare their conduct legal, as can happen if you have a very specific statute that enumerates certain prohibited activities. This is criminal law 101, and every law student learns it in his or her first year of law school. For the Bush Administration and its defenders to pretend it doesn't exist is shameful.
... captured by the Americans. And he was treated very well... He said that if a country could treat it's POW's so well, it must be a great country... Ditto for my dad (German navy, WWII, captured by French, later given to Americans). My uncle Paul, captured by the Russians, didn't emigrate to the Soviet Union after the war. Might have had something to do with not being released until 1950--perhaps the Soviets were having trouble getting their military commissions running. Or maybe he resented the "stress positions" that left him pretty much broken. We visited a little town in Germany years and years after the war. The mayor came to greet us, had a little ceremony, so fond were they of the Americans. And my mother - seven when the war started - credits American aid with saving her family from starvation. Mixner and his heroes will never realize what they've thrown away. I wish to hell the adults were in charge, not these... children, these incompetent, impulsive, *stupid* people.
So what is prohibited? The simplest way to find this out, of course, is to arrest and try the Bush regime torturers, either under US law by the Obama Justice Department, or under an international war crimes tribunal in the Hague. A criminal trial would be a very effective way to determine if the actions they engaged in did or did not meet the legal definition of torture.
Dilan Esper, None of the examples you list answers my questions about slapping, sleep deprivation and exposure to heat or cold. The only one that seems even remotely relevant is the case that held "sustained beating" to be torture. And even that is obviously not clear. The qualification "sustained" implies that beating that is not sustained does not qualify as torture. So how long does the beating have to go on for to rise to the level of torture? 30 seconds? A minute? Five minutes? More? How is the answer to this question "clear" to all "reasonable" people? Why can't reasonable people disagree over whether, say, 30 seconds of beating should be considered torture?
Federal law defines "murder" as "the unlawful killing of a human being with malice aforethought." See 18 USC 1111. Which such a vague definition, obviously there is no point to trying to outlaw murder. Of course the truth is that Mixner doesn't understand the basic concepts of U.S. law well enough to participate meaningfully in this discussion. By the way, a law that attempted to impose waterboarding as a sanction would violate the 8th Amendment. Hence, waterboarding cannot be a lawful sanction in the United States.
To back up Dilan's cite of Emanuel, here's a more detaild excerpt from that decision (bolding mine): Defendant argues that the Torture Act, 18 U.S.C. §§ 2340-2340A, does not give fair warning of what is outlawed, is void for vagueness, and therefore violates the Due Process Clause of the Fifth Amendment. Specifically, Defendant maintains that the definitions of “torture” and “severe mental pain or suffering,” and the various terms used in those definitions, such as “acting under the color of law,” and “incidental to lawful sanction,” included in the Torture Act, 18 U.S.C. § 2340, do “not provide the kind of notice that will allow ordinary people to understand what conduct is prohibited.” The Torture Statute, enacted to fulfill the United States' treaty obligations with most of the countries of the world, certainly put the Defendant, a person born in the United States, on notice of conduct prohibited not only in this country, but in much of the civilized world. U.S. v. Emmanuel, 2007 WL 2002452 (S.D. Fla. July 5).
dilan esper, The way our legal system works is that with respect to malum in se (traditionally prohibited) crimes (including torture, a form of aggravated assault), it is left to courts to determine the details of what is prohibited and what isn't. So your own beliefs about what is and is not torture are determined by the courts, are they? So if the Supreme Court were to rule that, say, waterboarding is not torture, you'd agree that it's not torture, would you? You wouldn't instead argue that the Supreme Court had erred and that the case was wrongly decided?
Why can't reasonable people disagree over whether, say, 30 seconds of beating should be considered torture? And why can't reasonable people disagree over whether, say, 30 seconds of forced sexual penetration is considered rape....? As Dilan explained above, and as you are obviously too dense (or disingenous to understand) these are fact questions, to be determined at trial. If you want to be beat someone for 30 seconds, you take your chances at trial that that beating will be considered not only assault, but also torture, and hence subject to aggravated penalties.
Why can't reasonable people disagree over whether, say, 30 seconds of beating should be considered torture? And why can't reasonable people disagree over whether, say, 30 seconds of forced sexual penetration is considered rape....? As Dilan explained above, and as you are obviously too dense (or disingenous to understand) these are fact questions, to be determined at trial. If you want to beat someone for 30 seconds, you take your chances at trial that that beating will be considered and prosecuted not only as assault, but also as torture, and hence subject to aggravated penalties. But you cannot claim as a defense that you did not have sufficient warning of what was and was not prohibited.
Why can't reasonable people disagree over whether, say, 30 seconds of beating should be considered torture? And why can't reasonable people disagree over whether, say, 30 seconds of forced sexual penetration is considered rape....? As Dilan explained above, and as you are obviously too dense (or disingenous to understand) these are fact questions, to be determined at trial. If you want to beat someone for 30 seconds, you take your chances at trial that that beating will be considered and prosecuted not only as assault, but also as torture, and hence subject to aggravated penalties. But you cannot claim as a defense that you did not have sufficient warning of what was and was not prohibited.
Re Mixner I have a very simple question for Mr. Mixner. Is waterboarding torture. That's a yes or a no.
DTM, By the way, a law that attempted to impose waterboarding as a sanction would violate the 8th Amendment. Hence, waterboarding cannot be a lawful sanction in the United States. The Supreme Court has ruled that waterboarding as a sanction would violate the 8th Amendment? What case was that?
There's a lot of dust-in-the-eyes verbiage here. Waterboarding is torture. It's not only extremely painful, it produces long lasting damage to the lungs and creates a terribly dangerous environment in the lungs for pneumonia and other life-threatening infections. Getting dunked into water isn't waterboarding any more than getting a static electricity shock when getting out of your car is getting Tasered.
What's great is that Mixner is acting as if these cases only exist in the abstract. Like as if there was someone whom we brought in, beat for precisely 30 seconds, then released without doing anything else to. Or that we really even need to establish some sort of precise standard like that (Hmm, it says here that I may not beat my detainee for a minute or more, nor administer electrical current to the genitals. Very well, then, 59 seconds of beating and electric shocks to the upper thighs! Perfectly legal and moral!) The fact of the matter is that there are actual cases that are far worse than the bizarrely isolated hypotheticals Mixner is proposing. Why don't you actually use a real detainee's case (just browse Sullivan's blog and you'll find a bunch) and tell me that the definition of torture is too vague to be meaningful. And then hang your head in shame. You and your buddies have destroyed America's reputation; I hope you're happy.
Mixner, Again, you obviously don't have even a rudimentary understanding of our legal system.
stefan, As Dilan explained above, and as you are obviously too dense (or disingenous to understand) these are fact questions, to be determined at trial. No, Dylan did not claim they are "fact questions." Which isn't terribly surprising, since they are obviously questions of the interpretation of a statute, not questions of fact. You do know the difference between a question of fact and a question of law, don't you? Most of your comments here are similarly confused and/or irrelevant.
DTM, Again, you obviously don't have even a rudimentary understanding of our legal system. Sorry, you're evading the question, as usual. You asserted that waterboarding as a sanction would violate the 8th Amendment. Where did the Supreme Court make that determination? Cite the case.
Re Mixner Once again Mr. Mixner, is waterboarding torture. Yes or no.
SLC, In general, I don't think so, no. Now answer my questions: If you deprive a prisoner of sleep for a day, is that torture? Two days? A week? If you subject him to conditions of abnormal cold or heat, is that torture? How cold? How hot? How long must he be exposed to these conditions for the action to qualify as torture? If you slap him lightly across the face one time, is that torture? How about a hard slap? Repeated slaps? At what point do any of these actions, or the countless others that can be used to inflict various types and degrees of suffering on an uncooperative prisoner, cross the line from legitimate interrogation techniques to torture?
Mixner, Here is your one and only lesson on American law from me: The Constitution exists independent of the Supreme Court. So, an unconstitutional law is not unconstitutional just at the point the Supreme Court says it is, but rather it was always unconstitutional. And in fact the Supreme Court need never speak on a particular law. For example, a U.S. District Court can declare a law unconstitutional. For that matter, a state court can also declare a state law invalid under the U.S. Constitution. Again, all that is true because the Constitution itself exists independent of the Supreme Court.
(C) the threat of imminent death; or Mixner- Do you really believe that drowning someone, as waterboarding does, provides no threat of imminent death or threat of being imminently subjected to death? That strikes me as exactly what waterboarding is intended to do. This isn't a case of "how hard is the slap," is it?
None of the examples you list answers my questions about slapping, sleep deprivation and exposure to heat or cold. Mixner: Slapping isn't torture unless it's prolonged. Sustained sleep deprivation or induced hypothermia is torture. Waterboarding (a form of mock execution) definitely is. I agree with you that there is some gray area along the edges as to what constitutes "sustained" sleep deprivation. (Induced hypothermia is actually pretty clear-- because that's very different than simply being exposed to cold.) The sleep deprivation cases tend to be situations where a person was prevented from sleeping for days. But saying there is some ambiguity along the eldges is hardly the same thing as saying there isn't any definition of torture at all.
If you... I think you can use the US standard to make some pretty clear arguments for each of these cases. ...deprive a prisoner of sleep for a day, is that torture? Two days? A week? Further, if the idea of the sleep deprivation is to "weaken" people and make them behave as they otherwise might not, then really one is admitting that they are trying to torture someone (by the above definition), and we are really only arguing about what point we can say they have succeeded.
From Emedicine That seems like a good place to start. How long must he be exposed to these conditions for the action to qualify as torture? Long enough for the person to credibly believe that you will continue doing it resulting in their death? Yes, this will be different for everybody and arguable in some cases, but this doesn't seem profoundly different than other laws against things like intimidation, etc. If you slap him lightly across the face one time, is that torture? No. How about a hard slap? Repeated slaps? At what point do any of these actions, or the countless others that can be used to inflict various types and degrees of suffering on an uncooperative prisoner, cross the line from legitimate interrogation techniques to torture? Pretty much at the point where it can convincingly be argued that you intend to cause them prolonged suffering, or that they believe you do. Just because you can't always count the number of licks to get to the center of the Tootsie Pop, that doesn't mean you don't eventually get there. All of that said, waterboarding is different in kind than all of those techniques. It is more akin to pointing a gun at someone, telling them that you will shoot them unless they talk, and never mentioning that the gun isn't loaded.
(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; Note that prisoners in Guantanamo and elsewhere have been subject to prolonged solitary confinement and sensory deprivation. Techniques employed for precisely this effect. That seems like a slam dunk case. (Lest someone try to minimize this, let me say that solitary confinement and sensory deprivation are no joke. The damage is long lasting, maybe permanent, every bit as serious as the worst physical torture. Maybe worse. After all, if you amputate my fingers, at least I may still be more or less myself.)
DTM, The Constitution exists independent of the Supreme Court. So, an unconstitutional law is not unconstitutional just at the point the Supreme Court says it is, but rather it was always unconstitutional. How do you know that waterboarding for sanction is unconstitutional unless the Supreme Court has said so?
TRANES HAS MORE FAIL THAN WATERBORDS.
I just want to underscore one point made above. Defenders of torture like to argue on the practical side that it has worked to break hardened enemies of the United States. But on the moral and legal side, they like to argue that it is all just fraternity hijinks. Of course this is contradictory--if you are causing a hardened enemy of the United States enough suffering that you break them psychologically, you are necessarily torturing them. All this should be obvious, and I suspect it is indeed obvious even to the defenders of torture. Rather, while they know deep down we have been torturing people, they simply don't mind that fact. What they mind is people trying to stop the torture, or to hold the people who tortured responsible for their crimes, and so for those limited purposes they try to downplay what has been done.
You asserted that waterboarding as a sanction would violate the 8th Amendment. Where did the Supreme Court make that determination? Cite the case. You don't need a case, since we have the clear language of the 10th Amendment (not the 8th) to the U.S. Constitution, which states: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Sustained forced drowning of a bound and helpless prisoner for the purpose of causing that prisoner to obey you is without doubt cruel and unusual punishment (unless you're a Republican Congressman, in which case it's probably your idea of a fun night out with the young male pages).
dilan esper, Slapping isn't torture unless it's prolonged. Sustained sleep deprivation or induced hypothermia is torture. Waterboarding (a form of mock execution) definitely is. How do you know waterboarding is "definitely" torture? How "prolonged" does slapping have to be to qualify as torture? And what about exposure to cold temperatures that is almost, but not quite, sufficient to induce hypothermia? Is that torture? I agree with you that there is some gray area along the edges as to what constitutes "sustained" sleep deprivation. Then you're agreeing with me that the definition of torture is not clear. And it's unclear not just with respect to sleep deprivation, but for all sorts of other actions that inflict different types and levels of suffering. But saying there is some ambiguity along the eldges is hardly the same thing as saying there isn't any definition of torture at all. You do love your strawman arguments, don't you? I did not say there is no definition "at all." I said: "There is no clear definition of torture in either U.S. or international law." And that until there is a clear definition, no ban on torture will be very effective.
Adam Villani, What's great is that Mixner is acting as if these cases only exist in the abstract. Like as if there was someone whom we brought in, beat for precisely 30 seconds, then released without doing anything else to. Or that we really even need to establish some sort of precise standard like that Of course we need to establish a precise standard. Otherwise it would be impossible to apply the law justly. You are very naive if you don't believe there are police and military interrogators willing to use any and every legal interrogation method at their disposal to extract information from their prisoners. You are very naive if you don't believe there are bleeding-heart lawyers who would like to prosecute any interrogator who just barely crosses the line between lawful interrogation and torture. This is precisely why clear legal standards are required.
But saying there is some ambiguity along the eldges is hardly the same thing as saying there isn't any definition of torture at all. Not to defend Mixner, but I don't think he's arguing that there's no definition of torture, just that that ambiguity makes bans on torture ineffective. (See his original comment.) But I really don't think that's true either. As others have pointed out, there is ambiguity in the statutory definition of murder, and one could probably find ambiguity around the fringes of definitions of murder in the case law as well. But no sensible person would ever claim that this residual ambiguity makes bans on murder ineffective. Yes, murders still happen, but the state prosecutes them when possible, punishes them when successful, and deters others as a result. The ban on murder is by no means *perfectly* effective but it is unquestionably effective. And, I would submit, very much worthwhile. The reason torture bans are ineffective has nothing to do with the residual ambiguity in the definition of torture. It's because the *perpetrators* of torture, historically, tend to be governments and people acting on behalf of governments, and such actors have tremendous resources at hand to shield themselves from prosecution and punishment. It was true of the Communists in Korea and in North Vietnam and it's true of the United States today. Typically, only when a government that tortures gets overthrown (Nazi Germany, Imperial Japan, South Vietnam) do the torturers get punished. When it comes to torture, practically speaking, 'might makes right'. For most decent people, that's a regrettable state of affairs but for others (including, one suspects, Mixner) that's just fine.
Mixner, The same way we make legal assessments of any case a court has not addressed before. Again, the fact you even have to ask the question proves you don't understand the U.S. legal system. This one happens to be really simple, however, because the Supreme Court has repeatedly held that using torture as a punishment would violate the 8th Amendment.
Ryan is obviously correct, but there is a somewhat workable solution to this issue. What you do is define in advance lawful interrogation methods, and give due notice to people who use unapproved methods that they are subjecting themselves to the risk of criminal prosecution. This is sometimes known as the "safe harbor" approach. And that of course is what the US Army Field Manual on Interrogation does: it outlines how to conduct effective and lawful interrogations, including guidance on what would be unlawful. So, to supplement the existing law on torture, you could also grant safe harbor to those who comply with the Field Manual, but not others. Which is what people have been trying to do, as the article Matt linked explained.
Ryan, But I really don't think that's true either. As others have pointed out, there is ambiguity in the statutory definition of murder, and one could probably find ambiguity around the fringes of definitions of murder in the case law as well. Whatever ambiguities there may be in statutory definitions of murder, they are not remotely as broad as the ambiguity in the phrase "severe pain or suffering." The qualifier "severe" is so subjective and vague it could mean any of a huge range of types and magnitudes of suffering. Difficulties in prosecuting murder cases generally involve matters of evidence, not ambiguities in the legal definition of the crime.
"So what is prohibited? If you deprive your suspect of sleep for a day, is that torture? Two days? A week? If you subject him to conditions of abnormal cold or heat, is that torture? How cold? How hot? How long must he be exposed to these conditions for the action to qualify as torture? If you slap him lightly across the face one time, is that torture? How about a hard slap? Repeated slaps? At what point do any of these actions, or the countless others that can be used to inflict various types and degrees of suffering on an uncooperative prisoner, cross the line from legitimate interrogation techniques to torture?" Under the Military Commissions Act, very little is prohibited. Amputation is prohibited, and so is medical experimentation. Aside from that, anything goes. But the medical experimentation prohibition is pretty weird. Consider two groups of people. Both of them are starved to death. In Group A, data is taken on how they're doing. On Group B, data is not taken. Under our current law, Group A has been tortured because the taking of data would constitute a medical experiment. Group B would not be subjected to torture for the reason that they have been medically ignored. No data was taken, so no medical experiment was performed. They were just starved to death. So it's not torture. This is what we think is a reasonable approach to interrogation. Go figure.
How do you know waterboarding is "definitely" torture? Because there are cases dating back to the Spanish-American War determining the practice to be a war crime, and there are also numerous torture cases determining that mock executions are a form of torture. Waterboarding is a mock execution. That's actually one of the brightest line rules in the entire jurisprudence of torture-- convincing people that they are going to be killed if they don't give you the information you want is always torture. And what about exposure to cold temperatures that is almost, but not quite, sufficient to induce hypothermia? Is that torture? That, to my knowledge, hasn't been litigated. It is also irrelevant to the debate over the Bush Administation's tactics, as they DID induce hypothermia in detainees, which is definitely torture. Then you're agreeing with me that the definition of torture is not clear. Well, Mixner, only in the same sense that the definition of murder isn't clear either. With many criminal laws and civil causes of action, there are cases that clearly fall within the prohibition and cases that are closer. But that isn't the same thing as saying there is no definition at all. Here's a classic example. In California, our assault statute provides "ASSAULT DEFINED. An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Now, someone doing what you are doing might say "well then, what's a violent injury?" And we could go through some cases where it was clearly a violent injury-- someone who shoots a gun at someone and misses, for instance, clearly attempts to commit a violent injury on the person of another. Ditto someone who throws a tomahawk at someone. Now, it is also true that there are some closes cases on the edge. For instance, if someone attempts to disable the brakes on another person's car with the intent to cause an injurious auto accident, is that an attempt to commit a violent injury? How about someone who sets off a gas grenade in a room in an attempt to knock everyone unconscious. Is that an attempt to commit a violent injury? What if the gas were tear gas instead? What about mustard gas? What these examples don't do, however, is establish that there is no definition of assault in California. Indeed, if you commit any one of numerous acts that have either been adjudicated to be assault or that a reasonable person would read the definition to include, you will get convicted, and the courts will give short shrift to your argument that the statute is vague. That is what you are doing here, Mixner. You are contending that because there is vagueness around the edges-- and there is, though much less than you think!-- that this means that there is no definition at all. But that's not true-- there are plenty of things that are either well established by caselaw to be torture or that any reasonable person (i.e., someone who is not a Republican partisan) would recognize as causing severe mental or physical pain or suffering. That's how the law works. Nobody actually accepts the style of argumentation that says that because one can hypothesize tough cases on the edges of the statute, that the mine run of cases is not prohibited. That's just something that was made up by Republican partisans who are carrying the Bush Administration's water on this issue. You do love your strawman arguments, don't you? I did not say there is no definition "at all." I said: "There is no clear definition of torture in either U.S. or international law." And that until there is a clear definition, no ban on torture will be very effective. There are many criminal and civil statutes that are no more clear than the laws and international conventions prohibiting torture. Those statutes get enforced all the time, and so long as the conduct alleged is clearly within the statute, it doesn't matter that some other hypothesized conduct may be in a gray area. The only thing that prevents the ban on torture from being effective is that torturers, including the Bush Administration, are very good at disabling the mechanisms of enforcement when they torture. You could have the most clear statute on torture in the history of the universe, and you would still have this problem.
DTM, The same way we make legal assessments of any case a court has not addressed before. But you didn't make a "legal assessment." You made a definitive claim about the constitutionality of a specific type of act. You haven't offered the slightest justification for this definitive claim. Assertion is not justification.
Just to amplify my point a bit: the *perpetrators* of torture, historically, tend to be governments and people acting on behalf of governments, and such actors have tremendous resources at hand to shield themselves from prosecution and punishment ... including among those resources, I should say, the ability to use taxpayer money to pay the salaries of vast teams of lawyers who cook up the kinds of hair-splitting arguments Mixner is trafficking in. When any other crime is in question, the state (i.e. the prosecution) has an interest in shutting down all residual ambiguity in the definition of the crime. When the crime in question is state-sanctioned torture, however, the state's interest is in *exploiting* and *amplifying the significance of* all such ambiguities. That's what we're seeing here, with Mixner carrying the state's water without (one suspects) seeing a penny out of it. The amount of energy modern conservatives like Mixner expend defending executive prerogatives surely has the Founders rolling over in the graves.
As others have pointed out, there is ambiguity in the statutory definition of murder, and one could probably find ambiguity around the fringes of definitions of murder in the case law as well. But no sensible person would ever claim that this residual ambiguity makes bans on murder ineffective. Sure, all mixner is doing is attempting to throw sand in everyone's eyes, but under commonly accepted legal standards (which he doesn't seem to understand very well) the definition is quite clear. Consider, for another case, the definition of assault, which is generally held (it varies by state to state, of course) to be an attempt to cause or purposely, knowingly, or recklessly causing bodily injury to another; or, negligently causing bodily injury to another with a deadly weapon. If I was mixner, I'd be arguing "oooh, what's 'knowingly'? What does 'purposely'? mean? What exactly is an 'injury'? Is one slap an injury? What's a 'deadly' weapon? Is a pointed stick a deadly weapon? What if it's not very pointed?" etc. While these arguments may be fairly convincing to a not quite so bright twelve year old, in the real world they won't get very far with a judge and jury. Because even though you can argue that there's some vagueness around the edges, you can't convincingly argue that there is no such thing as assault, or that the definition of assault is so vague that no one can reasonably be tried for the offense.
guys, just give up already, Mixner is simply not very bright
Powell: "Routine cheap shot, Matt. McCain is against torture. Almost everybody who counts is against torture. We don't condone, or conduct, torture as an official policy--never have, never will." POS Powell joins POS Mixner in supporting torture. Big surprise. Guys, Mixner is a known "torture troll". He's in here in every thread on torture extolling its virtues and parsing sentences and twisting words. Ignore the stupid fuck.
This is anecdotal, but it might offer some insight. My father's best friend was a man who had fought for the Nazis during the second world war. It wasn't his choice, he was forced to join the army when he was 14 years old. And he readily admitted that he was a very poor soldier. Fortunately for him, he was quickly captured by the Americans. And he was treated very well. So well that he left his country when he was 16 years old and moved to America. He got an engineering degree and became what my father considered to be one of the best engineers ever. And very few people could ever earn my father's respect as an engineer. I got a chance to ask him why he did it. He said that if a country could treat it's POW's so well, it must be a great country, and it deserves the support of the entire world. And he would do anything to support such a country. So he did. And he did it damn well. Maybe we should consider that.
dilan esper, Because there are cases dating back to the Spanish-American War determining the practice to be a war crime, and there are also numerous torture cases determining that mock executions are a form of torture. Waterboarding is a mock execution. Sorry, this argument is completely irrational. First, the issue is whether waterboarding is "torture," not whether it is a "war crime." Second, the mere fact that some number of extremely old cases made a particular legal finding obviously doesn't mean that contemporary courts would do the same thing. Precedent matters, but it is not binding. Very old and very narrow precedent is especially weak. And third, the legal definition of torture makes no mention of "mock execution" and there are all sorts of mock executions that I seriously doubt you would consider torture (ever watched a movie about a death row inmate?). Thousands of military personnel have apparently been subjected to waterboarding as part of their survival training. Do you consider these acts to all be instances of torture? That is what you are doing here, Mixner. You are contending that because there is vagueness around the edges No, it's not "vagueness around the edges." It's vagueness in the basic definition of the crime. The idea that the phrase "severe pain and suffering" has a clear meaning, such that all reasonable people would agree on exactly which types and levels of pain and suffering qualify as "severe" and which do not, is so absurd that it's laughable.
As others have pointed out, there is ambiguity in the statutory definition of murder, and one could probably find ambiguity around the fringes of definitions of murder in the case law as well. But no sensible person would ever claim that this residual ambiguity makes bans on murder ineffective. Sure, all mixner is doing is attempting to throw sand in everyone's eyes, but under commonly accepted legal standards (which he doesn't seem to understand very well) the definition is quite clear. Consider, for another case, the definition of assault, which is generally held (it varies by state to state, of course) to be an attempt to cause or purposely, knowingly, or recklessly causing bodily injury to another; or, negligently causing bodily injury to another with a deadly weapon. If I was mixner, I'd be arguing "oooh, what's 'knowingly'? What does 'purposely'? mean? What exactly is an 'injury'? Is one slap an injury? What's a 'deadly' weapon? Is a pointed stick a deadly weapon? What if it's not very pointed?" etc. While these arguments may be fairly convincing to a not quite so bright twelve year old, in the real world they won't get very far with a judge and jury. Because even though you can argue that there's some vagueness around the edges, you can't convincingly argue that there is no such thing as assault, or that the definition of assault is so vague that no one can reasonably be tried for the offense.
As others have pointed out, there is ambiguity in the statutory definition of murder, and one could probably find ambiguity around the fringes of definitions of murder in the case law as well. But no sensible person would ever claim that this residual ambiguity makes bans on murder ineffective. Sure, all mixner is doing is attempting to throw sand in everyone's eyes, but under commonly accepted legal standards (which he doesn't seem to understand very well) the definition is quite clear. Consider, for another case, the definition of assault, which is generally held (it varies by state to state, of course) to be an attempt to cause or purposely, knowingly, or recklessly causing bodily injury to another; or, negligently causing bodily injury to another with a deadly weapon. If I was mixner, I'd be arguing "oooh, what's 'knowingly'? What does 'purposely'? mean? What exactly is an 'injury'? Is one slap an injury? What's a 'deadly' weapon? Is a pointed stick a deadly weapon? What if it's not very pointed?" etc. While these arguments may be fairly convincing to a not quite so bright twelve year old, in the real world they won't get very far with a judge and jury. Because even though you can argue that there's some vagueness around the edges, you can't convincingly argue that there is no such thing as assault, or that the definition of assault is so vague that no one can reasonably be tried for the offense.
... including among those resources, I should say, the ability to use taxpayer money to pay the salaries of vast teams of lawyers who cook up the kinds of hair-splitting arguments Mixner is trafficking in. If you were an interrogator facing prosecution for "torture" because some crusading civil rights lawyer decided you had been just a bit too rough with a prisoner, I doubt you would consider the question of the legal meaning of "torture" to be a matter of hair-splitting.
Folks like Mixner have so much trouble with the Sorites, it's a wonder Zeno ever lets them out of bed in the morning.
And third, the legal definition of torture makes no mention of "mock execution" Wrong again, boyo: Federal Anti-Torture Statute, 18 USC Sec. 2340A. (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;
Stefan, I'm not sure why I bother responding to you at all, since your posts are so uniformly idiotic. When you're not missing the point or making irrelevant assertions you're demonstrating your basic illiteracy. Perhaps you don't understand the difference between a threat and an act, but fortunately, other people do.
Perhaps you don't understand the difference between a threat and an act, but fortunately, other people do. No, please, I'm fascinated. Please explain how a mock execution is not intended to inflict the threat of imminent death. I'm waiting with bated breath. (By the way, just to help you with your grasp of the language a threat can be an act, and vice versa. For example, the act of my shaking a fist in someone's face is also a threat. Similarly, if I make a verbal threat such as "I'm going to kill you in one minute with this knife in my hand" that is also a prohibited criminal act even if I never carry through).
"Waterboarding is a mock execution" Your analysis is excellent. But waterbaording is quite a bit more than a mock execution. It's way too real. And there are very few people in this world who believe that their impending death is somehow acceptable. I happen to believe that (which makes me immune to waterboading), but I've never met anyone who feels the same way. And that is an opinion so rare that I don't think I'll ever meet someone who'll feel the same way. Death is extremely scary to almost everyone. The idea that forcing people to face it is somehow reasonable is something I simply cannot understand. But I've seen enough of death to accept it. And the very reason that I can accept it makes me immune to the threats. In fact, it gives me quite a lot of power over those that fear it. When someone points a gun at me, I explain to them that I would be happy to die, but would they be happy to face the inevitable court proceedings? The answer is always no. And that's why I'm still alive. So is that a bluff? It's up to you to decide. But you're betting with your life, so you should be careful. I don't have to be careful, because I don't care. In the end, freedom really is nothing left to lose. Of course, I have quite a lot to lose, but I don't care about any of it. Existence is just an experiment to me. But it's not to most people, which is why waterboardidng is so wrong.
Sorry, this argument is completely irrational. First, the issue is whether waterboarding is "torture," not whether it is a "war crime." Mixner, I am not going to teach you all of international human rights law. Suffice to say, the prohibition against torture arose out of customary international law and the law of war, from cases that involved prosecutions for "war crimes", "offenses against the law of nations", and similar sorts of things. So many of the things we now call "torture" initially were prosecuted in these more general categories. When international law moved towards a greater degree of codification, these precedents were recognized as encompassing a broader prohibition on "all forms of torture and cruel, inhuman, and degrading treatment". If you want to learn more about this (and you really could use a course in this, given your arguments), you might want to look at a good treatise on international human rights law. Second, the mere fact that some number of extremely old cases made a particular legal finding obviously doesn't mean that contemporary courts would do the same thing. Precedent matters, but it is not binding. It's not one case, Mixner. It's a line of cases stretching back 100 years on waterboarding, as well as several decades on the principle that mock executions are a form of torture. Now obviously, a particular tribunal COULD say that these cases are wrong, but that isn't likely to happen. Certainly if you polled 100 international human rights lawyers (excluding Republican partisnas), there is a good chance that all 100 of them would say that the current state of the law defines mock executions (including waterboarding) as torture. It's as close as you can get to a sure thing in this area. And third, the legal definition of torture makes no mention of "mock execution" and there are all sorts of mock executions that I seriously doubt you would consider torture (ever watched a movie about a death row inmate?). Now we are just repeating ourselves. The definition of torture includes anything that constitutes the infliction of severe physical or mental pain or suffering not incident to lawful sanction. Mock executions have been held to per se constitute an infliction of severe mental pain or suffering. It doesn't have to be explicitly written into the definition, anymore than, say, electrical shocks, burning, or the use of the rack and screw have to be in the definition. Nobody who is honest actually believes that mock executions don't inflict severe mental suffering, and the caselaw reflects this. Thousands of military personnel have apparently been subjected to waterboarding as part of their survival training. Do you consider these acts to all be instances of torture? Not anymore than the thousands of sanctioned boxing matches constitute assault. You can consent to SERE training, and if you consent, it isn't illegal torture. No, it's not "vagueness around the edges." It's vagueness in the basic definition of the crime. The idea that the phrase "severe pain and suffering" has a clear meaning, such that all reasonable people would agree on exactly which types and levels of pain and suffering qualify as "severe" and which do not, is so absurd that it's laughable. It has a clear meaning in the same sense that "malice aforethought" or "violent injury" has a clear meaning-- many acts clearly cause severe pain and suffering. The fact that there are some acts where it isn't so clear doesn't make the definition unclear; it merely means that, like EVERY criminal statute of general applicability, it has some ambiguity around the edges. In any event, your argument was rejected in the Emmanuel case. Federal judges know a bit more about what constitutes a clear statute than you do. You might want to defer to their expertise.
dilan esper, Mixner, I am not going to teach you all of international human rights law..... I'm not interested in your personal interpretation of the history of human rights law. The issue is the meaning of "torture" as defined in current law. Citing ancient legal cases in which certain acts, including "mock executions," have been held to be torture does not tell us the meaning of torture in modern law. Not anymore than the thousands of sanctioned boxing matches constitute assault. You can consent to SERE training, and if you consent, it isn't illegal torture. As Andrew McCarthy, among others, has pointed out, the legal definition of torture contains no exception on grounds of consent. If waterboarding is torture, then our military has been torturing thousands of its own members for years. It has a clear meaning in the same sense that "malice aforethought" or "violent injury" has a clear meaning-- Wrong yet again. The California Code, for example, defines malice aforethought in the context of murder in terms of intent. Still waiting for your clear explanation of the meaning of "severe pain or suffering." Assertions to the effect that the meaning is clear to all "reasonable" people is not an explanation. many acts clearly cause severe pain and suffering. The fact that there are some acts where it isn't so clear doesn't make the definition unclear; it merely means that, like EVERY criminal statute of general applicability, it has some ambiguity around the edges. Look, whether an interrogator who subjects his prisoner to five sharp blows is guilty of torture (on the grounds that five blows constitute "sustained beating") or whether he is guilty only of some lesser crime than torture, or no crime at all (on the grounds that five blows constitute something less than "sustained beating") IS NOT "ambiguity around the edges." It's a clear example of a plausible interrogation scenario. There have probably been at least thousands of cases in which military and police interrogators have beaten uncooperative prisoners to try to get them to talk. Ditto for all sorts of common methods of inflicting pain and suffering on uncooperative prisoners. Are these acts torture or aren't they? How do you decide?
Re Mixner Mr. Mixner has, under pressure, denied that waterboarding is torture. I suspect that if Mr. Mixner were to undergo waterboarding, he would quickly revise his opinion. Mr. Mixner raised the question as to whether sleep denial is torture. The answer is that it is psychological torture, designed to cause mental confusion in the victim. Waterboarding is physical torture, just as applying electrical devices to Mr. Mixners gonads would be physical torture. However, all of this discussion begs the question as to whether torture is a good method of obtaining information (it is a proven method of extracting false confessions; just ask Senator McCain). Without corroboration, information obtained by torture is not only useless but positively dangereous if it turns out to be false. And without corroboration, one has no assurance as to its veracity
There have probably been at least thousands of cases in which military and police interrogators have beaten uncooperative prisoners to try to get them to talk. Ditto for all sorts of common methods of inflicting pain and suffering on uncooperative prisoners.Are these acts torture or aren't they? How do you decide? Simple. You arrest the interrogators, because if they've beaten their prisoners they've committed a crime. Then you present the fact scenario to the prosecutor, who based on that decides whether to charge the interrogator with torture or merely ordinary criminal assault and battery or aggravated assault. Then the prosecutor presents the case to a judge and jury, and you get a verdict. That's how it's done.
stefan, To back up Dilan's cite of Emanuel, here's a more detaild excerpt from that decision (bolding mine):... Your quote appears to have been lifted entirely from a comment to a blog post at the Balkinization blog, with no link to the actual opinion (Hi Dilan!). Please provide a link to the full opinion of the court, so that we may see if it really says what you claim it says.
As Andrew McCarthy, among others, has pointed out, the legal definition of torture contains no exception on grounds of consent. If waterboarding is torture, then our military has been torturing thousands of its own members for years. Andrew McCarthy may have been pretty good in "Weekend at Bernie's," but he's no expert on criminal law. As Dilan pointed out, there is no consent exception, in, say, assault, but that doesn't mean that boxing or ultimate fighting matches are assault. Section 120.00 of the NY State Penal Code, for example, provides that: A person is guilty of assault in the third degree when: 1. With intent to cause physical injury to another person, he causes Now when I'm boxing at the gym, I punch someone in the torso and face precisely because I'm trying to cause physical injury to them. Does that mean I've assaulted them? Don't be silly. There's not a cop or prosecutor who'd believe that (especially since some of the people I'm boxing are NYC cops and prosecutors).
Stefan, Then the prosecutor presents the case to a judge and jury, and you get a verdict. That's how it's done. Brilliant. So it's your position, is it, that whenever a jury says it's torture, it is torture? And whenever a jury says it isn't torture, it isn't? Even in cases of identical conduct where juries reach different verdicts (which presumably means the conduct in question is both torture and not torture). You're really outdoing yourself in the stupidity of your posts in this thread, Stefan. Still waiting for that link to United States v. Emmanuel.
Your quote appears to have been lifted entirely from a comment to a blog post at the Balkinization blog, with no link to the actual opinion. Please provide a link to the full opinion of the court, so that we may see if it really says what you claim it says. No, my link appears to have been lifted from the actual opinion, because I have one of those fancy Westlaw subscriptions. If you can't afford access to Westlaw I'm afraid I can't help you, but since I gave you the case cite you can also look it up in a law library. I'm sure your prison has one.
Your quote appears to have been lifted entirely from a comment to a blog post at the Balkinization blog, with no link to the actual opinion. Please provide a link to the full opinion of the court, so that we may see if it really says what you claim it says. No, my link appears to have been lifted from the actual opinion, because I have one of those fancy Westlaw subscriptions. If you can't afford access to Westlaw I'm afraid I can't help you, but since I gave you the case cite you can also look it up in a law library. I'm sure your prison has one.
MY TROLIN IZ TORTUR. I SEZ SO.
So it's your position, is it, that whenever a jury says it's torture, it is torture? And whenever a jury says it isn't torture, it isn't? Yes, that's kind of how criminal law works. For example, in one trial Defendant A is charged with attempted murder for shooting a gun at someone with the intent to kill. In another case, Defendant B is charged with attempted murder for shooting a gun at someone with the intent to kill. Defendant A is acquitted, Defendant B is convicted. Does that mean that shooting a gun at someone with the intent to kill both is and is not attempted murder? No, it means that in the individual cases the invididual defendant was or was not found guilty of the particular offense at hand. That does not, however, address the separate question that under criminal law shooting a gun at someone with the intent to kill is still considered attempted murder, even though in one particular case a particular defendant who did exactly that thing was acquitted. Even in cases of identical conduct where juries reach different verdicts (which presumably means the conduct in question is both torture and not torture). Eh, if they're different cases, how can they be identical? They can be similar, but unless the acts were performed by the same person at the same time in the same way in the same space I'm afraid they're not identical. You're really outdoing yourself in the stupidity of your posts in this thread, Stefan. Oh no! The outrageous verbal abuse! I...I...I might cry....*lip quivers* *eyes well with tears* *pulls himself together, stifles a sob*
Stefan, No, my link appears to have been lifted ... You didn't provide a link. That's why I just asked you for it. ... from the actual opinion, because I have one of those fancy Westlaw subscriptions Gee, what an amazing coincidence, then, that your cut-and-paste just happens to be identical to the comment by one "Dilan" at Balkinization. If you really have "one of those fancy Westlaw subscriptions" copy the full text of the decision and post it here.
Yes, that's kind of how criminal law works. No, that's not how criminal law works, Stefan. Two defendants, in two separate cases, each delivered five identical blows to the head to a prisoner under their interrogation. The jury in the first case finds the defendant guilty of torture, on the grounds that five blows constitute the infliction of "severe pain or suffering." The jury in the second case acquits, on the grounds that five blows do not constitute "severe pain or suffering." Do five blows constitute torture or don't they, Stefan?
Fellas, I don't think Mixner is susceptible to reason. Trust me; I've tried.
Gee, what an amazing coincidence, then, that your cut-and-paste just happens to be identical to the comment by one "Dilan" at Balkinization. Yes, what an amazing coincidence that the quote of the key paragraph summarizing the court's findings on the point at issue was identical in both cases. No, wait, that's not a coincidence at all -- that's to be expected, because that's precisely what a "quotation" is.... If you really have "one of those fancy Westlaw subscriptions" copy the full text of the decision and post it here. Sorry, terms of service prohibit that. But like I said, you have the cite, so go crazy finding it yourself. All you need is a credit car...oh, right. Sorry. They probably don't allow you to have one of those. Ah well. Enough fun. Off to the gym to engage in some mild boxing torture.
Sorry, terms of service prohibit that. If it's a ruling from a U.S. court it's in the public domain and would be covered by fair use provisions, anyway. You don't really have the decision at all, do you Stefan? You just cut-and-paste that little excerpt from the blog comment by "dilan," didn't you?
As Andrew McCarthy, among others, has pointed out, the legal definition of torture contains no exception on grounds of consent. If waterboarding is torture, then our military has been torturing thousands of its own members for years. Mixner, the definition includes the "threat of imminent death," which is what separates out waterboarding from "hard slaps" and the like. Are you contending that being waterboarded does not present a threat of imminent death? As to the point of why it isn't torture during training, and is when used on a hostile: a US soldier in training knows that the government has a great deal invested in him, has nothing to gain by his death, and that his training is being conducted in optimal circumstances for his survival. He knows that other soldiers successfully survive this training almost without fail. Hence, the "threat of death" is not apparent. A person being held captive by a foreign government has no such safeguards. The threat of death is very real. (This, btw, makes me suspect that waterboarding "training" is probably useless, or maybe good for letting soldiers accept their own deaths, but that's just a guess.) Don't get me wrong: I additionally think that the process is so unpleasant that it might very well otherwise be considered torture. But in this case, the threat of death is so clear, and violates the part of the statute that requires so little interpretation, that I don't see that argument as anything more than an interesting sidenote. And, of course, I'd say that the law here serves as a proxy for our moral compass. The fact that it may be legally difficult to determine what exactly constitutes "severe" harm doesn't prevent us, as individuals, from making exactly that judgment and calling something morally wrong. You may happen to disagree: "Hey, guys, sticking someone in a freezer in a standing position and sleep depriving them doesn't seem severe to me!" but moral judgments usually are just that: judgments. And if you are for inflicting some pain on people, it shouldn't surprise you when others among us, whose moral standards are a little different then yours, think of you as a torture-apologist. Leaning on legal edge cases is going to do very little to persuade anyone that you are morally in the clear if they otherwise think you aren't.
One more, and not to harp, but: Just to further build the bridge between personal moral judgments and legal standards: when it comes to moral judgments, we all make them independently. I know from previous discussions that one of your frequent retorts is "Well, your opinion is irrelevant." But legally, people's opinions in areas where there is possible interpretation is relevant: that is why we have juries - to sort out the differences. So, when someone goes on trial for causing "severe" punishment, and all they did was slap someone, the jury may well say that the bar was not met. When they are on trial for tasering someone, stomping on their legs, sleep depriving them, and then tasering them again, the jury is a lot more likely to say that the bar for "severe" was met. But opinions are actually built into the system: they are a feature, not a bug. So, please don't be so glib about dismissing an individual's opinion on what is or is not "severe." The law isn't. If you want to argue that someone holds a marginal opinion, fine. But just because it is difficult to quantify doesn't mean that my interpretation, or yours, or anyone else's, should be summarily dismissed simply for being an estimation.
You don't really have the decision at all, do you Stefan? You just cut-and-paste that little excerpt from the blog comment by "dilan," didn't you? The Emmanuel ruling can be found here (pdf). The text, which appears exactly as quoted, is on page 26. That web address again: http://www.flsd.uscourts.gov/viewer/viewer.asp?file=/cases/pressDocs/106cr20758_148.pdf Shut up, mixner.
Brad L, Mixner, the definition includes the "threat of imminent death," which is what separates out waterboarding from "hard slaps" and the like. Waterboarding is not a threat of imminent death. It's a non-lethal method of interrogation. As to the point of why it isn't torture during training, and is when used on a hostile: a US soldier in training knows that the government has a great deal invested in him, has nothing to gain by his death, and that his training is being conducted in optimal circumstances for his survival. He knows that other soldiers successfully survive this training almost without fail. Hence, the "threat of death" is not apparent. This is all irrelevant to the question of whether waterboarding conducted as part of military survival training constitutes torture as defined by law. The language of the statute is "severe pain or suffering." There is no additional requirement for a "threat of death" to be present in order for the conduct to qualify as torture. Nor does the fact that military personnel consented to the waterboarding disqualify it from the definition. And if you are for inflicting some pain on people, it shouldn't surprise you when others among us, whose moral standards are a little different then yours, think of you as a torture-apologist. It doesn't "surprise" me. I just think it's juvenile and grossly irresponsible. It shouldn't surprise you that I think anti-torture fanatics are enablers of terrorism.
Mixner- I'm not feigning ignorance when I say I am not sure what this argument goes towards. Are you contending that any laws that require a jury's interpretation are not valid? That, because juries are not going to behave in a uniform way that individuals should not hold their personal opinions? That juries are not the final, God-like word on what is or is not moral? Where is your hypothetical going?
I just think it's juvenile and grossly irresponsible. It shouldn't surprise you that I think anti-torture fanatics are enablers of terrorism. Ever the charming conversationalist. I frequently have to decide whether it is worth putting up with your endless sniping to deal with the otherwise interesting components of your arguments. Waterboarding is not a threat of imminent death. This is our fundamental disagreement. It surprises me that drowning someone might not constitute a threat of death to you, but if you really believe that by doing this, there is no threat of death, then at least you've answered the question. There is no additional requirement for a "threat of death" to be present in order for the conduct to qualify as torture. You are the one that asked to use legal standards, and the standard quoted above includes: (2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from— (abridged) (C) the threat of imminent death; You are right, in that this is not an "additional" requirement. It stands as its own singular requirement. Since you don't think waterboarding constitutes a threat of death, this question may be academic, but do you interpret this in some other way?
The lack of empathy in supporting water boarding as "not torture" is so profound that it's probably a good rule of thumb as a test for sociopathy. And worse. Yes, it gets worse. I can't imagine that if the political parties were reversed that these same people wouldn't decry water boarding in the most aggrieved way. (Check out the language associated with Obama declining public financing if you want to hear the morbidly truculent.) Their sociopathy has a political component. This isn't a case of moral equivalence here: go back and check how many Democrats condemned Bill Clinton, for example, over the relatively trivial charges against him. Or how many Democrats condemned LBJ. These people are bringing disgrace on us all.
dilan esper, Now that southpaw has provided a link to the complete decision, it's even more clear what a thoroughly dishonest ideologue you are. You have conveniently omitted the portions of the ruling that contradict your claims regarding its meaning and relevance. First, you omit the key passage in which the court limits the scope of its finding on the vagueness question to the specific defendant in the case, rather than applying it to the text of the torture statute on its face: The void-for-vagueness challenge to the statute presented here must be considered as applied to Defendant, rather than upon a review of the text of the statute, or on its face. And second, you have omitted the key facts of the defendant's conduct in the case: [Defendant] and his coconspirators, acting under color of law and with the specific intent to inflict severe physical pain and suffering, burned the alleged victim’s flesh with a hot iron, forced the alleged victim at gunpoint to hold scalding water in his hands, burned parts of the victim’s body with scalding water, repeatedly shocked the genitalia and other parts of the body with an electrical device, and rubbed salt into the alleged victim’s wounds. Such allegations, coupled with the statutory language contained in the Torture Statute, certainly advise the ordinary person of prohibited conduct with sufficient definiteness. This omission cannot have been an honest mistake on your part. The text you cut out from your quote immediately precedes the final paragraph you quoted. You didn't even add any ellipsis or other marking to indicate that you had removed any text. So, all you've managed to produce is a district court decision that found that the statute is not unconstitutionally vague when applied to the following conduct: [burning] the alleged victim’s flesh with a hot iron, [forcing] the alleged victim at gunpoint to hold scalding water in his hands, [burning] parts of the victim’s body with scalding water, repeatedly [shocking] the genitalia and other parts of the body with an electrical device, and [rubbing] salt into the alleged victim’s wounds. Since most people would probably agree that those actions do indeed inflict "severe pain or suffering" on the victim, the court's finding on this point is not likely to be particularly controversial. But it is utterly irrelevant to the broader question of whether the statute is unconstitutionally vague with respect to acts that inflict much lesser degrees of pain or suffering, such as how many times or how hard a person must be beaten before the beating constitutes "severe" pain or suffering. Reasonable people can and do have different opinions on the answer to that question, which is precisely why the statute would be so hard to apply in such cases.
Brad L, Ever the charming conversationalist. Oh, please. You're probably not going to get charming conversation when you call the person you're addressing a "torture-apologist." This is our fundamental disagreement. It surprises me that drowning someone might not constitute a threat of death to you, Waterboarding is not "drowning" if by "drowning" you mean an act or event that results in death through suffocation in water or other liquid. As I said, waterboarding is a non-lethal means of interrogation. It doesn't kill the person on whom it is performed. If it did, the military would obviously not have used it in survival training. How is a non-lethal act, or the threat of a non-lethal act, a "threat of death?" Your claim makes no sense. You are right, in that this is not an "additional" requirement. It stands as its own singular requirement. It's not a "requirement" at all. Read the statute. "Threat of imminent death" is only one of several acts or threats listed in the statute that are held to qualify as torture. Others include "the intentional infliction or threatened infliction of severe physical pain or suffering" and "the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality."
...which is precisely why the statute would be so hard to apply in such cases. And, you may not have noticed (what with all the smoke from the burning strawmen), but that is precisely why everyone else has NOT actually been talking about pressing charges for excessive 'hard slaps', but instead about things like, uh, waterboarding, beatings resulting in severe injury and broken bones, prolonged solitary confinement, razor cuts to the genitals. That sort of thing. It's not actually that fine a line, since once someone crosses it, they tend to keep going. And, as has been repeatedly pointed out, the correct way to find out if anyone has, in fact, crossed it is not to argue about it on blogs, but for actual prosecutors to look into each case, decide whether to press charges, then to bring it to court and let judge and jury rule on it. But, oh right, that would just be some "crusading civil rights lawyer" coming after our obviously innocent interrogators. Or something.
Waterboarding is not "drowning" if by "drowning" you mean an act or event that results in death through suffocation in water or other liquid. As I said, waterboarding is a non-lethal means of interrogation. It doesn't kill the person on whom it is performed. It's not a "threat of death" unless you actually die. Who knew?
Some actual examples. Do read the whole thing. Remember, these men at least were released. They had it easy.
jack lecou, And, you may not have noticed (what with all the smoke from the burning strawmen), but that is precisely why everyone else has NOT actually been talking about pressing charges for excessive 'hard slaps', but instead about things like, uh, waterboarding, beatings resulting in severe injury and broken bones, prolonged solitary confinement, razor cuts to the genitals. That sort of thing. It's not actually that fine a line, since once someone crosses it, they tend to keep going. This is irrelevant to my objection. Whether or not the statute is clear when applied to acts that unambiguously inflict serious physical injuries, it is not at all clear when applied to acts that inflict lesser amounts of pain or suffering, such as different types/amounts of beating, confinement, sleep deprivation, food or water deprivation, exposure to abnormal levels of heat and cold, and so on. Are these things torture or aren't they? The statute as written provides no clear answer. If your goal is to criminalize torture, you first have to define what "torture" means with enough clarity that the law can be applied effectively and consistently when an allegation of torture is made. If you're not willing to do that, you can't be very serious about criminalizing torture.
This is irrelevant to my objection. If so, that only means that your objection is irrelevant. Credible and very, very non-hypothetical, non-academic accusations have been made about horrific acts which fall far on the wrong side of US and international law regarding torture and cruel treatment. To respond by arguing that the law cannot be applied with mathematical precision to hypothetical borderline cases is legally completely irrelevant, and morally repugnant. The correct response is to call for real, independent investigations, and, if necessary, prosecutions.
At this point, Mixner, you are simply arguing in bad faith. Litigate some human rights cases or take some classes and come back and talk to us. But you aren't worth responding to, because you really don't care about what the law actually provides on this issue. You just want to defend the Bush Administration and the positions of movement conservativism at all cost.
Are these things torture or aren't they? The statute as written provides no clear answer. If your goal is to criminalize torture, you first have to define what "torture" means with enough clarity that the law can be applied effectively and consistently when an allegation of torture is made. Ugh. Torture is already crime, the relevant statute has been much discussed here. The issue of whether the statute is vague is easily disposed of because it contains an element of culpable intent. I'll give you an illustration in laymans' terms. Take a look at 18 USC s 1583: Enticement into Slavery.
Now, we can get all lawyerly about what "entices" really means in the service of a void-for-vagueness claim: Does handing out money count? What about you offering food? How about if you just smile invitingly? What if you are merely attractive and scantily clad? Is being attractive and scantily clad really against the law? What's a vessel anyway? On a vagueness claim, that type of shit will never work in any court in the land. And why? Because that's all beside the fucking point of the law! The statute primarily addresses intent. It says: Do not intend to press people into slavery, and you'll be fine. As long as an ordinary person doesn't go about his business with the specific intent of rounding up slaves, he won't be liable. Don't try to be a fucking slaver! That's all the guidance the courts are going to require the legislature to give in order to defeat a vagueness claim. The finer points we leave for trial. Same deal with the terror statute. If officers of the government refrain from specifically intending to cause their prisoners severe pain and suffering, they'll be okay. If on the other hand they go around intending to cause severe pain and suffering to those in their custody, they should gird their loins and face the consequences. Don't try to cause prisoners severe pain and suffering! That is really quite specific, even if we do leave the finer points for trial. Also, what jack lecou said.
I guess I will say one more thing, about being called dishonest by Mixner. I have litigated several cases involving the definition of torture as reflected in 28 USC 1350 and 28 USC 1350 note. I post under my real name (and only my real name). I have written and published several pieces on the interpretation of the Convention Against Torture in immigration proceeding. I first cited the Emmanuel case when another commenter on another site with Mixner's general views falsely claimed that the Torture Act would never survive a vagueness challenge. In fact, I said, it had. Now, was Emmanuel accused of exactly the same thing as the Bush Administration did? No, of course not. But did I ever say he was? No. I said that the only court to consider the Torture Act so far had considered the argument that sometimes it is hard to determine what is torture, and the Court found that argument did not invalidate the statute, that it is not impermissibly vague. There's nothing dishonest about what I said about Emmanuel. The point is, I know this stuff. I know about the Emmanuel case, because I actually know something about the law of torture. And what I have found in these internet debates is that there are a bunch of committed conservatives who don't have any interest in learning anything that I know about this subject. They just want to repeat the talking points. I suppose it shouldn't distress me so much, but it really does. Not because I care that someone who doesn't know any better calls me "dishonest" even though I have more expertise-- it isn't personal-- but because I really believe that we will never be able to reach a consensus on how to fight terrorism and preserve civil liberties unless people are willing to look beyond their ideologies and gain an appreciation of the deep and complex questions that undergird the world's 60 year experiment in a serious conception of international human rights law. We can't have that discussion, or figure out our nation's place in it, when a loud sector of people with no real care for the actual content of the law spread misleading talking points for no higher purpose than to win some elections.
southpaw, Torture is already crime, the relevant statute has been much discussed here. You seem to have completely missed the point. Torture cannot be criminalized without a clear legal definition of torture. Same deal with the terror statute. If officers of the government refrain from specifically intending to cause their prisoners severe pain and suffering, they'll be okay. If on the other hand they go around intending to cause severe pain and suffering to those in their custody, they should gird their loins and face the consequences. More evasion. If they intend to deprive, and do deprive, their prisoner of sleep for a day, is that torture? How about two days? Four? A week? Where does sleep deprivation cross the line from lawful interrogation technique to torture? How do you decide?
dilan esper, I don't care what you claim to know or what legal work you claim to have done. As I showed above, you deliberately misrepresented the meaning and relevance of Emmanuel by omitting key portions of the decision, in order to try to create the false impression that the scope of that decision was much broader than the court actually ruled. This tells me two important things: 1) You're dishonest. But I pretty much knew that anyway from my prior dealings with you. And 2) You know your position on this issue is weak. If you were confident that evidence and caselaw supported your position, you wouldn't feel the need to lie and misrepresent them. If you did know anything about torture law, you'd know that there is no consensus among legal experts as to what kinds of conduct properly qualify as torture. That includes waterboarding, of course.
Mixner, you, like so many of those pro-torture, pro-slaughter, and pro-Bush posters that infest the internet, and specifically this site, are a fucking moron. Now, you might complain that pointing that out isn't productive. But, like your idiocy concerning torture, you would be wrong. Sure, my pointing it out is somewhat redundant for anyone who has bothered to read any of your blathering, but the fundamental truth of my statement is important enough that it needed to be re-stated. See, every time you insist that there is insufficient definition to determine the exact moment when torture begins some well meaning fool points out how broad and vague many statutes are - particularly those for violent crimes, statutes that have been upheld at every level of our justice system. Your examples have been refuted time and again. And still you post the same dimwitted talking points repeating the same spurious arguments as if their idiocy had not already been repeatedly exposed. Just give up cretin. Stick to privatizing sidewalks. At least with that bit of idiocy no one gets hurt. Stop typing up your moronic defenses for torturing people. It just reminds everyone how fucking thick you are.
Dilan, I really wouldn't let Mixner bother you. While I agree with your general point about people needing to become better-informed about human rights law, I don't think you will be able to entirely eliminate people like Mixner who insist on remaining ignorant about the relevant legal issues. But I think once a critical mass of people have a sufficient understanding, it shouldn't matter too much if people like Mixner are still sniping from the margins. And I think we are heading that way. Bush being President remains an impediment, but that impediment will soon be removed. And I honestly believe that even within the Republican Party, once Bush is removed the former consensus on the United States being a leader on human rights will be restored.
Waterboarding is not "drowning" if by "drowning" you mean an act or event that results in death through suffocation in water or other liquid. This is true in the same sense that if a man chokes on a pretzel, and receives the heimlich and is fine, he was never choking. Drowning is asphyxiation by liquid. The first definition of drowning in Webster's is: to suffocate by submersion especially in water One can suffocate, drown, or choke, without doing any of those things to death. My contention here is that death is perceived to be a very, very likely result of these things when done by an enemy, and by doing this to someone, you are presenting a clear threat of death. As I said, waterboarding is a non-lethal means of interrogation. So is pointing an unloaded shotgun at someone, telling them that it is loaded and you will kill them. I think this would be a pretty clear "threat of death." Whether it is, in fact, nonlethal is beside the point here. "Threat of imminent death" is only one of several acts or threats listed in the statute that are held to qualify as torture. Thank you for clarifying what I meant - at that hour, my diction wasn't great. Threat of death is an act that is held to qualify as torture. Obviously, I couldn't have said this better myself, or I would have. Given that this was the point I was pretty clearly trying to make, I'm not finding this correction dissuasive. At the end of the day, your position is either that: I find this argument unconvincing.
If you did know anything about torture law, you'd know that there is no consensus among legal experts as to what kinds of conduct properly qualify as torture. Ah, now I remember Mixner. Back in the "War Crimes" thread on April 10-11, 2008 he was posting under the name "SIW" and was making the same deliberately dense and disingenuous arguments about whether you could sufficiently describe what a war crime was. I thought the prose and repetitive "no it's not!" argument style sounded familiar. Back then he was pretending to be a lawyer who litigated war crimes cases ("Let's just say from someone who practices that this is very controversial and not at all accepted by American courts") but he appears to have dropped that facade. http://matthewyglesias.theatlantic.com/archives/2008/04/war_crimes_3.php#comments
You seem to have completely missed the point. Torture cannot be criminalized without a clear legal definition of torture. Absolutely correct. But since we know that (a) torture has been criminalized, and (b) people are routinely arrested, tried, convicted and punished for the crime of torture, and those convictions have been upheld on appeal by judges presumably able to interpret the relevant law, then we must conclude that, since it would otherwise be impossible to do these things without a legal definition of torture, then a legal definition of torture must exist.
I don't care what you claim to know or what legal work you claim to have done. As I showed above, you deliberately misrepresented the meaning and relevance of Emmanuel by omitting key portions of the decision, in order to try to create the false impression that the scope of that decision was much broader than the court actually ruled. Mixner, come back when you've published some papers or litigated some torture cases. Really. This is kind of a creationist telling a tenured biology professor at an accredited university that the creationist doesn't care what work the biologist "claims" to have done and that the creationist's once-over reading of Darwin "proves" that the biologist is misrepresenting Darwin. Get some experience, get some expertise, and learn something about this. Until then, you only make yourself look like more of a fool when you say things like this.
Brad L, My contention here is that death is perceived to be a very, very likely result of these things when done by an enemy, and by doing this to someone, you are presenting a clear threat of death. Since any act, no matter how harmless, may be "perceived" as life-threatening, this isn't terribly relevant. Waterboarding is non-lethal. It does not threaten the life of the victim. A victim may falsely believe that his life is at risk, but that doesn't mean waterboarding is a "threat of death." Telling your prisoner, "Talk, or I'll cut your head off" is a "threat of death." Telling your prisoner "Talk, or I'll waterboard you" is not.
Since any act, no matter how harmless, may be "perceived" as life-threatening, this isn't terribly relevant Again, I will simply have to note that this is the juncture of our disagreement. Saying that this is the same as "any act" literally denies any judgment about what a threat of death is. No implicit threat would be good enough in this instance. Pointing a gun at someone, and yelling "Talk!" would, in this construction not be a threat of death. Drowning regularly causes death, and is the expected outcome of being asphyxiated for long enough. Similarly, if I drag someone to the 12th story of a building, threaten to push them off if they don't talk, and then do so (only to have them land on airbag), your construction would deny any "threat of death" ever existed here. I would disagree in all both cases (gun and "talk!"; pushed off building), as I disagree on whether drowning someone is a threat of death.
Waterboarding is non-lethal. It does not threaten the life of the victim. That's just silly sophistry. Waterboarding is nothing other than asphyxiation, and asphyxiation is certainly lethal if done long enough. Waterboarding prevents air from entering the lungs -- that doesn't threaten someone's life? Really, these are the kind of childish rhetorical tricks that may be wonderfully convincing to a thirteen year old, but most people grow out of this by the time they're adults.
Waterboarding is non-lethal. It does not threaten the life of the victim. That's just silly sophistry. Waterboarding is nothing other than asphyxiation, and asphyxiation is certainly lethal if done long enough. Waterboarding prevents air from entering the lungs -- that doesn't threaten someone's life? Really, these are the kind of childish rhetorical tricks that may be wonderfully convincing to a thirteen year old, but most people grow out of this by the time they're adults.
The attempt to breathe when you can't take in air bursts the capillaries in the lungs. (Extremely painful). The cells with burst capillaries die and become breeding grounds for bacteria. Death from pneumonia is just as dead as death by drowning.
Stefan, But since we know that (a) torture has been criminalized, No, torture has not been criminalized. It cannot be criminalized until it is clearly defined in law. and (b) people are routinely arrested, tried, convicted and punished for the crime of torture, How many people have been arrested, tried, convicted and punished for the crime of torture under U.S. law, Stefan?
Comments closed July 09, 2008. |
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Heads in the Sand
But...but...
Ticking time bomb!
Kiefer Sutherland!
Blow up America!
Posted by Bill | June 25, 2008 11:17 AM