Posted by Wordsmith on 7 February, 2016 at 9:59 am. 70 comments already!

5

In last night’s GOP debate, the question of waterboarding came up. Why? it is so 2006, 2009, 2014. The last of 3 HVTs who were ever waterboarded by the CIA happened in 2003.

LA Times:

For many, waterboarding became a divisive symbol of America’s war on terror in the George W. Bush administration.

Critics called it torture and said it didn’t produce actionable intelligence. Supporters called it a legitimate interrogation tool, and insisted it helped.

The issue, even among Republicans, is not yet settled.

Trump not only endorsed waterboarding, but added, “I would bring back a hell of a lot worse than waterboarding.”

Texas Sen. Ted Cruz tried to stake out some middle ground. “I would not bring it back in any sort of widespread use,” he said, leaving open the definition of “widespread.”

Bush — in the awkward spot of addressing one of his brother’s most controversial policies — asserted that it was “used sparingly” in the past, but added that he would not resume using it.

Jeb(!) is right. Only 3 HVTs were ever given CIA swimming lessons: Zubaydah, al-Nashiri, and KSM. And there’s a good reason why he would say he would not resume its use: Because the issue is moot. When Ted Cruz states he “would not bring it back in any sort of widespread use,” it perpetuates a commonly held misperception that the practice was used on more than just 3 HVTs; and in use by our military (Rumsfeld specifically rejected it as an EIT when military officials came to him requesting alternate techniques, whereas Bush signed on to it while rejecting an EIT that was even more severe).

As I wrote before:

Waterboarding was discontinued in 2006 as a CIA EIT practice under Bush’s watch (and the last time an HVT received waterboarding treatment was in 2003) as its effectiveness was compromised when its usage as a technique to interrogate HVTs became common knowledge (applied to only 3 HVTs). President Obama’s 2009 EO signed upon his first day in office banning all EITs was basically redundant on the torture issue, since President Bush essentially said much the same in his 2007 EO.

 

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What made waterboarding- and all the EITs in the CIA program- effective as tools against HVTs who were trained to resist standard interrogation practices, was in the not knowing. In the secrecy. Because of all the media attention and President Obama’s decision to release the OLC “torture” memos describing the techniques, the Houdini psychological power of these techniques have been all but effectively nullified.

The CIA program should probably be revived; but now that the magic tricks have been revealed to its al Qaeda audience, demystifying the EITs, HVTs know that what they have to train against is the smoke and mirrors of simulated torture, and not real torture. So what techniques would a revived CIA interrogation program that goes beyond the Army Field Manual have to entail? Whatever they come up with, we the general public should not be privy to.

Which is why Rubio gave the best response. Put everything on the table and don’t broadcast to our enemies how far we will and won’t go in fighting Islamic terrorists. Waterboarding might be off the books; but don’t say it. Keep ’em guessing. (Note: Ben Carson had expressed a similar point last year). I suppose one can claim his response is scripted, as he gave this one back in June after the Senate finally put torture up for a vote to ban waterboarding (meaningless redundancy):

I do not support telegraphing to the enemy what interrogation techniques we will or won’t use.” He added that he doesn’t want to deny “future commanders in chief and intelligence officials important tools for protecting the American people and the U.S. homeland.”

The reason why EITs came about was because a number of HVDs had received resistance training to well-known, standard techniques. These techniques can easily be found online. That’s why military and CIA officials sought approval for alternate techniques. Of the 119 HVDs enrolled in the CIA RDI program(s), only 33 or 39 of them ever received any form of EIT whatsoever. More traditional interrogation methods worked on the others.

And since President Obama in 2009 revealed descriptive details of the 13 Justice Department-approved EITs, he effectively killed much of their psychological power.

On this issue that Americans don’t seem to really care much about, Rubio might be the most versed (I disagree with PolitiFact’s conclusion), having read Marc Thiessen’s Courting Disaster as well as signed on to the Minority Views report as a counterweight to the Feinstein Report released in December of 2014. All other candidates (aside from maybe Bush) appear to have only arrived at their opinions based upon superficial knowledge of specific details of the CIA program and EITs; and on the distorted media narrative.

HuffPo takes Cruz to task on his denial that waterboarding arises to the definition of “torture”:

Cruz incorrectly claimed that waterboarding doesn’t meet the “generally recognized” definition of torture:

Q. Senator Cruz, is waterboarding torture?

Cruz: Well, under the definition of torture, no, it’s not. Under the law, torture is excruciating pain that is equivalent to losing organs and systems, so under the definition of torture, it is not. It is enhanced interrogation, it is vigorous interrogation, but it does not meet the generally recognized definition of torture.

Actually, the definition cited by Cruz is far from being “generally recognized” or accepted.

For example, the United Nations Convention Against Torture states: “[T]he 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 … 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.”

I would agree on the “generally recognized” challenge to Senator Cruz. But that knife cuts both ways and I do not think HuffPo’s desired definition makes for a consensus definition, either. This is not to say that I am not entirely unwilling to concede that waterboarding can be described as “torture”. Incidentally, the very act of incarceration can amount to a definition of torture that causes “mental pain and suffering”.

A problem of the UN Convention Against Torture definition is that the CIA interrogators did not apply EITs for the sake of “intentionally inflicting” physical or mental “severe pain and suffering”; nor did they use EITs to obtain “information or a confession”. That’s not how EITs worked. No questions were asked during the application of EITs that were not already known to interrogators. They weren’t seeking actionable intell. They sought to induce a state of cooperation.

As Marc Thiessen outlines in Courting Disaster, pg 164,

Attorney General Eric Holder was asked to explain why waterboarding American troops during military training was not illegal. His answer? Holder said, “It’s not torture in the legal sense because you’re not doing it with the intention of harming these people physically or mentally”

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The agency’s interrogators had no more intent to cause “severe mental and physical pain or suffering” to the detainees in their control than SERE trainers had the intent to cause this harm to our troops. Both went to great pains to ensure that no harm came to those undergoing the techniques. So by the Attorney General’s own rationale, waterboarding as conducted by the CIA did not meet the legal definition of torture.

According to Victoria Toensing, the former Chief Counsel to the Senate Intelligence Committee, under U.S. law, “torture means ‘severe physical or mental pain or suffering,’ which in turn means ‘prolonged mental harm,’ which must be caused by any of four specific acts: 1) intentional or threatened infliction of ‘severe physical pain or suffering’; 2) giving or threatening to give ‘mind altering’ drugs; 3) threatening ‘imminent death’; or 4) threatening to carry out any one of the three prohibitions on another person.”

In addition, Toensing says, to violate the law, the individual carrying out the acts must “specifically intend” to commit torture. It is not enough to know “severe physical or mental pain or suffering” could result from the acts; the individual committing them must specifically intend to impose such suffering in order to be guilty of torture.

This reading of the law has been upheld by the courts, and accepted by the Holder Justice Department. In 2008, the United States Court of Appeals for the Third Circuit ruled 10 to 3 in the case Pierre v. Attorney General of the United States, that an individual could be deported to Haiti even if government officials knew that he may be subjected to excruciating pain in a Haitian jail. The Court found that, “Mere knowledge that a result is substantially certain to follow from one’s actions is not sufficient to form the specific intent to torture. Knowledge that pain and suffering will be the certain outcome of conduct may be sufficient for a finding of general intent but it is not enough for a finding of specific intent“.

And in 2009, the Holder Justice Department cited the Pierre case in fighting a claimb y John Demjanjuk, a Nazi collaborator, that his extradition to Germany would violate U.S. and international torture law. While his claim was clearly frivolous (Germany was not going to torture him), the Holder Justice Department chose to argue that even if Demjanjuk were in fact subjected to severe pain in German custody, there could be no torture unless he could establish that American officials had the specific intent to inflict that severe pain and suffering on him. This is exactly what the Bush Justice Department argued when it came to interrogation of captured terrorists: A government official cannot be guilty of torture unless his specific intent is to cause severe pain.

THE fact is, none of the techniques used by the CIA meet the standard of torture in U.S. law. This is for two reasons: first, because the CIA’s interrogators did not specifically intend to inflict severe pain and suffering; and second because they did not in fact inflict severe pain and suffering.

Causing Zubaydah, al-Nashiri, or KSM to vomit due to waterboarding may sound bad; but I used to vomit from pushing myself hard in exercise. Is severe physical exercise a form of “torture”? Sure, I suppose that’s one way to look at it. And then, so what?

HuffPo continues:

In fact, as we have written before, a U.S. Military Commission charged three Japanese soldiers with violating the laws and customs of war during World War II for committing torture, including “water treatment.” The Japanese soldiers were accused of forcing water into the mouths and noses of U.S. prisoners. All three were convicted.

This is an oft cited red herring.

As signatories of Geneva, our uniformed soldiers absolutely deserved GC protections as afforded POWs. Read the description of the “water treatment” that the Japanese soldiers performed. It is not the same thing as the SERE-inspired waterboarding used by CIA interrogators. The Japanese soldiers were also convicted on more than simply their brand of “water treatment”.

Everyone deserves basic humane treatment as outlined in the GC; but terrorists do not earn POW status. They do not fit the requirements, as unlawful enemy combatants who hide out amongst civilians. To give terrorists such protections endangers civilians and removes the incentive for lawful combatants. Douglas Feith absolutely believes the Bush administration upheld the spirit of the GCs:

 

Douglas Feith, called the Geneva Conventions “a high-water mark of civilization”. He absolutely supports it, even as he denies its provisions to be extended to non-uniformed combatants who endanger civilians by blending in, and being indistinguishable from civilians, putting innocent lives at risk. To grant them the same legal rights as prisoners of war, grants terrorism legitimacy.

From Douglas Feith’s War and Decision, pg 163,

It would be “highly dangerous if countries make application of Convention hinge on subjective or moral judgments as to the quality or decency of the enemy’s government”- and it would be dangerous, therefore, to claim that the Convention does not apply because the Taliban are “the illegitimate government of a ‘failed state.’ ” Countries typically view their enemies as gangs of criminals. If officials had to certify an enemy as a “legitimate government” to apply the Convention, few countries would ever do so.

“I contended that a “pro-Convention” position, on the other hand, would reinforce U.S. moral arguments in the war on terrorism:

  • The essence of the Convention is the distinction between soldiers and civilians (i.e., between combatants and noncombatants).
  • Terrorists are reprehensible precisely because they negate that distinction, by purposefully targeting civilians.
  • The Convention aims to protect civilians by requiring soldiers to wear uniforms and otherwise distinguish themselves from civilians.
  • The Convention creates an incentive system for good behavior. The key incentive is that soldiers who play by the rules get POW status if they are captured.

From Douglas Feith’s War and Decision, pg 38:

The Convention gave maximum protection to noncombatants- innocent bystanders- and gave the next level of protection to fighters who obey the laws of war. The least protection was given to fighters who did not obey the rules. In this regard, as in many others, the Geneva Conventions were humane and sensible: The Conventions’ drafters in the late 1940s had their priorities right. The Convention created an incentive system to encourage respect for the laws of war and especially to safeguard innocent bystanders. Civilians are endangered when fighters wear civilian clothes, for example, because that makes the fighters indistinguishable from bystanders. So the Conventions provided that captured fighters were entitled to the privileged status of “prisoners of war” only if they met certain conditions, including wearing uniforms and carrying their arms openly. The national liberation groups, whose fighters did not obey those laws, protested that the Geneva Conventions should be amended to entitle their fighters to POW status even if they concealed their status as fighters.

Human rights activists demonstrate waterboarding on a volunteer in Washington DC in 2007 [EPA].  If it was real torture, think anyone would actually 'volunteer'? class=Photo caption:

Human rights activists demonstrate waterboarding on a volunteer in Washington DC in 2007 [EPA].

If it was real torture, think anyone would actually “volunteer”?

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