Obama DOJ Adopts Bush Position in Torture Cases

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Wednesday, October 14, 2009 at 3:10 pm
    Morning prayer for detainees in Camp 4 of the Guantanamo Bay Detention Facility (Zuma Press)

Morning prayer for detainees in Camp 4 of the Guantanamo Bay Detention Facility (Zuma Press)

When he took office, President Obama made clear that torture is illegal and that the United States would not abuse detainees in its custody. He immediately ordered the CIA as well as the rest of the U.S. government to adhere to the rules set out in the Army Field Manual, which forbid the torture, abuse or humiliation of prisoners.

But when it comes to those tortured during the Bush administration, the Obama administration refuses to say that Bush officials violated existing law. In fact, in litigation over the torture and abuse of detainees that in some cases may have resulted in their deaths, the Obama administration has surprisingly endorsed the same legal positions as its predecessor, insisting that there is no constitutional right to humane treatment by U.S. authorities outside the United States, and that victims of torture and abuse and their survivors have no right to compensation or even an acknowledgment of what occurred.

Illustration by: Matt Mahurin

Illustration by: Matt Mahurin

Several cases making their way through the courts now are challenging that position. In each, the Obama administration is taking essentially the same legal positions as did the Bush Justice Department before it.

The case of Al-Zahrani v. Rumsfeld, brought on behalf of two former Guantanamo detainees found dead in their cells in June 2006, is among the most recent filed. It’s now being actively litigated in a Washington, D.C. federal court. Neither Yasser Al-Zahrani nor Salah Al-Salami was ever charged with a crime, but both were deemed “enemy combatants” by a Defense Department procedure that the Supreme Court later declared inadequate. They spent four years in U.S. custody at Guantanamo Bay without charge, without seeing the evidence against them, and without ever even meeting with a lawyer who could press their case. On June 10, 2006, the men were found hanged in their cells on a rope made from bed sheets and T-shirts. The military declared both deaths suicides. Al-Zahrani was 17 years old when he was transferred to Guantanamo and 22 when he died. Al-Salami died at age 37.

In January, the men’s fathers sued Defense Department officials. Represented by the Center for Constitutional Rights and the Human Rights Law Clinic at Washington College of Law at American University, the fathers claim their sons were subjected to conditions and treatment that the International Red Cross has described as “tantamount to torture.” They also claim that Defense Department officials ignored obvious signs of their deteriorating mental health, their growing despair, and the high risk of suicide.

In letters found after their deaths, the two prisoners described being beaten, deprived of sleep for up to 30 days, held in freezing cold or excruciatingly hot temperatures, subjected to humiliating and degrading body searches, prevented from practicing their religion, forcibly shaved contrary to their religious beliefs, and denied necessary medication. Both men were also isolated from the outside world and their families, and even separated from other detainees. According to their lawyers, they “spent the majority of each day confined alone in a small cell with numbingly little activity or stimuli and deprived of basic personal care items.” Al-Zahrani, who was one of the first detainees to arrive at Camp X-Ray in Guantanamo Bay, was held for the first few months of his detention in a small wire cage.

To protest their detention and conditions, the two men, along with dozens of other detainees, went on a hunger strike for several months. The government responded not by improving the conditions, but by restraining the men in chairs, forcing tubes down their noses and throats, and pumping food into their stomachs, their lawyers claim.

Meanwhile, they argue, it was clear that the prisoners’ mental health was deteriorating. In August 2003, nearly two dozen prisoners tried to hang themselves in their cells. And according to the complaint filed in this case, a military official acknowledged that shortly before the deaths of Al-Zahrani and Al-Salami, there was a high risk of mass suicide in the prison.

The relatives filed their lawsuit against 24 military officials, including former Secretary of Defense Donald Rumsfeld and former Chairman of the Joint Chiefs of Staff, Gen. Richard Myers, seeking acknowledgment of wrongdoing and compensation for the two prisoners’ deaths. But in June, the Obama administration’s Justice Department moved to dismiss the case. The government’s lawyers argued, among other things, that the Military Commissions Act, passed by Congress in 2006, had stripped the federal courts of jurisdiction over claims challenging the “detention, transfer, treatment, or conditions of confinement” of detainees who were considered “enemy combatants” by the U.S. military and detained abroad.

Although lawsuits were brought during the Bush administration similarly suing Bush military officials for abuse, wrongful imprisonment and torture, none of those cases involved detainees who the military had decided were “enemy combatants.” But a slew of cases were brought on behalf of so-called “enemy combatants” seeking review of the legality of their detention in federal court.

In one of those cases decided last year, the Supreme Court held that part of that provision of the Military Commissions Act was an unconstitutional suspension of the right of habeas corpus, which allows a prisoner to challenge his detention. But that case, Boumediene v. Bush, did not rule specifically on whether prisoners have the right to challenge the conditions of their detention or their treatment in prison. The decision pertained solely to the right to challenge the detention itself.

Now, for the first time, the lawyers representing the families of Al-Zahrani and Al-Salami are arguing that the part of the Military Commissions Act that deprived the courts of hearing challenges to the treatment of detainees and conditions of their confinement is unconstitutional as well, and that Congress lacked the authority to strip the federal courts of jurisdiction over constitutional claims.

“Article III [of the U.S. Constitution] demands some federal court review—whether original or appellate—over all federal question claims,” writes the Center for Constitutional Rights in its brief to the D.C. federal court filed last week. “Because MCA Section 7 purports to eliminate all such review, it is unconstitutional and void.”

As CCR lawyer Shayana Kadidal explained it in an e-mail: “the text of Article III of the Constitution (the article dealing with the judicial branch) expressly says ‘the judicial power shall extend to all cases’ involving questions of federal law.” The Military Commissions Act contradicts that, says Kadidal: “The MCA says no court anywhere can review even constitutional claims.”

The Obama administration is insisting, however, that Congress had the power to eliminate judicial review of these claims. It also argues that the Defense Department officials are immune from suit, because, as the Bush Justice Department argued in previous cases, it wasn’t clear at the time that detainees had a right not to be tortured by U.S. officials at Guantanamo. They therefore have “qualified immunity” from suit.

But the Justice Department goes further than that. Under President Obama, the government is arguing not only that it wasn’t clear what rights detainees were entitled to back in 2006, but that even today the prisoners have no right to such basic constitutional protections as due process of law or the right to be free from cruel and unusual punishment. The “Fifth and Eighth Amendments do not extend to Guantánamo Bay detainees,” writes the Justice Department in its brief.

And, the government argues, the courts should not imply a right to sue under the Constitution, in part because that could lead to “embarrassment of our government abroad.”

Ultimately, the Obama administration is arguing, victims of torture at a U.S.-run detention center abroad have no right to redress from the federal government. Only the military can take action in such cases, by disciplining military officers for abuse of prisoners. Yet during the Bush administration, military officials were rarely held accountable for abuse, even when it resulted in the deaths of detainees, as Human Rights First documented in a 2005 report. Senior officials in particular were exempt from accountability, and as retired Rear Admiral John Hutson, dean of the Franklin Pierce Law Center, noted at the time, “the highest punishment for anyone handed down in the case of a torture-related death has been five months in jail.”

TWI has also documented that the Pentagon has repeatedly ignored claims from its own military counsel that Defense Department employees abused, tortured and committed war crimes against detainees, as in the case of Guantanamo prisoner Mohammed Jawad.

Pardiss Kebriaei, the lead attorney on the case for the Center for Constitutional Rights, insists that the government is misreading Supreme Court precedent when it comes to the rights of Guantanamo detainees. “The Supreme Court has ruled three times that Guantanamo is not beyond the reach of the law, yet the government is claiming, in 2009, that the base is still a legal black hole and what happens at Guantanamo stays at Guantánamo,” said Kebriaei.

Eric Lewis, who represents four British former detainees who sued the federal government for their wrongful imprisonment and torture while in custody, and whose case was dismissed under the Bush administration (they recently filed a petition for review by the Supreme Court,) thinks the parents of Al-Zahrani and Al-Salami have a strong argument that the part of the law that strips the courts of jurisdiction over their claims is unconstitutional.

“If there’s a constitutional right, you need to provide some forum,” he said. “You can’t deprive them of all forums.”

Although the government officials are also claiming immunity on the grounds that they didn’t know it was unconstitutional to torture prisoners, Lewis argues that in the Al-Zahrani case, unlike earlier ones, there’s a case to be made that by 2006, when the men died, the Supreme Court had already ruled in Rasul v. Bush that detainees have the constitutional right to challenge their detention at the Guantanamo Bay prison camp, where the U.S. has “plenary and exclusive jurisdiction” even if it doesn’t have “ultimate sovereignty.” In other words, the court had already ruled that Guantanamo detainees have some constitutional rights.

The government, for its part, argues that it still wasn’t clear what specific rights Guantanamo detainees were entitled to, even in June 2006. And that argument could prevail. As Richard Seamon, a professor at the Idaho School of Law who has written extensively about torture lawsuits notes in a recent article posted on JURIST, federal officials in such cases may be granted qualified immunity “because of the paucity of case law clearly establishing the unconstitutionality of the use of torture in the war on terrorism and high-level executive-branch actions seemingly endorsing the torture, such as the Department of Justice’s infamous ‘torture memo.’”

Then again, as Lewis put it: “I would argue that when you’re the secretary of defense, you don’t need special notice to know it’s wrong to torture people.”

According to the Justice Department’s latest briefs filed in the Al-Zahrani case, however, the Obama administration does not agree.

Comments

58 Comments

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Pingback posted October 14, 2009 @ 10:27 pm

[...] have very little to add to Daphne Eviatar’s excellent run-down on the Obama administration’s legal record on torture cases so far. Eviatar goes in depth on [...]


Irish_Wake
Comment posted October 14, 2009 @ 11:16 pm

That sound you hear is the founding fathers turning over in their graves.

Torture is wrong. Keeping it hidden proves the powers-that-be know it and fear our reaction.


Obama DoJ adopts Bush position in torture cases « Later On
Pingback posted October 15, 2009 @ 2:54 pm

[...] to quash them. Accountability? That’s not for the powerful and wealthy, just for hoi polloi. Daphne Eviatar in the Washington Independent: When he took office, President Obama made clear that torture is illegal and that the United States [...]


Stephen
Comment posted October 16, 2009 @ 6:55 am

<<…the government officials are also claiming immunity on the grounds that they didn’t know it was unconstitutional to torture prisoners…>>

Huh? Did they really argue that?

That argument would amount to a claim that ignorance of the law as a valid excuse in US court cases!

If the courts let the US Government get away with that one, does that mean more ordinary folk will be able plead the same excuse in their own court actions? (“Pardon me, Your Honour, but I didn't realise it was against the law in the United States not to pay my taxes.”)


Talos
Comment posted October 16, 2009 @ 2:22 pm

I don't understand the repeated failure of lawyers and others to cite the supreme law of the land that DOES bar torture, abuse, and inhumane treatment regardless of location or status: the Treaty Against Torture, Abuse, and Inhumane Treatment was largely written AND SIGNED by the United States! Article VI of the Constitution clearly states that all treaties to which the USA is a signatory are the “supreme law of the land”. Thus, it IS illegal to abuse or torture anyone anywhere for any reason by law.

Obama is now a war criminal, as is Holder, along with the entirety of the Bush Administration.


Talos
Comment posted October 16, 2009 @ 2:23 pm

I don't understand the repeated failure of lawyers and others to cite the supreme law of the land that DOES bar torture, abuse, and inhumane treatment regardless of location or status: the Treaty Against Torture, Abuse, and Inhumane Treatment was largely written AND SIGNED by the United States! Article VI of the Constitution clearly states that all treaties to which the USA is a signatory are the “supreme law of the land”. Thus, it IS illegal to abuse or torture anyone anywhere for any reason by law.

Obama is now a war criminal, as is Holder, along with the entirety of the Bush Administration.


uponfurtherreview
Comment posted October 17, 2009 @ 3:47 pm

So what if they “spent four years in U.S. custody at Guantanamo Bay without charge, without seeing the evidence against them, and without ever even meeting with a lawyer who could press their case”? We're not talking about Americans arrested by cops on the streets of Des Moines, Iowa.

Don't make the mistake of confusing military justice with civil justice. In World War II, tens of thousands of Axis combatants were held indefinitely in U.S. detention facilities without ever seeing the evidence against them or meeting with a lawyer either. A war isn't a police action, and you're not going to defeat international terrorism with courtrooms and badges.

I also find it telling that on one hand, writer Daphne Eviatar complains that justice isn't being done on behalf of the detainees. Yet her own article accuses the U.S. government of “torture” with no independent evidence, let alone convictions, in most of the cases she cites.

For instance, in Al-Zahrani v. Rumsfeld, what proof is there that the U.S. tortured either of the detainees … aside from letters written by two men who'd already committed suicide?

Sorry, Daphne, your bias is showing. Is it really that difficult for you to imagine that two men linked to global terrorism might also be capable of lying? In any case, why isn't the U.S. government entitled to the same burden of proof that you demand for suspected terrorists?


johnhkennedy
Comment posted October 17, 2009 @ 9:10 pm

If Obama can't say that “Bush officials violated existing (Federal Torture) law” he's not the man we thought he was @whitehouse RT Please

Why are Holder & Obama delaying a full investigation of all of those who conspired to torture in violation of our Federal Anti-Torture Laws?

Are they waiting for the statute of limitations to run out so they can avoid having to do their job? Aren't they for Enforcing our Federal Laws?

Make them do it soon!

Put yourself out for the Truth. Get out in the streets in front of your Congressional Representative's office and raise hell.
Start your own “prosecution” protest group.

KEEP ASKING ALL POLITICIANS AT ALL PUBLIC EVENTS
“WHY DO YOU SUPPORT TORTURE?”
If they aren't actively calling for enforcement of our Federal Torture Laws, They DO Support Torture and a dual standard of Justice.

SIGN THE PETITIONS
Demanding
prosecution for all those leaders
in Bush's Administration that Conspired to Torture at ANGRYVOTERS.ORG
http://ANGRYVOTERS.ORG


uponfurtherreview
Comment posted October 18, 2009 @ 11:50 am

The trouble with debating “torture” is that the word's meaning depends on who's using it.

One of the most popular examples of “Blame America First” sophistry is defining torture as essentially anything that's less fun than a day at Disney World … then drawing a bogus parallel between the United States' treatment of prisoners and Al Qaeda's.

But considering that Al Qaeda saws off the heads of live captives, it's a sad joke to compare that to America's harshest interrogation techniques — such as 2 minutes of waterboarding, sleep deprivation or putting a caterpillar on a guy's back.

It's like claiming that because speeding is a driving infraction and vehicular manslaughter is a driving infraction, a guy who drives 56 mph in a 55-mph zone is no better than a guy who mows down a pedestrian on the sidewalk … because both of them are guilty of driving infractions.

At any rate, look out when the International Red Cross starts using the term “tantamount to torture,” because that's the organization's stealthy way of condemning prisoner treatment that ISN'T torture.

In this 2004 column, former federal prosecutor Andrew McCarthy unraveled the IRC's weaselly attempt to expand the definition of “torture” to include practices that merely make the prisoner uncomfortable: http://article.nationalreview.com/
?q=MmQ2MWIzNzA4ZDkwMDMxMWQ4OGZlMTc0ODgzOTkwMGE=

Again, it's all in how you define — or re-define — the word “torture.”


Hawaiianstyle
Comment posted October 18, 2009 @ 6:10 pm

Your exercise in intellectual minimalization is done from a comfortable safe armchair and computer keyboard.

I can't see you would maintaining these stupid if you were strapped to a waterboard.


Hawaiianstyle
Comment posted October 18, 2009 @ 6:20 pm

Your exercise in intellectual minimalization is done from a comfortable safe armchair and computer keyboard.

I can't see you would maintaining these stupid if you were strapped to a waterboard.


uponfurtherreview
Comment posted October 19, 2009 @ 1:22 pm

As is your exercise in holier-than-thou-ism.

I can't see you maintaining your arguments if you or your family members had been inside the Twin Towers on 9/11.

But of course, it's always easy for people like you to feign moral superiority — from your “comfortable safe armchair,” no less — when other people are risking their lives to keep the country safe … and when other people's loved ones are paying the ultimate price for terrorism instead of yours.

Considering that the U.S. waterboarded three Al Qaeda leaders to get information on future terrorist plots, and considering that the interrogations did yield useful intelligence, I'm not sure what your major complaint is. Obama's own National Security Director, Dennis Blair, said, “High value information came from interrogations in which those methods [harsh interrogations] were used and provided a deeper understanding of the al Qa'ida organization that was attacking this country.”

Apparently you have more sympathy for guilty terrorists than innocent Americans.

Sorry, I'd rather win ugly than lose pretty.


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[...] the Senate had it been known.  Meanwhile, Daphne Eviatar reports that the Obama administration is continuing to use many of the theories adopted during the Bush [...]


Name
Comment posted October 19, 2009 @ 5:58 pm

The waterboarding did not yield useful information. Torture does not yield reliable information. These are facts, not opinions.

You need to consider what you would feel like if your son was in the military and captured. That's what the Geneva Convention was about.

War is not an excuse nor a reason to resort to being a barbarian.
War may be necessary. War may kill sons and daughters. Those are facts that are terrible and war should be avoided if possible.

Bush engaged in torture to try and find evidence that he could use after the fact to justify his illegal aggression against Iraq. That makes it doubly bad.

My major complaint is people that have no direct contact with torture seem to be willing to let it be done to others. That to me is not compassionate democracy, which I think is a good goal. Calling me names is a silly exercise in emotional argument that has no bearing on whether torture is a necessary or a barbaric exercise.

My position on torture has nothing to do with 9/11 victims and it is an unfounded jump in your reasoning to say one is connected with the other. 9/11 was the result of ignoring terrorists and their previous actions.

Innocent Americans are harmed by torture politically
in the ability to have a moral force in the world which is needed to combat torture. Terrorists have used our torture program to point to the “evils” of the US, and to recruit more people to their side.

You cannot convince me by using emotive slogans such as bleeding heart liberals, innocent Americans, etc.

Finally you assume that you will win using such tactics. Show me where we have won the battle, changed the hearts and minds, and converted others to our philosophy by using terror.


Hawaiian style
Comment posted October 19, 2009 @ 6:00 pm

The name should read Hawaiianstyle.


Hawaiian style
Comment posted October 19, 2009 @ 6:06 pm

Sir,

You are talking about an American. Further the idea that ANY person American or not can be imprisoned upon the declaration by the President that he/she is an Enemy Combatant. and held indefinitely is an abomination to our Constitution, our Bill of Rights and to all that America stands, fights and dies for.

If you argue that indefinite imprisonment without habeas corpus is OK you make a mockery of all the lives that have been lost in our history defending American and its way of life.

Shame


Hawaiian style
Comment posted October 19, 2009 @ 6:08 pm

Amen


Irish_Wake
Comment posted October 19, 2009 @ 10:13 pm

The United States of America has not only declared waterboarding to be torture, we have judged foreign nationals guilty of waterboarding and executed them.
We have signed treaties that label and condemn the practice.
Signed treaties are by definition the law of the land.

This is not blaming America first.
This is not parsing who is more guilty.
This is not someone else's definition.

This is America.
This is American law.
There is no room for your justifications.


uponfurtherreview
Comment posted October 20, 2009 @ 2:45 pm

Wrong, I'm not talking about an American — I'm talking about Yasser Al-Zahrani of Saudi Arabia and Salah Al-Salami of Yemen.

Where did you get the idea they were Americans?

And again, regardless of what you wish were true, indefinite imprisonment of foreign combatants was done legally (by the thousands) in World War II and can be done legally today. I can even take you on a tour of a detention facility where Italian soldiers were held without lawyer or trial.

So lighten up already … and do a little homework.


uponfurtherreview
Comment posted October 20, 2009 @ 3:30 pm

You say, “The waterboarding did not yield useful information. Torture does not yield reliable information. These are facts, not opinions.”

Oh, really? Whose “facts” are they, besides yours?

We already have Obama's own National Security Director on record as saying that the Bush administration's interrogation techniques yielded “high value information.” Yet you know something he doesn't?

Not likely. And I challenge you to define “reliable” in this context.

If you're saying that waterboarding doesn't produce 100% accurate intelligence all of the time, I couldn't agree more — but then, that's true of every interrogation technique under the sun!

Waterboarding doesn't have to work ALL of the time to be successful … it only has to work SOME of the time. And you certainly can't prove that it doesn't work ANY of the time.

I daresay that if your loved ones happened to be on an airplane that had been targeted by Al Qaeda, you'd be happy for any intelligence that would prevent the attack, whether it came from waterboarding or any other interrogation technique.

As for your other comments:

2. “You need to consider what you would feel like if your son was in the military and captured. That's what the Geneva Convention was about.” — You need to consider that Al Qaeda couldn't care less about the Geneva Convention; it's known for slicing off the heads of live captives. So if my son were captured by Al Qaeda, it wouldn't matter whether or not America had waterboarded Gitmo detainees or put mints on their pillows … terrorists do what terrorists do.

3. “War is not an excuse nor a reason to resort to being a barbarian.” — How naive is that? War involves killing your enemy's soldiers … by the dozen, by the hundred, even by the thousand.

Your apparent position is that it's wrong to subject a detained terrorist leader to 2 minutes of waterboarding … but it's fine to incinerate him with a Hellfire missile on the battlefield. Interesting position, to say the least.

4. “Calling me names is a silly exercise in emotional argument.” — I didn't call you names. You accused me of engaging in “intellectual minimalization” and I responded that you were engaging in “holier-than-thou-ism” and “feigning moral superiority.” What I think you're DOING and SAYING isn't the same as what I think you ARE.

5. “Show me where we have won the battle, changed the hearts and minds, and converted others to our philosophy by using terror.” — Show me where we have won the battle by being the nicest army on the battlefield. On the other hand, we won World War II with tougher warriors, better strategy and stronger weaponry.

As for hearts and minds, the Japanese and Germans, whom we defeated, are now our allies. So maybe it's best to concentrate on achieving victory first … and save the psychological stuff for later.


johnhkennedy
Comment posted October 20, 2009 @ 4:36 pm

Torture is a Violation of Federal Law. Torture is not open to debate.

If President Obama and Attorney General Holder are doing their job, they Must investigate those highly placed Bush Administration office holders who conspired to render Federal Torture Laws moot.

The simple facts are that any treatment of captives that even appears to be Torture should be investigated,
as well as the source of the Orders that allowed the act. It would be a travesty of the CIA Field Agents that did the torture were investigated and not the higher ups who ordered or approved torture.

Should the CIA Agents be prosecuted but not the higher ups, this will be plenty of evidence that Obama and Holder are willfully protecting former Bush officials suspected by most Americans of committing the heinous Federal Capital Crime of
Conspiracy To Torture.

The 2010 and 2012 elections approach. Failure to prosecute at your peril. Some of us on the left won't take it anymore.

We all need to push for prosecution. Get out in the streets in front of your Congressional Representative's office .
Start your own “prosecution” protest group.

KEEP ASKING ALL POLITICIANS AT ALL PUBLIC EVENTS
“WHY DO YOU SUPPORT TORTURE?”
If they aren't actively calling for enforcement of our Federal Torture Laws, They DO Support Torture and a dual standard of Justice.

SIGN THE PETITIONS
Demanding prosecution for all those leaders in Bush's Administration that Conspired to Torture at ANGRYVOTERS.ORG

http://ANGRYVOTERS.ORG

.


uponfurtherreview
Comment posted October 21, 2009 @ 1:43 pm

Sorry, Irish Wake, you've done a fine job of reciting the usual left-wing talking points, but I don't see a single link that backs up your emotion-charged assertions.

Did you even bothered to read the link I provided? Probably not, because it would have told you that there's a lot more to the legal definition of “torture” than what you personally consider it to be.

Here, I'll sum it up for you: Contrary to what you may believe, the United States did NOT approve every aspect of the United Nations Convention Against Torture (UNCAT) treaty.

As former federal prosecutor Andrew McCarthy explain, regardless of how the rest of the world defines torture, American law says that “only those who had an evil motive to inflict severe pain and suffering” can be prosecuted for it.

Since the primary purpose of CIA waterboarding was to yield anti-terrorism intelligence that would save innocent American lives, and since the waterboarding lasted about 2 minutes at most, that hardly qualifies as “severe pain and suffering.”

You're also mistaken in your claim that “we have judged foreign nationals guilty of waterboarding and executed them.”

Again, you're simply parroting what you've always been told instead of having the intellectual curiosity to actually check into it.

In fact, the seven Japanese who were executed for war crimes did considerably more than just waterboarding. If you care about the truth, you can enlighten yourself here:

http://corner.nationalreview.com/post/?q=ZWQ4YT…

Here's a snippet of what was one of the executed men, Koki Hirota, was actually guilty of:

“During Hirota's second tenure as foreign minister … thousands of innocent civilians were buried alive, used as targets for bayonet practice, shot in large groups and thrown into the Yangtze River … 20,000 women were raped, many of them subsequently murdered or mutilated; and over 300,000 people were killed, often with the most inhumane brutality.”

Gosh, that's a wee bit worse than waterboarding, no?

Time to “Wake” up, Irish!


Irish_Wake
Comment posted October 22, 2009 @ 11:23 pm

I am unsure of what you intended, but thank you for the added facts. We will ignore your assumption that I recite left wing talking points and examine the facts you brought.
No, I had not read your link to the National Review versus the Red Cross. I have now, and find it has minimal significance to the issue. I have no use for the IRC; this article adds little information and gets off on a tangent.
Parsing whether waterboarding is torture or not is absurd. The United States developed this from our Survival, Evasion, Resistance, Escape (SERE) training, which in turn was based on the North Korean torture of American pilots during the Korean War. The North Koreans developed the method to get false confessions. This bears repeating. Our government tortured people by means proven to get bad intelligence.
You state that those executed were not guilty of torture. Or they were. I find it difficult to follow your intent, but the article you cited states: “…various forms of torture were a consideration in some of these cases that resulted in death sentences at the Tokyo Trials. …waterboarding was presented as just one of several types of torture, many of which appear to be more severe.” I thank NR for confirming my facts.
Thank you for including a description of Koki Hirota's crimes. This may be straying from the topic, but we both agree it is important that Americans know what sort of monster approves of and takes advantage of waterboarding.
I am confused – your argument is a statement of opinion, but the facts you bring support my point of view.

Perhaps in the words of the great philosopher Inigo Montoya, “I no think that word mean what you think it mean.”


uponfurtherreview
Comment posted October 23, 2009 @ 1:47 pm

Irish Wake:

For the record, I wasn't trying to attack you personally with my comment about “left-wing talking points,” merely noting that you were making declarations without substantiation. No offense was intended; I was simply challenging you to flesh out your point of view, and I thank you for doing so. Perhaps I should have worded that sentence differently.

Anyway, back to the topic at hand. I'm afraid I must take issue with your statement that “Our government tortured people by means proven to get bad intelligence.” That's contradicted by Obama's own National Security Director,Dennis Blair, who said, “High value information came from interrogations in which those methods [harsh interrogations] were used and provided a deeper understanding of the al Qa'ida organization that was attacking this country.”

Seems clear to me that our government got more than “bad intelligence.”

I also think it matters a great deal what the legal definition of “torture” is — and isn't. The point of the National Review story was that international organizations often define such terms differently than America does, and that's one of the subtle ways of shifting, and eventually controlling, the debate.

As I've pointed out, I've seen such slick tactics in action: First you define “torture” as everything that's less fun than a day at Disney World, including sleep deprivation, personal insults and having a caterpillar placed on your back. Then you point the finger at America and say, “See, your side tortures and Al Qaeda tortures … so you're no better than they are.”

Of course, that deliberately ignores the fact that Al Qaeda's version of torture includes beheading captives while they're still alive. But that doesn't matter, because the true goal of the comparison is to give the U.S. a black eye in the P.R. department.

And the strategy works very well unless Americans stand firm and say, “Say what?? You're comparing sleep deprivation to having your head cut off?? That's like comparing vehicular manslaughter to going 1 mph over the speed limit and saying, 'Both are driving violations, so both are equally reprehensible.'”

So … legal definitions really are important — especially when waterboarding was not against U.S. law when it was performed on three (and only three) terrorist leaders. In short, what the world considers “torture” is the world's business, but America has a perfect right to live by its own laws, especially when thousands of our own citizens' lives are at stake.

And that's another part of the debate that usually gets lost — the fact that waterboarding wasn't done simply to watch our enemies suffer; it was done with the specific goal of extracting information that would prevent more thousands of Americans from being slaughtered by Islamic terrorists.

I just don't have a moral problem with that choice: making three terrorists uncomfortable vs. risking the senseless deaths of thousands more Americans. It's a case where, as they say in “Star Trek,” the needs of the many outweigh the needs of the few … and I daresay you'd feel likewise if your own loved ones had been killed in a follow-up terrorist attack that could have been prevented by harsh interrogation techniques.

You also say: “You state that the executed Japanese were not guilty of torture. Or they were. I find it difficult to follow your intent.”

Very well; my intent was to point out that contrary to popular belief, America didn't actually execute the Japanese men for ONLY waterboarding. I agree that the men in question were monsters, but I don't think that automatically makes waterboarding as ghastly as the far worse atrocities they committed.

Put another way, it's like discovering that a mass murderer spit in his victims' faces before strangling them. Yes, the guy is a monster, but that doesn't mean spitting in someone's face is as morally reprehensible as strangling them.

Finally, you say, “(T)he facts you bring support my point of view.” Well, I'm still unclear on how my previous post supports your point of view … unless you agree with me on more points than I initially realized. But I appreciate the reasoned reply, whether or not I feel likewise.


uponfurtherreview
Comment posted October 23, 2009 @ 1:47 pm

Irish Wake:

For the record, I wasn't trying to attack you personally with my comment about “left-wing talking points,” merely noting that you were making declarations without substantiation. No offense was intended; I was simply challenging you to flesh out your point of view, and I thank you for doing so. Perhaps I should have worded that sentence differently.

Anyway, back to the topic at hand. I'm afraid I must take issue with your statement that “Our government tortured people by means proven to get bad intelligence.” That's contradicted by Obama's own National Security Director,Dennis Blair, who said, “High value information came from interrogations in which those methods [harsh interrogations] were used and provided a deeper understanding of the al Qa'ida organization that was attacking this country.”

Seems clear to me that our government got more than “bad intelligence.”

I also think it matters a great deal what the legal definition of “torture” is — and isn't. The point of the National Review story was that international organizations often define such terms differently than America does, and that's one of the subtle ways of shifting, and eventually controlling, the debate.

As I've pointed out, I've seen such slick tactics in action: First you define “torture” as everything that's less fun than a day at Disney World, including sleep deprivation, personal insults and having a caterpillar placed on your back. Then you point the finger at America and say, “See, your side tortures and Al Qaeda tortures … so you're no better than they are.”

Of course, that deliberately ignores the fact that Al Qaeda's version of torture includes beheading captives while they're still alive. But that doesn't matter, because the true goal of the comparison is to give the U.S. a black eye in the P.R. department.

And the strategy works very well unless Americans stand firm and say, “Say what?? You're comparing sleep deprivation to having your head cut off?? That's like comparing vehicular manslaughter to going 1 mph over the speed limit and saying, 'Both are driving violations, so both are equally reprehensible.'”

So … legal definitions really are important — especially when waterboarding was not against U.S. law when it was performed on three (and only three) terrorist leaders. In short, what the world considers “torture” is the world's business, but America has a perfect right to live by its own laws, especially when thousands of our own citizens' lives are at stake.

And that's another part of the debate that usually gets lost — the fact that waterboarding wasn't done simply to watch our enemies suffer; it was done with the specific goal of extracting information that would prevent more thousands of Americans from being slaughtered by Islamic terrorists.

I just don't have a moral problem with that choice: making three terrorists uncomfortable vs. risking the senseless deaths of thousands more Americans. It's a case where, as they say in “Star Trek,” the needs of the many outweigh the needs of the few … and I daresay you'd feel likewise if your own loved ones had been killed in a follow-up terrorist attack that could have been prevented by harsh interrogation techniques.

You also say: “You state that the executed Japanese were not guilty of torture. Or they were. I find it difficult to follow your intent.”

Very well; my intent was to point out that contrary to popular belief, America didn't actually execute the Japanese men for ONLY waterboarding. I agree that the men in question were monsters, but I don't think that automatically makes waterboarding as ghastly as the far worse atrocities they committed.

Put another way, it's like discovering that a mass murderer spit in his victims' faces before strangling them. Yes, the guy is a monster, but that doesn't mean spitting in someone's face is as morally reprehensible as strangling them.

Finally, you say, “(T)he facts you bring support my point of view.” Well, I'm still unclear on how my previous post supports your point of view … unless you agree with me on more points than I initially realized. But I appreciate the reasoned reply, whether or not I feel likewise.


weslen1
Comment posted October 24, 2009 @ 4:09 am

If there is no right to humane treatment BY U.S. officials to others OUTSIDE the U. S., then there is also NO RIGHT for U.S. officials OR civilians, since MOST mistreated Guantanamo detainees and others kidnapped and “rendered” by Bushites were civilians, to be humanely treated by others either! NICE! The Constitution really IS just a goddamned piece of paper after ALL! Thanks Obama! Guess you really are Bush LIGHT!


Irish_Wake
Comment posted October 26, 2009 @ 12:23 am

I appreciate your concern for civil debate:

1) The FBI was allowed to use interrogation techniques that are successful on the high-value detainees. Kali Sheikh Mohammed responded well to this interrogation, answering questions in great detail. Then KSM's torture began, and the FBI's results were used to justify the waterboarding. As I proved in my earlier post, waterboarding produces bad intelligence. This is fact accepted by our military, and is the basis for SERE training. It is positively perverse that our torture program is an outgrowth of our SERE program. Due to the secrecy of the torture program, we will never be able to definitively say what information was gotten by torture. Prime Minister Blair is repeating third hand assurances made by those who also assured him that WMD's were a fact. Only a real, honest investigation would produce evidence that could support your hypothesis.

2) Of course waterboarding will produce good intelligence. And bad intelligence. It will produce whatever information the torturer wants; whatever will stop the torture. Now we have a huge pile of crap, with no way to corroborate the information. Obviously this would still be an issue if we had used accepted interrogation techniques, but the pile would have been manageable – we would have far more easily verifiable data. Less waste, faster data to the troops. This ain't rocket science. This ain't new. This is reality. However, we were more interested in being powerful than successful.

3) We are talking about the lone hyperpower on the planet, and you draw facts from a TV show? You are aware that the show was written to mirror the xenophobic cold war, correct? And that the lesson was that the needs of the one outweigh the needs of the many?

4)Forget follow-up attacks, we knew many details of the original attack before it happened. The intelligence procedures were producing good results. They were ignored because they did not begin with the words “Saddam Hussein…” The lone reason I am debating these (to me) obvious points is that the US is proceeding in a counter-productive manner that makes preventing the next attack more, not less, difficult.

5)Waterboarding is torture. Spitting is a misdemeanor. America did execute war criminals for waterboarding. Yes, I know these criminals were executed for a long list of war crimes, and most of these war crimes were much more serious than waterboarding. However, this method of torture was specifically defined as one reason among many for execution. Settled legal fact: waterboarding is torture. While you may dismiss this, your own facts show it to be hard fact. The country I knew will cease to exist if this view is accepted as truth.

6)Moral choices. This is not a moral issue, but a concrete issue of which side deserves assistance. When we imprison someone, we have them at our mercy. If we torture someone, we have made them our enemy. We have made their family our enemy. We have made their village our enemy. We have made their tribe our enemy. This expands tenfold if the torture victim is innocent. How many torture victims were vocal supporters of the US, turned in by the bad guys for the ransom we freely offered? This would be catastrophic if it happened only once. This is not a moral issue. This is stupid and unproductive.


logicgrrl
Comment posted October 29, 2009 @ 5:17 pm

There is a major flaw in your argument comparing those being held at Gitmo & the Axis combatants in WWII….we didn't torture the Axis combatants…in fact the Nuremberg prosecutors got much of their info from the Nazi prisoners over games of chess.

We also charged the Japanese with torture over their waterboarding of American POWs


logicgrrl
Comment posted October 29, 2009 @ 9:17 pm

There is a major flaw in your argument comparing those being held at Gitmo & the Axis combatants in WWII….we didn't torture the Axis combatants…in fact the Nuremberg prosecutors got much of their info from the Nazi prisoners over games of chess.

We also charged the Japanese with torture over their waterboarding of American POWs


Obama’s DoJ making some very weird arguments « Later On
Pingback posted November 25, 2009 @ 4:18 pm

[...] pm by LeisureGuy Daphne Eviatar in the Washington Independent: I’ve been following the small but growing number of lawsuits brought on behalf of torture victims against U.S. government officials for more than a year now, [...]


The military’s most practiced maneuver: The cover-up « Later On
Pingback posted December 7, 2009 @ 2:33 pm

[...] to block the lawsuit from proceeding.  As The Washington Independent’s Daphne Eviatardetailed in October, “the Obama administration has surprisingly endorsed the same legal positions as its [...]


A new report questions “suicides” at Guantanamo | America 20XY
Pingback posted December 7, 2009 @ 8:36 pm

[...] to block the lawsuit from proceeding.  As The Washington Independent’s Daphne Eviatar detailed in October, “the Obama administration has surprisingly endorsed the same legal positions as its [...]


A New Report Questions ‘Suicides’ at Guantanamo « roger hollander
Pingback posted December 7, 2009 @ 8:40 pm

[...] to block the lawsuit from proceeding.  As The Washington Independent’s Daphne Eviatar detailed in October, “the Obama administration has surprisingly endorsed the same legal positions as its [...]


LT Saloon |  A New Report Questions “Suicides” at Guantanamo
Pingback posted December 9, 2009 @ 9:57 am

[...] to block the lawsuit from proceeding.  As The Washington Independent’s Daphne Eviatar detailed in October, “the Obama administration has surprisingly endorsed the same legal positions as its [...]


The Death Of Three Detainees « Around The Sphere
Pingback posted December 11, 2009 @ 1:13 pm

[...] Eviatar at Washington Independent: TWI recently reported that the Obama administration is fighting to squelch a lawsuit brought by the families of two of the prisoners who are the subject of the Seton Hall report, [...]


Abidsyah
Comment posted March 23, 2010 @ 5:14 pm

Great News! Thanks.Abidsyah


Cutlem
Comment posted April 2, 2010 @ 10:49 am

Great News! Thanks You Very Much.


Hawaiianstyle
Comment posted April 2, 2010 @ 6:11 pm

More political “Justice”.

As long as the Courts rule on cases using such considerations as “It will embarrass the Country abroad”, or “that is a state secret”, we will never have true impartial no man (or Country) is above the law justice.

Without being internationally recognized and accepted as a Country that gives true and impartial justice to ALL we will remain in the terrorist enabling argument of, “why is my injustice worse than yours.”

Injustice breeds injustice and allows terrorists to rationalize their behavior. It allows them to recruit more terrorists.

Injustice enables terrorism.


louis vuitton
Comment posted July 2, 2010 @ 5:48 am

Guantanamo detainees and others kidnapped and “rendered” by Bushites were civilians, to be humanely treated by others either! NICE! The Constitution really IS just a goddamned piece of paper after ALL! Thanks Obama! Guess you really are Bush LIGHT!


miu miu
Comment posted July 12, 2010 @ 9:33 am

Should the CIA Agents be prosecuted but not the higher ups, this will be plenty of evidence that Obama and Holder are willfully protecting former Bush officials suspected by most Americans of committing the heinous Federal Capital Crime of
Conspiracy To Torture.


louis vuitton
Comment posted July 20, 2010 @ 3:11 pm

Guantanamo detainees and others kidnapped and “rendered” by Bushites were civilians, to be humanely treated by others either! NICE! The Constitution really IS just a goddamned piece of paper after A


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Comment posted July 20, 2010 @ 3:12 pm

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Comment posted July 25, 2010 @ 7:10 am

If there is no right to humane treatment BY U.S. officials to others OUTSIDE the U. S., then there is also NO RIGHT for U.S. officials OR civilians, since MOST mistreated Guantanamo detainees and others kidnapped and “rendered” by Bushites were civilians, to be humanely treated by others either! NICE! The Constitution really IS just a goddamned piece of paper after ALL! Thanks Obama! Guess you really are Bush LIGHT!


Discount Louis Vuitton
Comment posted August 3, 2010 @ 9:12 am

This is America


A new report questions “suicides” at Guantanamo
Pingback posted August 17, 2010 @ 3:48 pm

[...] block the lawsuit from proceeding.  As The Washington Independent‘s Daphne Eviatar detailed in October, “the Obama administration has surprisingly endorsed the same legal positions as its [...]


Obama admin claims the right to assassinate « Kasama
Pingback posted September 19, 2010 @ 12:01 pm

[...] should be clear that the question is not only the prosecution of Bush administration figures.  As one article summed it up, in litigation over the torture and abuse of detainees that in some cases may have resulted in [...]


Frontlines of Revolutionary Struggle
Pingback posted September 20, 2010 @ 11:57 pm

[...] should be clear that the question is not only the prosecution of Bush administration figures.  As one article summed it up, in litigation over the torture and abuse of detainees that in some cases may have resulted in [...]


US foreign policy: Bush’s torturers lead to Obama’s assassins « Frontlines of Revolutionary Struggle
Pingback posted September 21, 2010 @ 7:26 am

[...] should be clear that the question is not only the prosecution of Bush administration figures.  As one article summed it up, in litigation over the torture and abuse of detainees that in some cases may have resulted in [...]


netflicks
Comment posted September 27, 2010 @ 8:19 pm

If the courts let the US Government get away with that one, does that mean more ordinary folk will be able plead the same excuse in their own court actions? (“Pardon me, Your Honour, but I didn't realise it was against the law in the United States not to pay my taxes.”)


White people (almost) stand up for (someone’s) rights « A Leap of Bad Faith
Pingback posted November 25, 2010 @ 9:05 am

[...] losing that war by restricting our liberties; after the suspicious deaths of prisoners held without charge in our prisons. After issuing a fatw? of it’s own on an American citizen. After countless [...]


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A new report questions “suicides” at Guantanamo - Salon.com
Pingback posted May 21, 2011 @ 9:02 am

[...] block the lawsuit from proceeding.  As The Washington Independent‘s Daphne Eviatar detailed in October, “the Obama administration has surprisingly endorsed the same legal positions as its [...]


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