Don't criminalize after the fact

ARTICLE: Congress Debates Fresh Investigation Of Interrogations, By Dan Balz and Perry Bacon Jr., Washington Post, April 23, 2009

Bad idea, in my mind. Obama changes the rules, and so now we don't do certain bad things that Bush-Cheney were more willing to do, in effect saying that we won't do anything to win because we don't feel like we have to and because our morals say we shouldn't.

But post-dating criminal behavior is wrong, and any attempts to do so will inevitably come back to haunt the Dems and Obama.

Comments

[Frank Hecker]

My understanding is that the "techniques" in question (including waterboarding in particular) have always been considered torture under US laws, international treaties, and the Geneva convention, and were therefore prohibited. So I don't understand this idea that Obama is trying to "change the rules". Am I missing something?

[stuart abrams]

Boy is this a tough one for Obama. My suspicion is that facts are going to keep leaking out, and that they are going to be a lot worse even than what appears in the memos. To an extent that's already happened, as we found out that these guys were waterboarded hundreds of times, which is obviously torture under any imaginable definition. Ultimately, inaction may have real international costs for the US. After all, if Peru can prosecute Fujimori for human rights abuses, it seems pretty pathetic if we can't do anything about this. However, you are right that this is potentially a dangerous political issue for Obama and the Democrats, and I wouldn't be surprised to see the Republicans being the ones who keep pushing this in the media (as Cheney has been doing). One thing is certain - nothing good for anyone can come from Congressional hearings. Ideally, let professional prosecutors at DOJ quietly investigate and prosecute if the facts are, as I suspect, really egregious. The rule of law really is a good thing.

[damien]

That's my understanding also.

Whenever courts have looked at waterboarding, they have decided that its torture - and this includes US courts. The first cite is the Nuremberg trials.

And then there is the case of Padilla, who's mind has been destroyed by years of mental torture, including massively extended periods of sensory deprivation, isolation, and so on. If that isnt torture, I don't know what is.

[RobQ]

Torture arguments seem to resemble abortion and gay rights debates. While some may see shades of grey and room for compromise, others will stake out a position and will not budge.

That said, two related issues are worth noting:

The judicial process is largely interpreting what the law says after the fact. So the ex post facto torture debates don’t really belong to congress.

On a larger scale, prison time (as served in the USA) is not a deterrent in the minds of many criminals. Recidivism rates prove this. Torture clearly is no answer, but we seem not to be discussing the issue at all.

[Louis Heberlein]

And the IW song goes on.

[Patrick O'Connor]

Like Frank said

[Patrick O'Connor]

I do confess (without coercion) to being of two minds when it comes to prosecution, not so much from the "we were just following orders" defense as from a question of equal treatment under the law. I don't like it that the grunts at Abu Graib get punished and no one else. Having Woo teaching law at Stanford, Bybee on the Ninth Circuit and Cheney yapping away is hard to stomach.

I am not a scholar of the prosecution of high officials for war crimes but it seems there are rarely political factors with which to deal as the criminals are leaders of vanquished states and justice is being imposed from the outside or (like Pinochet) the events are in a more distant past. Sad to say, I'm not sure that we as a nation are up to the task of dealing with what trials would be like.

But I think enough people are up to knowing the truth. So the information should keep flowing. I reject Peggy Noonan's notion that these admissions harm us in the eyes of the world. That reminds me of the response of the echo boomers in Iraq teaching themselves COIN in chatrooms to claims that they were giving away secrets to the enemy. They said the enemy already knows this stuff. We are the ones that don't.

[damien]

RobQ - No, torture arguments don't resemble abortion and gay rights issues. The United States has consistently taken a position against torture, has executed torturers, and has a variety of laws on the books outlawing the practice.

Should any of the enhanced interrogation techniques be brought before a court of law; one that applies the same principles that the US has applied to the rest of the world, its clear to me that many of them will be defined as torture.

Just to refresh your memory, its worth reading http://www.discourse.net/archives/docs/Padilla_Outrageous_Government_Conduct.pdf . A good description of the systematic destruction of a US citizens mind at the hands of its government. Not only was this torture, it was also arguably psychic execution. They might as well have given him a lobotomy.

This is how the US defines torture:(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 orapplication, 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 thesenses or personality; and(3) "United States" means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

My take on this - waterboarding falls under 2C, you only need to look at the videos of the various volunteers who underwent it to see this. Stress positions and their ilk fall under 2A. Extended periods of sensory and sleep deprivation fall under 2B.

[damien]

The following article documents the long legal history of waterboarding as a form of torture:

DROP BY DROP: FORGETTING THE HISTORY OF WATER TORTURE IN U.S. COURTS

http://www.pegc.us/archive/Articles/wallach_drop_by_drop_draft_20061016.pdf

[Diogenes]

Actually, all of these behaviors were criminal BEFORE the fact. We had previously tried Germans, Italians, Japanese, and Koreans as well as our own soldiers for these same actions (such as waterboarding). On a *conservative* discussion board Thursday, someone took the time to find all the various federal statutes and regulations as well as the various portions of the UCMJ as well as other legal US documents detailing what we legally consider to be torture. The practices under the former regime were clear violations of the laws as those laws stood during those years.

The legal opinions rendered by the Bush justice department were engendered *after the fact* in order to cover their skinny white butts.

KTHXBAI.

[William R. Cumming]

Personally I think that the "Prosecution" paradigm is incorrect. To be or not to be prosecuted can be argued by many in many different ways. But I think there is a much much more significant issue and especially for Congress (with Executive Branch cooperation). Specifically I think there has been a significant Constitutional breakdown, as in Watergate and Iran-Contra, wherein the systems and processes of the Constitutional checks and balances absolute did not work after 9/11 and the real questions should be why? Same party in control of Congress and Executive Branch too simplistic. This really needs to be worked hard by the leading scholars and politicians perhaps even convening of a Constituional convention. I think that if one reads Daniel Patrick Moniyhan'si wonderful book captioned "Secrecy" there may be a clue. Democracies cannot operate properly when their governments use secrecy to abuse their power. The twin corruption of campaign funding and secrecy has brought our nation to its knees, and now with greed added to the economic cycle as causation for collapse it will take all of our skill to right the ship of state. Time to get to work.

[Steven]

No one should be surprised by this. Perfectly congruent with the liberal mindset: deflection, narcissism, blame. Makes perfect sense.

How about we release the congressional minutes relating to the briefing congress got on torture in 2002? How much you want to be those disappear.