Is Waterboarding Torture?

This is a fascinating clip of an interview of Karl Rove conducted by the BBC. In the clip, Karl Rove admits that he is proud that the United States used the techniques authorized by the memoranda drafted by the Office of Professional Responsibility lawyers, Jay Bybee, Jonathan Yoo and others, to “keep America safe.” Recall that the techniques these memoranda authorized include sleep deprivation for periods of up to 11 days, chaining people in standing positions with their hands raised over their heads to prevent sleep and/or rest, chaining people in other stress positions, subjecting them to extreme cold for extended periods of time, and, or course, waterboarding.

Rove also argues that reasonable people can disagree as to whether waterboarding constitutes torture, and that he does not believe it is torture - irrespective of the fact that U.S. officials have prosecuted people for torture for acts of water boarding several times in the last 60 years. But in the same argument, he brags that these techniques, including waterboarding, were used to “break the will” to “get valuable information.”

I’ll concede that reasonable people who aren’t familiar with the legal definition of torture, can disagree about whether waterboarding constitutes torture. Such people can, and certainly do, disagree. The real question is, “can reasonable people who are familiar with the legal definition of torture reasonably disagree about the status of waterboarding as torture.”

Torture is defined in numerous laws that apply to U.S. Government officials. The most directly relevant definition of torture is found in our federal statutes, specifically 18 USC §2340(2). Pursuant to this federal statute:

“[T]orture” 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.”

Lawyers apply laws to fact by breaking out each of the elements of a statute and considering them separately. Using this method, the torture statute requires:

(1) a person; (2) acting under the color of law; (3) to commit an act; (4) specifically intended; (5) to inflict severe:

A. Mental pain; or
B. Physical pain; or
C. Mental suffering; or
D. Physical suffering;

(6) upon another person who is; (7) within his custody or physical control.

For sake of brevity, I’m going to assume there is no controversy that waterboarding satisfies elements (1), (3), (6), and (7). That is, waterboarding involves one or more persons committing an act against another person, who is within the waterboarder’s custody and/or physical control. If anyone denies this, check out here, because you’re not worth talking to.

Element (2) can be translated as “acting in his official capacity.” This requirement refers to officials who are authorized to act pursuant to governmental authority. Police, military and intelligence personnel, and all others acting under contract with these government agencies, fall into this category. As it is clear that the water boarding in question was performed by precisely such people, element (2) is satisfied.

Waterboarding, thus, satisfies elements (1), (2) (3), (6), and (7) of the federal torture statute. This leaves elements (4) and (5).

Element (4) is tricky. The law draws a distinction between specific intent and general intent crimes. I commit a general intent crime when I intentionally do an act that creates a specific result. In most states, second degree murder is a general intent crime. I’m guilty of murder in the second degree if I intentionally shoot you and you die. To be convicted of second degree murder, the prosecutor need not prove that I intended to kill you. She only needs to prove that I intentionally shot you, and you died.

To be convicted of first degree murder, to the contrary, the prosecutor must prove that I intentionally shot you with the specific intent of killing you.

As with first degree murder, for waterboarding to be “torture,” the person doing the waterboarding must do more than just intentionally waterboard me. He must intentionally waterboard me with the specific intent (or purpose) of accomplishing the purposes specified in element (5). That is, he must waterboard me with the specific intent of inflicting:

Severe mental pain; or
Severe physical pain; or
Severe mental suffering; or
Severe physical suffering.

Thus, the question comes down to this. Did the U.S. officials who performed waterboarding on U.S. detainees do so with the specific intention of inflicting severe mental or physical pain or suffering?

Waterboarding is designed to simulate drowning - it can easily result in drowning if not performed with proper care. A person waterboards another person with the specific intent of creating the panic of drowning, magnified by the panic of being helplessly immobilized. Anyone who has ever been trapped under water when they needed to get air, even for a short while, has experienced the terrifying panic this situation generates. This type of panic falls squarely within the categories of mental pain and mental suffering. The experience of being waterboarded might also be said to create physical suffering as well, but I won’t insist on what is unnecessary to the argument. Waterboarding clearly satisfies the “specific intent” and "mental pain or suffering" requirements of elements (4) and (5), and that is all it need satisfy.

Thus, it comes down to the question of whether the mental pain and suffering induced by waterboarding is “severe?” There are various ways of defining “severe.” A philosophical analysis of the concept would require a long essay, if not a short book. I’m inclined to define “severe” in terms of the duration over which an ordinary person could inflict it upon himself, voluntarily, without relenting. As this tape shows, Waterboarding can't be endured for very long.

But a better approach is to define “severe” in terms of the stated purpose of the technique. As Karl Rove himself bragged on the tape, and as Dick Cheney has bragged many times publicly, we used these techniques to “break the will” of the detainees.

And what does it mean to have your will broken? It means that you decide that the pain or suffering is so unbearable that you surrender your will entirely to the person who is inflicting the pain or suffering, and agree to do or say anything they demand in order to get it to stop.

Can pain or suffering be unbearable without being severe? I hardly think so.

Ding! Ding! Ding! Ding Ding! We have a verdict. Waterboarding is torture as defined by the seven elements of 18 USC §2340(2).

Or am I wrong? I’m all ears.

Joe

Clarity

Jonathan Chait did us all a huge favor clarifying the difference in political philosophy between conservatives and liberals. Contrary to popular conservative talking points, liberals are not socialists. Liberals support and advocate a market based economy where the harshest outcomes are mitigated by a small amount of downward redistribution of income.

Conservatives, to the contrary, and as economic plan put forth by Republican Representative Paul Ryan amply demonstrates, oppose any mitigation of capitalist outcomes by a forced downward redistribution of income.

Now, there are lots of arguments to be made regarding which is the more defensible vision - so nothing is settled by this clear distinction. And our initial inclination to pick one side or the other is surely based more on temperment than on arguments, evidence, or experience.

Still, as clarity regarding where each side is coming from is essential to any meaningful discussion of these issues, I say "here here."

Joe H.

Not Believing in America

This article, by Mickey Edwards, is highly worthwhile (particularly if you are a conservative).

Joe H.

Execution Dilemma

Here is an interesting capital punishment question. Should the State of Ohio have let an inmate, scheduled for execution two days later, but who had already taken a fatal does of drugs, die by his own hand? We know they didn't - they revived him. But was that really necessary? Or even appropriate?

For what its worth, the position you take on this question will almost certainly follow from your theory of punishment.

For most people, although not all, the point of executing someone is retribution. We're not merely acting to get them dead. We're acting to vindicate the moral principle that people should get what they deserve. That moral principle, known to philosophers as lex talionis, is best understood as the "law enforcement" application of the Golden Rule. The Golden Rule says that I should treat others in a manner that I would consent to be treated. Lex Talionis says that, however I treat others, I am, by my own actions, implicitly authorizing others to treat me in the same manner. As a self legislating being, my actions are an expression of what I think is appropriate - and what's good for the goose is good for the gander.

Kant believed so strongly in the retributive principle that, in his opinion, executing a convicted murderer was a moral imperative. To Kant, the refusal to execute a convicted killer failed to show respect for the convicted person's dignity as a self legislating being.

On this argument, if the convict dies before we execute him, we are robbed of the opportunity to act retributively. If retribution is our purpose, the inmate needs to be revived and subsequently executed. If merely getting him dead is our goal, there is little reason to revive him.

Retribution is similar to vengeance, in that both seemingly involve a “pay
back.” But they are not identical concepts. I treat you retributively, but not vengefully, if I refuse to lend you money after you refused to lend me money. Vengeance, which is intentional and maliciously motivated harmful pay back, is a varient of retribution. But vengeance doesn’t exhaust the concept.

As a general matter, lex talionis, tempered generously by expressions of grace, is a sound moral principle. I favor treating people retributively - or as they deserve to be treated - in many circumstances. I also agree that some people deserve to be executed. In fact, some people deserve fates far worse than death.

However, the fact that someone deserves a particular penalty does not entail that it is morally permissible for us to impose it. The fact that one person acts barbarically towards another person entails that the barbarian has authorized a response in kind, but does not entail that it is permissible for us to act barbarically. Acting barbarically is wrong, even towards someone who deserves it.

For me, the question comes down to: Is capital punishment barbaric? Is it beyond the pale?

The answer I've arrived at is “yes.” Killing any human being, deserving or not, who is not a threat to anyone, is barbaric. Imposing a degree of psychological terror so great that hardened killers lose control of their bowels (a common occurrence prior to executions) is barbaric, even if the victim deserves as much or more.

I am against capital punishment for other reasons - error, bias, lack of deterrent, and so forth. But remove error, bias, and demonstrate deterrence. I will still oppose capital punishment - even for those who deserve it.

Joe H.

Waterboarding for Dummies

This is one of the most disturbing things I have ever read. A manual for waterboarding - from our own government's documents. How is it possible that we're allowing this to go unprosecuted?

Joe H.

Things are Getting Crazy Out There

Somebody needs to get back on their meds.

There is acute irony in that little joke. If these people succeed in derailing Obama's health care initiative, some of them won’t have access to these much needed medications.

Joe H.

P.S. Read some of the comments.

This was What I Was Trying to Say - Update I, II

Again, from Adam Serwer, on the "al Qaeda Seven" ad
and the backlash from the left and the right:

"The reason for the backlash is that the attack on the so-called Gitmo Nine or al-Qaeda Seven wasn't just an attack on a handful of liberal lawyers -- it was an attack on the American system of justice, suggesting that certain classes of people aren't entitled to robust legal representation and that those who chose to represent them in order to ensure due process are America's enemies. If anyone can be denied due process, than all of us can be denied due process. The people at KAS for whatever reason, are incapable of looking beyond their political self-interest and are willing to cannibalize the very institutions of American democracy in order to gain political ground against their political targets."

That is exactly correct. "Destroy America to save America" has been the underlying premise of much of our political activity since 9/11. That horrific event gave the political Right a ready made weapon - fear. Fortunately, the effectiveness of fear is starting to erode. Reactionary fear is precisely what the al Qaeda terrorists hoped for, and got. But the panic is abating. Finally, someone on the right went far enough to awaken patriots on the right. As Serwer put it:

"One of the most frightening developments in the aftermath of the September 11 attacks was the shattering of a certain baseline national consensus on certain issues between liberals and conservatives. Prior to September 11, for example, I doubt a substantial number of Americans would have supported the use of torture techniques adapted from methods used by Chinese Communists. The letter gives me hope because it reminds us, whatever our differences, we can agree there are certain things, like the integrity of the American legal system, that are more important than our political rivalries. It is still possible to go too far, to cross a line that makes even those on your side recoil."

Hope springs eternal.

Joe H.

Update I: This piece is worth reading as well.

Update II: "The America that I know and signed up to defend does not stand exclusively for security. It also stands for freedom, justice, and liberty. It stands for universal rights afforded to every human being (even unlawful combatants or "detained persons")."

Matthew Alexander - his article is well worth your time.

More on Obama Capitulation

Adam Serwer of the Blog “Tapped”, explaining that President Obama about to capiulate to "Republican hysteria" and reverse his decision to try Khalid Sheik Mohammed in Federal Court, summarized the effect of such a reversal as well as anyone:

"The Obama administration will have sacrificed a likely conviction for a military trial that will now be seen by much of the rest of the world as illegitimate. In doing this, the Obama administration has cemented the bipartisan consensus that the rule of law is a joke, and that something as important as a fair trial is subject to the whims of political elites and their short-term interests. This decision would perpetuate the myth that terrorists are supernatural bogeymen rather than thugs. KSM was not captured on a battlefield, he is not in any sense a soldier, as say a captured Taliban fighter might be. He is a criminal."

But that is just the damage this reversal will do to our nation, and the perception of our nation internationally. You would think that, if unmoved by these implications of this decision, Obama would have a better grasp of the political consequences of such a reversal:

"The GOP is simply moving to the right of whatever position the Obama administration takes. Obama took the Bush position of being able to choose arbitrarily the venue to try suspected terrorists, and the Republicans moved to his right, demanding military commissions for any foreign Muslim accused of terrorism. Obama, like Bush, wanted to close Guantanamo. But when he made moves towards doing so, the GOP decided they wanted to keep it open forever. Obama can take as many political steps to the right as he wants, the GOP will take two steps farther because there isn't any objective here beyond making the president look weak. Politically speaking, the path of expediency has the dual features of projecting cowardice and failing to pacify the administration's critics. As Spencer Ackerman writes, "Obama can fight and win. Or he can compromise, demoralize his base, and the GOP will continue to roll him."

Precisely! If anyone was Obama's base going in, I was. "DEMORALIZED" is the most benign description of my mood at the present time.

Joe H.

Obama a Coward? - Update

I hate to say it, but I think this characterization of President Obama, by Glen Greenwald, is fundamentally correct. I don't believe President Obama is a liar. He lies, of course - we all do. But “liar" doesn’t accurately summarize his character the way it summarized Bush's character.

That being said, what intellectually honest conclusion can one draw from Obama’s seemingly endless (1) stating his strongly held convictions publicly, (2) encountering political attacks, (3) backing down and reversing himself style of governing? The only conclusion that readily comes to mind is that President Obama lacks political courage.

As I’ve said before, I despised President Bush - justifiably so, I think, in light of the facts. But he was no coward. He had the courage of his mindblowingly stupid convictions. And to his credit, he fought for them - mainly on the assumption that he was elected to purse the agenda that he ran on. In numerous instances, Bush refused to back down and accept defeat. I admire that. It is unfortunate that Bush's ideas were terrible. It is also unfortunate that the America people were stupid enough to elect, and then relect, such an utterly unqualified man. But you can't blame Bush for that. For all the things Bush lacked, courage and determination were not among them.

I fear the same cannot be said for Barack Obama. I saw a glimpse of political courage a few days ago, during Obama's health care press conference. But the rule of law is FAR, FAR, FAR more important than reforming our health care insurance system. You cannot, as Barack Obama recently did, wax eloquent regarding the critical importance that criminally trying terrorism suspects holds for the rule of law, and then back away from that position because it is too politically difficult. If it really is that important, and it is, you do it, regardless of the consequences, and you explain to the American people why it is so important.

Hillary is no coward. Perhaps she should wage a primary campaign against Obama in 2012.

Joe H.

Update:

It appears that this view of Obama is gaining steam. Here's the money quote:

"When fighting the Bush Administration for accountability related to 9/11, the war in Iraq, and adherence to the Constitution when it came to torture and the Patriot Act, I found that President Bush had deeply held--albeit, inherently flawed-- convictions. Indeed, President Bush and I agreed on very little. But, at the very least, I knew clearly what he stood for and where I stood with him. I can't say the same for President Obama."

Me Thinks He Doth Protest Too Much

Another closeted, gay, family values champion bites the dust. Larry Craig, Ted Haggard, James West (the former Mayor of Spokane, Washington)and now California State Senator Roy Ashburn.

Don't get me wrong - I have a great deal of compassion for people in their circumstances. We exhibit hatred, intolerance, fear and misunderstanding towards homosexuals, and have for many decades. Individual young men and women come to realize, as these men did many years ago - when the environment was infinitely more hostile, that they have the "affliction" that will render them objects of our hate and rejection. They hide. They attempt to control, or cure, or deny, or even merely understand their orientation. And these men in particular - went through this experience entirely alone.

There are various coping mechanisms. But a small number of gay people deeply internalize the hatred and loathing we display. In response, they appoint themselves champions of causes and groups that would wipe gays out of existence, if they could.

And they keep hiding - until the cannot hide any more.

We share most of the blame for this phenomenon. But they share some. Becoming a homophobic family values crusader is a choice, even for closeted gays.

I’m also wondering why the "crusader" gays are all men?

Joe H.

Heads Screwed on Backwards

"The right is treating the lawyers who came up with the justification for torture as heroes, and the lawyers like Katyal, who helped restore the rule of law, as villains. They've just got their heads screwed on backwards."

Lt. Col. David Frakt (who represented detainees both in military and civilian courts).

"I realize that right-wing political hacks are going to engage in some pretty loathsome tactics from time to time. But the crusade against these Justice Department officials obliterates any lines of decency or modern norms, and should permanently discredit the cheap and tasteless attackers."

Steven Benen, of the Blog "Political Animal."

That pretty much sums it up (except that these sentiments are not exclusive to our friends on the right).

Joe H.

Fear and Smear Reduced to a Power Point!

This must be the most embarrassing thing to come out in a long,long time. A republican fundraising power point presentation mocking their donors, advocating the use of fear and manipulation . . . Holy shit Batman!

Serves them right! Anyone not strongly biased towards the current Republican Party can see clear as day that their electoral/fund raising strategy is "fear and smear." We now know that they've reduced this strategy to a power-point instructural presentation.

I wonder if there is a corresponding Democratic power point presentation? There may be, but I see no evidence that the Democrats are exploiting fear or engaging in smear. Smear, by the way, is not pointing out the truth. I don't smear David Vitter or Eliot Spitzer when I point out they are hypcrites. I smear them when I lie about them or their beliefs, or suggest guilt by association, or something along those lines.

I could be wrong - I might be overlooking instances of Democrats exploiting fear or engaging in smear (by Democrats I mean elected officials and active political operatives - not obscure bloggers). If I am let me know.

It's funny. I'm involved in a case right now where all kinds of nefarious things have come to light about the opposition - while our client is as clean as a whistle. Its very satisfying to be on side of the angels.

Joe H.

Terrorist Lawyers

This political ad is the most un-American screed I've ever seen. Apparently, Attorney General Eric Holder's Justice Department hired nine lawyers who formerly represented Guantanamo Bay detainees. Holder revealed the names of two of these attorneys, but refuses to name the other seven.

The ad labels these lawyers "The Al Qaeda Seven," as if they were criminals or traitors. It describes them as "Advocates for Terrorist Detainees" and asks, "Whose values do they share? It then demands that Holder reveal the identities of the "Al Qaeda Seven."

Honestly folks, does anyone not understand the distinction between "accused terrorism suspect" and "convicted terrorist? Does anyone not realize that governments make mistakes, or that certain government officials are wont to abuse their powers? Does anyone not understand that, in contemplation of these intractable realities, our AMERICAN constitution protects all persons from deprivations of life, liberty or property without "due process of law?" Does anyone not understand that our constitution prescribes certain fundamental aspects of due process, such as the right to be represented by counsel?

DOES ANYONE NOT UNDERSTAND THAT WHAT MAKES US AMERICAN, AND WHAT MAKES AMERICA SPECIAL AND EXEMPLARY, IS OUR STEADFAST COMMITMENT TO THESE AND SIMILAR PRINCIPALS AND OUR INSISTANCE THAT WE ADHERE TO THEM AND APPLY THEM TO EVEN THE MOST DESPISED PERSONS AMONG US?

Smearing attorneys who represented accused terrorism suspects as being un-American is itself un-American. It is a betrayal of the very idea of America. It is quintessentially American for an attorney to represent an accused person who is despised, regardless of what he or she is accused of doing. Americans should celebrate these lawyer's willingness to do so - it is what makes America possible.

Implying otherwise, particularly for political gain, is reprehensible. But even more infuriating is the fact that the people who peddle this crap (ahem, Bill Kristol and Liz Cheney) genuinely believe that they are patriots serving "America."

Being American is compatible with being conservative or liberal, hawkish or dovish. Authoritarians like Kristol and Cheney may love "America," but they are, at best, seriously confused about what America is.

Joe H.

Bush Hatred vs. Obama Hatred - Call For Explanation

I remember reading this rant by Jonathan Chait back in 2004 and feeling so relieved that I promptly emailed the author just two short words.

"Thank you."

I really did despise President Bush. The very first time I saw him I had a visceral reaction to him. I did not yet despise him, but I naturally disliked him. Unfortunately, my Bush hatred got worse for all the reasons described in the article linked to above. And, as the author described, I often questioned whether my antipathy for Bush was even rational? Perhaps I was just too partisan, or too angry about our team loosing power, or something else along those lines. But no matter how much benefit of the doubt I attempted to give the man, I always determined that my hostility was more than rational - it was absolutely justified.

Then, when I read this article, the various strands of reason underlying my hostility crystallized and I felt a huge sense of relief. Somebody had outlined and articulated the reasons underlying my strongly negative feelings towards the president. Apparently, over the course of the next four years, a super majority of Americans came to see it my way. By the end, they were so repulsed by the man that they taunted him as he left office.

I wonder if anyone is equal to this task with regards to Obama hatred? Obama hatred seems equal to, if not greater than, Bush hatred. And I would imagine that at least some Obama haters are soul searching for the source of their deep antipathy. But is there a case to be made that Obama hatred is grounded in understandable reasons? Are there facts one can point to that, if not justify, at least explain the kind of rage that can move people to show up outside Obama rallies carrying assault weapons?

If anyone is willing to try, I'm all ears.

Joe H.

The Book of Eli

I took a few days off this weekend - whew! Thursday was the last day of testimony (for awhile) in an arbitration that our firm is litigating. I went to work Friday and discovered that everyone else on the team had taken the day off. That showed me that I really need to read those memos that cross my desk!

Anyway, our family went to see the movie “Book of Eli” over the weekend. For those of you who haven’t seen it, it is a gratuitously violent film, but also a very interesting one. It is set in a post apocalyptic largely anarchic world of violent marauders. Denzel Washington plays a warrior type figure who is in possession of the last known Bible. He is on a mission to deliver this bible to a place where it will be used to spread enlightenment and morality. Along the way, he passes through a town ruled by a warlord type who understands that the language of the Bible can be used as a weapon of mass control and manipulation. The warlord has been looking for a copy of the Bible to use for just this purpose and discovers that Denzel’s character is in possession of one. Hence the action.

There are other interesting twists, turns, and ironies that make the film worth seeing. It is not a particularly deep treatment of the paradoxical nature of the Scriptures - but it raises the issue in a vivid manner. On that account, I thought it was worthwhile.

At any rate, it was more enjoyable than sitting in my office reviewing construction documents.

Joe H.

Bybee and Yoo Exhonerated?

This is an excerpt from a longer post by Sherrilyn A. Ifill at "The Root." You can read the entire post here. I whole-heartedly recommend that you do so.

"The story is not, as many commentators have reported, that Yoo and Bybee were somehow cleared by the OPR investigation. To the contrary, the Margolis memo is a depressing study in how the technicalities of a review process can cloud the most relevant facts and conclusions. Although Margolis refuses to find Yoo and Bybee guilty of professional misconduct, his review of the "torture memos" is perhaps the most detailed evidence of how far this nation strayed from the rule of law during the Bush years. This memo, demonstrates why today former Vice-President Dick Cheney can assert that waterboarding ought to "be on the table" for alleged Christmas Day bomber Umar Farouk Abdulmutallab.

Margolis' review of the Bybee/Yoo memos helps explain why today, the press is still loath to actually use the word "torture" to describe the actions of U.S. authorities who questioned detainees. Instead, the Justice Department's adoption of the term "enhanced interrogation techniques" and the collusion of the press in using it is a chilling concession, to a period when the highest legal authorities in the executive branch shredded the soul of our nation - giving legal cover to acts recognized around the world as violative of human rights and dignity.

The Bybee/Yoo memo explains why at his confirmation hearings, former Attorney General Michael Mukasey's response to the very simple question of whether waterboarding constitutes torture, answered repeatedly that he'd first need to determine whether U.S. officials had engaged in waterboarding. Then and only then, would he know if it was illegal.

When lawyers at the highest levels of government twist, obscure and ignore legal principles to reach the conclusions they want, when a legal analysis of detainee treatment is focused not on the prohibition against torture in both the United Nations Convention Against Torture and America's own domestic statutes, but on finding legal justification for inflicting the maximum mental and physical pain, a nation is well on the way to losing its soul.

The Office of Professional Responsibility may ultimately have decided not to issue a finding of professional misconduct against John Yoo and Jay Bybee. But the OPR memo is not an exoneration. Read in its entirety, it is an indictment. And the indictment is not just of Bybee and Yoo. It is an indictment of a nation that tragically and unquestionably lost its way."

I agree.

Joe H.