11 November 2010

It's legal because we say so

Former President Bush is making the rounds on television promoting his new book. In an interview, he defended his view that waterboarding is legal because his lawyers told him that it is. (The quote is at about 0:30.)

This argument is a form of legal positivism which basically says that something is legal or illegal because the law says (or doesn't say) that it is. It ignores any kind of moral connection with the law and whether or not the law is "just". It also implies that juries do not have the power to judge the law as well as the case being tried, something that the founding fathers explicitly envisioned that our system of justice would contain. This argument, in my opinion, is dangerous. It supposes that the government is right because it says that it is right. The idea is anathema to the very basis of the U.S. Constitution.

In spite of the legal "go-ahead" Bush received, though, torture is still a legally tenuous undertaking. The memo authorizing torture written by John Yoo and Jay Bybee was declared legally defective by Bybee's successor, Jack Goldsmith, in 2003. When Goldsmith was forced from office by the administration in late 2004, his successor re-declared torture to be legal. After Bush left office, the Department of Justice again declared 18 USC 2340-2340A to be in effect and torture to be illegal. Note that during the entire Bush administration, that portion of the code was in full force. Bush simply had legal opinions stating that what he was doing was not torture. I think any honest person has to admit that waterboarding plainly falls within the definition(s) of torture contained within 2340. It's telling that only the Bush administration has attempted to get around those sections in U.S. law and even then, it could not agree completely on the legality of doing so. It's also worth noting that the Supreme Court, in Hamdan v. Rumsfeld, ruled that enemy combatants were subject to the protections of the Geneva Conventions. It would appear that the legality of torture is not tenuous after all; it's plainly illegal.

Here are some things that I think should be considered by anyone defending the use of torture: Is torture effective? If it is, why isn't it used more often or domestically? Does torture put more people in danger (via the creation of new enemies) than it protects? If so, isn't torture bad economic policy as well since it further drains resources (via the military efforts in furthering the "war on terror") that could be used for more productive means?

Finally, I'm willing to accept the possibility that one can find the use of torture morally justified in the perceived protection of others. If torture is moral and right, however, why won't those engaging in its use stand up and declare that what they did was right and allow themselves to be judged by those in whose names they supposedly acted?


  1. I'm an expert on snakes. I didn't go to school or study herpetology or anything like that, but I am an expert. Because I say I am.

  2. TSA can sue you for $1000 to $3000 for "entering sterile area without submitting to screening."

    However, the United States Supreme Court has not ruled that way regarding the Fourth Amendment.

    The US Supreme Court has stated

    "Where public safety is not genuinely in jeopardy, the Fourth Amendment precludes the suspicionless search, no matter how conveniently arranged." (Chandler v. Miller, 520 US 305).

    A prospective airline passenger has a choice: he may submit to a search of his person and immediate possessions as a condition to boarding; or he may turn around and leave. A party may revoke his consent to be searched any time prior to boarding the plane, even when he has passed beyond the initial screening point, if he agrees to leave the boarding area. US v. Charles Phillip (1976) 546 F.2d 1350. This is from the second circuit. The third circuit just said you cannot leave once you enter.

    Therefore, its not uniform nationwide. Another Supreme Court case will decide this.

  3. Kind of like, "the unconstitutional obamacare law is legal because we say it is", right?

  4. "enemy combatants" was a term invented by the Bush administration to get around provisions in law concerning "prisoners of war", so please be careful about using the term.

  5. If water boarding is torture then why have certain branches of the military not been investigated for water boarding our own troops. Have you seen some of the SEAL and Ranger training requirements?

  6. Dear Anonymous 8:59 am:

    If waterboarding is NOT torture, then why has the United States Government put on trial and executed people who waterboarded our troops. In fact, the USA has long recognized waterboarding as torture.

    All of Bush's lies and defective lawyers he hired won't change that history. All civilized nations of the world recognize waterboarding as torture.

    Your argument is a red herring; a diversion. John asks above "is torture effective" and the answer is "no, it is not." A person will say anything under the sun to stop torture. They will implicate their own family. They will make up things like plans to blow up shopping malls - which one captured terrorist actually did.

    Seals and Rangers know that they are in the hands of their friends, that this is a training exercise, and that the exercise will soon be over. My cousin is a Seal and worked his way up to Captain in the Navy, so I know exactly what I'm talking about here. Torture is as much about the psychological component as it is about physical pain. Waterboarding does cause enormous physical distress, pain and panic.

    So, Bush's decision to use torture, including waterboarding overturned decades of US legal definitions and practice. And it did nothing to make us safer, even though Bush and Cheney falsely claim that intelligence was gathered by this means. In fact, other investigations - by the CIA and the Justice Department and the military - have found that zero useful intelligence was gathered via torture.

  7. Calling Bush a liar is getting old. Bush states his lawyers counseled him on the legality of waterboarding. It's not an "argument" it's what transpired.
    Had his lawyers counseled the illegality of waterboarding, thousands of lives would have been lost, but alas, you would still hate Bush and argue how he murdered thousands by not waterboarding KSM.

  8. "If torture is moral and right, however, why won't those engaging in its use stand up and declare that what they did was right and allow themselves to be judged by those in whose names they supposedly acted?"

    As soon as Obama signs off on the release all of unredacted documents which show what KSM revealed to CIA interrogators post 911

  9. What we call "waterboarding" isn't what the Empire of Japan called "waterboarding".

    Japan's waterboarding *was* torture, what /we/ did to a grand total of 3 people was a psychological trick to get them to talk; no permanent damage was done whatsoever.

    That said, this is proof that we are too soft to win in a war with islamic wacko-goons. Personally, if even one American life were at stake, I'd torture these guys -- I'd cut off their fingers, ears, tongue, etc. I'd use electricity, truth drugs, whatever, pump them for information, and them take them out to the middle of the Caribbean and toss 'em in as shark food.

  10. Mark in Seattle is wacked in the head and deserves what he says he'll do.

  11. I see a number of issues here. To start with, if we are going to throw morality into jurisprudence, then it should be used to restrict the law, not expand it. And then one might argue that the immediate necessity of saving lives would override the law. But how can you convict someone of violatig a law that does not exist?

    Now just because something is legal doesn't make it right. But that is a completely different issue.

  12. It is great to live in a word of theory where nothing hurts you.

  13. If you are put on trial by an ass clown or Democrat..truth never comes into play

  14. Our military under George Bush and earlier Presidents did not torture. The waterboarding they did on three people was how we train our military. No amount of retelling the same damn lies make them so. Our military commander-in-chief now has no respect for the military and neither did the Clintons. Lies are not true regardless of how many times you tell them and how much media you own.

  15. torture covers a broad spectrum of acts which vary greatly in degree and intensity. the water boarding, which is another act that has a range of methods and techniques which can alter severity et al, on KSM and two others, was done in a justified and effective manner, not in a vengeful or merciless way. the specific method used must be kept in context and scale

  16. You bring up an interesting concept here... that just because something is legal, does not make it moral or ethical. This couldn't be more accurate than with abortion. We continue to kill innocent babies because we can... because it's legal. Who stands up for their torture? You're worried about terrorist who wouldn't think twice about lobbing off your oblivious head... but babies subjected to partial birth abortion just days and weeks before their due date are having scissors jammed into their skulls while their brains are sucked out and then they are pulled out dead. But hey, it's LEGAL! Let’s all go about our lives worried about those poor little terrorist who are getting water thrown in their faces!

  17. Quoting David P Redmond:

    "the water boarding, which is another act that has a range of methods and techniques which can alter severity et al, on KSM and two others, was done in a justified and effective manner, not in a vengeful or merciless way."

    What bollocks! They destroyed him. He was waterboarded innumerable times. I say "innumerable" because so many different sources, including the CIA, are reporting different numbers.

    But you're clearly someone who thinks torture is okay as long as "our" side does it. After all, we're the "good guys." Keep watching TV shows like 24 to get your information.

    Oh, and SERE training is abuse, plain and simple.

  18. Cogitamus SERE training is abuse, the same type of abuse these individuals WILL encounter should they be captured behind enemy lines. Noone knows how someone will react when tortured until it happens. The training of our Special Ops must be as realistic as possible to weed out those who cannot handle what lies ahead. Our military is completely voluntary, don't like then don't join up.
    The world is a harsh place once you leave the USA. There are many people who praise the birth of their child only because they see it as a vehicle of suicide to bring death to infidels.
    We can send thousands of politicians to their homelands appologizing for "American Ignorance" as the current administration does. That won't change anything, they still want to kill us all just because we are Amercian Infidels. Nothing more nothing less.

    If you wish to believe there are not THOUSANDS of sleepers already in this country with more sneaking across our borders every day, you are living in a dream.

    To take someone who does not believe in basic human rights as WE know them, and is willing to go to any length to kills us, how then do you get secret information out them?
    Tea and crumpets maybe?

    If the European Jewish community had gone to the Nazi Party and appologized and asked to be left alone would the mass murders and torture stopped?
    If the educated few had approached Stalin and promised not to share knowledge would he not have hunted them?

    The world is not a perfect place and to preserve your right to live in a bubble we must occassionally do things that some call distasteful.

  19. It is sad that when we buy ticket, we pay for TSA payroll and in return, we get groped! So we are paying to get groped!

    It would be interesting if someone undress completely to show TSA sagging balls they want to see!

  20. cogitamus,

    they destroyed the person who continued his nephews planes as missiles plot? a person largely responsible for my family, friends and neighbors witnessing mass death and fleeing for safety, or losing loved ones and coworkers? having to comb through rubble for fragments of human remains and personal items to return to thousands of shattered families? to risk life and limb to rescue people from the rubble? well forgive me for not shedding any tears or losing sleep over it, or thinking the scale was quite appropriate, even 183 times, whatever "one time" counts as. I do not condone wanton torture, but the limits used on KSM on two others was quite justified to me, and I would have personally assisted in it to defend my family, friends, and neighbors. of course it would be a terrible policy to use broadly

  21. Shameful.

    No need to read the book. His poor arguement completely dissuades me.


  22. I was frankly surprised when no "emergency" appeared mysteriously to require the suspension of elections in 2008. Living in an other nation, looking in at what that administration was up to and the way the US media was reporting it felt uncomfortably like living in Belgium in 1938-- I will not call Bush "Hitler", but I will certainly recall the numerous points of agreement between the way the Nazi regime was conducting itself and the way of that impulse of Republicans.

    On the training/torture debate-- if what was done to the Army chaps was training to help them resist torture by "simulating" it, is not the only difference between it and torture the fact that the recipient knows he's amongst friends and it will end without injury? If the recipient knows he's not amongst friends and isn't at all assured that they're just foolin', how is that NOT torture?

  23. If one million US Citizens lives were at risk due to a nuclear bomb in the port of new york city. And you had the terrorist responsible in custody, and you KNEW he knew what shipping container it was in, and it was set to explode in 24 hours, Torture would definately be acceptable. It's not the case of IF, but WHEN. We need to keep the identities of these torture men to protect national security. I strongly urge you watch a move came out this past year called "Unthinkable" with Samuel Jackson, and you'll have a different perspective on torture.


  24. Point #1: an act doesn't have to leave any physical evidence to be torture- it's the psychological results of the act that make it torture. That being said, waterboarding is unquestionably a form of torture- by declaration of both domestic and international legal bodies.

    Point #2: the general consensus of every legitimate and objective investigation into matters of torture conclude that any information gathered through the use of torture is unreliable at best, and therefore inadmissible in any court of law. Since the information can't be trusted, it makes no sense to use the information from torture... ever. The only thing gained from torture in any case is a personal sense of power on the part of the torturer, the person directing the torturer, or someone who feels a need to inflict harm on another person.

    Point #3: moral and ethical are two elements of the foundation of law. While it may seem that these elements may have little to do with the practice or the results of the law, these two elements are in large part the spirit of the law. It is generally the immoral and/or unethical who seek every loophole and debate on the letter of the law. I believe that Mr. Bush's request that the lawyers find him a loophole or legal framework that allowed him to authorize a variety of torture practices shows us his questionable grasp of morals and ethics.

    For those who suggest that there is a time and place for torture: if that bomb in the New York Harbor is set to go off within 24 hours, the person you're wanting to torture has every reason to lead you on a wild goose chase. The idea that the torture victim would offer you any useful information to find or disarm the bomb is the stuff of fantasy. This victim knows that he/she is going to die either way. There will be no leniency. There will be no bargain. Which way is likely to meet his/her ends? Which way brings more attention to the cause? Which torture is worse: the torture in the moment, or the torture of time wasted and a life given to the control of people who hate you? Get real people. Torture only shows how frustrated you are with your given situation, and your willingness to ignore morality in an effort to be violent toward others.

  25. "Those who are too lazy and comfortable to think for themselves and be their own judges obey the laws. Others sense their own laws within them."
    --Hermann Hesse

  26. A. There's another layer there, too. I agree with you that a move from legal positivism is much scarier than a move from natural law... but what can we say about an argument from "it's legal because the law says it's legal" which is *wrong about the law*? The Yoo memo wasn't just bad, it was bad and stupid. It tried to create a definition of 'torture' by porting in language from an insurance law defining a 'medical emergency.'

    B. I read a case from the European Court on Human Rights where they actually discovered a real live Ticking Bomb scenario: the perp had kidnapped a kid and left the kid wounded and dying in the snow; the kid had maybe hours to live and so the police smacked the guy around and got a confession out of him, along with the kid's location. The Court said (I'm paraphrasing), "The cop might well have done the right thing. But what part of 'torture is illegal' did you not understand?" The cop was found guilty of torture. Where does America get off saying we're the true original moral absolutists?

    C. Kevin... agh! So, what, since 'they' don't believe in basic human rights, the only good response is to forget that we do (or claim to)?

  27. Shrub is mistaken on a fundamental point of law. It is illegal to torture a convicted felon because of the constitutional prohibition of "cruel and unusual punishments." When the person being tortured hasn't even been tried, then the torture is a crime, period. Everyone from the torturer to the president, the entire chain of command, is culpable. That includes the members of the Obama administration who declined to prosecute anyone for this crime, who are now accessories after the fact.

  28. John, put a change can on your site. There are people who wish to contribute to your valiant effort against the statist parasites.

  29. I am an honest person, John, and I completely disagree that waterboarding "plainly falls within the definition(s) of torture contained within 2340." I'd say the opposite is true, that any honest person would admit that the definition of torture in both 2340 and the UN Convention Against Torture does not necessarily describe waterboarding, because both those laws are limited by the use of the qualifier "severe".
    Waterboarding does not cause severe pain.
    Does Waterboarding cause "severe" mental suffering? If all we had was the UN CAT then that would be impossible to quantify, if would depend entirely on the terrorist telling you how upset he is, and distinguishing how much of that results from his condition as a POW for life, and how much from just the waterboarding. This is because the UN CAT leaves this definition of "severe" mental suffering vague and subjective. Fortunately 2340 clarifies and limits the definition to prolonged mental harm resulting from these actions and these actons alone:
    a)infliction or threatened infliction of severe physical pain (I'm gonna pull your fingernails out if you don't talk) - Not waterboarding, it doesn't cause severe physical pain.
    b)application of mind-altering substances (Dosing with LSD or whatnever) - Not waterboarding, the person is lucid throughout.
    c)threat of imminent death (I'm gonna kill you if you don't talk) - Not Waterboarding since the detainee knows or ought to that the US is not permitted to let him expire and would not allow a high intel value terrorist to expire, also after being waterboarded once the terrorist knows that it isn't going to kill him. Nobody has died in years of waterboarding at SERE school.
    d) Threatening the loved ones of the detainee with the above - Not applicable to waterboarding debate.
    So since waterboarding, though it might cause great discomfort, does not cause severe physical pain, and it does not meet any of the criteria of severe mental suffering outlined in 2340 section 2 a-d, then no reasonable person can claim that waterboarding clearly meets the definition of torture in 2340 and the UN CAT.

  30. Andrew,
    you are either contradicting yourself intentionally, or you are making seriously faulty assumptions:
    "c)threat of imminent death (I'm gonna kill you if you don't talk) - Not Waterboarding since the detainee knows or ought to that the US is not permitted to let him expire and would not allow a high intel value terrorist to expire..."

    What interrogator worth his salt is going to let a _suspected_ terrorist think they are not going to drown? The whole point of this kind of interrogation is to make the victim think they are about to die. If they didn't believe they were in imminent danger, or that their life was being threatened, why would they provide any information? Assuming they get to this point, what is the real incentive to provide the actual information, rather than a plausible story that furthers their own agenda?

    Just because a form of waterboarding is used as a training tool for our own elite troops, doesn't mean it's not torture. It just means we torture our own troops to train them in how to deal with it if they are captured and tortured at some future point. If the troops are surrounded by their peers, and they are coached to believe that they will not drown, then those providing the training are not providing an authentic experience.

    Waterboarding is torture. You might check with the U.S. Supreme Court, if you disagree.


  31. Germany had Hitler we got F*!@N Bush.

  32. Security? Mr. Bush really is a funny guy. That is probably the funniest joke I've heard all year. If you want to talk about security look at the past. In the 9/11 attack were there not two international students that came into the U.S. through the Canadian boarder? That is what we all heard from news reports and such, well then, why is it that the US no longer requires a US visa for F1 international students to enter the U.S. like they do from other countries? Canada and Japan are the only two that don't require it, let's require a visa from all countries. The US did away with US visa's for Canadians a couple of years ago. Why is entry getting more loose at our neighboring boarder to the north instead of more strict since that was the port of entry that was used by the "terrorists" on 9/11. This is all getting out of proportion and our government is not focusing on the facts. I didn't see military up in the air that horrible day of 9/11, did you?

  33. instead of on tv
    shouldn't that man
    be hung from a tree?

  34. Andrew said:

    "...the detainee knows or ought to that the US is not permitted to let him expire and would not allow a high intel value terrorist to expire, also after being waterboarded once the terrorist knows that it isn't going to kill him. Nobody has died in years of waterboarding at SERE school."

    Spoken like someone who has never been on the receiving end of an interrogation...

    Having served as a USAF aircrewmember, I received military training in techniques to resist interrogation in the event I was shot down over enemy territory. As part of that training, my instructors used a variety of interrogation techniques which included inflicting moderate forms of physical discomfort and pain -- all aimed, of course, at intensifying the mental distress you are intended to experience. Intellectually you know it is a training exercise; you know the people interrogating you are actually instructors; you know the point of the game is to experience an attenuated level of the fear, anger and despair one would experience should one actually be captured, and that it is for a finite time frame. From that experience, however, I can tell you that knowing all of that is not a reliable source of intellectual comfort in the event.

    Now extrapolate that to the person who knows the people waterboarding him are NOT on the same team. He has already been abducted and detained, without due process, then whisked away to a place in which his interrogators may use interrogation techniques that would positively be considered illegal if used on US soil on a US citizen. Why should he believe the people who are now drowning him to unconciousness have any but the absolute worst of intentions?

    Even for a person -- deprived of sleep, certainly not in the best physical shape having been locked in a small room, perhaps even mildly malnourished -- who has somehow retained the mental acuity to fully understand the situation he is in convince himself his interrogators view him as too valuable to murder, there is the ever-present fear of the very real possibility someone could make a mistake.

    I submit the entire purpose of waterboarding is to induce the idea that one's death is imminent. I further submit any definition (or interpretation of a definition) of "torture" that does not include the viewpoints of those who have experienced it lacks compassion and credibility.


Please be relevant, civil, and brief... in that order.