Reality, Hypocrisy & Politicizing Policy Differences

A fine piece of legal research out of Yale Law School answers the questions, how have the laws of torture been interpreted by prior administrations and what interrogation techniques have they viewed as lawful under those interpretations? And in an act far transcending "mere hypocrisy," the Justice Dept. will refer two of the drafters of the Bybee memo to their state bar associations for consideration of discipline up to and including the loss of their right to practice law. Yet even as they do this, the Justice Dept. is arguing in a seperate case that a court adopt the central legal theory espoused by the writers of the 2002 memo. It would be hard to imagine an act of greater hypocrisy.
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Compliments of Powerline, we now are able to access an impressive piece of legal research on the history of our interpretation of the law of torture and the history of our post-WWII interrogation programs. From Powerline:

The Yale Law Journal Note on interrogation law and policy by William Ranney Levi has received considerable attention, plus requests for the link. I understand that the Note has not been published yet, but it can be downloaded from this link. Click on "download." If that doesn't work, click on "SSRN" on the next screen you see.

I would strongly recommend taking a look at this document. It is rather lengthy. Ultimately, the well documented conclusions of the author are that: a) the law of torture sets an unclear line that is subject to a range of possible interpretations, though history shows that in times of need, all prior administrations have taken an expansive view of what was allowable under the law; and 2) the enhanced interrogation techniques used by the Bush Administration do not amount to any significant change from prior types of interrogation techniques deemed legal by past post-WWII administrations.

Indeed, to the extent that we see any break with traditional interpretations of what was deemed allowable under the law, it has come from President Obama and the extreme limits he has now placed on interrogation of terrorists. Powerline has more, here and here.

According to reports released yesterday, the Justice Department's Office of Professional Responsibility is now recommending that two of the authors of the Bybee Memo - Justice Bybee and John Yoo - be referred to their state bar associations for possible discipline. There will be no direct criminal prosecution of any of the OLC lawyers, but this end result still amounts to the criminalization of policy differences. Both Yoo and Bybee are still in danger of losing their livelihoods, it's just that Obama has now kicked the responsibility for doing so to the states. (Apparently Obama does hold some belief in federalism - who knew?) This is not over by any means. And there is still the issue of the Obama Justice Dept. vowing to cooperate with a Spanish Court in that court's criminal investigation of these individuals.

All that said, what takes this to a whole new level is that the Obama Justice Dept. is currently arguing before a court that one of the central legal theories articulated in the Bybee Memo should be adopted as controlling law. This from Powerline:

Meanwhile, far from actually believing that the most notorious "torture memo," written by Jay Bybee and John Yoo in 2002, was a criminal act, the Obama Justice Department has just filed a brief in the Sixth Circuit Court of Appeals in which is adopts and endorses the Bybee/Yoo thesis. Andy McCarthy has the details. Of course, it shouldn't be surprising that DOJ has adopted the Bybee/Yoo analysis as correct, since the same approach was endorsed by the Third Circuit Court of Appeals in Pierre v. Attorney General, on a 10-3 vote. So the "criminal" policy of the Bush Justice Department is also the law as elucidated by the Third Circuit, en banc, and the policy of the current Department of Justice.

What we're witnessing here goes far beyond mere hypocrisy. In three months, Barack Obama and Eric Holder have succeeded in politicizing DOJ and bending it to their partisan ends, to the point of threatening their predecessors with baseless criminal prosecution as a form of political harassment.

Read the entire post. We are well on our way to banana republic status. If Obama has been able to do this much mischief to our nation in the first 100 days, imagine what might be in store in the next 1350 or so?

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Torture, Persecution and Morality

Obama today opened the door for political show trials of those individuals in the Office of Legal Counsel who, when requested by the CIA, rendered a legal opinion that certain proposed methods of interrogation did not constitute torture and were legal under U.S. law and treaties. This is purely and simply the criminalization of political disagreement, far more reminiscent of Stalinist Russia than any period in U.S. history. It highlights the moral cowardice of the left masquerading as moral superiority. It further displays the left's utter disregard for freedom of speech and their intolerance of dissent.
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The left, and Obama in particular, have made a huge show of claiming that the coercive interrogation of al Qaeda prisoners to obtain intelligence - not confessions, mind you, but intelligence to protect thousands of innocents against these psychopaths - was immoral and illegal. According to Obama at his speech to the CIA yesterday, the interrogation methods used by the CIA on at least two suspects, Khalid Sheik Mohammed and Abu Zabaydah, were in violation of the letter of the law and the spirit of American "values" - a term he did not define. And according to Obama today, the door is now open for the prosecution of those attorneys who wrote legal opinions finding that the enhance interrogation techniques were lawful. You can find the legal opinions here.

Let's take the moral issue first since this turns morality on its head. Put yourself in the shoes of the President - the person charged with the defense of our nation. Now, let's assume for a moment the following are true:

1. We have captured Prisoner X, a high ranking member of al Qaeda.

2. Prisoner X undoubtedly has knowledge of plans or people who are planning to kill innocent Americans and who will, if given the opportunity, do so on a massive scale.

3. The information Prisoner X possesses has a reasonably high likelihood of allowing the U.S. to thwart those plans.

4. Prisoner X has not provided any intelligence in response to normal methods of interrogation.

5. Prisoner X may well respond to repeated applications of coercive techniques that cause short term pain of moderate intensity, panic and emotional distress, but which a) causes no long term damage; and b) are sufficiently safe that they are used on our own military in training.

6. If you refuse to push the limits of the interrogation beyond the norm into a this moderately gray area based on your conscience, then you are, in all probability, condemning many innocent Americans to die.

Assuming all of the above are true, which is the truly moral position to take in this case?

Is drawing a bright line at the use of coercive techniques truly the most moral option? Many innocent people whom you are sworn to protect will die if you choose not go beyond normal interrogation tactics. On the other side of the balance sheet, do so and you get to go to sleep feeling morally superior. Plus you maintain popularity with the chattering classes of the far left, here and in Europe.

My question is, then, if you choose the bright line and refuse to engage in coercive interrogation, isn't that really just narcissism and utopianism masquerading as morality? Is it in fact a position of supreme moral cowardice?

Please note that every condition I have described above actually applied to Abu Zabaydah and Khalid Sheikh Mohammed. Numerous CIA officials and, most recently, Dick Cheney have credited the use of those coercive techniques with saving numerous innocent lives. Indeed, there is this today from CNS News:

The Central Intelligence Agency told CNSNews.com today that it stands by the assertion made in a May 30, 2005 Justice Department memo that the use of “enhanced techniques” of interrogation on al Qaeda leader Khalid Sheik Mohammed (KSM) -- including the use of waterboarding -- caused KSM to reveal information that allowed the U.S. government to thwart a planned attack on Los Angeles.

Before he was waterboarded, when KSM was asked about planned attacks on the United States, he ominously told his CIA interrogators, “Soon, you will know.”

According to the previously classified May 30, 2005 Justice Department memo that was released by President Barack Obama last week, the thwarted attack -- which KSM called the “Second Wave”-- planned “ ‘to use East Asian operatives to crash a hijacked airliner into’ a building in Los Angeles.”

So where do you think the moral choice lies?

Having addressed the moral issue, let's take a look at the legal one's as expressed in the recent Justice Dept. memo's released by Obama. For those on the left clamoring to destroy the right by using the police powers of our nation - and to whom Obama today gave a green light - the legal opinions rendered by John Yoo, and others are beyond any question criminal. To listen to these people is to believe that there is no room for honest difference of opinion.

Putting aside the conclusory labels of the far left for a moment, and before delving into the legalese, let's apply some common sense to arrive at a working definition of "torture." Its much harder than it seems as you move away from techniques that are obviously torture.

Let's start with the obvious ones. The al Qaeda field manual for torture, liberated by U.S. troops in an April 2007 raid on an al Qaeda safe house / torture chamber, provides some examples along with helpful illustrations. Here are the first two of those illustrations.



Here is a photo of the back of one man found in the al Qaeda safe house who had been subject to a few of these methods:



I'd say that's evidence of actual torture.

There are many more methods of interrogation / punishment in the book - electrocution, breaking of limbs, beating with sticks, flogging, plucking out of eyes, burning with a blow torch or hot iron, etc. I think we can all agree that those fall under any one's definition of "torture." What makes them so?

One, all of the techniques described above are meant to cause extremes of pain. Further, each will result in serious and long lasting injury, with equally long lasting pain and suffering. Lastly, many run a real risk of being fatal to the victim.

If we take away all of those conditions, is it still possible to call something torture?

If I cause you pain by giving you a paper cut, am I torturing you? Clearly I am acting to cause you pain, but if that is not "torture," then where does torture start?

If I keep you awake beyond your bedtime when your tired, would you define that as torture? Clearly I am causing suffering, but at what point does such suffering become tantamount to "torture."

Real people's lives hang on your answers - so do be intellectually honest. Where would you draw the line? What precise conditions would you set to define the line at which permissible coercive interrogation ends and torture begins? That is the vexing question.

The actual law at issue is no more precise in establishing a bright line than the common sense analysis we just went through, though it does track with that analysis. Chapter 18, Section 2340(1) of the United States Code defines torture as:

. . . an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering . . . upon another person within his custody of physical control.

I must admit, I had a real belly laugh reading both the hard left and some of their apologists on this issue who paint the answers to the above question as crystal clear and beyond the scope of any legitimate debate. For example, this from, surprisingly, Rick Moran at Rightwing Nuthouse:

As the Bybee memo proves beyond any reasonable doubt, the Administration was seeking a legal fig leaf in order to skirt that law as well as international treaties of which we are a signatory that clearly defines torture.

This is conclusory - and completely ridiculous. I defy Rick or anyone else on the frothing left to come up with the actual precedent showing this "clear" definition of torture. More so, I defy them to show how this clear precedent - which they all seem able to identify with ease on the left - applies to bring waterboarding or, for that matter, any other technique as described in the memos under the legal definition of "torture."

The bottom line, the detailed legal analysis in those memos appears to me to present sound legal arguments. Like all arguments, by very definition it can also be argued the other way. But, based on those memos, the claim that Yoo and the others at OLC provided deliberately false or fatuous arguments - or, for that matter, that they reasoned backwards to justify a conclusion rather than forward to arrive at one - can only be made by people who are utterly biased at the start - ie., the entire far left - or who have wholly put aside their analytical skills on this one.

For example, to recap for those on another planet for the past few years, waterboarding involves strapping a person down on a board inclined slightly beyond 90 degrees, placing a cloth or piece of plastic over the persons nose and mouth, then pouring water on it. It gives the sensation of drowning, though there is no physical danger and no water actually enters the nose or mouth. It is sufficiently benign that it has been done thousands of times on our own soldiers as part of certain specialized training. Mostly, waterboarding induces a momentary panic that lasts for twenty to forty seconds at a time. So the question then is whether that is inflicting "severe physical or mental pain or suffering." Here is a snippet of some of the reasoning on this found in the Bybee Memo:

Section 1340 defines torture as the inf1iction of severe physical or mental pain or suffering. We will consider physical pain and mental pain seperately. See 18 U.S.C. § 2340(1). With respect to physical pain, we previously concluded that "severe pain" within the meaning of Section 2340 is pain that is difficult for the individual to endure and is of such intensity akin to the pain accompanying serious physical injury, See Section 2340A Memorandum at 6. Drawing upon the TVPA {Terror Victims Prevention Act} precedent, we have noted that examples of acts inflicting severe pain that typify torture are, among other things, severe beatings with weapons such as clubs, and the burning of prisoners. See id at 24. We conclude below that none of the proposed techniques inflicts such pain.
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As we understand it, when the waterboard is used, the subject's body responds as the
subject were drowning even though the subject may be well aware that he is in fact not drowning. You have inrormed us that this procedure does not inflict actual physical harm. Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain. As we explained in the Section 2340A Memorandum, "pain and suffering" as used in Section 2340 is best understood as a single concept, not distinct concepts of "pain" as distinguished from "suffering." See Section 2340A Memorandum at 6 n.3. The waterboard, which inflicts no pain or actual harm whatsoever, does
not, in our view inflict "severe pain or suffering." Even if one were to parse the statute more finely to attempt to treat "suffering" as a distinct concept, the waterboard could not be said to inflict severe suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to "suffering."

Feel free to pick this apart - so long as you do so without simply stating unsupported conclusions.

At any rate, what the released memos show, in excruciating detail, was a very thorough legal analysis of the language of the statute and existing precedents ending in a not unreasonable conclusion that the proposed actions of the CIA, as set forth in detail, did not fall within the legal definition of torture. It is a colorable argument. So how can it possibly be criminal?

The bottom line - it can't be. And if the far left goes ahead with Obama's blessing and, for the first time in America of which I am aware, criminalizes political differences, then this really will be the start of a civil war.

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