Friday, April 24, 2009

Torture Logic

I can't imagine anyone will ever be nostalgic for the Bushies. Their exit from the corridors of power and the entrance of the talented, infinitely more moral Obama team has been the most dramatic power-change on this continent since King George was shown the door in 1776. But it’s not too late to be outraged by the damage they have caused to this nation of laws and its diminished status in the civilized world.

The formerly-secret legal memos that purport to provide legal cover for CIA interrogators who were torturing prisoners at Guantanamo provide an appalling look into the minds of the damaged men (and, as it turns out, at least one woman) who overreacted to the events of 9/11 by rending the very fabric of American morality. Reading all 100+ pages of these patheticly result-oriented memos can produce nightmares about what was done in our name. If you manage to work your way all the way through the documents, you will need nothing so much as a shower. Your government was filthy-dirty with the terrorized minds, if not the actual blood, of its prisoners.

The right-wing talking pointers have tried to change the facts and the subject from the naked proof of outrageous criminal behavior approved by Cheney, Rice, Rumsfeld and so on to the release of the memos in first place and the darkly-laughable assertion that torture “worked”. All the Obama administration has done is release “legal” memos from pliant political appointees – one of whom, scandalously, now sits on the 9th Circuit Court of Appeals – who parse the word “severe” within an inch of its obvious meaning in order to justify torturous acts. The specific horrific acts of torture used were not news, having been in the public domain through some (but not enough) reporting earlier. But the details of the brutal interrogations – largely conducted, by the way, not by CIA staff, but by profit-centered, soul-selling contractors – still jump out from the pages that seek to justify them, a permanent stain on our national character.

What is most offensive to me, as a lawyer, is the twisted legal logic produced by these partisan hacks, who, in giving Cheney what he demanded, made a mockery of their obligation to their client, who was ultimately not the power-mad greedheads in the White House, but the American people. “In order for pain or suffering to rise to the level of torture, the statute requires that it be severe,” writes now-judge-for-life Jay Bybee way back in 2002. “[T]his reaches only extreme acts...courts tend to take a totality-of-the-circumstances approach and consider an entire course of conduct to determine whether torture has occurred.” Not surprisingly, the Federalist Society lackey finds torture not to be torture, the level of pain and suffering being not “severe” enough; the interrogators not having the requisite intent to impose said pain and suffering; and blah de blah whoosh whoosh. He never does apply the totality-of-the-circumstances analysis that would put the lie to the rest of his Cheney-serving “analysis”.

This is the kind of black-means-white legal logic that gives lawyers a bad name. The torture tactics used by interrogators at Gitmo and elsewhere were reportedly developed by the Chinese to be used against Koreans in the 1950s. They were meant to supercede the more messy leave-a-mark kind of torture used in the uncreative past (although waterboarding is a torture-tactic classic, dating back, at least, to the Inquisition). Bybee seems to say that, since thumb-screws and The Rack were not employed in our new and improved Torture 3.0, then it’s just peachy with him. As lawyers, we are trained to distinguish cases and circumstances to reached our clients’ preferred conclusions. But this is ridiculous.

We strung people up in a standing position for as long a 180 hours (that's more than 7 days) to employ sleep deprivation. We doused naked prisoners with cold water for hours. We banged them repeatedly up against a false wall. We terrorized them by pouring water up their nose -- sometimes six times a day -- to make them think they were drowning.

We did it. You did it. I did it. It was done in our name. We will be endangered and stained with the sins of the Bush Administration for the rest of history. If world opinion some day lets us off the hook for the one radical regime we allowed for eight years, we should consider ourselves lucky. In the meantime, all we can do is make amends. And, for a change, tell the truth.


Anonymous said...

Once again coward, you get it wrong. First and foremost, terrorist have NO rights and are not protected by the Geneva Convention, secondly, US and "BUSHIES" tortured NOBODY, and if the US was attacked again after 9-11 you liberal cowards would have blamed Bush for not doing enough. GROW UP liberal coward and just say Thank you to Bush and Cheney for keeping your cowardly ass safe

Jim Bouman said...

Wouldn't want to leave that exercise in hysteria as the last word on your writing. Thanks for writing it.

If "Anonymous" wasn't so busy calling others cowards, (s)he'd attach a name to that screed so we could see a what a true, bold, patriotic, grown-up and courageous person looks like.

Other Side said...

Anony is the same one who predicted a McCain/Palin landslide.

David M. said...

Thanks for writing this article - I suspect it's what many decent people are feeling. It's amazing to me how many would justify criminal and immoral behavior like torture, but then again, we live in the realm of AM Talk Radio - the foolish who use this as their only means of information and analysis would never be able to embrace an alternative point-of-view.

Anonymous said...

David M, why would we want to embrace the liberal cut and run coward point of view, Terrorists have no rights, and there was absolutely no criminal, much less immoral behavior by anyone in this war on terror, unless you consider treasonous behavior shown by the lefty liberals like yourself. I would volunteer to be the first to waterboard Mikey Plaisted or you, David M.

patrick said...


With all due respect, many of us decent people have a differing opinion as well. We admit that waterboarding is not pleasant; its not meant to be. Yet, it appears to have worked and yielded information which proved reliable in thwarting an attack on LA after 9/11 (at least that is what was reported on cnbc).

But you should at least demonstrate the intellectual honesty to note that waterboarding was not "illegal", but rather was part of system of interrogation which congress and Pelosi were fully aware of. Before I was so outraged about waterboarding which does no lasting harm to people who order others to perform real acts of toture--think Daniel Pearl--I'd like to know what other means we have of getting these subjects to talk? Do you think they will respond to "please"?

While you can smugly feel good about yourself and "tsk" "tsk" about those of us who live "in the realm of AM radio," its pretty clear to me that you are no better informed than anoy, just a little less upset. Don't pretend that listening to NPR or reading TP makes you an intellectual or openminded.

I imagine most people are disturbed by proposed witch hunts to go after lawyers who gave opinions which are now politically unpopular. Most of us believe lawyers should be able to give opinions without political fear. I imagine that somewhere down in his gut Mr. Plaisted knows this too. See, everything changes. Your party is in power now; mine will be later. What lawyer's opinion will be unpopular then?

Finally, let me state for the record I support waterboarding. I am glad we did it because it worked. The people we waterboarded--apparently too few--were by their own admission committed terrorists who slaughtered Americans and Iraqis. They were not regular enemies engaged in open warfare, and therefore not protected by the conventions of war or any other safeties. They showed no mercy to those they caught, and I hope they die horrible deaths. If Obama wants to release photos of "torture", I'm sure this will draw more terrorists into the field. I will pray that they suffer horribly too.

David M.. said...

To the prior two comments, all I can say is that there are other mind-sets in the world and just because you believe what you believe, doesn't make you correct. In all fairness, the same can be applied to my point(s) of view. With this noted, waterboarding is considered torture by many - look around... and further, there are many experts who firmly dispute that any form of torture works toward the goal of attaining information. But...dare I say there any many who simply relish in the thought of another human being being hurt. Isn't revenge delicious! And with this in mind, where does the act of torture end? If waterboarding is OK, what is off-limits? I'm curious. If I enter the dark-realm of my mind I can think of all kinds of things we could do to one another. But really, this argument is more about what we are as a people. We're American's and we should be better than this. We should serve as an example of what a just society can be - in times of good and in times of bad. I'm afraid our record of recent years isn't very favorable...

Finally, to the anonymous soul who's so terribly angry, who uses terms like "cut and run" so liberally, who assumes all who do not share his/her point-of-view are cowards, try to find peace in your life - you're going to drive yourself into a greater tizzy than you're already in!

patrick said...


Your thinking is still flawed. The fact that "many" believe something has nothing to do with "truth." And while there many be "many" experts (whatever that means?) who say torture works against attaining information, clearly these experts were not present when information was attained in the case of these terrorists. Likewise, if waterboarding is too rough on those poor babies who ordered the deaths of so many, what might not be considered torture--sleep depravation, isolation, even incarceration itself?

Perhaps you need to spend a little less time worring about what the rest of the world thinks of us and a little more time considering the nature of the rest of the world. There is little we can do to make nice with terrorists, since violence is both the end and means of their being. You'll notice al Queada did not hold many sit-ins in Iraq or at the world trade center.

We are the most just society in history, and we must defend ourselves from those who would destroy us. This, by its nature, will be a dirsty and messy business.

Jim said...

Ah, the tortured logic and the Bushies blind allegiance.

For at least 62 years without interruption, without legal interruption, this country has classified the water boarding of American prisoners by other nations as war crimes. For at least 111 years, without interruption, without legal interruption, this country has classified the water boarding of other prisoners by Americans as war crimes. There is no gray area, except for those for whom morals and ethics are gray areas or reality is a gray area.
The Orwellian attempt to rewrite American history to make it look like the issue of water boarding is or has been in doubt. Whether or not you are morally in favor of water boarding or not, it is a far cry from a debated point. It is clear that that technique has always qualified under the law as torture.
It does and it always has qualified as torture. And let‘s not mince words. “The media usually characterize the practice as simulated drowning. That‘s incorrect. To be effective, water boarding is usually real drowning that simulates death.” From Evan Wallach, former judge advocate general.

Indeed, when Michael Mukasey, in his confirmation hearings as George Bush‘s last attorney general refused to call water boarding torture, four high ranking officers of the Navy, Army and Marine Corps, all of them judge advocates, wrote to the Senate Judiciary Chair, Pat Leahy. They condemned water boarding. And they noted that judge advocates general of the military services had in 2006 already submitted their opinion on the issue. “Regarding the use of a wet towel and dripping water to induce the misperception of drowning, i.e. water boarding, Major General Scott Black U.S. Army Judge Advocate General, Major General Jack Rives, US Air Force Judge Advocate General, Read Admiral Bruce MacDonald, US Navy Judge Advocate General and Brigadier General Kevin Sandkuhler, Staff Judge Advocate to the Commandant of the US Marine Corps, unanimously and unambiguously, agreed that such conduct is inhumane and illegal and would constitute a violation of international law, to include Common Article III of the 1949 Geneva Conventions.”
History has lead inexorably to the current truth of the matter. In the 1898 Spanish-American war, certain U.S. soldiers used what was then described as the water cure against guerrillas in the Philippines. Those soldiers were court-martialed. In 1968, the “Washington Post” published a photo of a U.S. soldier supervising the water boarding of a captured North Vietnamese soldier. An Army investigation followed and two months later, that soldier was court martialled.
Clear cut, rule of law followed. Yet there is condemnation of President Obama for merely releasing those Bush torture memos.
It‘s not just that our enemies already knew about the techniques described in those memos, “the rule of law is fundamental to our existence as a civilized nation. The rule of law is not a goal which we merely aspire to achieve. It is the floor, below which we must not sink. Water boarding detainees amounts to illegal torture in all circumstances.
Thus, the United States in 1947 charged a Japanese officer, Yukiyo Assano, with war crimes for water boarding a U.S. civilian. Assano was sentenced to 15 years hard labor. Thus, in a far different time and place, water boarding was still a crime. San Acinto County, Texas, 1983, Sheriff James Parker charged, along with three deputies, for water boarding prisoners in an attempt to extract confessions. The three deputies were sentenced to four years in prison. The sheriff sentenced to ten years.

That sheriff got no pardon from then Governor George W. Bush.

You can't have the "moral high ground" in the battle with Islamic terrorists if you have no morals or no high ground.

David M. said...


You're making assumptions on the notion of "many" and how it applies to my commentary. In rereading what I wrote it strikes me that my use of the term "many" has nothing to do with how I form my opinions but rather, I'm suggesting, that many people share my point-of-view. (Regardless of how many people feel the same way, the opinions are still that of the individual.) Yet, all of this chatter is simply filler to the real issue of whether or not the people of our country should be involved in torture. Your commentary regarding my unnamed experts who have stated that there are better means of attaining information other than torture is no better than your conjecture about how these experts were not present when the information was attained. The bigger issue is, what if, by placing a person in a state of pain, the information found is slightly inaccurate or wholly inaccurate? And by placing a person in such a position, does that say something about us? Again, there might be a better way that doesn't soil us a people. (I wonder, if after eight years of Bush vulgarity that the impressionable among us will ever recover...) So, the question remains, is there a better way to determine information that doesn't place American society in a compromising position in the eyes of the rest of the world. And does that matter? From what I can gather, this would not seem to make a difference to you, but to me it would...and dare I make another verbal dare, many would agree.

Oh, one more thing - I find it amusing how you encapsulate your thoughts about truth in quotes to suggest, I think, that your thoughts are that of the Omnipotent. Such folly.

Anonymous said...

David M,

LMAO, I have great peace in my life,a wonderful family, wife, two handsome little boys, BIG let me repeat BIG house, good job with fat paycheck.(House Paid for at the ripe old age of 43) Do not for a second pretend to know my state of mind. David, you are a liberal and YOU are a coward!!! And for the record I enjoy berating liberal cowards such as yourself for your illogical and ill conceived thought processes that your ilk call the liberal agenda. But what does piss me off is the liberals and the Obamination trying to destroy our great country, socialize everthing when simply put, the government should stay the f*ck out!!!!

David M. said...

The laughter is all mine - and you sound like you're in more of a tizzy than before!!!!!!!!!

Jim Bouman said...

C'mon, Anony, don't just tease us with a list of all the stuff you've acquired, stuff you own free and clear: the REALLY big, IN-YOUR-FACE-BIG, house; the gorgeous wife (you didn't say that, but, could it be any other way?) the perfect kids who will star on all the teams and go on to study finance, after getting their undergrad at Dartmouth.

How can we be reduced to green with envy if you keep hiding behind your anonymity, how can we be certain that you have truly and permanently vanquished Plaisted and all the rabble who find his this-is-my-name,and-this-is what-I-think engaging and bold and, frankly, courageous.

He is, as you know, unafraid to attach his name to his opinion.

But you, anony, just lay in the weeds, taking potshots and yelling "coward".

Some day those two kids of yours might ask: "Daddy, are you brave?".

Won't you just hate it when you have to say: "Yes, of course I'm an anonymous sort of way.".

If you cannot come out (so to speak) by writing your real name, you could, at least assume a pen name (keyboard name?). I suggest "Ozymandias". Now, that has a bold and commanding sound, a sound and an image that will wither the cowards, every last one of us.

patrick said...

I like the reference to "Ozymandias"; can't get enough of that poem.


Thanks for your informed refutation of some of the claims I've made here. I'll reconsider, or at least try to. While I'm certainly arrogant, I at least try to maintain the possibility that I might be the closed-minded one (unlike the anony who shouldn't be confused with a thinking conservative) That being said, I'm still concerned. I don't believe that the CIA is a part of the military, and al Qaeda terrorists have not signed the geneva conventions, so the question of the legality of waterboarding is still an issue. However, your point that waterboarding simulates death, not drowning is well taken.

I don't believe that people on the right are so concerned about the release of the memos; we expect Obama to do these type of illconsidered things. What concerns us is that the memos will be used to begin a foolish and destructive witch-hunt aimed at punishing unpopular officials from the Bush administration, while ignoring the role of congress and Pelosi, who had full oversight and briefings but never had a problem with waterboarding until recently. I'm sure you're honest enough to note how even here the great mind seems to omit any mention of the role of congress in the discussion. Sounds to me like a shaky basis or foundation for the rule of law.

After all, what will happen four years from now when we have a republican president and congress who decides that the execution of pirates on the high seas during negotiations--teenagers, at that--needs serious investigation with possible human rights charges to follow? Where will you be then?

Dave: You still don't address my sincere questions: If not waterboarding, then what? If the information was accurate, then why not waterboard? And why is it so important what the rest of the world thinks of us? The rest of the world would solve no problems on its own, so why should we give a rip?

Finally, I put the word "truth" in quotes to suggest that its meaning was dynamic, like the word "many." Vague. My point about that was to suggest that the number of people who hold an opinion has no merit regarding the value of the opinion. And, by the way, I am arrogant and aspire to omnipotence, but at least I'm honest about it.

David M. said...


OK, fair enough, we both use our "words" to our personal advantage and obviously, we both have strong feelings on the merits of torture as a means of attaining information. With this noted, the point I thought I made quite clearly was that, what if, the act of torture didn't give us the information we needed, or, what if, it was incomplete. If I was being tortured (and perhaps I'm in danger of this from some angry, anonymous soul, despite his inferred family values) I would think I'd say any damned thing my captors wanted to hear. I truly think this is a valid concern.

America doesn't, or shouldn't, torture people. With all due respect, your means to an end argument doesn't account for basic decency. And please, the wink, wink antics of the Bush Administration essentially acknowledged that what was being done was fundamentally wrong.

As to what the world thinks of us - this too is something to ponder: does it matter? I think it does. We have, since the inception of our nation, stood as a shining beacon of hope and we still do. What I'm suggesting is brutal antics make us weaker, not stronger.

As to the rest of the world not solving it's own problems? What does that even mean? C'mon, there are other countries in the world that are doing just fine...

OK...wait for it...wait for it...Anonymous is going to call me a stinkin' coward...and his kids are in the room...and his lovely wife(?)...I think he's in the grand foyer...hey, nice TV...

patrick said...


First of all, why not just admit that in the case of those terrorists, the information gained from waterboarding was accurate. If other cases emerge suggesting that the method is ineffective, let's talk about that then.
By your own admission you would give up any valuable information you had right away--isn't that the point?

You suggest that our "brutal antics" make us weaker. How? Please explain how using waterboarding people with understanding of terrorist methods, structures, and plans? What makes us weaker is when our leaders turn their backs on those who seek freedom around the world. What would Walessa or Havel have thought if Regan had gone to Burlin to appologize for our overly aggressive positions during the cold war?

As for the rest of the world, name one problem solved by the UN, France, India, China, Russia, Mexico, or any of the African nations? These countries look to us because they know we will do the dirty work that needs to be done. Their people look to the US because we enjoy freedoms of speech, press, etc... But I severely doubt these people would be upset because we had the audacity to scare a few terrorists.

David M. said...


You misunderstood what I wrote about being waterboarded - I noted that if I was being waterboarded, "I would think I'd say any damned thing my captors wanted to hear." What I was suggesting was that, again, I would say "anything" - that is ANYTHING - to stop the pain of being tortured. So, no, I cannot agree with your position and further I think it's very presumptuous to think that, in general, information attained through such methods can be accurate and complete.

As far as the counties you listed regarding problems solved, which hardly represents the countries of the world, I'm not sure what you're writing of? Are you suggesting these countries are totally devoid of management without the help of the U.S.?

I'm proud of my country but it's nonsense to think that the U.S. is the only country in the world that has merits or accomplishments.

patrick said...


It is simple: if I were being waterboarded, I would promptly give up whatever truthful information I had. Interrogation begins by getting the subject to give up information you already know to be true; it then moves on to information you want to know. I'm sure people at the CIA or NSA have considered the possibility that after a certain point a person knows no more. I'm sure they read the psychology journals.

I believe other countries can manage themselves, but occasitionally they do so very badly. This creates crisis. In the west, there is no other country willing to or able to do something about it. So while all those countries you wish we could buddy up to complain about us, they were quietly damn glad that there was a Bush in office who would do something.

David M. said...

I think I'm going to leave this dialogue, but not without stating this first: regardless of how much justification you can provide, a just society should not stoop to a means of dealing with problems through acts of torture. You state that if you were being waterboarded you'd give up whatever truthful information you had - I state that I'd say whatever the hell I thought my captors wanted to hear - if only the torture would stop(!) You seem to be a much stronger person than I anticipate I'd be - good for you. None of this chatter about how we'd perform under such stress deals with the basic premise that was offered and that is, quite simply, that torture is wrong - it was wrong in the past and it is wrong today and it will be wrong forever. That's it! And you can torture kindhearted people with your tortured logic (to borrow a term), but it will never be right. You know, sometimes I'm just amazed with what conservative philosophy has become (at least I think that is what your perspective is from...) With all due respect, the good 'ole boys club has been overtaken with thuggish goon's - at least in this respect.

Mike Plaisted said...

Having finally read all of these comments in an interesting thread, I would offer the following:

1. Torture is against the law. It doesn't matter whether those we are torturing are covered under the Geneva convention or not. It is the act itself that is against the law, regardless of who the target is.

2. Waterboarding is torture. So is stringing people up to the ceiling for 160 hours so they can't sleep. So is dousing naked, cold men with cold water for 40 minutes. Just because the Bushies decided to glom on to new forms of torture developed by the Chinese in Korea that don't leave a mark doesn't mean they are not torture. Torture is a form of individually terrorizing people, and that's just what we did -- stooping to their level to not good end.

3. We should care what the rest of the world thinks of us. Our authority in the world is not just because of our capacity for brute force; it is also moral authority. The arrogance and belligerence of the Bushies made us far less safe than we are now, when we are engaged and respectful of the rest of the world. The lack of another attack means nothing, other than there was not aneed for them to attack us when we were letting 9/11 twist our values and get us as childish and hysterical as we were. During the entire Bush years, those guys were in caves, laughing their ass off at how we over-reacted -- their attack worked much better than they could have dreamed because of our loss of our moral compass and common sense. That's what they wanted, and only Bush would have given them that satisfaction.

4. It is unknown at this point whether we got any valid information from torture. The Bushies will come out with some self-serving documents to claim that we did. There are many others directly involved in the torture who say we did not or could have gotten the same information some other way.