Hysterics On The John Yoo Memo

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Much teeth mashing and hyperbole is coming forth from the left on the declassified memo written by John Yoo today. The memo was written to give some advice to the administration and the Pentagon about the use of interrogation techniques in interrogating al-Qaeda and other enemies. Here is the always hysterical Glenn Greenwald:

The fact that John Yoo is a Professor of Law at Berkeley and is treated as a respectable, serious expert by our media institutions, reflects the complete destruction over the last eight years of whatever moral authority the United States possessed. Comporting with long-held stereotypes of two-bit tyrannies, we’re now a country that literally exempts our highest political officials from the rule of law, and have decided that there should be no consequences when they commit serious felonies.

John Yoo’s Memorandum, as intended, directly led to — caused — a whole series of war crimes at both Guantanamo and in Iraq.

Complete and utter BS. There have not been any war crimes committed in either Gitmo nor Iraq. When a conviction on war crimes actually does come along someone please give the memo to Glenn since it appears he is clueless in this regard. Oh, and what serious felonies please? Because some al-Qaeda members were forced to stand a long time, or had loud music played into their cells, or missed some beddy-bye time, does NOT mean these were “serious felonies.” Glenn calls them that, I call them pretty minor forms of interrogation techniques. The three that were waterboarded were the worst of the worst and their interrogations led to information that contributed to saving lives in this country. Pretty damn good use of the technique if I said so myself, especially since Congress never deemed it as torture.

Here is the WaPo’s hyperbole:

The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president’s ultimate authority as commander in chief overrode such statutes.

The 81-page memo, which was declassified and released publicly yesterday, argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.” …

Nine months after it was issued, Justice Department officials told the Defense Department to stop relying on it. But its reasoning provided the legal foundation for the Defense Department’s use of aggressive interrogation practices at a crucial time, as captives poured into military jails from Afghanistan and U.S. forces prepared to invade Iraq.

Sent to the Pentagon’s general counsel on March 14, 2003, by John C. Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president’s inherent wartime powers.

Another BS report. The use of these interrogation techniques was told to Congress a year before this memo and not one of them….NOT ONE….objected:

In September 2002, four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.

Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.

snip.jpg

Yet long before “waterboarding” entered the public discourse, the CIA gave key legislative overseers about 30 private briefings, some of which included descriptions of that technique and other harsh interrogation methods, according to interviews with multiple U.S. officials with firsthand knowledge.

Additionally, this memo was only advice given to the administration and the Pentagon. He held no office to authorize the techniques and as already been shown, Congress was aware these techniques were being used and they had no problem whatsoever with it, even wanting tougher ones to be used. Here is Ed Morrissey’s take on it:

Also, to be accurate, Yoo didn’t suggest that laws and treaties don’t apply to the President. What he gave was an interpretation as to how they apply, and he made a clear point about the limits of Congress to intrude on the executive branch in its exercise of duties as Commander in Chief. Yoo argued that the laws relating to the US certainly applied to the executive related to its domestic duties — ie, the President could not torture civilians on US soil as part of a criminal investigation because of the laws passed by Congress.

However, Yoo notes that the CinC would still be bound by CAT and the Constitution in interrogating alien combatants held abroad. The reliance on standards held in the Fifth, Eighth, and Fourteenth Amendments show that Yoo did not envision “nearly unfettered presidential power”, but power bounded by treaties and the Constitution. The question then falls to what these standards mean, and whether they exclude such techniques as waterboarding, stress positions, and the like.

The left can rail all they want, the fact of the matter is that offering a cup of coffee and saying pretty please will not get any information from the worst of the worst.  No one is advocating the pulling of fingernails but when our countries security is at stake our intelligence agents need the tools to extract that information.

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Oh yes the left is so concerned about maintaining our moral authority that heaven forbid they should spend any time worrying about the atrocities our enemy commits. If they think they’ve got problems with W they’d have burst an aneurysm over Lincoln and FDR.

What they really want is for us to publish our interrogation techniques so that the enemy will be prepared for them and be able to resist them. That I guess would make them happy.

John McCain has also stated that his position is anti-torture. Our strongest weapon against our enemies has always been our moral authority; we have always been the good guys. The next President will close Gitmo, and more will come out on what really happened there.
As for the dubious comparisons with Lincoln and Roosevelt let’s try and remember how much BOTH were vilified by social conservatives while they were in office.
The “gang of four” who are/were briefed on what the CIA does is of course sworn to secrecy. Had they been told that peoples eyes were being pulled out they by law could not have mentioned it even to their fellow lawmakers.
The treaties that the USA has signed, pledging its solemn word, seem to have been broken at will by highly placed individuals who believe themselves to be above our law.

John,

You can live that fantasy as you choose. Congress, the INRC, and other groups have been all through that prison. Congress has conducted several investigations and still maintains overwatch. If they were so “morally outraged” the leftists in congress would have leaked the information as they have many times in the past. No treaties were broken as the GC specifically states these prisoners are not legal combatants and not POWs. This “torture” you speak of was never a first, second, third, or in a vast majority of cases, last resort. And if these camps were soooo bad, why did we release prisoners by the hundreds every year (only to have them go right back to attacking us and Iraq/Afghan civilians)?

As usual though, the left will say “conservatives love to torture” when in fact, as Curt noted, we want nothing of it, but “pretty please” and “we need to play nice” only results in civilians being slaughtered by these barbarians. Honestly, I would rather take no prisoners if there is no ability to gather intell. Before you make a snide, ignorant remark, I do not mean shoot them if they surrender, I mean hit them with standoff weapons and not give them the chance to even realize they are under attack before these islamofascists are killed like the cockroaches they are.

Re: “As usual though, the left will say “conservatives love to torture” when in fact, as Curt noted, we want nothing of it, but “pretty please” and “we need to play nice” only results in civilians being slaughtered by these barbarians. ”

I don’t recall that torturing prisoners in Abu Graibe produced peace and prosperity in Iraq whenit was practiced in 2003 and 2004. But the same crowd that believes “24” is real life (the person behind the show is a fried of Rush Limbaugh, after all), do love to talk about torture and what a great idea it is.

al Qaeda is recruiting new members throughout the Islamic world with posters from Abu Graibe. And the Right wants to give them more.

D=S,

In ‘fairness’ to our leftists who post/troll here and complain about being ‘victimized’ by us *evil conservatives ™*, thank you for your comments, however, please refrain from vulgarity as much as possible.

Thank You and please keep posting!

Re: “Thank You and please keep posting!”

Does that apply to my posts that have been “awaiting moderation” for days?

The Thunder Run has linked to this post in the – Web Reconnaissance for 04/03/2008 A short recon of what’s out there that might draw your attention, updated throughout the day…so check back often.

Our strongest weapon against our enemies has always been our moral authority; we have always been the good guys. The next President will close Gitmo, and more will come out on what really happened there.

While “our moral authority” rates up there, I would submit that one of these in the hands of a U.S. Marine proves to be a more formidable weapon against our enemies. But this is in a real world that Mr. Ryan refuses to acknowledge while he hopes that atrocities develope at Gitmo. They are called “enemy-combatants” for a reason John——-they were picked up in the field of battle ARMED and in no uniform while attempting to KILL our forces. While this tactic does not fit the ‘bed of roses” our dear friends on the left would prefer in a time of war, there are simply few other alternatives.

Of course, while closing Gitmo and releasing the “worst of the worst” to kill more American servicemen would certainly appease John’s vision of “moral authority”, there are still many in the field of battle that would prefer not to face the same enemy again.

Hey Floppies: love the graphs on this site!

Re: Chris at #3

“You can live that fantasy as you choose”.

Great shot Chris! And with your head is buried so deep in your ass-front property on Fantasy Island you’re spitting up sand from both ends – STILL you are able to summons up the moronic witlessness of Balldreg Black Adders personal snot rag to smackdown John Ryan. Balls! Dregs of balls!

“Congress, the INRC, and other groups have been all through that prison.”

Oh, and I adore the manli-manlike AUTHORITY you boldly assert no matter you know jack squat about it. Take that yon villainous Ryan!

“Congress has conducted several investigations and still maintains overwatch.”

Oh…oh lord… that one floored me for at least 10 minutes; had to catch my breath. Where to start? Well, where NOT to? How ‘bout we leave at this: our system of checks & balances requires that Congressional oversight be meaningful, which in turn requires subpoena power & the ability to enforce truthful testimony – like in the good old days of say Watergate & Iran-Contra & Billgotablowjob – which in turn presumes & requires adherence to the Rule of Law. But …surely you remember this Chris: Bush has this dipshit shyster moronic hero worshipping lawyer for a buddy & quite understandably assumed from the fact that his buddy could breath & smile at the same time one lawyers as good as another so figured he’d just appoint as AG a credulous bible thumper who couldn’t beat a corpse in an election, then when Thumper finally figured out that Bush & Cheney had set him up to take the fall for a great whacking pile of their crimes & actually said “No” on his neardeath bed, Bush installed his beercoaster as the next AG & – well you know the rest. Anyway its like if the Commander in Chief were Tony Soprano & Pussy or Patsy won’t him to level with him – Tony is not so inclined shall we say.

“…overwatch”.

Could you mean ‘oversight’ possibly? It was in Civics Class. Same problem as above, Chris.

[Incidentally, I may have unintentionally slandered you by assuming you are “male”, what with the testosterone OD edge to your responses. If so, I am very sorry madame & don’t let the Bushies know what you are or Ms. Goodling will be paying you a visit.]

“they were so “morally outraged” the leftists in congress would have leaked the information as they have many times in the past”.

Exxxxx-cellent point; and I imagine they indded leaked as much as they knew – which was pretty much sweet Fanny Adam’s apple zip given they had no other source to give a responsible reporter & those like Novak who don’t even need even one whole source already were on permanent retainer with your idiots.

“No treaties were broken as the GC specifically states these prisoners are not legal combatants and not POWs.”

Ah…actually I think you missed the bulletin on that one. Could I suggest you go over to Vanity Fair Online & read the Phillipe Sands piece “The Green Light”? Kinda shows up all your heroes as being cowardly backstabbing set up con artists & flim flam men but once you get past that you’ll find a pretty plain review of the applicable international law on what the “GC” as you put it so summarily actually says & how it has been interpreted –without exception – by real judges – in real courts – not by footstools & guys who got their degrees off the labels of YooHoo bottles.

“This “torture” you speak of was never a first, second, third, or in a vast majority of cases, last resort.”
Oh – padon moi – it hadn’t occurred to me that you had personal knowledge Chris…tin…a? Of course if so that would mean something illegal WAS IN FACT DONE by you – as a participant or accomplice – & thus you would have – – a motive to fabricate… do you follow me so far?

But do gone on…tell us ALL about what you saw & did & heard …We especially want to know about how that innocent cab driver who is dying squeals like a porker every time you do that thing you do.

“And if these camps were soooo bad, why did we release prisoners by the hundreds every year (only to have them go right back to attacking us and Iraq/Afghan civilians)?”

Jeez, I must of missed those “by the hundreds every year” releases – could you provide a link to the government website? And the “go right back to attacking us” too please. Thanks oodles Chris…tin…a?

“As usual though, the left will say “conservatives love to torture” when in fact, as Curt noted, we want nothing of it, but “pretty please” and “we need to play nice” only results in civilians being slaughtered by these barbarians.”

Oh you are SO right – the “left” is so thoughtless & cru-el in such matters.

“barbarians”. Hmmm. From the Barbary Coast? Nope. Berbers? Well no they are all in or near the Sahara on the top of Africa. Do you have another word for who you mean to indicate?

Geez, I hope its more specific than “muslims” because there are about 2 billion of those & about half live in the Middle East so that’s not much to go on. Al Qaeda? Do you mean AQ HQ, cuz that’s in Pushtan country – home of the original Kut Throats & their vaunted sneak attacks on – well each other mostly – and Rumsfeld & Gates & McCain have all indicated they are against going there out of concern for the fragile ecosystem or something.

Islamofascists? You know I’ve real trouble figuring out who that might be besides al Qaeda & AQ HQ you may know is down to 3 goats a complimentary bottle opener from Holiday Inn & a digital camcorder

Ooo-ooo I know: Iraqis! Those people are just such savages aren’t they! Lets invade their nation and mess it all up, shall we Chris…tin…a?

“Honestly, I would rather take no prisoners if there is no ability to gather intell.”

Well I must say its refreshing to read someone finally put it the way that Col Beaver put it: that the Bush Cheney administration wanted to torture as a Viagra substitute.

“Before you make a snide, ignorant remark” –

perish the very idea of the notion of the thought!

“I do not mean shoot them if they surrender, I mean hit them with standoff weapons and not give them the chance to even realize they are under attack before these islamofascists are killed like the cockroaches they are.”

How to finish strong & brave

Chris…tin…a?

Rovin at 6.

Oh MY …that’s quite the package you linked to …& I aDORE the cute motto:

“You can with an Ultimax! You can also engage targets while doing it!
Just think what you can do with both hands!”

Just THINK!!!

Is that why you call yourself “Rovin”?

Gosh …what could it possibly be you are calling your “moral authority”?

Do tell!

Bert Stocker,

Congradulations on being moronic, asinine, and a general waste. No, I am not involved in interrogations. I deal at the front end of the military.

I suggest you read the Geneva Conventions and the US Law of Land Warfare. If you want, I can link… again.. to the sections defining who has what rights.

“Overwatch” is a US military term which in this useage means about the same as ‘oversight’. Obviously that went over you. I am sorry I used a term you never had experience with.

As stated also to conservative posters on another thread: Your profanity and attacks will not be tolerated.

We will tolerate leftist idiocy and spoon fed lies to a point. You crossed that point with your stupidity.

As for numbers on how many released from GITMO, I suggest you read a few news articles as many have listed releases from these facilities. Amazing though that the left is all fired up about these barbarians (the Berbers were slaughtered by jihadists in case you did not know BTW), but not even a peep about how the Haditha Marines were mistreated.

There have not been any war crimes committed in either Gitmo nor Iraq.

How do we know this? (Hint: Hearing the Executive Branch say “trust us” is not sufficient.)

My yardstick is simple. From a White House announcement, 7 May 03:

I have an announcement to make. Today President Bush affirms our enduring commitment to the important principles of the Geneva Convention. Consistent with American values and the principles of the Geneva Convention, the United States has treated and will continue to treat all Taliban and al Qaeda detainees in Guantanamo Bay humanely and consistent with the principles of the Geneva Convention.

Our President said that all Taliban/al-Qaeda detainees would be treated “humanely and consistent with the principles of the Geneva Convention.” Furthermore, we are a signatory to the Convention Against Torture, whose key provision reads:

1. For the purposes of this Convention, the term “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.

This is fairly inescapable. Quibbling over what consitutes “severe pain or suffering, either physical or mental,” gets us nowhere. The President of the United States set the bar with “treated…humanely and consistent with the principles of the Geneva Conventions.” Note the he spoke to the principles–the SPIRIT–of those Conventions, not the specific ‘letter of the law.’

As far as Yoo’s memo/brief is concerned, I think it’s important to note that his own superiors in the Justice Department apparently overruled it less than a year after its issuance, when they told the Defense Department to “stop relying on it.” If that’s accurate, wasn’t Yoo’s thinking effectively denounced/rescinded/whatever by that action by his DoJ superiors?

Oh, and something you didn’t quote from the WaPo article you linked above:

In his 2007 book, “The Terror Presidency,” Jack Goldsmith, who took over the Office of Legal Counsel after Yoo departed, writes that the two memos “stood out” for “the unusual lack of care and sobriety in their legal analysis.”

So, Yoo’s successor–chosen by the Administration, yes?–basically calls Yoo’s two memos really sloppy pieces of legal analysis. What does that tell us?

Legal vs Illegal (Unlawfull) combatants are defined by both the Geneva Conventions and expanded upon in the US law of Land Warfare (FM 27-10).

From http://www.icrc.org/ihl.nsf/FULL/375?OpenDocument

Legal combatants defined:

Art 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

Since many of the terrorists we captured are paid by AQ, Iran, or others to fight, they can be defined as mercenaries. This is why the US and other Western nations have proposed making mercenary style units part of regular forces (with all the rules and regulations).

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

Article 47 — Mercenaries
1. A mercenary shall not have the right to be a combatant or a prisoner of war.

2. A mercenary is any person who:

(a) is specially recruited locally or abroad in order to fight in an armed conflict;

(b) does, in fact, take a direct part in the hostilities;

(c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;

(d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

(e) is not a member of the armed forces of a Party to the conflict; and

(f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

Now from the FM 27-10 US Law of Land Warfare (which I as a Soldier follow):

Chapter 3, Section 2

73. Persons Committing Hostile
Acts Not Entitled To Be Treated
as Prisoners of War
If a person is determined by a competent tribunal, acting in conformity with Article 5, GPW (par. 71), not to fall within any of the categories listed in Article 4, GPW (par. 61), he is not entitled to be treated as a prisoner of war. He is, however, a “protected person” within the meaning of Article 4, GC (par. 247). (See paras. 247 and 248, concerning the status of such
“protected persons” who have engaged in conduct hostile to the opposing belligerent.)

74. Necessity of Uniform
Members of the armed forces of a party to the conflict and members of militias or volunteer corps forming part of such armed forces lose their right to be treated as prisoners of war whenever they deliberately conceal their status in order to pass behind the military lines of the enemy for the purpose of gathering military information or for the purpose of waging war by destruction of life or property. Putting on civilian clothes or the uniform of the enemy are examples of concealment of the status of a member of the armed forces.

75. Spies
a Treaty Provision.
A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavors to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.
Thus, soldiers not wearing a disguise who have penetrated into the zone of operations of the hostile army, for the purpose of obtaining information, are not considered spies. Similarly, the following are not considered spies: Soldiers and civilians, carrying out their mission openly, intrusted with the delivery of despatches intended either for their own army or for the enemy’s army. To this class belong likewise persons sent in balloons for the purpose of carrying dispatches and, generally, of maintaining
communications between the different parts of an army or a territory. (HR, art. 29.)

b. American Statutory Definition. The first paragraph of the foregoing Hague Regulation has been in effect somewhat modified, as far as American practice is concerned, by the subsequently enacted Article 106 of the Uniform Code of Military Justice (64 Stat. 138; 50 U.S.C. 700), as follows:
Art. 106. Spies.—Any person who in time of war is found lurking as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or jurisdiction of any of the armed forces of the United States, or in or about any shipyard, any manufacturing or industrial plant, or any other place or institution engaged in work in aid of the prosecution of the war by the United States, or elsewhere, shall be tried by a general court- martial or by a military commission and on conviction shall be punished by death.

c. Article 106 Governs. Insofar as Article 29, HR, and Article 106, Uniform Code of Military Justice, are not in conflict with each other, they will be construed and applied together. Otherwise Article 106 governs American practice.

79. Aiding the Enemy
a. American Statutory Definition.
Any person who—
(1) aids or attempts to aid, the enemy with arms, ammunition, supplies, money, or other thing; or
(2) without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct. (UCMJ, Art 104; 64 Stat. 138; 50 U.S.C. 698.)

b. Interpretation. In time of war, the rule of the above article is general in its application to all persons whether or not otherwise subject to military law and without regard to citizenship or military or civil status, who give aid to an enemy government or persons adhering to it. It may be that this statute, should it be subjected to judicial interpretation, would be held to authorize the trial of civilians by military tribunals only when the offense had been committed in territory under martial law or military government, or within the zone of military operations, or within areas invaded by the United States, or within or in the vicinity of a military installation, or in a place otherwise subject to military jurisdiction. Cases occurring in the United States outside military jurisdiction are triable by the civil courts under the espionage laws mentioned above (par. 76) and laws relating to treason (18 U.S.C. (chap. 115)).

And now to the crux of the issue.

80. Individuals Not of Armed Forces Who Engage in Hostilities
Persons, such as guerrillas and partisans, who take up arms and commit hostile acts without having complied with the conditions pre-scribed by the laws of war for recognition as belligerents (see GPW, art. 4; par. 61 herein), are, when captured by the injured party, not entitled to be treated as prisoners of war and may be tried and sentenced to execution or imprisonment.

81. Individuals Not of Armed Forces Who Commit Hostile Acts
Persons who, without having complied with the conditions pre-scribed by the laws of war for recognition as belligerents (see GPW, art. 4; par. 61 herein), commit hostile acts about or behind the lines of the enemy are not to be treated as prisoners of war and may be tried and sentenced to execution or imprisonment. Such acts include, but are not limited to, sabotage, destruction of communications facilities, intentional misleading of troops by guides, liberation of prisoners of war, and other acts not falling within Articles 104 and 106 of the Uniform Code of Military Justice and Article 29 of the Hague Regulations.

82. Penalties for the Foregoing
Persons in the foregoing categories who have attempted, committed, or conspired to commit hostile or belligerent acts are subject to the extreme penalty of death because of the danger inherent in their conduct. Lesser penalties may, however, be imposed.

ChrisG, that’s all well and good, but what does that have to do with the question of torture (or, if you prefer, “enhanced interrogation techniques”)? I go back to the President telling us that all Taliban/Al-Qaeda prisoners would be treated “humanely” and the provisions of the Convention Against Torture (which is not, if memory serves, predicated on the Geneva Conventions).

The Constitution (in Article VI) says that treaties made under the authority of the United States become part of the supreme law of the land, alongside the Constitution itself. That’s a fairly high bar over which to leap.

Wes,

Which is why I also included the Laws of Land Warfare.

The issue is what “humanely” constitutes. Are prison walls themselves inhumane? Are strip searches of prisoners inhumane? Is sleep depravation inhumane? Loud (but not physically damaging) music? Yelling at prisoners? Is emptying an AQ bank account in a prisoner’s name, setting him up so that his “allies” will kill him if they ever find him, also inhumaine?

If these actions (considered pathetic by our enemy) are “inhumane” then what SHOULD be allowed? Understand that no matter what the US does, we are always on the losing side of this arguement as standards are applied differently to us than to almost any other nation and group. This is especially true of any enemy we face. Most of these prisoners were found just to be cannon fodder, but too brainwashed to let free. Some who were taken have been released. Numbers of those have returned to AQ and attacked us (and Iraqi/Afghan civilians) again. In fairness, a few woke up as MataHarley pointed out.

I keep hearing “Bush this” and “the US is immoral that” from mainly leftist sources without much in the way of exactly HOW these people should be treated.

And if, as I said before, we cannot interrogate these unlawfull combatants then why risk our Soldier’s lives in taking them? If we cannot hold them and we cannot try them according to the GC and US Codes on spies and mercenaries, then why should I risk my Soldiers’ lives and my own taking these thugs alive? Why should we not order the military to stand-off and engage with PGMs, long range snipers, Excalibur Artillery, or main gun fire from tanks?

ChrisG, that’s all well and good, but what does that have to do with the question of torture (or, if you prefer, “enhanced interrogation techniques”)?

If we’re basing this discussion on Yoo’s memo, the whole point of it is that enhanced interrogation is not “torture” unless it causes “severe physical or mental pain or suffering” (Yoo, p.38). As the most abusive thing in the enhanced interrogation list was waterboarding (and not practiced at Gitmo, so the “humane” bit for prisoners there doesn’t seem to apply), it doesn’t appear to me to rise to that level.

. . . treaties made under the authority of the United States become part of the supreme law of the land, alongside the Constitution itself.

Treaties are essentially equivalent to Federal Statutes, not the Constitution, the Supreme Court has held since 1884.

What constitutes torture?

Would one consider 12 hour interrogations, and bottles provided instead of bathroom breaks torture? How about refusals to provide legal counsel when requested? Quick… call the ACLU. Book press conferences for Pelosi and Reid.

Oh wait… that’s the treatment of the Haditha soldiers. You know, the ones Murtha called cold-blooded murderers? Never mind.

Three out of the four have had the charges dismissed as of this week. Where’s the headlines? Buried deep somewhere behind news blurbs of Obama’s bowling ability. And Murtha? Not a word. I believe the lawsuit against him is still moving thru the process. Hope so.

But where’s the outrage for their treatment from the no torture advocates? Could it be they care not if it’s our boys? Or could it be our warriors have thicker skins, and don’t race for the press and sympathy when given a tough time.

What a world…

Cecil Turner wrote:

Treaties are essentially equivalent to Federal Statutes, not the Constitution, the Supreme Court has held since 1884.

Ummm…I’m not an attorney, but a plain reading of the decision you cited doesn’t make a statement of quite such sweeping provenance. A quick reading of the decision (boy, I wish that SCOTUS decisions were still this brief and to the point!)

A treaty, then, is a law of the land, as an act of Congress is whenever its provisions prescribe a rule by which the rights of the private [p599] citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.

But, even in this aspect of the case, there is nothing in this law which makes it irrepealable or unchangeable. The Constitution gives it no superiority over an act of Congress in this respect, which may be repealed or modified by an act of a later date. Nor is there anything in its essential character, or in the branches of the government by which the treaty is made, which gives it this superior sanctity.

A treaty is made by the President and the Senate. Statutes are made by the President, the Senate, and the House of Representatives. The addition of the latter body to the other two in making a law certainly does not render it less entitled to respect in the matter of its repeal or modification than a treaty made by the other two. If there be any difference in this regard, it would seem to be in favor of an act in which all three of the bodies participate. And such is, in fact, the case in a declaration of war, which must be made by Congress and which, when made, usually suspends or destroys existing treaties between the nations thus at war.

In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal.

As I read this (and I welcome correction from any legal scholars who may be reading), it says that Congress may certainly pass laws to effect the “enforcement, modification or repeal” of treaties into which the United States enters. Note that they do not direct that Congress MUST pass such legislation, but merely that it can do so.

So, then, I guess my next question would be what legislation has been passed that would affect the provisions of the CAT or the Geneva Conventions (particularly the former).

Curt wrote:

No one is advocating the pulling of fingernails but when our countries security is at stake our intelligence agents need the tools to extract that information.

Cecil Turner wrote:

If we’re basing this discussion on Yoo’s memo, the whole point of it is that enhanced interrogation is not “torture” unless it causes “severe physical or mental pain or suffering” (Yoo, p.38). As the most abusive thing in the enhanced interrogation list was waterboarding (and not practiced at Gitmo, so the “humane” bit for prisoners there doesn’t seem to apply), it doesn’t appear to me to rise to that level.

When one says something like this:

In two memos he wrote while a deputy counsel in the Justice Department, Yoo wrote that as long as military interrogators were performing their work outside of the United States, they could legally use a number of unspecified techniques as long as they did not violate his definition of torture, which was “intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result.”

one is setting an incredibly high bar for the definition of “torture.” By that definition–with which I do not agree–waterboarding IS torture, and Curt’s “pulling fingernails” isn’t; for that matter, dog attacks, electrical shocks and sodomy at Abu Ghraib (read the Taguba report) don’t qualify as “torture” under Yoo’s definition.

There’s also a lack of consistency among the US intelligence community. The military folks say, and have said for years, that torture doesn’t get usable information. The CIA seems to be insisting that they need the authority to torture, and that it does result in usable information.

All I’m saying is that we need bright, clear lines to be drawn. Abu Ghraib showed us what happens when such lines either do not exist or are not policed, but we have no evidence–save “trust us”–what lines exist or are policed today.

I don’t think it unreasonable to suggest that this situation is NOT in accordance with “American values.”

Oh I dunno, Wes. Almost drowned, nail’less with dog bites, sodomzied or shocked and stunned – the jihadists do live to behead another day with their limbs intact. Unlike what they do to citizens, journalists and our military POWs. (some degree of sarcasm here…)

Then again, we should be above that. Can’t say as I don’t crave having it done at times tho. Therein lies the benefit to the “jus’ shoot ’em” mentality. Saves alot of hoopla on what we can and can’t do. Then again, there goes any possible intel.

On the other hand, they’re trying to call long interrogation times, loud music and sleep deprivation – torture. Get serious… I called that a long work day when I was in the film sound biz.

Then there’s “embarrassment and demoralization”, like some knickers on the kepi? Come on… I don’t foresee any long term, major emotional trauma resulting. Abu Gharib? Deplorable for them. Then again, the same stuff S&M and porn sites are made of… which I hear are growing in popularity in the Arab nations now they are allowed internet access. Odd no?

I suspect these jihadis are made of more stern stuff than they let on. They’ve learned how to use our judicial system and public sympathy as another of their propaganda weapons to divide and conquer.

It gets to be absurd thinking we’ll get intel by a smile, fresh prayer rugs and a Micky D’s Happy Meal. It’s a tough issue when you play the semantics game. This is okay, this isn’t. I’ve come to the conclusion that whatever they do, fer heavens sake, don’t take pictures.

But my most oft asked question is… how come… when adhering to the Geneva Convention comes up,…it’s only the US who gets called on the carpet? What about Germany, Japan, Korea, N. Vietnam, etal… You don’t find their morality questioned on the world stage. What about the jihad movements? See massive articles on their immorality?

I guess it’s rules that only we must follow. ‘Cus no one else sure does.

Ummm…I’m not an attorney, but a plain reading of the decision you cited doesn’t make a statement of quite such sweeping provenance.

There are several since that make the point–most recently Medellin v. Texas, wherein a treaty obligation required federal legislation to carry it into effect. But I think the first case was also fairly explicit, if one chose the paragraph before yours:

The constitution of the United States places such provisions as these in the same category as other laws of congress by its declaration that ‘this constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land.’ [emphasis added]

On the legislation point, the Military Commissions Act of 2006 clarified enforcement of Geneva common article three (and the War Crimes Act)–and an amendment would’ve outlawed waterboarding, but it was defeated. The Detainee Treatment Act of 2005 restricted interrogators to the US Army Field Manual, which is far more restrictive (as it was designed for POWs). Nothing speaks directly to modify the CAT, as far as I can tell, except to provide more restrictive legislation. But I still think nothing in the interrogation techniques could reasonably be construed as torture. Waterboarding? Hardly. When we do it to our own troops at SERE School, we call it “training.”

My nephew returned from Iraq in October, spent the last half of his duty at abu Gharibe and occasionally worked at another prison, I don’t remember the name of it.

He brought the detainees in to be interrogated and sat in on the interrogations. He said the interrogaters were not allowed to touch the detainees and they are not being abused.

Missy,

When I returned from Iraq last year, I spoke with one of the Soldiers who was a madic charged with treating the detainees. She backs up your nephew’s story. The “detainees” were abusive and violent while there was almost nothing that our Soldiers could do to them aside from defending themselves.

ChrisG,

I read about half of Erik Saar’s “Inside the Wire” before my nephew came back and mentioned the book to him. He was familiar with Saar because of articles he read, we agreed that Saar was quite the little drama prince.

One incident I described to him from the book was how Saar had said they had to duct tape their name tags so the prisoners wouldn’t see their names. My nephew said, “Aunt M, remember the velcro?” I had helped him with his badges one morning when I visited him at Ft. Riley. He said, “we don’t do duct tape, we just pull it off and put it in our pocket.”

Such little things can reveal a lot.

Missy,

I know what you mean. I never read Saar’s book but “cleansing” of the ACUs (removing all tabs, name tapes, patches) is simple and strangly enough, they provided pockets with more then enough room for even a 1st Cav patch to fit in. The medic I talked to stated no issues like that, just a lot of spitting and other antics by the prisoners. She also stated that the prisoners taken by Iraqis and given to US Forces were happy to be in our care.

I was at Riley years ago. Lived on Hubner Rd in the “Flag House” next to Stone Court by the buffalo pens. Nice place, but my poor wife was allergic to everything there.

MataHarley wrote:

On the other hand, they’re trying to call long interrogation times, loud music and sleep deprivation – torture. Get serious…

Oh, I’m with you on this one. My problem is that there is no ongoing oversight, there seem to different rules for military/CIA/civilian-contractors, and we know–in graphic detail–what happens in the absence of bright lines and oversight.

I’ve simply lost confidence–and, more importantly, trust–in the current crop of civilian leaders. We have an NSA director who asserts, repeatedly and in “correct the student” mode, that the words ‘probable cause’ do not appear in the Fourth Amendment, a Director of National Intelligence who says that we simply cannot execute surveillance programs without telecom immunity (when existing case law and precedent clearly provide immunity for LEGAL surveillance requests), an Attorney General who states that the courts can’t deal with classified material (when there is a huge body of work that clearly shows that courts can, and do, deal with classified material on a routine basis), and the like.

I simply can’t take “trust us – we’re doing it right” any longer.

Cecil Turner wrote:

But I still think nothing in the interrogation techniques could reasonably be construed as torture. Waterboarding? Hardly. When we do it to our own troops at SERE School, we call it “training.”

First, thanks for the info and the pointer to the Medillin case; I’ll read up on that when I get the chance.

As far as your point quoted above is concerned, I would tend to think that there’s a pretty big difference between your “training” (when you know that there are boundaries, and that–if nothing else–you can quit and call an end to it) and a real interrogation.

My point is simple – we need clear, bright lines on this question, as well as clear oversight. We may have the former, in the form of the DTA, but we most certainly do not have the latter.

I’ve simply lost confidence–and, more importantly, trust–in the current crop of civilian leaders. We have an NSA director who asserts, repeatedly and in “correct the student” mode, that the words ‘probable cause’ do not appear in the Fourth Amendment . . .

Well, I’d note that the military leadership fouled up Abu Ghraib (specifically, BG Karpinski telling her supervisors to “stay out of the towers” at the holding facility).

On the NSA Director thing, that isn’t what he said. Here’s a typical liberal site bemoaning Hayden’s “ignorance” and adjudicating between the two claims in the interview:

Landay: “the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures.”

Hayden: “The constitutional standard is “reasonable.” …I am convinced that we are lawful because what it is we’re doing is reasonable.”

Of course, Hayden is right and Landay is wrong. A clear reading of the Fourth Amendment should’ve clued in the excitable types:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Nowhere in there is a requirement for probable cause for a search, but only for a warrant. And the idea that a warrant is required for every search is of course incorrect. Pat-down frisks, inspections at border crossings, and searches pursuant to an arrest are common examples of searches that don’t require a warrant . . . because they are reasonable. And the AP, et al, refused to take up the torch on that particular issue because it was demonstrably wrong.

As far as your point quoted above is concerned, I would tend to think that there’s a pretty big difference between your “training” (when you know that there are boundaries, and that–if nothing else–you can quit and call an end to it) and a real interrogation.

You can quit and fail the course . . . just about nobody does. And the physical act is precisely the same . . . so is the difference enough to go from training to torture? I find that a bit hard to feature.

I agree with you, in part.

Greenwald should have said “alleged war crimes”, since there are no convictions.

And no convictions are likely to come, since this administration likes to shield itself behind executive privilege, national security and a plethora of other dubiously legal obstructive tactics.

Worse still, our government has already admitted to using a technique for which Japanese soldiers were hanged following World War II, but has again shielded itself from prosecution. One can reasonably predict that any attempt to hold higher-ups accountable for this would be met with the dual-pronged defense: “we didn’t really mean what we are on record for admitting,” and, “you cannot have access to any probative nor exculpatory evidence due to national security concerns.”

It seems to me that habeas corpus, the rules of evidence and due process only apply to the executive and their agents and surrogates, not to the average citizen or combatant.

This is all good and well, if you are willing to admit that all things being equal, in the end might is right and to hell with the rule of law and the founding principals of this nation.

Being a true patriot means accepting that even the most depraved, guilty, bloodthirsty and vile individuals are allowed their day in court and that if the state cannot prove guilt, they may walk free. It also means that we do not stoop to the level of a Turkish prison or Japanese POW camp in the name of democracy or freedom — democracy and freedom are meaningless in a society which sheds the rule of law in the name of its own security.

“And no convictions are likely to come, since this administration likes to shield itself behind executive privilege, national security and a plethora of other dubiously legal obstructive tactics.”

If you think a democrat administration won’t do the same thing, I’ve got some land I’d like to sell you. . . .

It seems to me that habeas corpus, the rules of evidence and due process only apply to the executive and their agents and surrogates, not to the average citizen or combatant.

Sorry, this is just plain silly. Due process and habeas corpus has never applied to combatants, and the mere suggestion it should is risible. Can you imagine the WWII case where the German Soldier’s mother shows up at a federal court petitioning for release: “Please let Heinrich go, he’s not a real Nazi, his Hitler Youth friends talked him into it”? Of course not. We detain combatants for the duration of the conflict, for our own protection. Because if we don’t, they tend to kill our citizens (usually the ones in uniform).

Similarly, most of the hand-wringing on this subject displays a stunning depth of ignorance on military matters and the law of war. The Geneva Conventions have very strict standards of treatment for enemy prisoners, protecting them from any sorts of abuse or insult, and paying them for their detention. But in order to qualify, the combatants have to be legal (i.e., follow the rules of war). Those that don’t, don’t get the protections of being a combatant. Nor should they. There’s a good reason for this: it incentivizes other belligerents to follow the laws of war (so our own civilian populace doesn’t have to worry about being the target of an attack, and our soldiers don’t have to worry about being tortured, etc.).

Lawful combatants are entitled to strict hands-off treatment:

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.

Unlawful combatants are only protected by the Convention Against Torture (and may be punished for the law of war violations that make their belligerency unlawful). They don’t suddenly get a bunch of due process rights (e.g., habeas corpus, jury trial), just because they decided to flout the laws of war.