Patterico's Pontifications


Enough Already — Is Waterboarding “Torture” in violation of federal law? Let us address the question head-on

Filed under: Crime,Law,Politics,Terrorism,War — WLS @ 6:40 pm


There are several related discussions going on across various threads connected to this question.  So, lets just bring them all together here.

But, lets give ourselves some context.  Here is how “torture” is defined in 18 USC Sec. 2340:

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

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

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

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

      (C) the threat of imminent death; or

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

Now, lets elevate the discussion by taking a lot at two articles over the last couple days that both portend to answer this question — Stuart Taylor’s piece out yesterday in the National Journal, and an Op-Ed today in the WaPo from the former General Counsel of the Navy and a former State Dept. lawyer.  You tell me who gets the better of the debate:

From Taylor — 

But, one might reasonably ask, isn’t torture by CIA interrogators already a crime? And isn’t waterboarding a form of torture? The answer to the first question is yes, under a 1994 criminal law implementing the U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The answer to the second question is more debatable.

Of course, being strapped to a board with a cloth over one’s face and enough water running over one’s nose and mouth to create the sensation of drowning sounds horrible and has been deemed illegal in various contexts by past administrations. But not every interrogation practice that sounds horrible or has been deemed illegal in some contexts clearly meets, in all contexts, the vague but narrow definitions embedded in the 1994 ban on “torture,” or in the December 2005 McCain amendment’s ban on “cruel, inhuman, or degrading treatment or punishment.”

The 1994 law defines torture as including only practices “specifically intended” to inflict “severe physical … pain or suffering” and certain other practices that cause “prolonged mental harm” (emphasis added). Under this definition, deliberately inflicting pain that is not quite “severe,” or mental harm that is not quite “prolonged,” is no crime.

To be sure… the definition is certainly narrow enough to leave room for doubt whether it would be torture to waterboard a high-level terrorist for, say, 15 seconds….

Nor is it clear that all forms of waterboarding violate the McCain amendment’s provision specifying that the ban on CIA use of “cruel, inhuman, or degrading” treatment (called “CID”) extends worldwide. The amendment, passed amid much discussion of waterboarding, limited military interrogators to the list of relatively mild, traditionally approved interrogation methods in the new Army Field Manual, which prohibits all physical coercion.

But Congress quite deliberately chose not to limit the CIA to those methods, and thus tacitly gave the CIA approval to use unspecified forms of physical coercion. Moreover, Congress defined CID as limited to forms of coercion that would violate certain provisions of the Constitution, which the Supreme Court has held to prohibit only practices that “shock the conscience.” The case law suggests that whether various interrogation practices shock the conscience depends on the importance and urgency of the information likely to be obtained and “exact analysis of [the specific] circumstances.”

Note that Taylor takes care to look at the specific language of the LAW to determine if particular conduct might be considered to be in contravention of the LAW, and comes up with very little of substance thanks to the failure of the legislature to allow itself to be pinned down.  And Taylor says that’s exactly the way Congress wanted to leave it — it had no interest in clarifying the point:

The technique, called “waterboarding,” involves simulated drowning. Congress could seek to explicitly ban it, along with other highly coercive techniques. It has not done so, because it does not want to take the blame for any future terrorist attacks that might have been prevented by highly coercive interrogation.

The attacks on Mukasey are an exquisite example of Congress’s penchant for avoiding accountability by leaving the law unclear and then trashing the executive for whichever interpretation it adopts whenever something goes wrong.

 Lets now consider the Mora and Shattuck Op-Ed washington post today: 

The question of whether waterboarding constitutes torture is a no-brainer. Our nation and many others have recognized for decades that it does. One doesn’t have to have been “read into” the details of a classified program, as President Bush has suggested, to reach a judgment about this interrogation technique. Common sense is the only tool needed to understand that inducing the sensation of drowning — i.e., of dying — is torture.

That’s the first paragraph, and looking as hard as I could to find some, this is as close as these two lawyers get to even mentioning a statute or statutory language.  Frankly, I’d be embarassed to put my name on an Op Ed dealing with an important legal subject with such meaningless and shallow “reasoning.” 

What the overlook is the fact that many statutes, state and federal, define crimes which can be descriptively captioned with a single word.  Homicide.  Rape.  Robbery.  Racketeering.  Fraud.  Treason.

But those words are meaningless in the absence of the statutory definitions in the statutes which describe what ACTIONS constitute the elements of each crime.


Saying some act is “torture” is useless unless the nature of the act is compared to the prohibitions in the statute. 

Since Mora and Shattuck made no effort to do that, we in the business of real lawyering refer to such an event as a substantive default.  The could have tried, but they didn’t.  We’d at least have something to argue about had they tried.  Rather, they rely on “its a no-brainer” requiring only the application of “common sense.”

I going to write that down so I remember it the next time I’m asked to explain in the Ninth Circuit why there was sufficient evidence that the defendant had committed the crime for which I had won a conviction.


81 Responses to “Enough Already — Is Waterboarding “Torture” in violation of federal law? Let us address the question head-on”

  1. I always though a “no brainer” was when the sharp point of a pair of scissors was shoved into the base of the skull of an unborn infant, followed by a suction tube that evacuates the brain matter so the skull could be more easily collapsed. But I guess that’s just “common sense.”

    capitano (03e5ec)

  2. WLS – By the definitions you provided, I cannot see how waterboarding could be considered torture.

    JD (49efd3)

  3. All of the other discussions are simply academic, until the discussion about waterboarding itself is resolved.

    My biggest problem with how this discussion usually plays out (outside of the self proclaimed moral high ground taken by many) is that the definitions that the Left would have us use for torture do not match our existing laws, and more importantly, are so broad and vague so as to make the term torture meaningless.

    JD (49efd3)

  4. Which meshes well with their proffered definitions for such terms as “racism” and “rape”.

    See, this is where the “no brainer” part comes in…

    PCachu (e072b7)

  5. This was an op-ed, not a brief.

    Also, please let me know when you actually argue that a defendant “substantively defaulted” to the the full 9th Circuit, as I’d love to hear Judge Kozinski respond to that “argument”.

    Do you have an actual case to make regarding whether waterboarding fits into 18 U.S.C. 2340(2)(A) or (D), or are your awesome lawyerly skillz limited to “substantive default”?

    Moops (99fd9d)

  6. Hmmm since the American military subjects its troops to various scenarios that meet those you have dfined then obviously the US government regularly engages in torture.

    So lets end all forms of this so those who would not serve can assume a moral high ground and crow thewir moral superiority over the ashes of tens of thousands of their dead fellow citizens. It is so satisfactory to be able to claim such moral high ground over the graves of others.

    Thomas Jackson (bf83e0)

  7. Moops — I’ll take Taylor’s position.

    You’ve got a clear Due Process problem with claiming that “waterboarding” is illegal under the ill-defined language of Sec. 2340. How would any member of the US intelligence service be on notice that “waterboarding” comes within the definition — especially when Congress could have, but chose not to include it, after specifically including it in the prohibitions on the military.

    Go look up the “rule of lenity” and get back to me.

    And, as for the “OpEd” – it was Mora and Shattuck that chose to make the unequivocal “waterboarding is torture” claim and criticized Mukasey for not doing so. It was incumbent upon them to back of their position and show why Mukasey’s position was not supported by the law.

    Why else are they offering an opinion?

    Would the WaPo have printed their OpEd if they weren’t lawyers?

    Want to go for Round 2? I’ve got all night.

    WLS (bafbcb)

  8. Let me get this straight.

    Are you are arguing that “legal positivism” is the best process to determine a moral argument?

    This just goes to show how right Tocqueville was and how far legal minds are from understanding moral issues.

    Christian Johnson (aa4f59)

  9. Let’s see what Mr. Black says about torture:
    “Torture. To inflict intense pain to body or mind for puproses of punishment, or to extract a confession or information, or for sadistic pleasure.” (5th edition)

    I think waterboarding fits that definition, and moreover I think it’s so obvious that it does, that your casuistry of the USC shames you and our profession. But to quote the aphorism which Black lists immediately above the definition of torture, and his translation of it:
    Tortura legum pessima. The torture or wresting of laws is the worst [kind of torture].

    And even if you are (may the One Who judges in Truth forfend!) waterboarding is a gross violation of the Ceasar’s wife principle. If we expect to convince others to accept the rule of law and all the rest as the best way to live, then we’d better practice it ourselves.

    kishnevi (911a41)

  10. The issue that was put to Mukasey was whether waterboarding was torture, and therefore illegal under existing federal law. They weren’t asking about a moral point, and it wasn’t posed to him for the benefit of obtaining from him his philisophical musings on the subject.

    He gave a moral answer — that he finds it personally repugnant.

    If you want to claim that statutory definitions of crimes provided by a legislative act is “legal positivism”, well I think you’re wrong but so what?

    That’s what people get prosecuted under for war crimes — not some “Natural Law.”

    WLS (bafbcb)

  11. kishnevi — unfortunately, in courtrooms we rarely resort to defining crimes based on what Mr. Black thought was an interesting way to describe them in his book.

    Especially when Congress has provided a definition that it wanted applied to the crime that it forbade.

    Try again.

    WLS (bafbcb)

  12. Torture-Should We Do It?

    The confirmation hearings for Attorney General-Designate, Michael Mukasey has now been hung up on whether he approves of the practice of water-boarding-a form of interrogation that gives the prisoner the sensation of drowning. This is all part of a larger question: Are we engaging in torture of terrorist prisoners, and if so, is it right?

    As a retired law enforcement agent (DEA), this question has a personal ring. Torture is something I never did; it is something I never would have approved of; it is something I have no knowledge of by my colleagues. It is something that is against the very essence of our American culture.

    A generation ago, America was accused of having trained Latin American law enforcement and military to practice torture. I thought the idea was laughable. When did Latin Americans need North Americans to teach them how to torture? In reality, they would have to teach us how to do it. Latin Americans learned the art of torture from the Spaniards centuries ago.

    I do believe that we as Americans should not engage in this practice for two reasons: First, we are supposed to be the good guys. Second, we want to do everything possible to ensure that our own prisoners are treated according to civilized standards. While I believe that terrorist suspects should not be accorded protections of the Geneva Convention nor the rights of our criminal court system, I feel they should be treated humanely. I would hate to think that we are practicing torture in places like Guantanemo. Is waterboarding torture? Yes, I think it is.


    In 1985, a DEA agent named Enrique Camarena, who was assigned to Guadalajara, Mexico, was kidnapped by Mexican drug lords (assisted by certain elements of the Mexican police) and tortured to death over the course of several days. Camarena’s death and the circumstances of his death have been an emotional issue to DEA agents to this day. DEA was under no illusions as to what Camarena’s fate would be unless he could be rescued. So the question is: Would torture have been justified if DEA or Mexican police had a member of that drug ring in custody who knew where Camarena was being held? In my view, yes. Would I have done it in those circumstances? Yes, I believe I would have. (Someone would have had to show me how.)

    The same question arises in the War on Terror. We have seen instances where Americans have been kidnapped overseas by Islamic terrorists, tortured and killed-in some cases by beheading. So if we had someone in custody who knew where one of our people was being held, would torture be justified? Would it be justified if the prisoner knew the details of a terrorist bomb about to go off- perhaps a nuclear device? What would I do? What would you do?

    As much as I hate to admit it, I do believe that there may be certain extraordinary instances when torture is justified. Do I have a problem if we are sending terrorist prisoners back to their own countries to face the interrogation methods of their own authorities? (No.) Will this increase the danger of our own prisoners being tortured by Islamic terrorists? They are going to do it no matter what we do. I respect the opinions of those who say we should never engage in torture no matter what. However, I have come to the sad conclusion that we are up against an evil enemy. If, and only if, innocent lives will be saved from terrorists, then, as much as I hate to admit it, I would support the use of torture by Americans. If anyone disagrees, I respect your feelings.

    gary fouse

    fouse, gary c (593fe3)

  13. Kishnevi,

    If the Caesar’s wife principle worked with our enemies I’d be all for it. Unfortunately, it doesn’t.

    DRJ (5c60fb)

  14. Gary — I didn’t know Kiki, but I worked with a lot of guys that did know him, and I played in an annual golf tournament in his memory where the funds went to the families of agents killed in the line of duty.

    But, you put yourself in the very scenario that so many struggle with. What would you do in the form of coercive interrogation when faced with the very real prospect of saving the lives of others if you can gain information you know the detainee possesses but will not volutarily divulge?

    That is not an academic question, and there is no “right” answer.

    WLS (bafbcb)

  15. The very fact that you have to resort to casuistry and technicalities should warn you that you’re wrong. Any one who ever rode the Clapham omnibus would read the USC and think that waterboarding was a good example of the behavior it prohibited.

    And the fact that you indulge in this law twisting has destroyed the respect for you, and pinged my temper badly enough that at least for the moment, I will say no more. because I don’t want to litter Patterico’s blog with obscenities. But the fact that you have committed this abomination suggest either a lack of intelligence or a lack of moral sense.

    kishnevi (911a41)

  16. Kishnevi,

    Legal (and laymen’s) minds can differ on this. For instance, here’s a recent excerpt from Ann Althouse’s blog on this topic:

    “Intense interrogation, physical discomfort, things that approach torture, outright torture — these things are all on a continuum and the question where to draw the line is important.”

    The point isn’t to define waterboarding as black or white, legal or illegal. The point is to figure out where it fits on the continuum.

    DRJ (5c60fb)

  17. (calming down slightly)
    DRJ–Adhering to Ceasar’s wife is not for the purpose of converting the jihadis. It’s for the purpose of making sure the non-jihadis ally with us and don’t decide that, if forced to choose between the jihadi devil and the American devil, they may as well choose the devil who shares their religion and heritage.

    WLS–Jack Bauer cases are not reasons for prospectively legalizing torture. They are reasons for invoking the presidential power of pardon or the prosecutorial power of discretion.

    kishnevi (911a41)

  18. WLS – Good post. Blah linked to a post on Balkinization by Lederman the other day in which Marty claimed we had plenty of existing laws against torture but didn’t cite any, sort of like the WaPo editorialists you describe above. Marty did, however, link to a Supreme Court decision written by Souter which made passing reference to torture, although the decision itself was not about torture. Souter essentially said there was a paucity of both legislative and executive guidance in this area and it was one in which the Court was not inclined to get creative, essentially mirroring Taylor’s view above.

    daleyrocks (906622)

  19. I dunno if I would leave myself to two bits of whimsy like presidential power of pardon or prosecutorial power of discretion.
    I’d rather have something like waterboarding be legal, but requiring an OK from an appropriate level.
    If I worked with the CIA and captured bin Laden tomorrow, I’d like to know that I had the authority to take methods coercive as soon as needed and over the short term without having to wonder if I was going to have to beg for a pardon or discretion.
    I’d want a preapproved list of high value targets and I’d want 24/7 to the minute access with someone with authority to make any other rulings needed.
    That’d make waterboarding legal but as rare as it is now with it’s use very narrowly defined.

    As an aside, I’d note that Code Pink has waterboarded more subjects over the last year than the CIA has al Qaeda.

    SteveG (4e16fc)

  20. if you say it’s ok for us to do it to their guys, you’re also saying it’s ok for them to do it to our guys.

    assistant devil's advocate (312d75)

  21. No, ADA. It’s not OK for them to do anything to our guys. If one of our guys kills one of theirs, we give him a medal; if one of their guys kills one of ours, we can try him for murder. This is not a game.

    And if you are a USA citizen, you do not have the right to be neutral – you have a positive duty of loyalty to the USA and of enmity to their enemies. Or should I not be Questioning your Patriotism?

    Milhouse (f10fb3)

  22. “Torture. To inflict intense pain to body or mind for puproses of punishment, or to extract a confession or information, or for sadistic pleasure.” (5th edition)

    I think waterboarding fits that definition, and moreover I think it’s so obvious that it does, that your casuistry of the USC shames you and our profession.

    kishnevi, does your certainty include the notion that fear and pain are one and the same? Because they’re not.

    Pablo (99243e)

  23. if you say it’s ok for us to do it to their guys, you’re also saying it’s ok for them to do it to our guys.

    I’d far rather that they do that than that they do what they do now. And by contrast, are they saying it’s OK for us to behead and mutilate them? Or does that notion only work in one direction?

    And let’s keep in mind that this is not a tactic that could be used in a conventional war against a uniformed enemy. This wouldn’t be useful in such a war, but can be and has been an effective tool in a conflict with an enemy who cares nothing for the rules of war.

    Now, let’s have a show of hands. Who wants the guys who waterboarded Khalid Sheik Mohammed prosecuted?

    Pablo (99243e)

  24. While I am not personally against water-boarding, I think it is clearly covered by this definition, “the threat of imminent death.” If inducing the thought of drowning is not a threat of imminent death, I’d love to hear the reasoning.

    In situations concerning torture, I would take the twisted Golden Rule stance, “Do unto others as they have done unto you.”

    Sean (e1d31a)

  25. What’s so amusing about this post that it’s on a site so dedicated to the thought that judges should be able to make the one single “correct” decision. And here you are so clearly sliding around definitions of what the vast majority of would consider torture. And torture is illegal. It’s also unreliable

    In a CIA sub-station close to al Libi’s jail cell, the CIA’s “debriefers,” who had been talking to al Libi for days after his return from Cairo, were typing out a series of operational cables to be sent Feb. 4 and Feb. 5 to the CIA Headquarters in Langley, Va. In the view of some insiders, these cables provide the “smoking gun” on the whole rendition program — a convincing account of how the rendition program was, they say, illegally sending prisoners into the hands of torturers.

    Under torture after his rendition to Egypt, al Libi had provided a confession of how Saddam Hussein had been training al Qaeda in chemical weapons. This evidence was used by Colin Powell at the United Nations a year earlier (February 2003) to justify the war in Iraq. (“I can trace the story of a senior terrorist operative telling how Iraq provided training in these [chemical and biological] weapons to al Qaeda,” Powell said. “Fortunately, this operative is now detained, and he has told his story.”)

    But now, hearing how the information was obtained, the CIA was soon to retract all this intelligence. A Feb. 5 cable records that al Libi was told by a “foreign government service” (Egypt) that: “the next topic was al-Qa’ida’s connections with Iraq…This was a subject about which he said he knew nothing and had difficulty even coming up with a story.”

    Al Libi indicated that his interrogators did not like his responses and then “placed him in a small box approximately 50cm X 50cm [20 inches x 20 inches].” He claimed he was held in the box for approximately 17 hours. When he was let out of the box, al Libi claims that he was given a last opportunity to “tell the truth.” When al Libi did not satisfy the interrogator, al Libi claimed that “he was knocked over with an arm thrust across his chest and he fell on his back.” Al Libi told CIA debriefers that he then “was punched for 15 minutes.” (Sourced to CIA cable, Feb. 5, 2004).
    Here was a cable then that informed Washington that one of the key pieces of evidence for the Iraq war — the al Qaeda/Iraq link — was not only false but extracted by effectively burying a prisoner alive.

    blah (fb88b3)

  26. blah – There is so much BS in there it is hard to pick out where to start. As always, you just ignore the actual topic, is waterboarding torture. It appears that you and your ilk view this as a given, and just merrily skip right over that.

    In re. “torture” unreliable. That could be true. However, in intelligence gathering, these things are checked out, they do not simply take someone’s word, and then send them on their way. There are incentives for telling the truth, and disincentives for just making shit up.

    An Iraq/AQ connection was not the main premise of the war, but I suspect that you have called many things the main reason.

    How does a human being fit in a 50cm X 50cm [20 inches x 20 inches] ? Do you bother to read what you post ?

    JD (49efd3)

  27. Who wants to ask Zacharias Moussaoui whether “torturing” KSM produced reliable information?

    Pablo (99243e)

  28. There are at least a half-dozen different activities being called “waterboarding” — not counting the foolishness enacted yesterday in Washington; that they were willing to undergo it several times demonstrates to me that there is probably a seventh, which is decidedly not torture.

    So “maybe”. All of them (again, exempting that seventh) are either torture or so close to that fuzzy line that they risk slipping over it.

    I’d want none of them done to me. There are lots of things I wouldn’t want done to me that are not torture, however.

    Torture does produce answers to questions. The problem is that it does not reliably produce reliable answers. Other methods do, but they tend to be much slower, and the answers still need verification.

    htom (412a17)

  29. While I am not personally against water-boarding, I think it is clearly covered by this definition, “the threat of imminent death.” If inducing the thought of drowning is not a threat of imminent death, I’d love to hear the reasoning.

    Hanging someone by their ankles over the side of a tall building and threatening to drop them is a threat of imminent death. Holding a knife to someone’s throat and telling them they’re going to die if they don’t start talking is the threat of imminent death.

    There is no death threat in waterboarding, though there’s probably a perception of one.

    Pablo (99243e)

  30. ADA, so if they do stuff to our guys, we can do the same to theirs, right? Reciprocity, right?

    When do the beheadings start?

    Techie (c003f1)

  31. I’m still astonished that people actually keep bringing up the “what if they do it to our guys” nonsense.

    If our enemy waterboarding our captured soldiers, it would be an immense improvement upon the treatment they’ve gotten by our enemies historically. This could not be a lamer argument.

    SPQR (6c18fd)

  32. If our enemy waterboarding our captured soldiers, it would be an immense improvement upon the treatment they’ve gotten by our enemies historically.

    Yeah. Notice that we don’t train our guys on getting beheaded.

    Pablo (99243e)

  33. To elaborate on 31 & 32 responding to 20.

    The reciprocity argument makes sense against an enemy already following the laws of war, or with whom conflict is just starting. It makes no sense against an enemy who regularly violates the laws of war.

    The only reason to take such an enemy prisoner is the hope of getting useful intel out of them. Otherwise we should just shoot them.

    LarryD (feb78b)

  34. How about the dastardly practice of inducing the thought that your co conspirators are ratting you out in the interrogation rooms next door in a way that will lead you holding the bag for a death penalty charge?


    SteveG (4e16fc)

  35. Pablo

    I’ve seen a couple of patriots over at Kos that wouldn’t have a problem training anyone who would volunteer for combat infantry with beheading…
    for sake of our stature with the oppressed and huddled.

    SteveG (4e16fc)

  36. Indeed, Larry, but instead we’ve created the most humane prisoner of war camp in history in Guantanamo Bay and are still pilloried by the Left.

    SPQR (6c18fd)

  37. Thank God the detainees’ mattresses at Gitmo are not on the floor. Think of the horror.

    tmac (0c909a)

  38. Didn’t some of those same Kosmonauts and Code Pinkos call for soldiers to frag their own officers during this conflict? Intellectually consistent they are not.

    daleyrocks (906622)

  39. WLS posted to try to settle the legal debate over this issue, not the debate over peoples’ feelings or the morality of it, where this thread is straying again. Alan Dershowitz has a piece in today’s WSJ on the issue which supports the requirement for codifying a legislative solution, not just more feelings being bandied about.

    daleyrocks (906622)

  40. The Thunder Run has linked to this post in the – Web Reconnaissance for 11/07/2007 A short recon of what’s out there that might draw your attention, updated throughout the day…so check back often.

    David M (447675)

  41. Pablo-
    “There is no death threat in waterboarding, though there’s probably a perception of one.”

    Fundamentally, what is the difference? If I think I am going to die from the waterboarding, how is that not a threat whether the threat was explicitly made or not? It seems to me you are splitting hairs.

    By your rational, if I hang you from the top of a tall building and tell you to answer my questions, but don’t say I will drop you, that is NOT torture. I could hold a knife to your throat, a gun to your head, a hot poker near your eye and none of those are torture according to you. I don’t have to explicitly threaten you for something to be a threat. If in YOUR mind it is a threat, then it is a threat.

    If you want to make it about the interrogator’s intent, then nothing is torture if it doesn’t actually cause long term physical or mental damage. If the interrogator never makes an explicit threat, then it is not torture.

    Is this the reasoning you are using to say waterboarding is not torture?

    Sean (e1d31a)

  42. I am no fan of Dershowitz, but he has really been out there, on his own, on this issue. It makes me take some of his other positions a little more seriously.

    JD (49efd3)

  43. From, Public Committee Against Torture in Israel vs. State of Israel

    36. In the Court’s opinion, a general authority to establish directives respecting the use of physical means during the course of a GSS interrogation cannot be implied from the “necessity” defense. The “necessity” defense does not constitute a source of authority, allowing GSS investigators to make use physical means during the course of interrogations. The reasoning underlying our position is anchored in the nature of the “necessity” defense. This defense deals with deciding those cases involving an individual reaction to a given set of facts; It is an ad hoc endeavor, in reaction to a event. It is the result of an improvisation given the unpredictable character of the events… Thus, the very nature of the defense does not allow it to serve as the source of a general administrative power… The principle of “necessity” cannot serve as a basis of authority… An investigator who insists on employing these methods, or does so routinely, is exceeding his authority.

    They also make a distinction between “justification” and “necessity” which I think would be useful for you.

    I could go on, if you like.

    For more reports see: Public Committee Against Torture in Israel

    Fritz (d62210)

  44. BTW, guys, I’m not sure you all caught it (apologies to those who did) but our soldiers do not use coercive interrogation under the present law. Only the intelligence services. It’s in the main post.

    nk (580aa7)

  45. #39 is right on.

    The post is about the law, not morality. Perhaps some of you hadn’t noticed, but the two quite often do not go hand in hand.

    Our legislative body, Congress, has had every opportunity to act (or enact) in this area and has chosen not to. If you want the law to follow what “the vast majority” think the law should be, lobby Congress.

    Viktor (6c107f)

  46. Torture and coercive interrogations are prima facie violations of our civil and natural right not to be a witness against ourselves. Luckily for our criminal justice system most criminals are stupid enough to wave this right.

    Fritz (d62210)

  47. The CIA interrogation program does not include waterboarding. According to Lindsey Graham at the Mukasey hearing. See (rtsp://
    Go to 57 minutes in: “[Waterboarding] is not Geneva Convention compliant. The CIA program is different from the Army Field Manual, for a reason. I believe it [the CIA program] to be legal. I believe it to be effective. I believe waterboarding to be illegal, so you can put two and two together.” In other words, the CIA program cannot include waterboarding, an illegal technique. At least according to one JAG attorney.

    Charlie Quidnunc (380df0)

  48. I’ll make a moral argument for waterboarding.

    We already consider it moral to, in war, inflict the ultimate punishment on those attempting to harm us. We’re allowed to kill people, and usually they don’t die fast or easy. And putting human beings into the stress of combat for the periods of time every nation does in a war is pretty much psychological torture, of a sort.

    Waterboarding makes the subject think death is imminent. Don’t we already do that? We want our soldiers to think that they could die in the next split-second, don’t we? Keeps them on their toes. We deliberately put them in situations where they could go through things a hundred times worse than 30 seconds of being waterboarded, and how many people has the US waterboarded? Three. All of them war criminals. To get information about terrorist plots. Khalid Shaikh Mohammed sung like a bird – after he set the world record for length being waterboarded (2 minutes).

    This is a technique that does not apparently do lasting physical – or much of any physical – harm to the subject, it does not make the subject incoherent or otherwise unable to effectively give information, like, say, beating him with truncheons or electrocuting him might do. I don’t see how it could do lasting psychological damage, besides being terrified of having it happen again – and I don’t care if Khalid Shaikh Mohammed is sitting at Guantanamo Bay rocking back and forth on his heels in the corner scared out of his mind that he’s going to get it again. I don’t give a damn at all. He deserves it. If you think he doesn’t, I don’t care what you think, really.

    We’re not waterboarding random people. We haven’t done it in years, apparently. We waterboarded 3 war criminals who absolutely deserved worse than waterboarding. Should have gone and asked Tony Blair if he could show us how to do a right drawing and quartering, dressed up like Edward Longshanks or something, could have been fun. But no =(

    As long as we aren’t physically harming people I don’t think it’s wrong if we screw with their minds, as long as the severity matches what they did. They’re war criminals, that really is basically the lowest you can get as a human being. We hung Nazis. We hung Japanese. We didn’t say a word when most of the German prisoners of war never came back out of the Soviet Union. We messed up the Indians pretty damn bad. We’ve been pretty much just as barbaric as the rest of the world when it comes to just straight up slaughtering our enemies, intentionally or not, but we try to be “moral” on lesser evils and say we’re better? It’s just weird to me, that kind of thinking.

    Somewhere, Khalid Shaikh Mohammed – who killed 3,000 innocent people – and whose only regret is that it wasn’t more – was held or strapped down, had a rag put over his face, and had water poured onto him to simulate drowning. Not to punish him for his crime, but to prevent his comrades from committing more. Even if it was to punish him, am I seriously supposed to give a damn? Saddam was hung. Saddam had people put feet first through wood chippers. Would anyone here have cared if the Iraqis had done the same to him? They hung him. His neck was snapped instantly. Is that all that Saddam Hussein deserved for what he did?

    Human beings in war have done horrible things all throughout history, which we really know so little of. I do not believe that in a world where genocide still occurs – where people like Abu Musab al-Zarqawi aren’t around still today only because we killed him – we should be troubled over whether waterboarding is wrong. We should be exploring every possible way to discover methods to thwart them. Waterboarding works. It doesn’t scar the subject. The subject is a human being who has rejected the common humanity of all people. He’s no different from a Nazi death camp officer. How can it be in any way immoral to mess with him to prevent more innocent people being exterminated, which is the term he’d probably use to describe it?

    I like knowing that there are men and women defending my country who will do that for me. Makes me think that there’s no way we can lose this war in the end, we can be just as barbaric as they are but we’re so much better than they are in every way that we come up with things like waterboarding instead of the things they do.

    chaos (9c54c6)

  49. Is it enough to threaten someone with imminent death, or must you intend to cause the prolonged mental harm caused by such a threat?

    ISTM this is a poorly drafted statute: proving intent to cause prolonged mental harm strikes me as being extroardinarily difficult to do.

    aphrael (db0b5a)

  50. Milhouse, at #21: And if you are a USA citizen, you do not have the right to be neutral – you have a positive duty of loyalty to the USA

    Where in statute or common law is that duty established? I have a duty not to violate the law by giving aid and comfort to the enemy, but neutrality doesn’t violate that duty.

    Or are you making a moral claim, rather than a legal one?

    Blah, at 25: so clearly sliding around definitions of what the vast majority of would consider torture

    The question isn’t “how is torture defined in colloquial use”; it’s “how is torture defined for the purposes of the law”. Since the statute *provides a definition*, we have to use the definition provided, even if it conflicts with the colloquial meaning of the same word.

    Pablo, at 29: that’s a fascinating question. If you didn’t *intend* a threat, but a threat was perceived, was there a threat? In assault torts, the answer would likely be ‘yes'; but I don’t think that reasoning transfers.

    aphrael (db0b5a)

  51. aphrael — the people commenting on this post would be greatly benefitted by reading your comments at 48 and 49 very closely. They got right to the heart of the problem.

    Intelligence officers are faced with task and a dilemma when the issue of waterboarding is couched in “moral” rather than “legal” terms.

    The “judicialization of warfare” since the end of the Vietnam War is the primary cause of our inability to effectively respond in a military fashion to the threat of non-state terrorists.

    That is the central hypothesis of Jack Goldsmith’s book, “The Terror Presidency” — for which I am still writing a review that I will post here in the next few days.

    WLS (bafbcb)

  52. Fritz, in #45 you again show that you are not following the basics of this discussion, this is not about criminal prosecution.

    SPQR (6c18fd)

  53. WLS – Great phrase, judicialization of warfare. I shake my head in wonder at so many arguments that would give unlawful combatants the protections of our civil and criminal system of law. This is yet another example of where the military and intelligence agencies are the best arbiters, yet there is this push to couch these issues in terms of public policy and morality, which makes no practical sense to me.

    aphrael – As always, interesting and insightful.

    JD (49efd3)

  54. Question. I’ve read a number of comments saying essentially that we need to resort to waterboarding or other such techniques because Al-Queda, et al., don’t play by the rules. Yet the Japanese did not play by the rules and often tortured our servicemen, but I am not aware that we had this discussion in WWII, or later in Korea or Vietnam (since the North Koreans and the North Vietnamese also tortured our servicemen). What’s the difference now?

    JayHub (0a6237)

  55. WLS – Great phrase, judicialization of warfare.

    I remember that when we first invaded Iraq we sent hundreds of lawyers to monitor our troops.

    dave (c44c9b)

  56. JayHub,

    I wasn’t alive during WWII but my father and uncles served. Their stories make it clear that captured enemy troops either complied with their American captors’ valid orders or they were subject to punishment or death. Thus, what’s changed are the rules of engagement that Americans observe. Today’s American troops are more (rather than less) concerned with their enemies welfare. My point is not that my father’s generation was unconcerned or callous, just that their rules of engagement were by necessity different than today’s.

    DRJ (5c60fb)

  57. Fritz @ 42 – It’s unfortunate that you did not go on, because then readers would have seen that the recommendation would have been for a legislative solution to the dilemma rather than to rely on the necessity defense against potential criminal liability as you suggest.

    37. In other words, general directives governing the use of physical means during interrogations must be rooted in an authorization prescribed by law and not from defences to criminal liability. The principle of “necessity” cannot serve as a basis of authority (See Kremnitzer, ibid. at 236). If the State wishes to enable GSS investigators to utilize physical means in interrogations, they must seek the enactment of legislation for this purpose. This authorization would also free the investigator applying the physical means from criminal liability. This release would flow not from the “necessity” defence but from the “justification” defense which states:

    “A person shall not bear criminal liability for an act committed in one of the following cases:

    (1) He was obliged or authorized by law to commit it. ”

    (Article 34(13) of the Penal Law)

    The defence to criminal liability by virtue of the “justification” is rooted in a area outside of the criminal law. This “external” law serves as a defence to criminal liability. This defence does not rest upon the “necessity”, which is “internal” to the Penal Law itself. Thus, for instance, where the question of when an officer is authorized to apply deadly force in the course of detention arises, the authority is found in a provision of the Law of Detention, external to the Penal Law. If a man is killed as a result of the application of force, the provision is likely to give rise to a defence, by virtue of the “Justification” (See Cr. A. 486/88, Ankonina v. The Chief Army Prosecutor 34(2) P.D. 353). The “necessity” defence cannot constitute the basis for the determination of rules respecting the needs of an interrogation. It cannot constitute a source of authority on which the individual investigator can rely on for the purpose of applying physical means in an investigation that he is conducting. The power to enact rules and to act according to them requires legislative authorization, by legislation whose object is the power to conduct interrogations. Within the boundaries of this legislation, the Legislator, if he so desires, may express his views on the social, ethical and political problems, connected to authorizing the use of physical means in an interrogation. These considerations did not, from the nature of things, arise before the Legislature at the time when the “necessity” defence was enacted (See Kremnitzer, supra, at 239-40). The “necessity” defence is not the appropriate place for laying out these considerations (See Enker, supra, at 72). Endowing GSS investigators with the authority to apply physical force during the interrogation of suspects suspected of involvement in hostile terrorist activities, thereby harming the latters’ dignity and liberty, raise basic questions of law and society, of ethics and policy, and of the Rule of Law and security. These questions and the corresponding answers must be determined by the Legislative branch. This is required by the principle of the Separation of Powers and the Rule of Law, under our very understanding of democracy (See H.C. 3267/97 Rubinstein v. Minister of Defence (has yet to be published)).

    38. Our conclusion is therefore the following: According to the existing state of the law, neither the government nor the heads of security services possess the authority to establish directives and bestow authorization regarding the use of liberty infringing physical means during the interrogation of suspects suspected of hostile terrorist activities, beyond the general directives which can be inferred from the very concept of an interrogation. Similarly, the individual GSS investigator-like any police officer-does not possess the authority to employ physical means which infringe upon a suspect’s liberty during the interrogation, unless these means are inherently accessory to the very essence of an interrogation and are both fair and reasonable.

    An investigator who insists on employing these methods, or does so routinely, is exceeding his authority. His responsibility shall be fixed according to law. His potential criminal liability shall be examined in the context of the “necessity” defence, and according to our assumptions (See paragraph 35 supra.), the investigator may find refuge under the “necessity” defence’s wings (so to speak), provided this defence’s conditions are met by the circumstances of the case. Just as the existence of the “necessity” defence does not bestow authority, so too the lack of authority does not negate the applicability of the necessity defense or that of other defences from criminal liability. The Attorney General can instruct himself regarding the circumstances in which investigators shall not stand trial, if they claim to have acted from a feeling of “necessity”. Clearly, a legal statutory provision is necessary for the purpose of authorizing the government to instruct in the use of physical means during the course of an interrogation, beyond what is permitted by the ordinary “law of investigation”, and in order to provide the individual GSS investigator with the authority to employ these methods. The “necessity” defence cannot serve as a basis for this authority.

    daleyrocks (906622)

  58. What a bunch of pussies. We prosecuted people for waterboarding in WWII, and the Axis powers were much more dangerous to the stability of the world than Al Qaeda. I’m not even going to begin to argue with idiots for pretending otherwise. You’re a bunch of fucking cowards who think whatever problems you face must be biggest the world has ever know. Stop patting yourselves on the back with the keyboard.

    Waterboarding is torture and as such is illegal.

    Malcolm Nance, good-spirited though he is, is a pugnacious guy. Nearly 20 years’ service in the Navy, including time instructing would-be Navy SEALs how to resist and survive torture if captured. Intelligence and counterterrorism expert. Several years in Iraq as a security contractor. So don’t expect him to suffer in silence if his credibility is attacked during testimony to a House panel tomorrow about his personal experiences with waterboarding.

    “God forbid if there’s even the slightest hint about my credentials,” Nance says over tea in a Washington coffee shop. “You will see a spectacle on C-Span. I’ll impugn [my attacker’s] credibility in public. Let’s see him give 20 years in the military, give up his family life, and then he can come talk. If not, shut the hell up.”

    Nance has become newly controversial for writing on the counterinsurgency/counterterrorism blog Small Wars Journal about his experiences teaching waterboarding for the Navy’s Survival, Evasion, Resistance, Escape (SERE) program. He’s been subjected to the procedure personally, and unequivocally called it torture in a much-discussed post. Subsequently, a House Judiciary subcommittee contacted him during a business trip in the Middle East and asked him to testify at a hearing on so-called “enhanced interrogation” techniques that kicks off tomorrow morning.

    Since he wrote the post, however, a number of comments have appeared on conservative blogs questioning Nance’s military service record. (Small Wars Journal had to delete a number of particularly ad hominem comments.) Nance doesn’t want to dignify the attacks — “it’s vet-versus-vet warfare,” he laments. But he says he heard from a staffer for the Democratic majority on the committee that a Republican aide has been “questioning my credentials” to members in preparation for the hearing. In response, Nance sent the committee “17 years’ worth of evaluations” from the Navy and told staffers how to find more material if needed. Emphatic about not getting swiftboated, he warns would-be assailants, “I’ll chew your ass out.”

    Here’s the link for you to the original post in SMALL WARS JOURNAL

    blah (fb88b3)

  59. blah – That is his opinion. His opinion is not the law. Try again.

    JD (49efd3)

  60. How about trying out some original thought, instead of copying and pasting someone else’s?

    JD (49efd3)

  61. Blah’s method of posting reminds me of someone…

    Loads of cut and paste, lost of short lil posts containing little more than hyperlinks…

    Darn it, now who does that remind me of…

    Scott Jacobs (a1de9d)

  62. “That is his opinion. His opinion is not the law”
    “Opinions are like assholes. Everybody has one”

    “Why do I gotta have a college degree to be a teacher? My mother says I know a lot!!”

    blah (fb88b3)

  63. I know those are all in quotes, but the last two are rhetorical.
    You understand, right?

    blah (fb88b3)

  64. His opinion, according to many of his peers, is questionable as well, blah. But, don’t bother yourself with things like that. Keep on spouting off others opinions.

    JD (49efd3)

  65. “His opinion, according to many of his peers, is questionable as well”
    Soy you say, but I’m not interested in your opinoin. I might be interested in theirs, so give me references. links etc.

    blah (fb88b3)

  66. Unlike him, they are being honorable and upholding their oaths to not disclose information. Meanwhile, since he has chosen to ignore his orders, he goes around spouting off all he wants, as he knows that those that would publicly rebut him are being honorable and upholding their oaths.

    blah – You have never entered into any discussion in good faith, and I have no intention of engaging you.

    JD (49efd3)

  67. “I’d like to tell you but then I’d have to kill you”

    What a lying little bitch you are

    blah (fb88b3)

  68. Please, the Japanese were in violation of the GC every moment of the day; Nanking, the beheadings
    at Wake Island, Section 731, the savagery of the
    Bataan death march; almost all directed at civilians and/or US soldiers. Interesting; many of
    the organizers of said atrocities escaped judgement becoming they were princelings in the Royal Family of Peaceful Shintoism (does that sound familiar to anyone, in the current context).
    We used waterboarding in the last major tough scrape in counterinsurgency; the Phillipine war and we promoted the chief of said operations Gen. Bell, to Army Chief of Staff. It’s somewhat amusing that General Taguba, made so much of the
    torture issue; in this regard. The whole
    equivalence with Cambodians, since we both
    ‘waterboard’ would be funny if it wasn’t pathetic.
    Cambodians specialized in macheting civilians,
    “ripping children apart as if they were loaves of bread” as Spaulding Gray put it, in his description of the wait for it; Killing fields.

    narciso (d671ab)

  69. Blah – Please continue to prove my point.

    JD (49efd3)

  70. Blah #68,

    Please turn it down a notch.

    DRJ (5c60fb)

  71. “We used waterboarding in the last major tough scrape in counterinsurgency; the Phillipine war”
    Sources pleaase. Waterboarding was a technique used by the Germans and the Japanese. We prosecuted Japanese soldiers for waterboarding.
    Or do you mean this?
    “As far back as the U.S. occupation of the Philippines after the 1898 Spanish-American War, U.S. soldiers were court-martialed for using the “water cure” to question Filipino guerrillas.”

    blah (fb88b3)

  72. The “water cure” used as recreation in the Phillipines was wrong.
    Japanese water torturing, beating and burning of POW’s years after their initial capture for “stealing a shirt” at the POW camp was nothing more than brutality.
    These people were prosecuted for brutality….

    I am fine with prosecuting people for brutalizing prisoners.
    Waterboarding some 20 year old private who has been in a POW camp since the Bataan death march wass brutality… the specifics of the brutality are used to support the charges.

    Lets look at the the brutality of a beating. A beating is usually brutal. A beating in the course of physical resistance to a lawful order may be both brutal and lawful.
    A brutal revenge beating by prison guards three years after incarceration is criminal.

    blah’s type would have us NEVER raise a hand to even an immediate threat.
    I disagree and feel strongly that a system needs to remain in place to get things done fast when time is of the essence

    SteveG (4e16fc)

  73. Response to WLS (14),

    Fortunately in my own career, I was never in that kind of situation. My interrogations centered around getting an admission or confession, gaining cooperation or finding out about the location of dope or identifying suspects. I never would have dreamed of torturing under those conditions. Your question is appropriate. What does one do when trying to gain info as to the whereabouts of a kidnapped colleague, who you know will be tortured and killed or learning the location of a nuclear bomb about to go off?

    It is very easy for these politicians in Washington to say that torture is never appropriate. This has nothing to do with getting evidence, a conviction or suppressing political opposition, but of saving lives. Simple answers don’t come easy.

    fouse, gary c (593fe3)

  74. blah, still misrepresenting your links, I see. And wow, what a mouth you have.

    SPQR (6c18fd)

  75. Sean,

    Fundamentally, what is the difference? If I think I am going to die from the waterboarding, how is that not a threat whether the threat was explicitly made or not? It seems to me you are splitting hairs.

    Here it is: You’re NOT going to die from being waterboarded, whether you think that’s the case or not. And the thing is, they’re exploiting an autonomic reaction. There is no threat, there’s merely a manipulation of that involuntary reaction that induces extreme fear. Not pain, but fear.

    There is no point where if you don’t play ball you’re dead.

    Pablo (99243e)

  76. My last response was caught in the filter. let’s see if it appears. As for this:


    If you want to make it about the interrogator’s intent, then nothing is torture if it doesn’t actually cause long term physical or mental damage.

    That’s not a measure of intent, that’s a measure of outcome, and I think it’s a pretty good one. Something you walk away from perfectly intact and without having been subject to severe pain is not torture in my book.

    Pablo (99243e)

  77. Of course it’s torture. The real issue (that you pinbrains are getting flummoxed about) is that we KNOW that we’re not allowed to torture, but we WANT to torture. Because torture is an effective method to get things done. So we end up having these sophistic, grasping, semantic arguments.

    TCO (542c60)

  78. “Lets address the question head on.”
    Yes Let;s do that

    blah (fb88b3)

  79. You have the natural advantage in debt settlement usa , which may be appropriate for debtors with …
    Great Solution

    Robforhq (1286f4)

  80. I am all for it… To a point. Any enemy we encounter using “civilized” war tactics would follow the “Law”. The problem is it is our law. Not necissarily there’s. I think we should use the tactics being used on us. If our POWs are being waterboarded, waterboard their POWs. If our POWs are getting a 4 star hotel, we show theirs the same courtesy. I think another big problem with tactics being used is that out of hundreds of countries in the world there are about 20 that follow the GC standards. We are not fighting a typical war against a typical foe. (and when I say war I mean the war on terror, not the “police action” taking place in Iraq) They are fighting dirty. We should be able to use any and all resources to bring this to an end. This doesn’t mean use these resources against our own people and citizens. Some things have been taken too far, but we shouldn’t be giving prisoners the same rights as the rest of the country. Why, do ask. Because these are the people attacking your brothers, sisters, moms, dads, and kids. They don’t care who they kill. That is where we differ as human beings. No we are not out killing woman and children and if we “torture” those who attack our people than so be it. Even our “torture” is done in a civilized manner. I can think of about 20 different ways off the top of my head that could be much much worse. I think its time we sent a message once again telling the rest of the world who we really are. American’s need to stop being crybabies. At the same time we need to stop worrying about what is happening to everyone elses people and start worrying about American people.

    As far as what the “Law” deems as torture… This could be anything. Any prisoner who gets caught will more than likely have long term psychological issues due to being a POWs regardless of the tactics used to try and get information from that person. Does that mean capturing soldiers is “torture”? In the definition mentioned above it is. Or an imminent threat of death… To the terrorist we are fighting against, I don’t think death is a threat. How many suicide bombers are out there. They are obviously ready to die. Also, anyone who would be put in a situation to be captured, such as war, should know there is a good chance death is right around the corner.

    I think now would be a good to jump down off my soapbox lol

    Allforit (b2021c)

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