Tortured Logic

As Daniel Schorr indicates, it is absurd that the current dialogue regarding torture is focused on whether and when it is OK instead of what Pelosi knew and when she knew it.

I should probably start out with the basics and define torture. Especially since ambiguity over what is and is not torture is abused by armchair nationalists to cloud the debate.

"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.

Art I, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Or if you prefer U.S. law:

“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;

18 U.S.C. §2340. The definitions are substantially similar in the act that constitutes torture is the infliction of severe suffering, though the U.N. treaty requires a particular goal in mind they both define torture as the act of a government. So clearly, any argument based around the ambiguity inherent in the word "suffering" designed to imply that imprisonment qualifies as torture is disingenuous at best. Any reasonable person would agree that water boarding fits under this definition as torture. The argument that the presence of a doctor during waterboarding changes it into something other than torture because the victim is less likely to die cuts decency to the quick. The blatant disregard for both the legal definition of torture and the suffering of the victim lays bare that anyone making such an argument has no respect for those the argument is being made to.

One might raise the argument that such legal protections only extend to uniformed soldiers captured on the battlefield. This ignores the clear intention of the above convention which indicates that it is the goal of the person performing the torture that makes the act illegal, not the identity of the tortured subject. It's simple common sense to say that if we have the jurisdiction to hold a person then they are under the jurisdiction and protection of our laws regardless of whether we find it convenient. Further, though the United States Supreme Court has not decided this narrow issue yet, it has decided a line of cases that a rational person would think extends to cover this situation (a rational person being one who has not set out with the goal of achieving an end result where torture is justified). In a line of cases from Ex parte Milligan to Boumediene v. Bush the Supreme Court has held that even the detainees at Guantanamo Bay fall under the protection of U.S. law and that they can not be deprived of fundamental rights like Habeas corpus. Also, that Congress and the President, even working together cannot simply declare certain people and places to be without those protections.

Though it is yet to be determined if the prohibitions against torture apply to non-uniformed foreign national enemy combatants captured in a foreign country, we have frequently tried to make a clear argument on this blog that the protections of the law should apply to these people. I have tried to make this argument by making the implication that any innocent American citizen could be taken to Gitmo. Of course, any time someone implies that the government could wrongfully imprison an innocent person the notion is labeled as X-Files type conspiracy lunacy. Which is why I have tried to be careful and point to situations that show how easy it is to be mistakenly labeled as a terrorist. Where the no-fly list includes the names of innocent people, or where police label nuns and peace activists, that they admit are innocent of any crime, as terrorists.

If you combine the fact of how easy it is to become labeled a terrorist or an enemy combatant with the fact of how difficult it has been for those in Gitmo to even contest that label, even when they have been found innocent by their own government, you see that torture is being used on people merely for being accused of being a terrorist, having not been found guilty in any court, merely because there is the possibility that they may have some information that could be obtained through torture that could not be obtained as quickly through more conventional interrogation. Even when good old fashioned investigation still works. I am not so foolish as to believe that everyone in Gitmo is an innocent victim of circumstance or that there aren't dangerous terrorists being held there that can never be released without representing a serious threat to the American people. I am just worried about the labels being used and logic being applied to justify locking people up for an indefinite period of time punishing them without the accusations against them(and their accusers) seeing the light of day and I am particularly uneasy about the U.S. torturing anyone, especially in such suspicious circumstances.

Still Cheney is making the political talk show rounds insisting that torture produced valuable intelligence that saved lives. This argument is being picked up and repeated as if anything Cheney says about intelligence to the media can be trusted after the fiasco that was the run up to Iraq and the Valerie Plame scandal. It has even been revealed recently that torture was even used to produce some of that bad intelligence that Colin Powell presented to the U.N. security council.

This is exactly the worst case scenario that comes to mind whenever there is mention of torture. There was no ticking time bomb and the poor sap being tortured didn't know anything and only gave the people committing the torture what they wanted to hear in order to end the torture. That bad information was relied on to put us in an unnecessary war and thousands of people have died. Yet the idea that torture produces effective intelligence continues to be tossed around like it is a valid argument. Even if torture produces good intelligence some of the time, the risk that bad information will be relied on because it is what is politically expedient at the time is far too great a risk for us as a nation to be throwing our morality to the wind.

Even if torture works it is still morally wrong. Unfortunately I don't have any arguments here, just a bald assertion of a moral absolute.

I could argue that Alberto Gonzales was clearly wrong at his confirmation hearing when he said we can never be like our enemy's. Or I could parrot the refrain that being seen as abandoning our collective principles encourages extremist anti-Americanism. Or I could point to the damage this does to our international relations. Friendly nations wonder why we have fallen from being Regan's shining beacon of freedom on a hill, and antagonistic nations like Russia and Iran point to our abuses when we criticize them for kangaroo trials or oppressive measures. I could point to truly oppressive regimes across the globe that now simply label as terrorists those they wish to abuse. However all those are pragmatic reasons, and I don't think that is the best foundation for a moral absolute. I know torture is always wrong because I have human compassion. And you know it too.

All that is beside the point. Torture is illegal and water boarding is torture. The only reason I can think of that the MSM has allowed itself to be hijacked by Cheney again is that Obama has decided that the people who committed acts of torture under color of law will not be prosecuted. So that ends that story. Only vague questions of conspiracy remain and the question still appears to be open as to whether those that wrote the torture memos and the members of Congress and the Executive branch who were complicit in authorizing torture will face any kind of consequences.

It is vitally important that we zealously prosecute everyone responsible for the use of torture from the interrogators and their commanders and guards at the camp that knew it was happening to those that wrote the memos and everyone in power who knew it was happening and did nothing to stop it. even if that means throwing half of Congress in prison. This is important for a couple of reasons. First, a full and complete prosecution of everyone responsible will correct many of the above mentioned pragmatic reasons that torture is wrong. Clearly extremists will continue to hate America for irrational reasons. However, by taking pains to correct our misdeeds we will show to friends and enemies internationally and future leaders of America that we are a nation committed to the rule of law and that we can bravely face our own misdeeds and see justice done.

The next reason is that only a full prosecution of everyone that could possibly be complicit is the only way to actually see justice done in this situation. Where the government at all levels and in multiple branches participates in enacting a broad policy that is illegal and immoral and actually produces negative consequences simply rooting out a sacrificial lamb like "Scooter" Libby only perpetuates the sense that those in power who are ultimately responsible for the crime are beyond justice. A full prosecution is also important to avoid domestic political wrangling. If we put Cheney on trial Pelosi needs to go on trial as well. So does every member of Congress that was briefed on the use of torture and everyone in the various agencies that used them, both political appointees and career agents. I am not saying that we need to imprison half the government and military, but in the interests of justice there needs to be a full and impartial investigation that brings charges against those who appear to be guilty of serious crimes against U.S. law.

I understand Obama's order that the interrogators not be prosecuted. Spies and agents in the field are not legal experts and have to be able to rely on the orders of their superiors. Unquestioning reliance on the command structure is vital to successful military operations. Still, there is a point where the guy who has boots on the ground knows something is wrong. That an order is wrong. It is that person's responsibility to say "no." I know it is a hard and cold and frankly unrealistic rule but that is the very same thing we say to accused former Nazi prison camp guards as they are extradited and prosecuted for simply guarding the camp. (No I didn't just fall prey to Godwin's Law)

I further understand Obama's decision not to prosecute the interrogators because doing so would turn our agents in the field into political paws by using them as a sacrificial lamb. An agent in the field has to be able not only to rely on his orders but also to believe that he can effectively carry out his mission even when there is an election coming. They need to know that they won't be hung out to dry just to appease the public when the party in power changes.

Because prosecuting the interrogators is off the table and it is highly unlikely that Congress will enact legislation that could put their own members in prison, and because there is a current sentiment that we need to move on with current troubles and not be concerned with the egregious acts of the prior administration it is highly unlikely that we will see any kind of full and non-partisan investigation that results in justice being done. The most we will see is someone like John Yoo getting a slap on the wrist. I am still too cynical to believe even that will happen.

The Walk of Shame: A Shameful Roundup

Saving the best for last.

First, a new study shows that half of all American doctors prescribe a placebo to their patients, and most of them that do, do not inform the patient that the medication will not do anything for their condition. The study goes on to say that doctors usually use pain medication, vitamins, or stress medications rather than the sugar pill one usually associates with placebo.

This throws into question medical ethics and the doctrine of informed consent. It would be possible to meet the standard of informed consent and still get the beneficial effects of a placebo. It also raises questions of further wasting money in the already inefficient American medical system.

This strikes me as similar to the use of tazers since in both cases a professional with a fiduciary duty to the people is using a device as a shortcut around dealing with the psychological difficulty's of the individual they are faced with at the time. It's lazy. It's laziness that has harmful consequences.


Second, the McCain campaign volunteer who claimed to have been attacked and beaten by a black man who carved a "B" into her face to signify Barrac Obama, admitted to lying about the attack. Apparently the woman is mentally unstable and probably did it to herself.


Lastly, we have the Maryland police spying scandal. The state police went to public meetings of politically left protest organizations and entered the names of participants in a database of persons suspected for involvement in terrorism. So essentially what we have is a law enforcement body labeling as terrorists, U.S. citizens who are exercising their constitutionally guaranteed first amendment rights without any evidence that any crime had or would be committed.

The ACLU were the ones credited with this story seeing the light of day because of an information request. This week the state started sending out letters to people who's names are on the list. There are varying accounts of what the letters say or what their purpose is. Questions need to be answered like; why were these people targeted, was it because they were politically liberal, why not investigate groups like the KKK which is already listed as a terrorist group, what prompted this spying, will the victims be able to see what is in their file, what criteria are used to determine someone is a terrorist, how does someone get their name off the list, is it possible to remove someones name?

This again gives an answer the question, "if you aren't doing anything wrong, what do you have to fear?" These people were not doing anything wrong. One officers reports even showed that these people were not planning on doing anything wrong. Yet they were labeled as terrorists. At this point we still do not know why. Again, most people don't concern themselves with the draconian methods of dealing with suspected terrorists since 9/11. Except we have been repeatedly shown that one does not need to do anything wrong to be labeled a terrorist and be subjected to torture. But then again, this woman seems to think that protesters, or anyone that is vocal about their political opinions deserves to be given the third degree.

The Security Situation

For those of you dealing with apologists for the foolish security measures of the Bush administration here are two direct examples of why innocent people do have something to fear from draconian security measures such as those that have already been enacted. Not only were these people not doing anything wrong, two of them fought to defend our freedoms.

Australia Withdraws from Iraq

Australia handed over their mission to U.S. command today and began withdrawing their remaining troops. At least they aren't capitulating to terrorism like the Spanish.

The Torture Debate

The national discussion regarding the use of torture and extreme rendition is often cut short by declarations that this is a time of war. Such declarations are not usually followed by any explination as to what significance that should have because most of the time they are made by people that have no interist in actually considering the value or appropriateness of torture. Though now it appears there are legal consequences of the torture that these people had previously been unwilling to think about. Unfortunately these are not the legal consequences of those being responsible facing justice. They are the natural consequences of the unreliable information that is gained from torture. Followed by the that information gained through torture being unusable in court because of the tainted nature in which it was obtained.

Even if you do accept that torture does work and that it is called for by the current situation, the torture debate is more than just an argument over whether extreme measures are acceptable during a time of war. There are at least two other issues.

First, intelligence failures prior to 9/11 indicate that the US intelligence community doea not need more information since they had enough to know the attack was coming, and they are too incompetant to use the information they do have.

Second, there are serious questions about whether the person being detained under suspicion of being a terrorist is actually guilty of anything. People have been spirited away, aparently based on nothing more than a muslim sounding name, tortured, and released after months when it is discovered a mistake was made and that these people were not criminals or if they were, after the CIA had fouled up the investigation.



Many people are not conserned with this because they don't have muslim sounding names and are merely mundane white people living in the heartland. This should consern everyone because it is the start of a slippery slope. If the people responsible for this get away with abducting and torturing innocent people for something as vaguely defined as being a suspected terrorist it is a small step to other criminal suspects and then another small step to the imprisoning and torturing of people for legal but unpopular behavior. And then you have the thought police.

These steps are smaller than most people want to believe because the first step has been so large. That people that are merely suspected of being terrorists are being tortured is highly significant. It causes the ensnarement of innocent people based on unchallenged circumstantial evidence.

Probable Cause

We have talked before about the nature of police work and its effect on individuals. Both on the mental state of the individual peace officer and the effect on the people being tazed. To rehash somewhat, when your principle mode of interaction with other people is as an authority figure dealing with the most violent and depraved elements of society it tends to color your perception of the world. This can lead to the effect that an officer looses the ability to differentiate between a clear and present danger and a normal person. I have no study or authority to point to that says this, it is just my observation in dealing with the police. Which has colored my own perceptions.

The example I want to talk about is my own recent experience in being falsely accused of a crime. I won't get into too many details of what happened until I consult a lawyer but, basically I was accused of something I didn't do because my name is similar to the person who the evidence points to.

The two things above seem unrelated until you consider the example of Arabic looking persons trying to use air travel since 9/11.

Mistaken identity and prejudice by law enforcement exacerbate an already stressful situation of being falsely accused of being dangerous or a criminal with an affront to your human dignity. Furthermore, in a situation where one must resolve a bureaucratic error one must remain calm so as not to upset the desk jockey that holds ones fate in their hands.

Combine all the above with the already stressful situation of dealing with air travel, the Muslim persons who actually complete travel by air must have the patience of a saint.

Turkey

Its more than just delicious with cranberries. Aparently Turkey is also a country in both Europe and the Middle East. Turkey invaded Iraq last Thursday to fight the ethnic Kurdish sepratists. The President has called on Turkey to limit the incursion while Turkish politicians use the Bush administrations selfsame rhetoric to support their own "war on terror." I find Turkey's reaction to Kosovo's declaration of independence interesting in comparison to that of Russia. Russia objected to Kosovo's independence because they are afraid international recognition of such states will only encourage other seperatist regions to break away from their mother countries. Which is supposed to be a reference to Chechnya. Turkey, on the other hand supported Kosovo's independence and recognized them as a country. I wonder what they think of Russia's stated reason of not wanting to encourage break away republics.

The Kurdish north has been the most stable part of Iraq since Bush declared "mission accomplished." Which is why neither the US or Iraq wanted to risk destabalizing the regioin by going in and trying to uproot the PKK. It was also the major reason not to pull US out of Iraq. Or at least I thought it was. The scinario painted by people like Sen. Mccain goes something like this. We leave, and with noone holding them back the Sunni and Shiite extremests begin a full scale civil war. The Kurdish north then takes all their trucks and goes home, declaring independence and the existence of a country called Kurdistan. Then the Kurds in Turkey try to take their land and join with the Kurds of the former Iraq and Turkey begins a massive military invasion of the region. This combined with the unfettered influence of Iran, Jordan, and Saudi Arabia in Iraq throws the whole region into utter chaos.

At least, thats the nightmare situation as I understand it. Now that Turkey has invaded Iraq I find it less compelling to support John McCain as a presidential candidate, since my whole reason to back him has veen prevention of Turkey from crossing that line. Admitedly, that has never been one of the planks in his platform but it was my reason. Without the threat of total middle-eastern bedlam, McCain's pandering to the religious zealots and "conservatives" in his party is thown into stark relief. I still have boatloads of respect for the man who is a war hero, and a senator who has managed to keep his integrity while being pragmatic enough to work in politics for so long. He just is no longer appealing to me as a president. Unfortunately that only leaves Clinton who voted for the war, and Obama who I have heard nothing substantial about, or long shot also-rans who I like but are being ignored by the old media.

Oh, aparently the U.S.S. Cole is still floating

Don't Make Scalia Have To Smack A Bitch

This article redacts out, the specifics of Justice Scalia's comments that lead one to believe he has been watching too much 24. I want to point out the practical legal significance of the "two questions" that Justice Scalia says are the only two that remain. Once you say that torture
is acceptable, something Justice Scalia said is common sense, the only questions that remain are, when and how much.

The nature of the U.S. legal system makes coming up with answers to those questions a scary concept because our laws are not written in stone, but are subject to interpretation, and alteration. If you set answers to those questions in U.S. law those answers now become mutable. Justice Scalia's comments paint a mental image if backhanding a beligerant and dangerous terrorist mastermind mere hours or minutes before a devistating terrorist attack is executed. Light force + immidiate, credible, threat. What we already have is water boarding, sleep deprivation, and torture with dogs in the complete absence of any threat, or where the threat has already passed. With this as a starting point, a moveable line of what is acceptable becomes much more threatning to the sense of justice. Who are you to say thumbscrews and electrocution are inappropriate?

What defines an imminent threat is already a question that is litigated heavily in the U.S. in regular criminal cases. Frequently, just getting caught actually ends the threat a potentially dangerous person poses.

How does one know the person being tortured is guilty of terrorism or even knows anything of value? We have seen the intelligence community fail repeatedly in the last seven years. 9/11 was a failure of intelligence of colossal magnitute and consequence. Are we really to trust these people to make the judgement call about who it is appropriate to torture?

This is another question that, once the line is defined, becomes moveable. We are already torturnig people in Guantinamo under suspicion of terrorism or outsorcing it through extraordinary rendition. I point to the case of Maher Arar as an example of an innocent person that was apprehended under an unfounded suspicion of terrorism and tortured. It is not as if this argument for torture is being made in an academic setting, innocent people are being grabbed off the streets by the very people that are asking for the authority to torture them. The point is, people are being, and will be tortured before it is determined they are guilty of anything. Any law allowing for torture is merely a way for those who have already used torture to escape justice. Even if the defined as acceptable only in the scenario Justice Scalia proposes, its not too far a leap for local police agencys who have, say abused someone in their custody, or crooked cops who torture suspects to use a torture law to defend themselves in court.

The Legal Front of the War on Us All

Remember Jose Padilla? Or John Yoo? Apparently Jose is none too happy about being tortured while in the Naval Consolidated Brig at Charleston, South Carolina, and feels as though John is liable for said treatment.

An Abstract Measure of Progress in the War on Terror

The picture on the right is an unforgettable image that captures the spirit of the Bush Age. The presence of a clock reminds the viewer that Armageddon is nigh, while Mr. Bush's expression is one of confusion, and the kind of calculations that can be derived from a black/white, 0/1 decision-making process.



Here is a picture of Osama bin Laden, taken roughly around the time of 9/11. Notice how he appears to be sitting in a tent, probably in the middle of nowhere.








This picture of Mr. Bush taken at the recent APEC Summit in Sydney, Australia, places him perfectly within his element. He stands alone, against a colorful and confusing backdrop. Judging from the smirk on his face, his calculations, political and military, must be working out right about the way that he wants them to.




Bin Laden, I would say has fared the best from the War on Terror. Not only has his production value gone up considerably, but he obviously has enough free time to take care of himself and properly dye his beard. Also, when he tells people to rebel against the government of a particular country, he is taken seriously.

The Continuing Atrocities in Lebanon

There have been some interesting developments in regards to the situation in Lebanon.

Firstly, as of this posting, there is no mention of Lebanon on Reuter's home page or international page. Because of the latest terrorist fiasco, suddenly what merely a week ago was a humanitarian disaster is now a marginal issue of little interest. Your point of view has been subsumed to the major media corporations.

Secondly, although the draft text of the resolution under consideration before the UN Security Council isn't available on-line (if you find, please e-mail me), there are some interesting statements that have come out in opposition. Dan Gillekin, Israel's ambassador to the United Nations, has come out against the 72-hour ceasefire proposed by Russia saying, ">a ceasefire of this type would serve only one purpose, to allow Hezbollah to regroup and recover." In the same article, John Bolton said of the Russian proposal, "I don't think it is helpful to divert attention, we are seeking to get a permanent, sustainable solution based on the approach that we and the French have been taking." The Arab League is so vociferous in its opposition to the draft resolution that the body's foreign minsters took the journey to New York to directly address the Security Council. Perhaps the most interesting part of this discussion is the way that Israel tries to characterize its target as "terror," rather than protecting its sovereignty, which can lead one to believe that their true objectives are much broader than simply eliminating Hezbollah as a threat.