More Thoughts on Ghailani and "Torture"
In my post yesterday about the Ghailani verdict, I took issue with Ghailani's allegations that he was tortured by the US. Among other things I said: Of course, by the standards of the left, no doubt Ghailani was "tortured" in the sense that the CIA did not offer him a foot massage and macrobiotic luncheon.
The always-thoughtful Conor Friedersdorf made the following comment, which I think merits a new post:
It's unclear to me why you've misleadingly trivialized the left's objections to torture as if they go claiming it happened anytime a prisoner is less than coddled. The actual methods that are subject to ideological disagreement include, for example, strapping someone to a table, blindfolding them, gagging them, putting a cloth over their face, and pouring water over it so that they become persuaded that they are drowning. Another tactic approved by the Bush Administration: "Walling," or repeatedly ramming someone's head into a wall. . . .Even giving you license to exaggerate, do you think that your characterization is fair?
First, I confess I was being facetious for the sake of a laugh line. I apologize if Conor (or anyone else) took offense.
Second, with respect to Ghailani, specifically. There is no actual evidence that he was tortured. All we have is his allegation that the US tortured him (allegations he made only after he lawyered-up). Holder’s DOJ refused to challenge that assertion and invited the court to assume that Ghailani’s previous statements were all coerced. That’s a little odd for an administration that claims that it wants to shine sunlight on the Bush Administration. Why not have an evidentiary hearing on whether Ghailani’s assertions are credible – and if so, whether they actually make out a claim of “torture” under the law? I suspect that the administration is afraid of a ruling that the Bush administration did *not* torture Ghailani – such a ruling would spoil Obama’s long-running narrative of how he put an end to Bush-era torture. And so, instead, they tied the hands of their front-line prosecutors.
Third, with respect to "torture" more generally. I agree with Conor that some of the practices criticized by the left are at least borderline – reasonable minds could differ. However, the left’s criticisms go way beyond that: consider, eg, Slate's "taxonomy of torture” in which “torture” can include
- “mild, non-injurious contact” (e.g., poking the guy in the chest or a mild slap), or
- making a detainee stand for several hours (“stress position”), or
- telling a detainee “that his side has no hope” (the so-called “futility” torture), or
- (I’m not making this up), “flattering” the detainee in an attempt to get him to make boastful admissions.
Under US law (implementing the UN Convention on Torture), “torture” means an act specifically intended to inflict “severe physical or mental pain” – and in the case of mental pain, the suffering has to be “prolonged.” People may not like that definition, but it’s the US law, and it’s in line with international law. When supposedly serious publications suggest that “flattery” meets the legal standard of torture, that’s what moves me to think that the next allegation of torture will involve a detainee whose cappuccino didn’t have sprinkles on top.
I have long advocated in various forums (even risking my neck on Huffington Post!) that we need to move beyond generic condemnations of torture and start defining what does and doesn’t meet the legal standard. But as long as we have an administration that folds every time somebody merely alleges “torture” we’ll never get that clarity.
- Comment (29)
- · Quote
- · UnfollowFollow (1)
- Pages:
- 1
- 2
- Pages:
- 1
- 2
Comments :
Sep '10
Re: More Thoughts on Ghailani and "Torture"
telling a detainee “that his side has no hope” (the so-called “futility” torture)
If that's torture, then Conservatives have a massive class action pending against the left going back 50 years.
Aug '10
Re: More Thoughts on Ghailani and "Torture"
Your examples of the Slate torture list all apply.
To the Delta house. Or any football locker room, military school, group of more than four guys under the age of 25, and probably sorority houses as well.
Technology has given the terrorists the means to kill thousands in the blink of an eye. And it has given license to indict if you cause someone to cry unnecessarily.
This is insanity of the highest degree. Nick Berg and Danny Pearl must be standing outside the pearly gates screaming at us to get a grip on reality.
It's like the world, or Slate has read the Al Qaeda handbook on how to resist when in captivity and is now trying to codify it in the western world.
The comparison that comes to mind is : if they have knives, then we need to break the blades on ours before the battle. If they have big guns, then we need to get small guns. If they lose five men in a battle and we lose three, we ought to kill three of our own to gain the moral high ground as defined by Slate.
May '10
Re: More Thoughts on Ghailani and "Torture"
Yelling at someone is not torture, nor is flattering them. Do we really want to win this war?
Even Get Smart got the message on torture, What no torture ? See 4'40"
http://www.youtube.com/watch?v=hFg1wyAUzFM
The Craw "Have you ever heard of the Chinese bamboo stalks under the fingernails torture" See 1':58" in the link below
http://www.youtube.com/watch?v=ftgAG3Vnif8
May '10
Re: More Thoughts on Ghailani and "Torture"
My governing principle, Conor (with whom I have sparred here on occasion) notwithstanding, is that any practice that is continuously engaged in by Andy Sipowicz on television is almost assuredly not torture; classless behavior, sure, inadmissible questioning under the 5th Amd, definitely. Not torture, or the term has no meaning whatever. I think John Yoo would agree.
But the tragedy here is that Conor has joined the Left in completely losing all ability to recognize humor and maintain a healthy perspective. He is not a leftist by any means, but in the distinct lack of a funny bone even when considering Serious Matters slides him over that way, unfortunately.
Oct '10
Re: More Thoughts on Ghailani and "Torture"
One of the things that the facility at Gitmo is famous for is having guards wear gloves when handing Korans to detainees.
No matter how hard I try I cannot reconcile that sort of - let's just call it "sensitivity" - with the allegations of torture coming from detainee lawyers. It's absurd.
Jun '10
Re: More Thoughts on Ghailani and "Torture"
One can only imagine the contempt that Al-Qaeda has for that kind of thinking. They take as given that we are godless, profane, greedy, immoral and corrupt, but worst than any of that is weak. Our weakness is not only a provocation, it is an affront to those who feel we are dominating their lands and culture. It was one thing when the left made this kind of noise and Bush/Cheney were the face of American foreign and defense policy but now, with Obama, it must seem that the wusses have prevailed.
May '10
Re: More Thoughts on Ghailani and "Torture"
Adam Freedman:
I have long advocated in various forums (even risking my neck on Huffington Post!) that we need to move beyond generic condemnations of torture and start defining what does and doesn’t meet the legal standard.
Exactly. Even words like "severe" and "prolonged" can be interpreted in a wide variety of ways. A repertoire of specific practices should be approved.
Of course, good luck trying to the Democrats to think beyond the comfy chair.
May '10
Re: More Thoughts on Ghailani and "Torture"
Adam,
I very much appreciate your taking the time to respond.
The Slate feature you point out certainly includes things I don't consider torture -- are they saying everything on that list is torture? -- but popular as Slate is I don't know that it's fair to use it as a stand in for what "the left" thinks on this. Put another way, if the most we were doing to detainees was a mild slap or standing up for three hours, this wouldn't be a political issue. It is because of waterboarding, walling, and other extreme tactics that the left and civil libertarians like me (and General Petraeus, for that matter) have spoken up. In the course of this debate, do some people on my side go too far? Certainly.
My faith in Obama is very small on all matters. I do wonder whether he folded because he thought the court would find torture or the opposite.
Duane,
On this subject, I find Mr. Yoo's views abhorrent. In this clip, he argues that it may be permissible for the president to crush the testicles of a detainees child! Invoking his name is not persuasive to me.
Edited on Nov 19, 2010 at 1:42pmNov '10
Re: More Thoughts on Ghailani and "Torture"
When did Americans become so squeamish about torture? I invite you to rent and watch To Have and Have Not (1944). Near the end of the film, some Vichy types snatch Bogart's elderly partner. To rescue his buddy, Bogart needs information. So he gets the drop on two Vichy goons and explains his intentions:
"You'll both take a beating 'till someone uses that phone. So one of you is gonna take a beating for nothing. I don't care which one it is. I'll start with you..."
Then he proceeds to (viciously) pistol-whip the living snot out of the thugs. The scene is played straight, with no suggestion that Bogart has crossed a moral line. He is simply doing what any red-blooded American guy would do for a pal.
Every rational American (which excludes Liberals, of course) understands the nature and the limits of torture. If the lives of thousands of people depend on you making someone talk, you better be prepared to use some very creative (and gruesome) methods. And saying it is against your principles will not cut it. It is always very easy to sacrifice someone else's life for your principles.
Oct '10
Re: More Thoughts on Ghailani and "Torture"
Without a complete transcript that YouTube clip is a less-than-compelling indictment of Professor Yoo. Given that the poster chose to use such a reactionary title, it's safe to assume that he/she is hardly a neutral observer in the matter - making me wonder what, exactly, has been left out.
Considering the sorts of interrogation tactics used in many other parts of the world, waterboarding and walling (as practiced by the US intelligence community) hardly strikes me as "extreme". Extreme compared to what? I'd much rather be on the receiving end of a CIA interrogation that one conducted by than the GIS in Egypt or Russia's SVR.
Re: More Thoughts on Ghailani and "Torture"
The thought crossed my mind, but the only rationale (that I can think of) to fear such a finding would be because the administration had a desire to benefit from torture-derived evidence in future litigations. But that seems unlikely since the administration's position in Ghailani was: "please go ahead and assume that all allegations of torture are true." Oh well, who knows what Obama/Holder are thinking?
As for Professor Yoo - come on, Conor, let's not draw conclusions based on snippets from YouTube. I'll let John defend himself, but he's a constitutional lawyer who has thought long and hard about this (far more than I have). At what point "interrogation" becomes "torture" is a legal question, and my understanding is that John is addressing that legal boundary, not that he's offering personal opinions about what he finds morally acceptable. But hopefully John will weigh in.
May '10
Re: More Thoughts on Ghailani and "Torture"
Conor, Yoo's argument was obviously made from a legal standpoint, rather than a moral one. He was not condoning the crushing of a child's testicles. He was questioning whether or not the law of the time left such a possibility open. But I hope John is available to clarify for himself.
A key condition in my consideration of interrogations is "lasting harm". Pain is temporary. In most cases, all one can remember ten years down the line is some vague notion that "it hurt like hell." Inflicting pain or wounds that heal completely within days or weeks is not equivalent to actions that cause lasting impairments and recurring pain.
That's not to suggest that temporary pain is inconsiderable or that a high probability of lasting harm makes an interrogation technique unwarranted under all circumstances, but the distinction helps to distinguish between arguments made from just sympathy for fellow human beings and arguments made from hedonistic exaggerations of pain's significance.
In any case, it's ridiculous that legal arguments against interrogation techniques are made in reference to the "cruel and unusual punishment" clause. Such confusion of "punishment" with "interrogation" willfully denies the Founders' care with language.
Sep '10
Re: More Thoughts on Ghailani and "Torture"
Aaron Miller:
In any case, it's ridiculous that legal arguments against interrogation techniques are made in reference to the "cruel and unusual punishment" clause. Such confusion of "punishment" with "interrogation" willfully denies the Founders' care with language. · Nov 19 at 3:12pm
To argue from a legal standpoint myself: If the constitution bans "cruel and unusual punishment", i.e. bans all techniques that are cruel and unusual and thinkable as punishment to be used on people who have been found guilty, it makes no sense to believe that this same constitution would allow for "cruel and unusual interrogation", i.e. allow the techniques it bans for convicted criminals--all 'cruel and unusual' interrogation techniques are also thinkable as punishment--to be used on people who have not even been found guilty of a crime yet.
Edited on Nov 19, 2010 at 4:59pmMay '10
Re: More Thoughts on Ghailani and "Torture"
Adam,
I find myself unable to make any assumptions about Obama's internal thinking on national security. He has so often contradicted himself, criticizing the Bush Administration in the strongest terms, then proceeding to do the same things, or worse (from my perspective) when he took power. His contention that he has the unchecked power to order the extra-judicial assassination of American citizens is the most extreme example.
All,
I acknowledge that John Yoo is giving legal analysis, not his personal opinion about what is desirable. When I say that I find his remarks abhorrent, I am not condemning him as a person, merely the quality of his legal analysis.
Will you grant that there is no circumstance in which the President is legally justified in crushing a child's testicles to coerce testimony from his father? As you may be aware, the Office of Professional Responsibility concluded, after investigating Mr. Yoo's larger body of Bush era work, that he "violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice." David Margolis said ideology "led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power."
Sep '10
Re: More Thoughts on Ghailani and "Torture"
Aaron Miller:
A key condition in my consideration of interrogations is "lasting harm". Pain is temporary. In most cases, all one can remember ten years down the line is some vague notion that "it hurt like hell." Inflicting pain or wounds that heal completely within days or weeks is not equivalent to actions that cause lasting impairments and recurring pain. · Nov 19 at 3:12pm
Going from my point that the constitution also bans cruel and unusual interrogation, it certainly bans all interrogation techniques that cause any form of pain--no matter for how long--since, according to Webster's dictionary (I didn't have a dictionary printed in the founder's era at hand), "cruel" is anything that causes "injury, grief, or pain".
Edited on Nov 19, 2010 at 5:04pmMay '10
Re: More Thoughts on Ghailani and "Torture"
Peter Hintz
Going from my point that the constitution also bans cruel and unusual interrogation, it certainly bans all interrogation techniques that cause any form of pain--no matter for how long--since, according to Webster's dictionary (I didn't have a dictionary printed in the founder's era at hand), "cruel" is anything that causes "injury, grief, or pain".
Prison causes grief and psychological pain of separation. Would you call that cruel?
This is an example of why we should not let Merriam-Webster do our thinking for us. Cruel is not merely causing pain or injury. Is scolding a child cruel merely because the child cries?
All punishment causes grief, but not all punishment is cruel. The Founders' mere inclusion of the phrase "cruel and unusual" in addition to "punishment" acknowledges this obvious truth.
The purpose of punishment is to correct injustice with balance (pain/penalty) and deter future wrongdoing. The purpose of interrogation is to elicit information from an uncooperative source and thereby stop wrongdoings already in progress. That both involve inflicting pain/displeasure as a method does not make them synonymous.
May '10
Re: More Thoughts on Ghailani and "Torture"
Conor Friedersdorf: Duane,
On this subject, I find Mr. Yoo's views abhorrent. In this clip, he argues that it may be permissible for the president to crush the testicles of a detainees child! Invoking his name is not persuasive to me. · Nov 19 at 1:38pm
Edited on Nov 19 at 01:42 pm
I watched that clip, Conor. You are kidding, aren't you? You think I couldn't turn you into scum with selective editing out of context? Even in the tiny, out of context chunk they posted, it was obvious to sentient beings that he was talking a specific point of arcane legal principle, not the morality of a particular type of torture.
Good grief, Conor, you sound more like Andrew Sullivan every day.
Sep '10
Re: More Thoughts on Ghailani and "Torture"
Prison causes grief and psychological pain of separation. Would you call that cruel?
This is an example of why we should not let Merriam-Webster do our thinking for us. Cruel is not merely causing pain or injury.
If we look at the original meaning of the word 'cruel'--especially by the standards of a dictionary published in the founder's era (Johnson's Dictionary) which gives us a good idea of the framer's understanding of language--then yes, it does mean "causing pain" if referring to "things" such as methods. That's not substituting quoting for thinking, it's looking for original intent. Still, I concede that it probably does mean 'extreme levels of pain' in a legal framework because as you rightly point out all punishment causes some degree of pain and the purpose of the 8th amendment is to put caps on what government can do. However, methods like drowning simulations or long-term solitary confinement must be extreme since techniques causing even more mental pain are hardly imaginable.
Sep '10
Re: More Thoughts on Ghailani and "Torture"
My argument above isn't based on the claim that punishment and interrogation are to be viewed synonymously. It is based on the assumption that the founders thought of 'cruel' as meaning 'causing extreme pain' and not 'unjust' or 'not relative to' (although cruel punishments can of course be that, too): By banning 'cruel' methods the founders do not mean to ban unjust punishment, they ban methods of punishment that cause extreme pain. Apparently they believed that those methods were inherently wrong, otherwise they would not have put a ban on them and simply banned unjust punishment. To think that this principle only applies to the explicitly mentioned 'punishment' disregards the nature of the same principle.
Edited on Nov 21, 2010 at 4:02amMay '10
Re: More Thoughts on Ghailani and "Torture"
Duane Oyen
I watched that clip, Conor. You are kidding, aren't you? You think I couldn't turn you into scum with selective editing out of context? Even in the tiny, out of context chunk they posted, it was obvious to sentient beings that he was talking a specific point of arcane legal principle, not the morality of a particular type of torture.
Good grief, Conor, you sound more like Andrew Sullivan every day. · Nov 20 at 1:05pm
Duane,
I'd have linked to a longer bit of audio if I could find it in accessible form. But I don't see what's wrong with that clip, because it doesn't take Professor Yoo out of context. He actually does think that there are circumstances when it is permissible for the President of the United States to order the crushing of a child's testicles. Again, I assume he doesn't think such a thing would be desirable. Even so, I find it alarming that someone thinks POTUS has that much power. What couldn't a president order by that standard?
Am I missing something? What do you think the context is?