Enhanced Interrogations Part II: Split Hairs, Broken Bones

The President remarked offhandedly today that he thought that the practice of waterboarding constituted torture.

I’m half hoping that he was obliquely admitting that the other techniques I referred to in Part I—specifically, stress positions, sleep deprivation, and cultural degradation—might be “legit”, even given Geneva restrictions. But I doubt it.

In any case, there are other, extra-legal objections raised against the use of “torture”, or “physical pressure”. The classic objection that “it doesn’t work” is usually attributed to Cesare Beccaria, who writes in “On Crimes and Punishments:"

“Speaking the truth amid convulsions and torments is no more a free act than staving off the effects of fires and water except by fraud…it [pain] leaves him no liberty but to choose the shorters route to end the pain for the time being.”

However, one can elicit justification for our “techniques”, even in light of this argument. In cases of terror, “torture” is used to elicit information unknown to both the questioner and suspect; the “victim” might say anything to stop the pain, but he knows that if he is proven to lie or having given misinformation, the increased likelihood the torture will resume. So it might be effective. Beccaria was generally talking about religious, or religiously-influenced, torture (“Confess!”), where the torturer was looking for a specific answer, irrespective of the actual truth, and the victim usually knew what his tormentor wanted to hear. That is not the case here; having a predetermined answer doesn’t help the interrogator save lives.

In Gray v. Lucas, 710 F.2d 1048, 1061 (5th Cir 1983), “accepting as true proffer that prisoner will remain conscious for period of time that will result in some pain and terror from method of execution” was deemed “insufficient as matter of law to require a hearing.” Pain and terror do not necessarily make a punishment “cruel and unusual”; punishment is supposed to “hurt”, in one form or another. The individuals undergoing “torture” are not material witnesses; they are dangerous participants in an ongoing conspiracy.

In a similar vein, if we’ve already granted that government can take your life and liberty, it should, albeit within very limited circumstances, be able to have a lien on one’s “dignity”. If this should include a cultural or religious degradation as a psychological tactic, that method should be legitimated in warfare, particularly when the enemy has used religious justification as a rallying cry: breaking that psychological hold might prove to be the difference in the game.

(One might even say that re-institution of corporal punishment in our penal system (on an adult level—NOT a child level) might actually impact recidivism. Certainly we should consider the public shaming of proven sex offenders (which we do already in a way, via Megan’s Law) or those who commit other violent offenses against children.)

Recently a New Yorker article opined that solitary confinement is tantamount to torture. That should actually serve to recommend its more widespread use., because it might actually prevent a) inmate on inmate crime and b) serve as a deterrent if it was used in extreme cases; c) certain defendants, especially those convicted of extraordinary crimes that fall under the aforementioned “extreme cases” (e.g. terrorist masterminds, mass murderers, gang leaders, organized crime leaders) should be held completely incommunicado for life as part of their punishment.

Is there a way to distinguish between “us” and “them” in the manner in which such practices are conducted? It needs to be conducted in a clinical manner both in interrogative and corrective settings, but especially with the interrogations: only those who are expert in the various psycho-physiological elements can make it work and elicit the live saving information. One might claim this becomes an issue of "preception-as-reality" and we therfore become like "them" even in such a case; I would differ, but in any case, the cat's out of the bag, if it wasn't before, and only the complete cessation of the practice of such "black arts" will serve as a salient distinction. That will never happen, however, because a) the "black arts" are such a part and parcel of "business practice" in the intelligence community and b) our intelligence services aren't that suicidal. (I hope.)

To provide a transition to my next missive—where I proffer that the top officials in Bush Administration sit in the dock for doing what I ostensibly recommend: I will say that they specifically did NOT do this, and left it up to their legal minions (e.g. Gonzalez and Yoo) to formulate the opinions that would keep their hands clean. Just as a final thought for now: I wouldn’t hold Yoo and Gonzalez directly responsible for their opinions. They were doing what their bosses (Bush, Cheney, Rumsfeld et al) wanted, even if unspoken. But I’ll get to that in the next post.

I thought so...

Turns out it was Meghan Clyne and not Gov. Palin.

The Post printed a correction today and buried it on page 22.

Sarah Palin, Pundit?

Sundays' NY Post ran an editorial entitled "100 Days, 100 Mistakes".

Item #15 in the printed edition was attributed to Gov. Sarah Palin:

"I WON" AND THE DEATH OF BIPARTISANSHIP

"Obama soared to victory on the hopeful promise of a new era of bipartisanship. During his inaugural address he even promised an 'end to the petty grievances and false promises, the recriminations and worn-out dogmas, that for far too long have strangled our politics.'

"Too bad it took all of three days for the promise to ring hollow.

"Start with Obama's big meeting with top congressional leaders on his signature legislation -- the stimulus -- on the Friday after his inauguration. Listening to Republican concerns about overspending was a nice gesture -- until he shut down any hopes of real dialogue by crassly telling Republican leaders: 'I won.' Even the White House's leaking of the comment was a slap at the Republican leadership, who'd expected Obama to adhere to the custom of keeping private meetings with congressional leadership, well, private.

"It's only gone downhill from there. The stimulus included zero Republican recommendations, and failed to get a single House Republican vote.

"It's not just the tactic of using Republicans for bipartisan photo-ops, and then cutting them loose before partisan decisions, that irks Obama's opponents. The new president wasted no time rushing forward with policies and legislation guaranteed to drive Republicans nuts. The first bill he signed into law was the Lilly Ledbetter Fair Pay Act -- a partisan hot-button that drew all of eight Republican supporters in the entire Congress. Then there was the swift reversal of Bush policies on abortion and embryonic-stem-cell research -- issues dear to the Republican base.

"And when Obama and the Democrats in Congress took up SCHIP -- the children's health-insurance bill that Republicans say vastly expands government's role in health care -- they had an easy chance for real bipartisanship. After all, the bill had been hashed out in the previous Congress, and a bipartisan accord was reached before President Bush responded with a veto. Did the Obama team push for the compromise version in the 111th Congress? Nope. They went back to the drawing board, ramming through the Democrats' dream version.

"Of course, the lack of bipartisanship isn't limited to Capitol Hill. Obama has taken gratuitous swipes at the Republicans who recently decamped Washington, blaming President Bush for everything from the economy and the war to the lack of sufficient puppies and rainbows. And who could forget the Rush Limbaugh flap -- in which Obama's top advisers, including chief of staff Rahm Emanuel, orchestrated a public relations campaign meant to undermine the Republican National Committee chairman, Michael Steele, by framing talk-radio personality Limbaugh as the real head of the Republican Party.

"For now, Obama's back-pedal on the bipartisanship promise just makes him look insincere. But the real consequences of the mistake will be felt soon enough. As Presidents Bush and Clinton could tell him, congressional majorities do change -- and at some point, Obama will need Republicans on his side. He'd be smart to spend his second 100 days making up for the serious snubs of his first."

I wrote the following letter to the editor, under the assumption that Gov. Palin was the attributed, if not the actual, author:

While the Post's list of the Administration's mistakes is more or less accurate if eminently predictable, by utilizing an essay attributed to Gov. Palin, it does itself no favors and further erodes the credibility of the conservative case. Do you think it likely that a woman who couldn't a) name a Supreme Court case other than Roe v. Wade AND b) identify ANY published news periodical (What? She doesn't read the Post?) could have formulated the argument in item 15 on her own? One could almost just as easily believe Bristol Palin wrote the piece.

When I checked the online edition of the piece, the item was a) moved to # 17 and b) was credited to journalist Meghan Clyne.

http://www.nypost.com/seven/04252009/postopinion/opedcolumnists/100_days__100_mistakes_166177.htm?page=0

I'm still waiting for a clarification.

But Is It ILLEGAL?

The Rep. Jane Harman story broken by CQ’s Jeff Stein seems slated to become the latest round of ammunition in the arsenal of any and all anti-Zionists and anti-Semites.

http://www.cqpolitics.com/wmspage.cfm?docID=hsnews-000003098436&cpage=1

Rep. Jane Harman , a California Democrat long involved in intelligence issues, was overheard on a 2005 National Security Agency wiretap telling a suspected Israeli agent that she would lobby the Justice Department to reduce espionage-related charges against two former officials of the American Israel Public Affairs Committee (AIPAC). In return, the Israeli agent pledged to help lobby for Harman to become chairwoman of the House Intelligence Committee.

That was Stein’s lead.

Let's assume for just a second that Stein might be on to something.

To say the least, all the backroom machinations as alleged by Stein, particularly surrounding the issues vis-a-vis wiretapping, are at the very least messy, and certainly embarrassing (probably, even more for Harman than Israel).

However, anyone who carefully reads the story should realize that, at least from the point of view of anyone pro-Israel, there is less to this story than meets the eye.

“It’s the deepest kind of corruption,” said one of the sources, a recently retired law enforcement official who was involved in the AIPAC investigation. “It’s a story about the corruption of government — not legal corruption necessarily, but ethical corruption.” The two former AIPAC officials are scheduled to stand trial in June.

"[T]he deepest kind of corruption", but "not legal corruption necessarily"? HUH?!?

Why didn't the "source" just go ahead and say "I don't like it, so therefore it should be illegal, even if it isnt"?

Is there a better illustration of the double standard as applied to supporters of Israel/Zionism?

Can anyone exactly pinpoint what it is Harman is supposed to have done that is actually ILLEGAL?

I didn't think so.

Enhanced Interrogations Part I: The Torture Never Stops

In theory, I shouldn’t be of two minds about Obama’s recent announcement that he is leaving open the possibility of prosecuting members of the Bush Administration for various Constitutional violations in their prosecution of the “War on Terror”. I applaud the use of enhanced interrogations. Yet, I think a public airing—even a trial of the major players—would actually be good for the country in the long run, even given the obvious dangers of inevitable politicization. But that's for the next post.

In the meantime, I have no problem with the contents of any of the memos written that provided legal justifications for enhanced interrogation techniques, including waterboarding, stress positions, sleep deprivation, wallbanging, and various forms of cultural degradations.

First, the Geneva Conventions are at the very least outmoded, if not outright irrelevant. Most of their provisions (as most “war laws”) are/were written after the fact; e.g, poison gas was not outlawed DURING World War I, and all of Nuremberg’s hanging offenses were, technically, legally ex post facto. [It’s not as if that would have been used as a defense, and the Nazis in the dock didn’t try; they realized they were lucky that they weren’t simply lined up against a wall and summarily executed, as Churchill had suggested.]

Given an even grudging acceptance of the Conventions, however, I would hold strongly that its provisions would NEVER actually cover “enemy combatants”; as they don’t consider themselves bound by any rules other than Kill The Infidels And Win The Virgins, they ALWAYS present a clear and present danger.

(One could concomitantly argue that the terms “enemy” or “unlawful combatants” are oxymoronic, as terrorists practice something other than combat. First-degree Aggravated Murder. In theory, an analog to piracy would not be all that forced, if we would treat modern pirates like we used to: hanging them.)

I would also argue that the list of interrogation techniques covered in the released top-secret Bush-era memos fall short of ANY legal definition of torture. I would further argue that practitioners of terror could be legal “dead men walking”, e.g., for all intents and purposes, they should be considered to have been “summarily executed”, pace Churchill, and anything that happens to them afterward would be of no legal consequence, i.e., get your intel and then put a bullet in their heads.

One will ask the inevitable questions whether we are, as Obama warned against in his inaugural address, becoming engaged in the “false choice between our security and our ideals.” I would say that, like conservatives who have been carp about the “author’s intent” vis-à-vis the Constitution, human-rights leftists have been as “strict constructionist” about the Geneva Conventions, which, as I have said, are at best historically anachronistic.

There remains the possibility that we would begin to resemble mid-‘70’s Chile or Argentina. However, in theory, if we take terrorists at their word that they are commanded to Kill The Infidels And Win The Virgins, and they present the aforementioned clear and present danger(s), they have automatically forfeit their lives and rights (not necessarily in that order) with due process.

In Part II I will explain why I think the idea of trials are a) necessary and b) inevitable.