Your premise lacks any credibility and isn’t based in reality – only fear.

Enhanced Interrogation Techniques: The Need Is Clear! Let’s Go To The Videotape

The Taliban Moves To Within 60 Kilometers Of Controlling Nuclear Weapons

Be Afraid, Be Very Afraid

For those on the extremely naive and holier than though left, read this very, very carefully.

If there was any question regarding the use of any technique at our disposal to pull actionable information out of terrorists, I believe the transcript and clip below of Kuwaiti Professor Abdallah Al-Nafisi speaking on the topic of terrorist attacks on the United States should go a long way towards quelling it.

Unless of course you are an employee of the ACLU, or someone that is willing to die, going to the grave with your incorrect principles intact.

Now this professor does not speak for everyone, but for enough to be a concern at the highest level.

This is an excerpt from a specch on Al-Jazeera in February, 2009:…

If we start prosecuting Bush administration officials, should we also expand prosecutions to members of Congress (Republicans AND Democrats) who reviewed, signed off on, and appropriated money for CIA interrogations?

What do you mean “extend to Bagram”?

Illinois is doing just fine after taking out the trash and the nation would be too.

If you really, think it’s too much for us to take send them to the World Court.

You think not prosecuting the clearly illegal war crimes and crimes against humanity of the Bush Administration is going to create any leverage or bipartisan support in universal healthcare from the Republicans? I don’t think so.

Great Leaders are masterful political calculators. However, masterful political calculators are not necessarily great leaders. I think we know which one we’ve got in the Oval Office now.

Would the prosecution of Bush Administration officials be nasty and divisive? Sure. In other words, Tuesday in D.C.. Should we shirk away from our duty for political expendience with the distant hope that if we compromise on what we truly know needs to be done — maybe, just maybe (but highly unlikely) we will see marginal concessions on domestic issues far less important that the fundamental dignity of our country & citizenry.

Let the prosecutions begin — the only way to heal this boil in our history is to lance it and let the bile drain out. If we are afraid of getting cut, it will only fester until the next opportunity comes about, but next time we won’t stop at water-boarding and stress positions — it will be finger-nails, electrodes to genitals, Turkish feet whacking, etc.

What good is universal healthcare, social security reform, great education and effecient public transit if you live in country in which you can’t look yourself in the mirror in the morning.

I have seen way too many presidential administrations have all momentum and energy dissipated while the public obsesses with the rectitude of past actions. Whether it was watergate, Oliver North, or Monica Lewinsky, these pursuits all distracted us from important concrete issues that were affecting most Americans on a daily basis. Even if moral rectitude is stipulated, we all must realize that if this goes forward, what we will get is a lengthy divisive battle along largely partisan lines. Again, on center stage.

So let me plead forgiveness from all the wingers who can never let go of moral rectitude.Let me say that I am an American just like you, and I want my politicians to fill potholes and make the trains run on time, and so on and so forth. Insert your moronic Mussolini joke here..

So suppose we let this go. Suppose as a result are better able to make social security solvent over the long term, come up with a viable plan for universal healthcare coverage, and begin to bring the federal budget back towards balance.

My opinion is that if we get those things and don’t get torture convictions, America and Americans will be WAY better of as a whole. And if that means that progressives have to keep walking around with big sour pusses on their faces and nurse civil liberties resentments until death, I can sure live with that outcome.

I don’t even mind the predictable forthcoming slags about sacrificing liberty fro security and on and on. Our nation has very serious functional and systemic fiscal and management problems. I would like those addressed as our first priority. I am certain I am not alone. I am also pretty sure that if they remain poorly addressed or unaddressed because they take a BACK SEAT to a bloody patisn battle on a moral issue, our liberty will be adversely affected by our nation’s lack of long-term fiscal viability.

“This isn’t by any means to say that your reading is wrong – merely that text isn’t quite so clear or beyond argument as you’re suggesting.”

Isn’t this the whole point, Simon? You’re arguing against investigation, but investigation and prosecution are exactly the processes by which we (a) find out what happened, and (b) resolve the legal ambiguities.

Simon Said
Well that’s certainly rhetorical bomb-throwing and partisan hackery.

First off, I’ve not seen too many posts from you that don’t fit both of these while you continue to protest. “Mr. Pot, Mr. Kettle.” You are terribly predictable in your conclusions.

An idea is either good or bad based on the idea not where I came from. If that were not the case, it would be possible to ignore all of your posts because no matter what the meander to get there it’s always a foregone conclusion where you will arrive. That said I do read them just in case you someday surprise me or you raise a valid point. In the end though, you are incredibly partisan and predictable. You remind me of the American who “knows his country is the best because he was born here and knows his is the true religion because he was born into it. ” Surprise me sometime with a non-partisan or bi-partisan post that shows some honest thought.

As for the bombthrowing, you wrote a comment that makes me want to scream

I said before the election that an Obama victory would, without serious doubt, lead by the short or long path to prosecutions of people in the previous administration (I suggested that Obama would downplay it to appear moderate until he needed a bone to throw to his base, but that the time would come), and that if Bush had a scrap of honor, he must issue a blanket pardon for everyone in his administration for anything they did in its employ, period. That would be an awful affront to the rule of law, I noted, and deeply troubling, but it was necessary to forestall the inevitable partisan witchhunt. Brad’s post serves as an apt reminder that those concerns were entirely justifed.

So, first you prejudge the President (no partisan hackery there), then you prejudge the motives of everyone who thinks we should be ruled by law and not party affiliation. It’s offensive on so many levels and typical Rovian politics. Then you want to pardon all of the wrongdoing even though you say it would be an awful affront to the rule of law. Do you ever listen to yourself? Conclusions followed by prejudice that always gets you where there was never any doubt where you intended to fo. Permit yourself to indulge in the belief that some of us were outraged because we were paying attention, we love our country and we would be just as outraged were it to happen in any administration including the current one. (I do agree with you on one thing, Bush did not have a scrap of honor) Perhaps you are projecting here.
If they determine any Democrats knew and could have said anything, go after them too. I’d like to get the stench off of my country that your party put there.

Then Brad responded and gave me some hope— a Republican with principles that were not fluid. I thought these were extinct and thought they no longer survived in the wild ☺. How pleasant to see that some of us still consider ourselves Americans first.

You then “attacked” Brad as not a conservative. As it is already out that you are of the Palin wing of your Party, While I have some issues with Ron Paul, he was a qualified and thoughtful candidate which Palin in your wildest dreams was not. (BTW, you called me a liar last time I commented on her and that is nuclear bomb throwing) That said, it doesn’t matter that she was a bone to the Ann Coulter wing of the party, the ideas do or don’t have merit on their own.

Then Simon threw the next frag


Oh, and calling for Judge Bybee’s impeachment. I forgot about that little gem of lefty partisan silliness.

Well a judge is appointed for his judgment and Bybee’s is now known to be seriously flawed, making his appointment, troubling to say the least. Since I believe you yourself said that we were torturing and were against it, other than the fact that he was appointed by a Republican you should be troubled by it too. Since people who voted for him say they wouldn’t have if they had known his role in giving the green light to this reprehensible behavior and that he should resign, he could spare us all and do that, but that would again be putting the country and it’s reputation first and that is not likely. We impeached a guy for perjury and he had a limited shelf life (Isn’t this a little more troubling?) If you say no, close your eyes and imagine he’s a Democrat. I don’t have to but I know it might be necessary.

Philip Zelikow is a fine fellow. Although trained as a lawyer, however, he has not practiced law for 25 years. His career has been as a foreign service officer and national security expert, including stints at the NSC and as executive director of the 9/11 Commission. It is clear that he opposed the CIA interrogation program as a matter of policy. He also went on record questioning the OLC legal opinions. So have many others with even more impressive legal credentials. To which the apt reply is that Yoo, Bybee and Bradbury are also dripping in impressive legal credentials. I see no reason to vest Zelikow with such authority that his saying ” that legal rationale is bogus” measn I should shut up.

Not incidentally, what’s the point of writing this:

“But then what the hell does he know when compared to a pair of highly partisan bloggers?”

I write a fair and reasonable blog mainly from a centrist perspective, and I’ve always been a Democrat, albeit one who refuses to accept any party line. So is it your view that by not joining the left of my party in calling for heads over “torture,” I’m “highly partisan blogger” — and a Republican one at that? I started my blog to combat exactly the polarized state of political comment in the blogosphere. What about you?

Brad Porter:

As to all those things I should not forget (Geneva Article 3 and so on), let me respond to some of the more pertinent:

Article 3 and US law making violations of the Geneva Conventions a war crime — 18 U.S.C. section 2441 does make it a war crime to commit a “grave breach of common Article 3” such as an act of “torture.” As with 18 U.S.C. sec 2340, though, “torture” or “cruel or inhuman treatment” is defined as “The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering.” “Severe physical or mental pain or suffering” is defined by te language in USC sec 2340 — which brings us around in a circle back where we started. Either you violated 2340 or no crime.

The serious anti-torture people are hanging their argument on the language, “conspires…to commit…” The argument is that the OLC lawyers really knew that their argument was frivolous but cooked it up (conspired) with policy makers and/or CIA officers to provide legal cover to what they knew to be illegal acts. All I can say is, good luck proving conspiracy, intent, and actual harm all at the same time — by the lawyers, no less, not the “torturers” or those who ordered and approved the “torture.” My take is that some folks are hoping that the pressure on Obama-Holder will be such that they will do something that results in these lawyers being driven from the bar. That could happen, but a successful criminal prosecution won’t. Even assuming all the hurdles to bringing charges that would not be thrown out by judges could be cleared, no jury is going to convict any of these guys. Anf prosecuting them will cost Obama a lot of political capital.

“Detainee Treatment Act, 2006; Intelligence Authorization Act, 2008) which explicitly define waterboarding and other techniques not in accord with the Army Field Manual as torture and as expressly and explicitly illegal.”

The Detainee Treatment Act restricted the military to the Army Field manual but not CIA. Through the 2008 Act, some in Congress sought to extend this restraint to CIA but the President vetoed it and the veto was not overriden. In January, President Obama issued an executive order that, among other things, restricted CIA to the Army Manual — BUT hedged his bets by setting up a Task Force to study and report to him on whether CIA should have a different standard. It does seem that he has rendered that task force project moot by his anti-torture stance, but you never know what he’ll do in a year or two (I suspect he’s reserving the right to take a fresh look if things go badly in terms of terrior attacks). In any case, the use of the “enhanced interrogation techniques” BY CIA has not been expressly outlawed but prohibited by Presidential order, which can be changed by a stroke of the pen.

Abu Graib, Bagram, Jose Padilla, people being killed in violent interrogations, etc. — I do understand that some people are upset by all of these things but they are still separate issues — if the issue is whether or not to prosecute anyone for the CIA interrogations. So far as we know, CIA did not run Abu Graib interrogations, not does it run those at Bagram. Nor for that matter did it question Padilla. Nor has anyone accused CIA personnel of killing any detainees.

You should keep in mind that before 9/11, CIA officers were not in the business of conducting interrogations. The program of CIA interrogating “high value” detainees seems to have emerged in the early months of 2002, perhaps out of a perceived need to question these guys as part of a “black” (covert) operation, which in turn might have been deemed desirable to keep al Qaeda off balance (not knowing who was caught, by whom, under what circumstances, etc.). So far as we know, this program involved fewer than 100 of these “high value” detainees and that only about one third were subjected to any of the “enhanced techniques.”

You should try treating everyone with whom you have a disagreement that way.

Cheers.

Although it’s clear that waterboarding isn’t severely painful, [18 U.S.C.] § 2340 speaks invariably in terms of “pain or suffering,” and at first brush, one has to wonder if these aren’t separate categories. I have no idea if that simplistic reading holds up to scrutiny … (for example, is “pain or suffering” a term of art with definite content?).

This isn’t by any means to say that your reading is wrong – merely that text isn’t quite so clear or beyond argument as you’re suggesting.

Also worth mentioning is that your comment makes a faulty assumption in characterizing § 2340A as “the applicable US law” (emphasis added) on which attempts by Obama and his DoJ to run this partisan withhunt will stand or fall. There may well be other statutes that can be brought into play. For example, the War Crimes Act, 18 U.S.C. § 2441, incorporates violations of certain treaties and conventions into domestic criminal law, and Obama’s prosecutors could mine the rich seam of international precedent to find ways to claim a violation justifying prosecution under § 2441. (Even for those who decry the use of foreign law in interpreting our Constitution and for most statutory interpretation cases, such as Justice Scalia and myself (see, e.g., my essay The Misguided Search for the ‘One Law – and the Ongoing Struggle to Articulate it Correctly’ (2006) (available at SSRN)), accept the legitimacy of consulting foreign cosignatory law in construing treaties (see, e.g., Olympic Airways v. Husain, 540 U.S. 644, 658 (2004) (Scalia, J., dissenting) (observing that “[w]hen we interpret a treaty, we accord the judgments of our sister signatories considerable weight” and faulting the court for failing to give adequate “consideration to how the courts of our treaty partners have resolved the legal issues before us” (citation and internal quotation marks omitted)).)

Can a case be made for a § 2441 charge? I don’t know. I do know, however, that prosecutors can be very creative when the mood takes them (see, e.g., United States v. Turner, 551 F.3d 657 (7th Cir. 2008) (federal wire fraud charge predicated on perpetrators of an honest services fraud being paid by direct deposit)).

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from–

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;

Don’t forget the other statutes involved. The Geneva Convention, which by Article XI of the constitution is the law of the land. The Army Field Manual, which has for many many years defined the procedures the military should take to stay in compliance of the law. And of course, the two laws passed in the last four years alone (Detainee Treatment Act, 2006; Intelligence Authorization Act, 2008) which explicitly define waterboarding and other techniques not in accord with the Army Field Manual as torture and as expressly and explicitly illegal. And this is all presuming that Bybee’s reasoning would not be found in clear violation of 18 U.S.C. sec 2340, an opinion I don’t know many legal experts who share. In fact, short of Bybee and Yoo, I really can’t think of one.

But of course, the simplest way to interpret the law is to pass it through the judicial system, which is of course what they are for. Bybee, Yoo, yourself, et al, can have any opinion you like about the legality of something. That opinion has no direct legal weight. It does not “make” something legal because a lawyer makes the case that it is so. I can hire a lawyer for a DUI conviction who might argue that my driving over the legal limit was not, in fact, my driving drunk, because I can really hold my liquor. That interpretation of the law, however, must then pass muster through the judicial system.

And in that respect, the mountain of precedent and case law is not very all unclear (nor, for that matter, is it very unclear when other Bush DoJ “opinions” on other facets of detention law has been tested, and overthrown in several high court decisions in the last four years alone). I wonder if you can cite me a single judicial opinion conforming with your and Bybee’s interpretation that, say, what happened at Abu Gharib, Bagram, and the like, was perfectly within the bounds of the law.

I will, incidentally, leave aside the mountain of clear violations of the law even according to your standard. Jose Padilla and others were indeed mind-altering substances. Over a hundred detainees by some counts, but even a few dozen by the CIA’s count, have been killed due to violent interrogation, John Bybee et al declared that many of the activities they were justifying, if used over a certain limit, would indeed be torture, and we have many documented cases of that limit being exceeded tenfold. Bashing someone’s head into a wall repeatedly is usually considered “severely painful”, Bybee’s assertion that a towel around the neck changes its designation notwithstanding. Point being, even by your standard here torture has surely occurred.

Maybe that doesn’t matter though. Maybe you’re right, and a panel of justices would find your interpretation to be absolutely correct. Maybe they’ll break with every precedent before them and steer the legal interpretation Bybee’s way. Well then, have your day in court. But because you “strongly” believe that you are in the right does not mean that prosecution is unwarranted. Look on the bright side though; you might well be vindicated!

A Republican is by definition a member of the Republican party, as I have been since the day I turned 18. Qualification: met.

A conservative, as I might define it, believes that sovereignty rests in the individual and not the state, and thus, where possible, the authority of the state ought to be proscribed and extremely limited. It is both an inherent skepticism and belief in the extreme limitations of the knowable, and an ingrained reflexive mistrust of expansions of (especially extremely centralized) authority in large part for that reason.

I will certainly agree that I am no Republican of the Bush Republican variety, which in my estimation is defined chiefly by an extreme veneration of authority, but that’s me.

The question then is whether my conservatism fails the smell test, or whether theirs does.

To you, near as I can figure, Republicanism or conservatism means refusing to hold people accountable for their actions, a disbelief in upholding the rule of law, a desire to expand the traditional and legal definitions of the lengths that the state can go to mistreat people in its care, and not liking Ron Paul. Those are precisely the only things you’ve stood up for so far in this thread, the only things on which grounds you confidently declare me a liberal, so those seem to be, in your eyes, my chief disqualifiers. In which case, I’m not sure why anybody should take you seriously as an authority on or arbitrator of conservatism.

Admittedly, as a person who believes in armed neutrality in foreign affairs, the inviolability of civil liberties at home, a mistrust of naked veneration of authority, a further mistrust of efforts towards social engineering, and a fiscal conservatism, I have certainly felt fairly unwelcome in Republican circles in recent years (in no small measure because of its self-appointed definers). Trollish line-drawers who deign to demand that their pet causes are the qualifiers and disqualifiers of “true” rightism, and that all the other people sitting under the tent with them who might disagree do not do so in good faith but do so because they are lunatic double agents, certainly complicates things, and are in no small part responsible for the sorry state of said right-leaning ideology and its purportedly torch-bearing party, but you wouldn’t know anything about that would you.

(there’s your bomb-throwing).

Philip Zelikow . . (After studying at the University of Houston, Zelikow completed his Bachelor of Arts in history and political science at the University of Redlands in southern California. He earned his J.D. from the University of Houston Law Center, where he was an editor of the law review, and a Ph.D. from The Fletcher School of Law and Diplomacy at Tufts University. In the early 1980s, Zelikow practiced law. . . After George W. Bush took office, Zelikow was named to a position on the President’s Foreign Intelligence Advisory Board [PFIAB],. . . ) . . . says you’re both wrong.

He says the legal rationale is bogus.

But then what the hell does he know when compared to a pair of highly partisan bloggers?