Torture – be careful what you wish for

In one of our previous threads on the use of torture by the US, Sparta said this:

Submitted on 2009/03/12 at 12:31pm

Joni,

Geez….yes I have read this one as well. Let me remind you one more time, EVIDENCE is not the same as an OPINION….even the opinion of a committee headed by one of the most liberal senators in the US who is obsessed with linking the former administration with a policy of torture! If the evidence is there, where is it and why do they wait? Where are the indictments Joni??????

Sparta of Phoenix, AZ USA

Well, it looks like his wish could come true. Baltasar Garzón, who is a counter-terrorism judge in Spain has started criminal proceedings in Spain against 6 senior Bush officials.  So here come the indictments.

The officials named in the case include the most senior legal minds in the Bush administration. They are: Alberto Gonzales, a former White House counsel and attorney general; David Addington, former vice-president Dick Cheney’s chief of staff; Douglas Feith, who was under-secretary of defence; William Haynes, formerly the Pentagon’s general counsel; and John Yoo and Jay Bybee, who were both senior justice department legal advisers.

Court documents say that, without their legal advice in a series of internal administration memos, “it would have been impossible to structure a legal framework that supported what happened [in Guantánamo]”.

From what I gather, the problem for the US is that they signed and ratified the 1984 UN Convention against Torture, which requires the signatory countries to “investigate allegations of torture committed on their territory or by their nationals, or extradite them to stand trial elsewhere”.

Maybe this will force the Obama administration to start proceedings in the US, or those on the list could have extradition proceedings started against them.

Oh – and last week the UK started criminal proceedings into MI5 to look into their part in the torture of Binyam Mohamed.

As we keep saying, those responsible for allow, permitting and creating the conditions in which torture took place should be held accountable for their actions.

Advertisements

101 Responses

  1. From memory, I always did have a special regard for John Yoo’s positing that the brain was not an organ of the body in his benefic-malefic calculus…

    In a now notorious legal opinion signed in August 2002, Yoo and Bybee argued that torture occurred only when pain was inflicted “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”.

    No, once one decides that a brain is not an organ which registers pain or suffers any measurable physical change-as-harm (especially if you forego physical measurement of it in the process because it doesn’t ‘exist’), nearly anything becomes possible to be done to the ol’ invisible organ via a completely separate corpus of invented jurisprudence.

  2. Maybe this will force the Obama administration to start proceedings in the US, or those on the list could have extradition proceedings started against them.

    A couple of problems with this analysis:

    Dissenting Justice:

    …Arrest warrants in this setting, however, would have at most a symbolic value. Unless the Obama administration does the unthinkable act of seizing Bush-era officials and placing them in the extradition process, Spain’s criminal investigation probably will not lead to an arrest or prosecution. Because the Obama administration has already announced that it will not prosecute Bush-era officials who condoned or engaged in torture, it is highly unlikely that the President would turn over these officials to Spain (or any other country) for prosecution.

    …Outside of the normal channels for transferring suspects to foreign countries (extradition or deportation), rendition is Spain’s only option for removing suspects from the United States to face prosecution. Rendition involves the extrajudicial transfer — or abduction — of persons to stand trial in another jurisdiction.

  3. *A couple of problems with this that (Joni’s) quoted analysis*

  4. Tony, I would not support any rendition.

    My understanding is that if those on the list travel to a third country that has an extradition treaty with Spain then the extradition can be started.

    Remember what happend to Pinochet when he went to the UK for medical treatment? Same judge.

  5. Yes, the Pinochet case is actually mentioned in comments at my link.

  6. So – what is the point that the link is trying to make?

    Spain is not proposing rendition (extraordinary or not). The article is trying to divert the story to something that it is not.

  7. Another country could place the individuals in the extradition process. But that depends upon the ongoing power of the US. I suspect that the US would leverage a lot of power to prevent that from happening. Obama, like other presidents, is concerned about setting a precedent that would could harm him.

  8. Joni, if we agree on these three points:

    •the Obama administration has already announced that it will not prosecute Bush-era officials

    •rendition is Spain’s only option for removing suspects from the United

    •Spain is not proposing rendition (extraordinary or not)

    We would have to also agree, barring the unlikely extradition from a third country, this is no more than a symbolic – political – act by the Spanish judge.

  9. And what I have heard (on BBC and ABC radio) is that this could actually force the US to hold their own investigations.

  10. “And what I have heard (on BBC and ABC radio) is that this could actually force the US to hold their own investigations.”

    About freakin’ time. For those who haven’t read this:

    Turley: Cheney war crimes probe would be ‘shortest in history’

    David Edwards and Stephen C. Webster
    Published: Tuesday March 24, 2009

    If Obama would step out of the way and allow prosecutors to look at evidence of alleged Bush administration war crimes, “it would be the shortest investigation in history,” Turley said on a Monday episode of MSNBC’s The Rachel Maddow Show.

    President Obama, appearing Sunday on the CBS news program, said the former vice president’s policies on the treatment of prisoners captured in President Bush’s terror war are “unsustainable” and had caused “incredible damage to our image and position in the world.”

    “The reason Obama seems very irritated by it is that he is responsible for the conversation,” said Turley, a constitutional scholar and George Washington University professor. “Because he’s the one that is blocking a criminal investigation of Vice President Cheney and President Bush and other Bush officials. It is like a bank robber calling up and asking him to debate bank robbery.”

    It was only Dec. 15 when the former vice president admitted he approved the interrogation tactics which many, including the international Red Cross, have called torture.

    (The Raw Story)

    the rest here:

    http://rawstory.com/news/2008/Turley_Obama_get_low_grade_on_0324.html

    N’

  11. Darn, forgot the blockquotes. Sorry joni.
    N’

    joni: repair activated and completed

  12. Just from memory, I believe that Sparta also debated about what consitutes torture. From Legion’s quote: “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”.

    Therefore under this criteria, if I pull your fingernails out with plyers, this is not torture because this does not cause a serious injury (one can function adequately minus fingernails), this does not cause organ failure, nor an impairment of bodily function and is unlikely to lead to death. Hurts lots tho’ doesn’t it.

  13. Nice sentiment from Spain but anyone who genuinely believes that the US is gonna cooperate in undermining its exclusivity mustn’t have noticed its historical penchant for “do as we say-not as we do” arrogance.

    I like the effort on principle but am highly dubious that “justice” will come of it.
    Obama, while a few notches of moderate up the stick from Teh Village Idiot, is still an American first & a responsible global citizen somewhere further down the track where opportunism meets actuality.

  14. If nothing else, those war criminals will never leave their own country for the rest of their lives. They’ll always be looking over their shoulders, confined to their home-fortress and scuttling around under cover of darkness. Do they get bodyguards for the rest of their lives?.

  15. Spot on as always Ms Comfy Shoes Kitty. Plus the labelling in the international community that these were indeed War Crimes. Just because you move something off shore in order to avoid the rule of law and to try to wriggle and squirm out of being signatories to UN Conventions using legalistic jargon about ‘what is torture’….

  16. “If nothing else, those war criminals will never leave their own country for the rest of their lives. ”

    Nah, it will just make them work harder to change unfriendly governments. Didn’t John Howard just visit GW Bush & friends?

    N’

  17. ” Plus the labelling in the international community that these were indeed War Crimes”min

    I agree that this is an important point.
    This stuff needs to be officially condemned on record, no doubt.

    I think this also highlights why the US (& “the right” in particular globally) has a real phobia, approaching hatred, of the UN & any other International body that would seek to hold them to account.

    Such institutions are only tolerated when they serve the agenda, never when they attempt to enforce global “justice” which is generally mutually exclusive to Imperial ambition.

  18. hehe min, I’ll be heading out very soon.
    Like Kevin, I will have on footwear not fashion. I’ll probably slip my shoes on and off at will throughout the day and be very comfortable. I’m a little more adventurous than Kevin though, my shoes are red!

  19. Tho KL it might make things a touch more difficult for them. I hope yer right:

    http://www.huffingtonpost.com/will-menaker/david-addington-and-john_b_180475.html

    N’

  20. Nah, it will just make them work harder to change unfriendly governments. Didn’t John Howard just visit GW Bush & friends? N’

    But did he stop off anywhere?

  21. Kitty..we might have to prod Reb..the best 5 pairs of shoes. However, with the proviso that none are to be currently socially acceptable.

    No one has even noticed the number of Lib party paid-for os trips were courtesy of Zionists..yet we currently have all the conflab about being ‘too close to China’. Sorry off topic isn’t it.

  22. Toiletb..I think that my biggest disappointment re USA and torture is that (historically speaking) the Americans were horrified about the mistreatment of their service personnal WW2 by the Japanese. Hence the reason why they wanted to impose severe penalties via the international sphere re the use of torture.

    Yet when it suited their purposes, the Americans moved it ‘off shore’.

  23. “No one has even noticed the number of Lib party paid-for os trips were courtesy of Zionists..yet we currently have all the conflab about being ‘too close to China’.”min

    I wasn’t aware of that!
    Not sure of the details but it is an amusing double standard at play.
    Fairly familiar bedfellows I should think, the Zionists & the Libs (conservatives everywhere it seems) that is.

    I’m pretty sure that both Akerman & Bolt have, on occasions past, been the beneficiaries of such trips from the Zionists too; something that they reliably fail to disclose every time they play propaganda attack dog for Israel (which is usually a weekly fetish for them).

  24. “Yet when it suited their purposes, the Americans moved it ‘off shore’.”min

    I view it as slippery (im)plausible deniability on their part min.
    A convenient (if transparent) way of conducting a thuglike agenda from behind the scenes whilst always maintaining that “we’re not thugs! our hands are [legally] clean”.

    To me it completely invalidates their (& our, by association) quest to project their (our) international actions from the perceived moral highground.

  25. Toiletb..it’s on the list of os trips. Labs went to China, the Libs also went to China (minimal) but also had trips paid for by the Zionists. Sorry..the link has gone bye-byes.

    The closest that I can find is at: http://www.thewest.com.au/default.aspx?MenuID=28&ContentID=132748

    China tops the list of the most popular destinations with 19 visits, closely followed by 15 trips to Israel and 14 to Taiwan and the US.

    I believe that all of the MPs who went to Israel were Liberals. Obviously because it’s one of our major trading partners.

  26. Toiletb ‘slippery’ is an understatement. Imagine sending people offshore just so as to avoid your international obligations re torture.

    And that’s it in a nutshell.

  27. “I believe that all of the MPs who went to Israel were Liberals. Obviously because it’s one of our major trading partners.”min

    Yes a major trading partner, I’m sure that’s why they went. ahem, nothing shifty at all, cough.

    Right about here is where we could do with Adrian of Nowra, he is well versed in this stuff.

  28. Hello Toiletb..yes I miss Adrian very much too and especially re the conflab about the Defence Department and it’s inefficiencies and enlisted personnel versus contractors. I am certain that he would have had lots to add. And Aye to matelots.

  29. Completely agree on missing Adrian…. Hope you doing OK mate.

    (joni now breaks into Rocky mode and shouts “ADRIAN! ADRIAN!)

  30. The issue here (in my opinion) isn’t whether MPs have accepted privately funded trips. It is whether they were declared as required, and whether the first inclination of the minister was to be less than honest.

    Most of us would probably prefer it if MPs declined to accept a private junket, but given that most seem to do this, the issue then becomes one of transparency.

    So if these trips weren’t declared, condemn them. If they were declared, then condemn the system that allows it.

  31. Thank you bacchus. It was the SMH list that I was looking for but couldn’t find. Soo..Tony Abbott went to Israel, Bob Baldwin (Lib) went to China, Julie Bishop went to China etc.etc.

  32. That’s right Min. Five Libs and three Labor paid by Australia-Israel groups; six Labor and five Libs sponsored by Chinese groups.

    This whole thing stinks. It should be stopped now.

  33. Yet Tony..why is this thing, accusations about ‘closeness to China’ getting so much mileage in the popular press. With apologies for being off-topic, probably needs a topic of it’s own.

  34. Yes Min, I suppose the information was collected from the parliamentary register, which is where MPs are supposed to record this information.

    If a trip is declared, there is a level of transparency.

    If an MP does not declare it, the trip can be seen as a form of inducement.

    So what exactly is the point you are making?

  35. Don’t we have a (recent) thread dedicated to Fitzgibbon and the related subject of “political gifts” & declaring them? I came in to talk some more about the topic of torture & the isolation of the US from international law only to find we’re tossing around a completely different subject…

    That said, I agree with Tom of Melbourne here. Both sides of politics are rife with this and it should be stopped.

  36. Min
    Should the thread be called “China (non) Crisis”?

  37. Without accountability for these actions we are nothing short of barbarians. The Bush administration thought they could circumvent to process because they were the most powerful country on earth, and owned the whole process. They tried to justify their actions by consistently reminding a frightened Nation of the attack by Saudi’s on their Twin Towers. There is nothing wrong with protecting your people, but when absolute power is mixed with racism and terror, then some of the powerful get to play a pretty dangerous game. The best thing that could happen is that they are brought to account. What sort of message would it send to the world if you can get away with anything at all if you have the power to do so.

  38. Why not put up a thread if you have time, Joni, and we can discuss whether it is a (non) crisis or not?

  39. The point is Tom is that there has been multi written about ‘mysterious’ Chinese lady (who ended up being an Australian of Chinese origin) and ‘mysterious’ trips to China. And yet others on both sides of Parliament have likewise made equally mysterious trips.

    And agreed Fitzgibbon stuffed it by not declaring his trips – but then we have the complete stuff up of the Defence Department and the disappearing millions/billions. Given the current tenuous situation with the auditors to give their report next week (I think)..one has to wonder the timing of the leaks re ‘mysterious Chinese lady’.

    Agreed, that there is the potential for a trip os to be seen as an inducement. And how many people until this hit the fan knew that prominent Libs had os trips paid for by the Zionists? And so it would seem that whether declared or nay that there is still the potential for any trip to be an inducement.

    Apologies for above and for being off topic…couldn’t help myself….

  40. joni, on March 31st, 2009 at 1:44 pm Said:
    Min
    Should the thread be called “China (non) Crisis”?

    Gentleman’s choice joni. Just if you consider it a worthwhile topic.

  41. Someone taking my posts in vain around here? Heh.

    Yep, it’s not just Libs like Andrew Robb who’ve been recipients of junkets to Israel. There’s a been few Labor junketeers too. Including Michael Danby, somewhat of a Leftie and a good bloke. (Never fear, he probably only visited the Kibbutzes. I doubt he’d be seen in the same room as Ben Netanyahu, that Likud loonie).

    As for the topic, I’d love to see the Spaniards go for the likes of Gonzales and Feith. T

    he US, of course, will never hand them over for trial, but once the warrants are issued, they’ll effectively be stuck at home forever. Even a trip to Canada or Mexico could land them in custody. Plus, the Americans will have to wear the opprobium of publicly shielding people accused of crimes against humanity.

    They’ll never live that down. Sanctimonious pri*ks.

  42. Min the rules exist with the agreement of both sides of politics.

    They ought to be required to observe the rules that they endorse. The minister failed to observe the rules that he endorsed.

    Do these other cases fail this test?

    I thought we’d had enough of the deceit based on political practicality. But apparently not in this case.

  43. China (non) Crisis thread up now.

  44. Jeez, Tom, you’ve sure got a thing about disclosure. Perhaps you should change your moniker to Full Disclosure of Melbourne.

    Only thing is, I don’t recall you saying much about full disclosure on this Blog when the Libs were running the show. As I recall, its not like there wasn’t plenty of dislocure to be called-for at the time.

    I suppose, as the Jesuits might say, a recent conversion is better than no conversion at all.

  45. Evan – “Only thing is, I don’t recall you saying much about full disclosure on this Blog when the Libs were running the show.”

    “this Blog” Evan? Where have you been? This blog has been going for about 6 months.

    I don’t recall you from Blogocracy, and your input here is particularly unremarkable and routinely inaccurate. Another example.

  46. I thought you’d say that Tom. What about its predecessor, Blogocracy?

    And yes, I was a contributor to that predecessor, inaccuracies and all.

  47. It sorta got lost (sorry I’m guilty for going off topic, severe slaps on the wrist from Matty Price) any takers to expand or debate pertaining to below:

    Min, on March 31st, 2009 at 10:27 am Said:
    Just from memory, I believe that Sparta also debated about what consitutes torture. From Legion’s quote: “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”.

    Therefore under this criteria, if I pull your fingernails out with plyers, this is not torture because this does not cause a serious injury (one can function adequately minus fingernails), this does not cause organ failure, nor an impairment of bodily function and is unlikely to lead to death. Hurts lots tho’ doesn’t it.

  48. Interesting article in the Washington Post on the “enhanced interrorgation” techniques (torture to you and me) promoted by the Bush Administration.

    One of the detainees, Abu Zubaida, was subjected to “waterboarding and other harsh interrogation methods”, and they finally made him crack. The article says:

    The methods succeeded in breaking him, and the stories he told of al-Qaeda terrorism plots sent CIA officers around the globe chasing leads.

    In the end, though, not a single significant plot was foiled as a result of Abu Zubaida’s tortured confessions, according to former senior government officials who closely followed the interrogations. Nearly all of the leads attained through the harsh measures quickly evaporated, while most of the useful information from Abu Zubaida — chiefly names of al-Qaeda members and associates — was obtained before waterboarding was introduced, they said.

    This is something that is consistently said about torture. It does not work in real life.. Only on TV shows like 24 does it work. So instead of the authorities chasing real leads they wasted effort and energy.

    This article is also noteworthy as a comment on the original article.

  49. Joni et al. The difficulty re torture (apart from the pain and humiliation inflicted) is that is doesn’t produce reliable results. This has been known for eons, so why do it?

    Just from memory, the excuse/reason for rendition/torture is that we need to ‘extract’ information from people.

    Yet, any information extracted via torture is going to have an approximate 70% inaccuracy factor due to..of course, being extrracted via torture.

  50. Yeah, well the only thing the Amnericans extracted, in my humble opinion, was their own self-respect.

    For a nation founded on Liberty, they sure turned-into a bunch of Torquemadas when it suited them. Tom Paine an Thomas Jefferson wouldn’t recognise the place.

  51. This is something that is consistently said about torture. It does not work in real life.. Only on TV shows like 24 does it work.

    Can’t stand that TV show, just propaganda disguised as entertainment.

  52. Too true Kitty..Vee have vays of making you talk (sinister music). Yes, people tortured can be made to talk however most torture is all about revenge and not to do with the obtaining of information. From: http://www.thewe.cc/weplanet/news/americas/us_terror_state/make_it_hell_for_prisoners.htm How much information was obtained via this?

  53. Wasn’t here yesterday, but this is provocative commentary on an interestingly timed article in the Washington Post:

    Here’s some unique writing from the Washington Post, in an article about a man named Kaing Khek Lev, or “Duch,” a notorious genocidaire of the Khmer Rouge…

    […]

    Wow. You see what Johnston did there, right? He called waterboarding “torture.” He specifically called “pouring water up victims’ noses”…torture.

    […]

    I guess it becomes “torture” when it’s being done by genocidal Communist madmen, whose political ideology lacks the beautiful exceptionalism that normally transforms an abhorrent and inhumane act into a patriotic gesture. At least I think that’s the equation. I’m willing to revisit this position if, say, Ruth Marcus puts on her Inanity Cap and pens a piece about how we should give Duch a break because SURELY, when he was torturing and killing people in Phnom Penh, he was acting “not with criminal intent, but in the belief that they had grants of authority reaching to the highest levels of government.”

  54. …most torture is all about revenge and not to do with the obtaining of information…

    A significant part of it is also about manufacturing “information” – specifically “information” that you want other people to believe – or at least act upon in certain ways. I remember reading former Russian interrogators talking about this goal.

  55. (Forgot to add to my previous post.)

    The difficulty re torture…is that is doesn’t produce reliable results.

    …and in THIS sense (the manufacture of “information”), torture is almost 100% reliable. You can nearly always get the victim to say whatever you want.

    The side effect (as reported by the former Russian interrogators) is that you hollow out your organisation’s ability to find real information – because very quickly those who use torture as a shortcut to get “information” get ahead of those who are seeking the truth.

  56. From comments on the Spanish court’s investigation, the US prosecuted a foreign citizen for torture conducted in Liberia last year – and the Bush-appointed attorney-general applauded the ruling at the time. Now the boot’s on the other foot, and the US doesn’t seem so keen on the idea.

  57. Loth..re: You can nearly always get the victim to say whatever you want.

    And this is precisely it. One can obtain any information one wants. Hence one of many reasons why the Gitmo ‘trials’ (or lack thereof) were so abhorent for not only humanitarian reasons but for legal reasons.

    The reason that evidence obtained under torture is non-admissable. It’s accuracy is just about zilch.

  58. Is anyone familiar with Arthur Miller’s ‘The Crucible‘? Poor Reverend Hale; all those tomes weighted with authority turned to mill-stones, and moral authority to grist. But what example to be made of Danforth?

  59. Lotharson

    The detail on the Miami case is appreciated. It will be very interesting to see how the US can try and wriggle out of this problem. A problem that they created for themselves.

    And a salient point here is that the legal opinion that permitted torture came from the high parts of the Bush administration and that is the people who should be held accountable for their actions.

  60. Maybe the Spanish case answers Sparta’s argument of “If crimes were committed, why has nothing been done about it? Doesn’t that mean the evidence is piss-weak?” But then again, perhaps he doesn’t place much weight in the Spanish courts because they’re not American, and thinks the evidence against Pinochet was rather thin to boot.

    Then again, perhaps he might believe the BBC report that

    US agents at Guantanamo Bay tortured a Saudi man suspected of involvement in the 11 September attacks, the [US] official overseeing trials at the camp has said.

    Susan Crawford [convening authority for military commissions] told the Washington Post newspaper that Mohammad al-Qahtani had been left in a “life-threatening condition” after being interrogated.

    Or maybe not. After all, this report is three months old so it can’t be relevant, right? And besides the Pentagon has “reviewed” the case and reckons the interrogations were lawful at the time. Who is Susan Crawford to disagree, let alone any of us?

    BTW, the subject of these interrogations is widely believed to have been planning to be a hijacker on one of the 9/11 planes – and all charges against him were dropped because “His treatment met the legal definition of torture”.

    And if it met the legal definition of torture, then it was illegal because the US has signed up to international anti-torture conventions. Perhaps the Pentagon doesn’t think the US has to live up to any treaty or agreement that it signs…which is not an uncommon attitude in the US.

  61. Loth..re your: and all charges against him were dropped because “His treatment met the legal definition of torture”.

    And this is it in a nutshell. Use methods which can constitute the meaning of torture and you have stuffed up your evidence. It means that not only innocent people are tortured but that the guilty have a reasonable case to why the evidence isn’t admissable.

  62. Ok, I’ll bite…..

    “And if it met the legal definition of torture”

    One has to answer this simple little question for me first though……..Many like to throw it out there but what is the legal definition of torture? You can cite the U.N. if you like?

  63. Sparta..I think that it comes under the ‘reasonable person’ test (aka common law).

  64. Whoops..I meant that in my opinion a definition of torture is akin to a reasonable person test aka common law not that it falls under this criteria in the legal sense.

  65. Many like to throw it out there but what is the legal definition of torture?

    If you read the Washington Post article you’d find that the Spanish case is based on both the Geneva Conventions and the 1984 Convention Against Torture. Those conventions are both binding upon the US – in other words, they have the force of law in the US just as much as any law passed by Congress and the Senate and signed by the President.

    Practically everyone who argues that the US doesn’t torture either doesn’t understand that the US is bound by Conventions such as these – or does understand it, but argues that the US is free to ignore those obligations if it feels like it (even though other countries should not follow suit). Which is it in your case, Sparta?

    The other line of argument taken is that what the US does is not torture, so doesn’t fall foul of US law, nor the international Conventions that are binding upon the US. This is revealed regularly to be transparent b*lls**t – typically when the US is shown to be engaging in behaviour that citizens of other countries have been successfully prosecuted for under those laws/conventions, often cheered on by the US. See for example the Miami case referred to earlier, prosecutions of Japanese soldiers for waterboarding in WW2, the recent prosecution of the Khmer Rouge torturer (for amongst other things, waterboarding), and so on.

  66. Re torture. Basically I think that it’s if a person or persons inflicts pain upon another person be it physical or mental.

    Torture is treating another person as you would never wanted to be treated yourself, nor how would you wish your children or friends or family to be treated.

    If one says, That’s OK..I wouldn’t mind my kids being treated this way, then it’s not torture.

  67. “I meant that in my opinion…….”

    Just seems to me if we are going to have discussions on torture which always entails calling for criminal prosecution of those guilty of it, or making accusations at least, we start from a consensus which agrees upon a common definition. Words do have meaning ……Ambiguity is the “jack of all trades” in the context of the law.

  68. Sparta. I think that we might have crossed over (not in the religious sense ;-))

    The debate re torture seems to surround: How much pain can one inflict upon another person before it crosses the border to be called torture?

    Which then begs the question: How much pain would you (a person) like to inflict on another person? And why?

  69. Many like to throw it out there but what is the legal definition of torture?

    Or you could read Glenn Greenwald’s detailed post entitled “Binding U.S. law requires prosecutions for those who authorize torture“.

    He points out US attorneys general making clearcut statements such as:

    we prosecuted our own soldiers for using it in Vietnam. . . . Waterboarding is torture.

    and

    Torture is a crime

    before quoting extensively from the Convention Against Torture – signed by Reagan, who stated that the US actively participated in the development of the convention – in order to show that the US is bound to investigate and prosecute such acts, no matter what justification was given:

    2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

    […]

    1. Each State Party shall ensure that all acts of torture are offences under its criminal law.

    He then quotes the US Constitution, Article VI:

    This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;

    to remind those who argue that the US can decide to ignore treaties that they are spouting crap – the US is bound to investigate these accusations of violations of this Convention.

    He then covers the usual bogus arguments from the torture apologists claiming the law doesn’t apply here – and points out the abhorrent implication that underlies many of the apologists’ defences that it’s OK because the US did it (i.e echoes of Nixon’s statement that it’s not a crime if the President does it). And he responds to various counterarguments to his post…

    …the excuses being offered by Bush apologists as to why prosecutions are unwarranted — i.e.: the torturers acted pursuant to orders, the torture was made legal under domestic law, there were exceptional circumstances — are all ones that are explicitly barred by the Convention as grounds for failing to prosecute torture.

    Feel free to point out where he’s wrong.

  70. And if you’re interested in the definition of torture under the 1984 Convention Against Torture:

    Article 1

    1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

  71. More Greenwald on how torture apologists are implicitly basing their arguments on American Exceptionalism (i.e. it’s a crime if someone else does it, but not if we do it).

    There is simply no way to argue that our leaders should be immunized from criminal investigations for torture and other war crimes without believing that (a) the U.S. is and should be immune from the principles we’ve long demanded other nations obey and (b) we are free to ignore our treaty obligations any time it suits us.

  72. “Feel free to point out where he’s wrong.”

    No, first you take a deep breath and provide me with the definition of torture for which you cite in making your argument……Continue if you must with the insinuations but how about some basics first…..

  73. One more trenchant quote from the article in my previous post:

    This argument — that prosecution is unfair because the torturers’ government authorized and legalized the torture — is one that has been raised by most war criminals in the past, and emphatically rejected by the Nuremberg Trials (which the U.S. led) and the War Crimes Tribunal against Serbian leaders (which the U.S. praised and supported).

    An American judge who was also a jurist on the Serbian war crimes trial writes that the abuse inflicted by the US was very similar to the abuse inflicted by the Serbs in the latter war crimes case – where the US government lawyers participated in the prosecution of the civilian leaders who authorised that treatment.

    Go read the whole thing, and the earlier Greenwald links…

  74. Loth..obviously this is why the US took it off shore, so as to avoid the rule of law. This is with regard to the fact that the US of A is also a common law country. Hence the renditions to non-common law countries. Example, one could render a person to say French Algeria (as an imaginary example) and not be subject to common law because France is not a common law country.

  75. No, first you take a deep breath and provide me with the definition of torture for which you cite in making your argument……Continue if you must with the insinuations but how about some basics first…..

    I had thought it was fairly clear from my earlier posts that US attorneys general (appointed both by Bush and Obama) both unequivocally stated that waterboarding is torture – so you could proceed from that basis without necessarily needing the full definition.

    I had further assumed you’d be able to find the UN Convention Against Torture which I had referred to if you were serious in your implication that the law had not been broken.

    Later I quoted that definition explicitly in case it was easier to argue that no-one had dumped a definition in your lap than to consider whether anyone in the US had violated said law.

    But then sometimes I presume too much…

  76. Loth..obviously this is why the US took it off shore, so as to avoid the rule of law.

    Not exactly, I think. The law as I understand it applies offshore as well.

    Article 2

    1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

    And that would explicitly include Guantanamo.

    It also applies to those who authorized or are complicit in torture – and those actions took place in the US. And article 5, section 1.1 says it applies to any national of the States that are signatories (e.g. including the US).

    For another thing, the US recently prosecuted a Liberian for torture offences that took place in Liberia, so Guantanamo or Afghanistan are not out of reach of US law.

    I think they took it offshore to be able to plausibly spin that the law did not apply, and also to be able to keep the process out of the US media as much as possible so that the ordinary people didn’t worry their pretty little heads about what abuse was being perpetrated in their name.

  77. Finally…

    So as a lawyer I would say, “What is “severe pain” then; as opposed to mild pain”? Is mild pain utilized for the same purposes outlined in this context legal? How does one determine the difference and you would say?

    See the problem I have with those obsessed with citing the law as a weapon in trying to go after what they see as the “second coming”, is they don’t seem to grasp it is isn’t about what you feel or I feel, it is about “proving” a law has been broken. It does not make me an apologist for the buffoon that is my former president either, simply a bit more realistic frankly…

  78. I appreciate your passion Loth but you really must calm down. The condescension really isn’t necessary in making your point. In fact, it only makes you look insecure…..Besides, I really don’t have it in me to sling mud this late….

  79. The reason that evidence obtained under torture is non-admissable. It’s accuracy is just about zilch.

    Speaking of which, the Washington Post claims that Abu Zubaida’s waterboarding foiled no plots.

    Unfortunately it’s mostly “anonymous officials”, some of whom state that no plots were foiled via the information gained from waterboarding, and that the information they DID gain was mostly gained before the waterboarding started. He was waterboarded because the US believed he was a major figure in Al Qaeda, but apparently most of those assumptions were false or at least great exaggerated.

    “They [policymakers] couldn’t stand the idea that there wasn’t anything new,” the official said. “They’d say, ‘You aren’t working hard enough.’ There was both a disbelief in what he was saying and also a desire for retribution — a feeling that ‘He’s going to talk, and if he doesn’t talk, we’ll do whatever.’ ”

    The application of techniques such as waterboarding…prompted a sudden torrent of names and facts. […]

    Abu Zubaida’s revelations triggered a series of alerts and sent hundreds of CIA and FBI investigators scurrying in pursuit of phantoms. The interrogations led directly to the arrest of Jose Padilla, the man Abu Zubaida identified as heading an effort to explode a radiological “dirty bomb” in an American city. Padilla was held in a naval brig for 3 1/2 years on the allegation but was never charged in any such plot. Every other lead ultimately dissolved into smoke and shadow, according to high-ranking former U.S. officials with access to classified reports.

    “We spent millions of dollars chasing false alarms,” one former intelligence official said.

    This amply illustrates the folly that is implicitly assumed under most “ticking bomb” scenarios – the assumption that the interrogators already “know” for sure that their subject has information they want. In reality they have no way of invalidating that assumption (e.g. if they have the wrong guy or the wrong knowledge – they think he’s just holding out), and no good way of confirming the “information” that the subject coughs up under torture.

    If you read enough of the article, they had another detainee captured with Abu Zubaida who told them the he wasn’t the kingpin they thought he was – and they refused to believe him.

    Torture is a game for idiots, self-deluders and sadists – not truth-seekers.

  80. Sparta of Phoenix, AZ USA, on April 2nd, 2009 at 3:05 pm Said:
    Finally…

    So as a lawyer I would say, “What is “severe pain” then; as opposed to mild pain”?

    And likewise Sparta, should this not be under the reasonable person test as per common law? What is your opinion?

  81. The condescension really isn’t necessary in making your point.

    I’m not sure I entirely agree. True, sometimes condescension gets used to respond to an argument when it’s unjustified, and then it’s not necessary. But I tend to find that calm, sober, rational argumentation doesn’t get the job done in some cases. It tends to dignify the argument when it’s transparently out of touch with reality or logic – or to legitimise the diversionary tactics used to redirect away from an unsustainable position.

    I appreciate your passion Loth but you really must calm down.

    Ah, yes, because reasonable polite people who practice or authorize or defend torture would be horribly offended by any evidence of passion in those critical of their positions or actions? Shrillness is simply unconscionable when protesting perfectly reasonable decisions to inflict severe pain and mental anguish on other human beings?

    Sorry, was that condescending again? Sorry, let’s try the calm and sober version.

    You appear to be saying that your perception that I’m not sufficiently calm and respectful of your opinions for your taste makes me appear insecure to you, and therefore suggests that you shouldn’t bother considering my arguments and evidence. This might be useful in a debate or a courtroom, but it seems to me to be a way of convincing yourself to avoid looking at something you don’t want to look at too closely, and hoping to convince other readers to look away as well. I could well be be wrong about that, but it certainly doesn’t seem to be considering my arguments on the merits and could be seen as being fearful to do so.

    You might also be read (perhaps fairly, perhaps not) as less concerned that various people are inflicting non-significant amounts of pain on various other people, sometimes in ways that we once considered medieaval – than whether the conversation about those actions is sufficiently polite. This to me seems like a diversionary tactic designed to deflect from the substance of the debate to the form, and thus makes you look rather insecure in your position. Furthermore, it suggests that you’re perhaps heavily invested in maintaining the status quo of current authority and hierarchy where those at or near the top have a lot of immunity, not only from the law, but from any sort of criticism from the great unwashed masses beneath them. This it seems to me is the position of one who values rule of the elite over rule of law – but does not want to come right out and say it.

    How’d that go? I tend to think the condescending mode makes the point more powerfully and concisely but others may differ in their opinions.

    So as a lawyer I would say, “What is “severe pain” then; as opposed to mild pain”? Is mild pain utilized for the same purposes outlined in this context legal? How does one determine the difference and you would say?

    I note the second sentence is a red herring, and I discard it for the purposes of the following response.

    As a lawyer I would think you would also then understand that while you may or may not be able to easily draw a clear and extremely narrow line between the two, you can rely on legal precedent to determine that some behaviours fall foul of the law because they are clearly past the more fuzzy line that has already been defined. (That, and the fact that various attorneys general clearly stating that behaviour known to have occurred is clearly illegal, which should add at least a little weight to the proposition).

  82. Hi Sparta, good to see your back.

    I’d like to look at treading water for one moment as we all know what that is. Most of us can do it and it can be fun.

    Now lets force it.
    Depending on a persons body size, phisycal and mental fitness.
    How long, 10 minutes or 8 hours,from one person to another its going to be different, only the person getting tortured or forced can measure if its mild or high pain, but whos going to trust them.

    Why not go one step further and kill all other citizens as to make sure there isnt an enemy amongst them.

    Torture is no form of democracy or that of a free and fair rule.

    Cuba is screaming for the US to leave from there soil, I ask why havnt they or dose a contract forgive one from acting in a civil way on foreign land.

  83. So as a lawyer I would say, “What is “severe pain” then; as opposed to mild pain”?

    Don’t forget the context – it reads “…severe pain or suffering, whether physical or mental…”.

  84. I’d like to look at treading water for one moment as we all know what that is. Most of us can do it and it can be fun.

    Here’s a fun one you can try at home.

    The British in Northern Ireland used to make IRA suspects hold their arms out horizontally, and beat them whenever they dropped. No problem, right? Try it and see if you can do it for 1 minute, 5 minutes, 10…

    IIRC the Brits forced some detainees to do this for days.

    Maybe we could have some lawyers run some experiments amongst themselves to determine what constitutes severe pain or suffering. But to make it a valid experiment it would have to be done with no prospect of relief in sight – so we could perhaps render them unwillingly to some of the countries that were so helpful to the US in the past few years. After a couple of years we could repatriate them and interview them to determine where and when and under what circumstances they report feeling severe pain or suffering, whether physical or mental.

    But all this talk about where the boundary of torture lies is mostly used to deliberately distract from the plain fact that torture has been authorised and committed by the US over the last few years. (The cop doesn’t need to argue about whether the breathalyser has a 2% or 5% margin of error when you’re caught at three times the legal alcohol limit.) The hope is that the discussions about where exactly the line lies will go on long enough to make the public sick of the issue, at which time it can be made to just quietly fade away.

  85. And precisely. And loud cheers for Aqua. What one person can endure as Aqua states due to body weight, fittness (and gender for that matter) is when one crosses the threshold from simply inflicting pain onto another person to torturing them.

    But why would one want to inflict pain onto another person from the 1st or 90th degree anyway.

  86. Lotharsson, yeah fair enough bad example.
    But i do like treading water but its all controlled.

    Hi Min 🙂

    I heard Miss universe when to gitmo and said it was nice.
    Who are we to judge.

  87. Lotharsson, yeah fair enough bad example.
    But i do like treading water but its all controlled.

    Sorry, wasn’t implying treading water was a bad example – it’s a great one. I was just riffing off that example and pointing out some others, and adding that one aspect that makes it more realistic and terrifying – that the subject loses their own control over the process and how long it goes on for and when they might expect it to stop.

  88. This is a useful site:

    AfterDowningStreet. org

    Evidence
    OPEN FOR KEY EVIDENCE OF BUSH AND CHENEY’S IMPEACHABLE OFFENSES

    http://www.afterdowningstreet.org/taxonomy/term/4

    Includes this:

    Ex-State Dept. lawyer decries torture after 9/11
    Evidence Torture
    By ANDREW O. SELSKY, AP

    SAN JUAN, Puerto Rico (AP) — A former State Department lawyer responsible for Guantanamo-related cases said Friday that the Bush administration overreacted after 9/11 and set up a system in which torture occurred.

    Vijay Padmanabhan is at least the second former Bush administration official to publicly label “enhanced interrogation techniques” as torture. He said the administration was wrong in its entire approach when it sent detainees to the remote Navy base and declared it out of reach of any court.

    “I think Guantanamo was one of the worst overreactions of the Bush administration,” Padmanabhan told The Associated Press. He said other overreactions included extraordinary renditions, waterboarding that occurred at secret CIA prisons and “other enhanced interrogation techniques that would constitute torture.”

    N’

  89. “I note the second sentence is a red herring, and I discard it for the purposes of the following response.”

    But of course you do…..To consider it might actually discredit your case or at the very least cause you to question the legality that you seem to beat your chest on about but apparently don’t quite grasp. What do you think a defense is there sport? I am not familiar with “Red Herring” as a legal term but perhaps you can explain how it is used in a court of law?

    “As a lawyer I would think you would also then understand that while you may or may not be able to easily draw a clear and extremely narrow line between the two, you can rely on legal precedent to determine that some behaviours fall foul of the law because they are clearly past the more fuzzy line that has already been defined. (That, and the fact that various attorneys general clearly stating that behaviour known to have occurred is clearly illegal, which should add at least a little weight to the proposition).”

    Extremely narrow perhaps but present no less. Precedent is a legal tool in which you and others do depend on quite heavily in this argument (one I think that carries more water than the language of Article 1). However, given the circumstances that were in play when this “illegality” took place in your eyes, it will be a tough if not an impossible tool to use. Along the lines of “precedent” it is how Lincoln, FDR and even Bill Clinton were able to suspend or weaken Habeas corpus. It is how FDR was able to detain Japanese-American civilians on American soil throughout the duration of WWII without charge and escape serious ridicule by historians. It is why Truman was able to drop the bomb on Japan in 1945 etcetera. Again, if it is so clear cut why no case? Does GW still have plenty of “cronies” in this democratically controlled Congress and Presidency?

    For the record and outside the scope of legalities, I wish GW had never gone down that road but I understand why he felt he had too as I do that of other former presidents. I don’t think it was the right route but you nor I are privy to the big picture and forced to make such decisions from the comfort of our computers. You can insist you are on the right side of this all you like and hold yourself up as such but again, your position is the easy one. I make no such claim either way, simply pose the question. Some do not have the convenience of anonymity and risk more than their egos. Try and understand this for a moment……It is not an excuse for torture when one questions the legality for which the claim of torture is made; it is how the system is supposed to work. Or would you prefer a system bound by “knee-jerk” emotion or in the words of GW “from the gut”?

  90. Aqua,

    “Depending on a persons body size, phisycal and mental fitness…”

    Yea, that is along the same lines I am echoing. Torture, is a highly subjective and personal term; rather troublesome in terms of its use as a matter of law. One man’s torture is another’s perversion or work out as you elude too…..I have said it before, I see bamboo shoots forced under the fingernail as fulfilling my “personal” definition of torture more so than water-boarding. Not that I think water-boarding is a pleasant experience mind you but either is incarceration of any kind. The UN was careful I think to define torture as “severe pain and suffering” and not just in terms of pain? Simply put, even the “civilized world” recognizes how subjective the term is, allowing it to be defined in a number of different contexts. It is much like trying to define “true love” in legal terms.

    “Torture is no form of democracy or that of a free and fair rule.”

    I would agree on the surface but again, depends on the definition we are using today…..

    “Cuba is screaming for the US to leave from there soil, I ask why havnt they or dose a contract forgive one from acting in a civil way on foreign land.”

    Well I don’t think Cuba is in any position to claim the moral high ground. They still have prisoners from Castro’s revolution incarcerated for dissent….I don’t have an answer to “why don’t we leave”; half of Cuba is living comfortably in Miami anyway?

  91. Meh, ‘pain and suffering’ is just a recasting of ‘cruel and unusual’; but like I’ve said before, the more the apologists run the line that ‘torture’ is a fluid concept, the more they undermine their nation’s army field manual, which acknowledges that the subjective thoughts of a torturer about their torturing(s) really aren’t determinative nor much fun for American personnel in foreign hands in foreign lands. But ya get that when establishing particular elements of ‘moral suasion’ as universal precedents. Personally, I’m surprised that the dots haven’t yet been joined that Gitmo, and more particularly its renditionary priors, were test ‘n’ tune laboratory occasions at many levels, in the key of Dr Mengele; because, sure as choko-substituted-for-apple pie, the low-level descriptions of what occurred there and other places don’t yet match the wealth of black-budget moneys which went into decades of academic behavioural studies about dominance-submission paradigms, nor running the geographically-extensive box-top program, by The Company and other No Such Agencies. I think it’s kind of cute, also, that the powers-that-be have the public focussed on asinine, mediaeval torture tech, while their subsequent work-products remains essentially unexplored and still hidden behind a national security veil.

  92. Some very interesting points Sparta..

    It is how FDR was able to detain Japanese-American civilians on American soil throughout the duration of WWII without charge and escape serious ridicule by historians.

    This was a completely different situation to Gitmo. Japanese Americans were interred via an Executive Order. Most interments into camps were due to relocation of citizens of Japanese origin from the west coast (a fear as to where their loyalty lay) and so camps were established.

    Probably closer is the internment of Italians and Germans WW2 in Australia due to the classification as ‘enemy aliens’.

    And

    I have said it before, I see bamboo shoots forced under the fingernail as fulfilling my “personal” definition of torture more so than water-boarding. Not that I think water-boarding is a pleasant experience mind you but either is incarceration of any kind.

    And to repeat from Legion’s quote: “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”.

    Waterboarding is described on Wiki at: http://en.wikipedia.org/wiki/Waterboarding

    Waterboarding is a form of torture.[1][2] It consists of immobilizing the victim on his or her back with the head inclined downwards, and then pouring water over the face and into the breathing passages. By forced suffocation and inhalation of water the subject experiences drowning and is caused to believe they are about to die.

    A favorite method of ‘interrogation’ by the Khmer Rouge.

  93. Sparta,

    Those answers were a cop out, I should feel like you done your best but i feel this is beyond what you can explain to me. Im still left with to many questions.

    There was a time when all were created equal in the eyes of the constitution. When was that page ripped out. Your defending of this act makes me wonder why so many have it in for the people in your country. I’m sure your not the only one( some in Australia take your view also)

    What else is pain go for to get answers?
    Why not apply torture in courts?

    Im disappointed in your views on this but i dont hate you for it.

    Torture is assault.
    Trial and gaol is what was discided in a civil society, why throw that away.

    Lotharsson, cheers buddy.
    Also the last few comments were excellent in information that goes for Legion and Min.

  94. Aqua..if you don’t mind me saying. You always seem to be able to put forward reasonable reasons..that is, to be able to cut through to the basis as to what matters.

    And how is the coral growth trying to establish a colony in your arm? Seee…I did remember.

  95. Thanks Min,
    All i see is a believer in torture scream he is having his rights violated in the future over an issue many would laugh at.
    I also can believe in torture is i refuse to look at the other half thats going throught it as long as its not me. But id be a different person.

    The growth Min its not there any more, there will be a nice scar. salt water also heals things well after a point and its hidden well under my watch. Its still purple and itchy. I dont think a month has gone by without me finding a way to get injured.

  96. But of course you do…..To consider it might actually discredit your case or at the very least cause you to question the legality that you seem to beat your chest on about but apparently don’t quite grasp.

    Strangely enough, I DID consider it before I wrote that reply and fail to see how your brilliant defense strategy can rely on it to question the legality I’m talking about.

    Let me explain.

    You have been saying for quite some time, without apparently checking up on the law in question, that there doesn’t appear to be any legal case to answer regarding allegations of torture.

    I quoted the sections of the relevant international convention which has the force of law in the relevant countries – something you didn’t seem to be able to find on your own. (One might suspect that to do so might at the very least cause you to question the assertion you’ve been making that there doesn’t appear to be a case to answer…)

    Those sections define torture as the intentional infliction of “severe pain or suffering, whether mental or physical…”.

    Your “as a lawyer” response includes the question:

    Is mild pain utilized for the same purposes outlined in this context legal?

    I fail to see how even a non-lawyer could find that to be relevant when the law explicitly states severe pain or suffering. It’s almost as if you asked in response to the text of a law prohibiting driving at more than 50km/h on an urban street, whether driving at 25km/h is legal.

    In fact, I can only see how an answer to the question you posed can hurt your defense. It is possible for a pattern of infliction of mild pain – or even something that’s not painful at all – to build up to (say) severe mental anguish, and therefore to be illegal. Ever heard of Chinese Water Torture? No pain involved at all.

    Now maybe you had something in mind that would make the answer to your question into a defense. If so, go for it. But you left me and probably the rest of us in the dark as to your brilliant defense.

  97. Precedent is a legal tool in which you and others do depend on quite heavily in this argument (one I think that carries more water than the language of Article 1).

    No, precedent is something I use because it’s a shortcut that gets most readers to the same place that other routes of logic do. I think it’s blatantly obvious that historical precedent judges most of the recent US behaviour to clearly be torture, to which various opinions of attorneys general, both on waterboarding specifically and on various unsavoury behaviours inflicted by officials of OTHER countries on detainees in the last couple of decades add weight.

    You appear to accept that precedent calls (say) waterboarding torture, but then argue that precedent has little weight.

    In that context you should note that I don’t rely on precedent. If you believe it doesn’t apply here, then I’d suggest that the courts would treat the subjective elements of THIS law just like they treat the subjective elements in other EXISTING laws – and there are plenty on the books that have those elements.

    I’m betting you as a lawyer could enlighten us as to how the courts go about interpreting those laws. I imagine that to do so you’d have to cover a “reasonable person” test. In other words, what would the judgement of a reasonable person be on the subjective matter, preferably one who has some experience in or that can be related to the matter?

  98. However, given the circumstances that were in play when this “illegality” took place in your eyes, it will be a tough if not an impossible tool to use.

    Explain to me how the “circumstances that were in play” absolve the participants of alleged violations of the Convention Against Torture, particularly when that Convention’s Article 2 reads:

    Article 2

    1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
    2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
    3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

    I fail to see you presenting an effective defense here – especially to (2) and (3). That doesn’t mean you don’t have one, so if you do, go for it. (And in doing so please take into account the other sections of the Convention that state that the State must investigate credible allegations, etc.)

    Many argue that there are “good reasons” under “those circumstances” for the US to decline to investigate credible allegations – or decline to convict. Greenwald points out in an article I referred to above that to do so means arguing that the US should break its international treaty obligations and flout international law – which makes it not a nation of laws, but rather a nation of elites above the law. Is this the foundation of the defense you think applies here?

  99. One man’s torture is another’s perversion or work out as you elude too…

    Sorry, but that appears to me, at least as a non-lawyer, to be very sloppy logic – or disingenuousness.

    The Convention Against Torture proscribes forced infliction of severe pain or suffering by someone acting in official capacity on the victim.

    A physical work out (as normally understood) is a personal choice, and the individual involved can choose to stop at any time. As such it clearly doesn’t fall under the scope of the law. Unsurprisingly, the level of pain suffered by an individual by choice under their control is not specified by the Convention as the benchmark for the level of pain that can be forcibly inflicted on the same (or a different) individual.

  100. It is not an excuse for torture when one questions the legality for which the claim of torture is made;…

    True, but sometimes the questions of legality (often on the more disingenuous end of the spectrum) are used to excuse torture.

    … it is how the system is supposed to work.

    I agree, the system is supposed to work that way – in the courts.

    But it seems that:

    (a) credible allegations in the US are being ignored (likely for political reasons), so the defense is being conducted in the press rather than the courts, and

    (b) your (the common) defense claiming that illegality will be hard to prove should it reach the courts so far seems to me to rest on very shaky logic combined with some level of outright denial of known evidence.

    And some of those defenses are truly defending torture – they’re not just saying “well maybe it was, maybe it wasn’t, it’s kind of hard to tell”, they’re saying “it wasn’t really torture”, or “we had to do it for the good of the country and it would be bad for security to prosecute us”.

Comments are closed.

%d bloggers like this: