Dismembering Justice

In my last article on the torture conducted by the Bush administration, I may have left out another important reason for a full and complete reckoning for all involved at every level of government. It was in my last article I explained why I understand that Obama won't prosecute the agents that carried out the torture. To reiterate, we need our agents in the field to be able to do their jobs without worrying about the outcome of the next election and whether their actions will become unpopular.

However, of course that was the plan of the Bush administration all along. It now appears that from the beginning they planned on denying any responsibility for the torture by arguing that they had only asked how far they could go legally and it was the nefarious Department of Justice that told them to torture. Though, the new information seems to indicate that those lawyers were pressured to produce opinions that indicated torture was legal.

Given the amount the DOJ was politicized by the Bush administration it is highly unlikely that any advisory opinion that emanated from that DOJ was free of undue influence. Also, why would the DOJ have generated this opinion if it werent asked? And why would the question have been asked if it werent abundantly clear what the "correct" answer was?

Though if you believe the story being sold to us by the former administration through MSM is true, that every lawyer "consulted" by the Bush administration agreed that the techniques were legal, that does not make it so. The DOJ does not make the law. Congress makes the law. And Congress has made torture illegal. As I have explained in my previous article, waterboarding and the other techniques used were and still are torture.

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 Ongoing Torture Debate

The Daily Show With Jon Stewart	M - Th 11p / 10c
Cliff May Unedited Interview Pt. 1
thedailyshow.com
Daily Show Full Episodes Economic Crisis First 100 Days

It is unfortunate that the most complete and honest debate regarding the current state of affairs as it surrounds the use of torture by America was on The Daily Show.

Enforcement of the Convention Against Torture

Perhaps the winds of change are blowing through the District of Columbia, for a change. Professor Manfred Nowak has spoken publicly about his belief that George W. Bush and Donald Rumsfeld should be brought before a court because of the conditions of imprisonment at Guantanamo Bay. A video of an interview with CNN's Rick Sanchez is posted for context below.



For those readers unfamiliar with the various levels of complicity, such as John Ashcroft's infamous quote, Condoleeza Rice's admission, or Dick Cheney's admission from Taxi to the Dark Side, a few highlights are presented below by liberal pundit Rachel Maddow, for a quick brief.

To summarize the argument even further into condensed legal flavor, Article 4 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment compels member states to prosecute allegations of torture, casting a wide net to catch everyone between the interrogator to those who knew about it and did nothing, in theory. The Text is quoted below.

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

This, to state the obvious, is the largest test of the new administration. How will Obama handle these allegations? I hope this is a question that is being asked again in the White House and in various agencies of the Federal Government, to the logical conclusion that these allegations must be investigated as a matter of legitimacy. How the Rule of Law is enforced will set the tone, as it a lack of credible enforcement of the law as it is written set the tone of the Bush Administration. Simply issuing a subpoena to  former officials will not work, just ask Karl Rove. There can be no pleading and begging for a notionally independent branch of government for morsels of information and the respect due such an august body. Flaunting of Congressional subpeonas must stop, and the words of the anointed, yet not confirmed, Attorney General, Eric Holder, are encouraging, if unsettling to certain people, such as Alberto Gonzalez. Unfortunately for the shamed former AG seems to rest precariously on the words of John Yoo, former counselor in the Bush Administration's Department of Justice Office of Legal Counsel. 

The Walk of Shame: Bush Looses Again

The Supreme Court ruled against the Bush administration today. The high Court held that despite what the President and the Neo-Cons say, everyone has natural human rights. A foreign citizen has the same human rights that you and I have under the United States' legal system. A person cannot be drprived of those rights by having a certain lable applied to them such as, terrorist, or enemy combatant. Perhaps the Court realized that such things need to be proven beyond simple conjecture. The court also held that people cannot be imprisoned by the United States for an indeterminate period of time, and that anyone imprisoned must be charged with a crime. You know, basic things that are at the foundation of this country and our system of justice.

The Supreme Court came down on the side of freedom and justice today and has once again renewed my faith in our system of government.

Cleveland Ohio: Terrible American City, or The Worst American City? Impeachment Edition

Dennis Kucinich(D-Ohio), the elfin-looking, vegan, UFO-seeing, hot-wife-having Representative from Cleveland has introduced articles of impeachment against President George W. Bush.

I have mixed feelings about many things in that first sentence.

First, Kucinich is a profoundly inefectual represenative. None of the bills he has proposed has ever been passed. Which statistically boads ill for the prospects of these articles of Impeachment. Kucinich will propose any legislation that will get headlines. Kucinich's legislative strategy seems less directed at serving the people of his district but rather intended to provoke headlines that get him enough free attention for his reelection.

The things Kucinich champions with his doomed legislative action are the kinds of things that are the cause of the people, or crafted to promote peace and justice in simple language. So when these things are defeated it makes Kucinich look like he is a champion of the conserns of the common man. However, even if this is genuine and Kucinich really is a champion of the people he is rather Quixotic. Personally, I think the persona of a crusader for justice that tilts at windmills has been crafted by him to keep him in politics. That being said I am willing to live with an inefectual elfin-jester of a representative that loudly champions justice and freedom and peace rather than the typical congressman who is a shill to big industry and lobbying groups and justifies his corruption by dragging home as much pork as he or she can suck out of the public coffers. So even if the virtue Kucinich parades in front of the cameras is fake, Ill take fake virtue over unashamed corruption every day.

As for impeaching president Bush, thats a whole different ball of fishooks. I think President Bush should be impeached. He has been accused of exactly what Nixon did, and Republican party officials have been found guilty of manipulating the vote in Ohio in 2004. There is also the intelligence failure leading up to the 9/11 attack, extrordinary rendition, torture, the lies in the run-up to the war in Iraq, and so forth. However, much of that is just a deriliction of duty and does not amount to a crime. Furthermore, the stuff that he could be charged for is going to provoke a long hard legal battle.

This president has proven that he is beligerant in the extreme to any type of criticism or legal attack on his power. This is bolstered by the neo-con adgenda to make the office of the president extremely powerful. This adgenda is backed up by jmore than greed and evil but by long hours of thought and legal scholarship. This goal at inflating the power of the president is backed up by legal philosophy that argues that these cruel and wicked things that have been done by and on behalf of this administration are actually legal. The simplest way to explain this is that they believe anything the president says is ok, is legal. The insand and frustrating thing to know is that they have the knowledge and scholarship to back this madness up in court if that is what it comes to. The three attornys general that this administration has gone through are proof that there are many in high places already that subscribe to this philosophy of presidential preeminence. All this promises to produce a long and hard legal fight if the congress actually has the stones to follow through.

That is the other problem. The Democratic party hasn't had the testicular fortitude to stand for anything other than giving themselves a pay raise for as long as I have been old enough to read. They cant cut off the funds for the war and they are afraid of a long fight with the Bush administration. But they arent afraid because they will loose, these chicken-shit legislators are afraid of the fight itself. They arent afraid of the possibility that they will losse and this insane legal reasoning that the president's will is law will become the law of America. They are afraid of having to stand up for something other than giving themselves a pay raise. Sen. Feingold (D-Wisconsin) the only one in the senate chamber with cajones enough to still be called a man explained it best. He wrote to me that he believes that any attenpt to impeach Bush would be a waist of time. All impeachment proceedings would do is, distract the congress from repairing the damage he has done over his tenure in office. The long fight would be a circuis and all that would be accomplished would be sound bites and grandstanding. I can only assume that House speaker Nancy Pelosi (D-California) believes something similar when she says that impeachment is off the table.

Much has been said of this kind of pragmatism and cowardice and is being played out in many editorials of this kind. I think the fight must be fought or these legal philosophies will slowly slime their way into the American legal system. Unless resisted this belief that power is greater than justice will destroy freedom.

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.

Equivocal Behavior

Suddenly the slippery slope regarding torture doesn't seem like a fallacy.

A Tropical Vacation

The recent firestorm of controversy surrounding the forthcoming trials of six inmates has forced the mainstream media to consider the military commissions system, as established by the Military Commissions Act. The disparity between the rights enjoyed by defendants in our domestic criminal legal system and those enjoyed by those tried before a military commission are incredible. Arbitrarily, the president of a commission can cloak the proceedings of a trial in national secrecy, beyond the purview of those accused. Moreover, the rules about what evidence is admissible is also more favorable to the prosecution, as statements made under duress, as in made while being tortured, are admissible as evidence. Unfortunately for the unfortunate souls subject to this system and the American people, said evidence will probably be classified. Here is an amusing response from the fashion community to the system.

On the other hand, if the information no longer exists, then there is no need to bother with the bureaucratic wrangling required to classify thousands upon thousands of hours of operations within the detainee detention facility at Guantanamo Bay, encompassing everything from the routine to the interrogations. All of them. As one might imagine, there are some lawyers and a judge that are justifiably upset. Unfortunately, the judge's question seems worded in such a way as to prevent any sort of burden being placed on the Bush Administration. In addition to receiving an extension on a previous deadline, administration officials only have to reveal whether or not the information destroyed was pertinent to the trial of Hani Abdullah, who is before him. If the Administration is bold enough to claim that the life and times of each and every individual in the facility for the entire time they were at the facility would definitely be pertinent to any trial, if for no other reason than to evaluate the statements made during the interrogation process, our constitutional checks and balances, specifically the checks of the judiciary over the executive, will be further eroded, if not made entirely irrelevant. The aforementioned trial was already made more complicated by Mr. Abdullah's attorneys' allegations that their client's personal effects were seized by the government, in violation of attorney privilege. For some additional reading, try the Executive Order outlining the form and procedure of the Military Commissions or the Executive Order outlining the ways in which the United States will cooperate with Common Article 3 of the Geneva Conventions.

If one follows the most recent rhetoric in the daily White House press feeds regarding Guantanamo Bay and its status, such as June 22, 2007 and Feb. 11, 2008, Ms. Perino says that the Government is working on closing the facility and return the detainees to their home country or other third country. As one might expect, however, there are a few conditions, namely that the detainees have to be held in whatever country they are released to. Why would this matter? Well, if Country X feels that citizen John McY was wrongly imprisoned by Country Y, X might go to the UNSC, b/c pbiab.

For fun, try to come up with other activities that fit the definition of torture according to the U.S. Code and put it in a comment. And, also, a tangentially related article that details the career of the first commander of Guantanamo Bay and his later career in Iraq.

Oh, and the Cuban government wants Guantanamo Bay back to end its role in the War on Terror.

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.

Another Example

Is this Torture? Is it reprehensible? Were the police acting in an official capacity if they weren't charged?

Bad Apples

In way similar to, but probably not as reprehensible as the torturers of Abu Ghraib prison, police officers, as we have tried to bring attention to, have been accused of torturing suspects in an effort to coerce compliance.

In one of the most brazen acts of political sabotage I have ever seen, even if it was a Hillary Clinton event, two Bibb County, Georgia, officers threatened attendees of the event to disperse or be tased. So, apparently, the event had almost 150% more people than had signed up for the event, and the crowd outside must have been pretty boisterous. Regardless of my objection to making people register to come to a political event, these two officers were not merely being "discourteous," but were actively engaged in violations of constitutional rights. I mean, we do still have the freedom of assembly, right? The two officers are apparently highly decorated, and in typical good ol' boys fashion, won't even receive a suspension with pay.

A similar incident happened in Vancouver, BC, last night with the Queen's representative in Canada, Governor-General Michelle Jean is being met with anger and protests as she tours the province. As the Governor-General was meeting with local leaders on ways to combat violence, police were outside tasering a protester who got too pushy.

Another alleged bad apple is Corporal Rudy Torres of Frederick County, Maryland. Demonstrating that statistical discrepencies are usually reflective of underlying trends, this particular police force has been disproportionately enthusiastic about using their taser devices, and Corp Torres has under his belt more than 10% of the total use of the department, out of a total of 218 times using 171 tasers in 2007. A more typical rate of use based on these numbers would be more like .6% of all taser uses. One can only hope that the litigation surrounding the death of 20-year old Jarrel Gray sees some justice done.

In an example of messy reality conflicting with a very controlled situation, and the resulting conflicting legality, an Orange County man, described as having a condition that impairs his thinking, is tasered in the course of being subdued (with video badness) by officers, and was later cited for battery on a law enforcement officer with violence. However, if the person can't be held responsible for their own actions, what legal responsibility does this place onto the officer to prevent harm? For instance, why aren't law enforcement officers trained in more mediation and jujitsu?

What is torture? In Toronto, Canada, the founder of Taser International, Thomas Smith, offers some clever spin on the nature of the Taser. “'We were taught electricity is bad,' said Smith. 'Don’t put your finger in the socket. But really, electricity is life.'” Regardless of how true the statement may or may not be, it is ultimately irrelevant. Later, out comes another particularly wonderful example of the straw man logical fallacy.

When one deputant said the UN has expressed concern that taser use is tantamount to torture, Smith objected. “We don’t want to see torturous devices used,” he said. “But if the UN is going to define torture as causing pain, then a baton is torture, stepping on a nail is torture.”

Except the standard for torture is far more robust than Mr. Smith is protraying it. The definition for torture in the UN Convention Against Torture and Other Cruel, Degrading Treatment or Punishment is as follows, italics added for emphasis.

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.