tag:blogger.com,1999:blog-14072474.post3151184321618745632..comments2023-11-03T06:36:27.305-04:00Comments on Phronesisaical: A Quick Review of Torture Lawhelmuthttp://www.blogger.com/profile/09069600766378586919noreply@blogger.comBlogger13125tag:blogger.com,1999:blog-14072474.post-22357065055442833342009-05-02T17:00:00.000-04:002009-05-02T17:00:00.000-04:00Russell-
Section 2340A does not apply to locations...Russell-<br />Section 2340A does not apply to locations "within" the US. Section 2441 does.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-14072474.post-86062880292122561602009-05-01T14:59:00.000-04:002009-05-01T14:59:00.000-04:00Could someone who has the legal expertise please d...Could someone who has the legal expertise please define what "Whoever outside the United States..." means in the first line of Title 18 of the United States Code, Part I, Chapter 113C, § 2340A.<br /><br />Seems to me that this excludes torture occurring in the US, and presumably on territories such as military bases and embassies that may be considered part of the US, from being covered by the law.<br /><br />But that interpretation just doesn't make a whole lot of sense, so I assume there's something more going on here I don't understand.Russellhttps://www.blogger.com/profile/14409405491391904845noreply@blogger.comtag:blogger.com,1999:blog-14072474.post-82428471405699287302009-04-29T17:30:00.000-04:002009-04-29T17:30:00.000-04:00Waterboarding being "not torture" is a very recent...Waterboarding being "not torture" is a very recent concept. <br /><br />The inquisition was using Water Torture, which did pretty much the same thing Waterboarding does, for hundreds of years. It was considered one of their most important forms of torture. They called it torture. They improved on it over time. They never stopped calling it torture. They were able to get excellent confessions using it, such as the ones where witches admitting to flying to Sabats on their broomsticks and copulating with the Devil, after bewitching the local cows.<br /><br />So much for progress (except for trying to pretend it's not torture).Valentine Michael Smithhttps://www.blogger.com/profile/13405356278588991460noreply@blogger.comtag:blogger.com,1999:blog-14072474.post-62497371745580106432009-04-29T11:13:00.000-04:002009-04-29T11:13:00.000-04:00Salubrius,
The argument is specious on several co...Salubrius,<br /><br />The argument is specious on several counts. To take one part alone: your and the memo writers' arbitrary assertions about pain and suffering... It is the CIA, in seeking justification for its actions, that deemed that waterboarding and other torture techniques do not cause pain or suffering. That input was relayed to the memo lawyers, who then re-asserted it. If I assert the existence of Great Purple Monkey God as a basic premise of an argument, I can easily prove the existence of Great Purple Monkey God.<br /><br />Yoo's assessment (in the second "Bybee Memo") that suffering doesn't really occur until the point of death has just defined suffering out of existence for all of us living beings. Can that possibly be right?<br /><br />Further, it's curious why one would use a technique that doesn't cause suffering when one is trying to get information from people who will say anything to stop the suffering caused by the technique. Are the torture victims just joshing around? <br /><br />The law in practice is indeed often about technical legal contortionism. But any good legal scholar, judge, and/or lawyer understands that the law must emerge from robust evidence, reasonable premises, and not only logically valid but coherent inferences, not to mention ethically sound bases. <br /><br />In logic, it's possible to construct a valid argument that is entirely false, proceeding from false premises to a false conclusion. Validity is a necessary but not sufficient condition of a strong (or "good") argument. You're speaking solely to validity, and validity in this case is not even clear.<br /><br />Plus, even Bybee now apparently (possibly self-servingly) has regrets....helmuthttps://www.blogger.com/profile/09069600766378586919noreply@blogger.comtag:blogger.com,1999:blog-14072474.post-83232970291732338502009-04-28T19:59:00.000-04:002009-04-28T19:59:00.000-04:00There are two standards for interrogation in the G...There are two standards for interrogation in the Geneva Convention. One standard applies to POWs or prisoners of war. These prisoners have a preferred status in that they may not be coerced to provide information other than their name, rank and serial number. The other standard applies to those who do not qualify as POWs. These are also referred to as unlawful enemy combatants. The Supreme Court in 1942 referred to this classification of lawful and unlawful combatants. <br />The unlawful enemy combatants may be coereced to provide information so long as the coercion does not amount to torture. Torture is defined as severe pain or anything that would result in lasting physical or mental injury. Water boarding is terrifying but does not impart excruciating or severe pain which is the definition of torture, nor does it go beyond the other limits which is to result in lasting physical or mental damage. <br />Therefore 1. It is quite reasonable to find that water boarding is not "torture". 2. Previous cases finding Japanese water boarding Allied POWs to be criminal are not precedents, because as POWs they are lawful combatants and may not be coerced for information once they have provided their name, rank and serial number. Any coercion by the Japanese of Allied POWs would be a war crime,, even a slap on the face. There are also cases in which civilian prisoners were water boarded by the police to obtain confessions. This was found to be criminal. It was not because the water boarding was found to be torture, but because persons accused of crimes are protected by the Fifth Amendment to the Constitution form being compelled to incriminate themselves. <br /><br />That being the case, there are no prevous holding in case law, and the opinions of the government lawyers appear to me to be eminently reasonable.salubriushttps://www.blogger.com/profile/05214916614827171380noreply@blogger.comtag:blogger.com,1999:blog-14072474.post-32563694404483171882009-04-28T15:04:00.000-04:002009-04-28T15:04:00.000-04:00Here's one way to get around the problem that ...Here's one way to get around the problem that torturing people is wrong. The following is headline & first Paragrpah of a news article:<br /><br /><B>Court Of Appeals Rules Detainees Are Not “Persons” in Guantánamo Torture Suit<br /><br />Court Agrees with Obama Administration that Detainees Still Have No Constitutional Right Not to Be Tortured</B>April 24, 2009 Washington, D.C. – In a suit brought by British men imprisoned for two years at Guantanamo, the D.C. Circuit Court of Appeals today reaffirmed its previous ruling that Guantanamo detainees lack the fundamental constitutional right not to be tortured and are not “persons” under a U.S. statute protecting religious freedom. …<br /><br />More here:<br /><br />http://rawstory.com/news/2008/Appeals_court_rules_Gitmo_detainees_are_0424.htmlValentine Michael Smithhttps://www.blogger.com/profile/13405356278588991460noreply@blogger.comtag:blogger.com,1999:blog-14072474.post-15419161540652205932009-04-27T15:25:00.000-04:002009-04-27T15:25:00.000-04:00Wow, Angus. You've read a lot more into this parti...Wow, Angus. You've read a lot more into this particular post than is there. <br /><br />No, this is a brief summary of some of the relevant law regarding torture. Part of thinking about law is also thinking about the philosophical substance of the law (while not formal law, the Declaration of Independence is indeed relevant). I honestly don't understand how one can say that the various laws outline here, including the Constitution, are of no value. <br /><br />And I don't understand, in your specific case, how one could possibly figure out whether or not waterboarding is torture without referring to the law. Maybe this is all make-believe and we can make up the law as we go along?<br /><br />Waterboarding is torture, as are several of the other methods approved in the memos, especially when combined. But waterboarding specifically has been found to be torture in both US and international law. The precedence was simply ignored in the memos.helmuthttps://www.blogger.com/profile/09069600766378586919noreply@blogger.comtag:blogger.com,1999:blog-14072474.post-35177851698292816632009-04-27T15:06:00.000-04:002009-04-27T15:06:00.000-04:00I don't think anybody's questioning whether tortur...I don't think anybody's questioning whether torture's against the law in the United States. They're questioning (i) whether waterboarding is torture, (ii) whether, if it is torture, the OLC lawyers who advised that waterboarding, et. al. did not violate any US laws, treaties, etc. broke any US law, (iii) whether the CIA interrogators who, relying (or perhaps not - there's a factual dispute here) on the OLC memos, waterboarded are criminally liable (viz. did they have the right mens rea, etc.) and (iv) whether anybody who ordered the CIA to waterboard, etc. in accordance with the OLC memos is criminally liable.<br /><br />Citing the Declaration of Independence doesn't get you any closer to solving those complex problems. This post is therefore of no value, unless your objective is not to figure out who is criminally liable for breaking which laws, but to find some high-sounding rhetoric to quote at the deaf-eared opposition.Angusnoreply@blogger.comtag:blogger.com,1999:blog-14072474.post-24341330663684296092009-04-27T13:49:00.000-04:002009-04-27T13:49:00.000-04:00One addition to this post might be the inclusion o...One addition to this post might be the inclusion of the supremacy clause of the constitution: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; <I>and all Treaties made, or which shall be made</I>, under the Authority of the United States, shall be the supreme Law of the Land; <I>and the Judges in every State shall be bound thereby</I>..."<br /><br />I am surprised at how many people I talk to who believe that America's treaties are not legally binding in our domestic courts.Bill Hendersonhttps://www.blogger.com/profile/02694771662928787991noreply@blogger.comtag:blogger.com,1999:blog-14072474.post-62710587237462357922009-04-27T13:16:00.000-04:002009-04-27T13:16:00.000-04:00One thing I notice is that these excerpts do not c...<I>One thing I notice is that these excerpts do not codify who is covered. My assumption is anyone, but I've seen the argument that "enemy non-combatants" are not privy to these restrictions (because they are not citizens) not to Geneva conventions (because they are not signatories). Can you make this explicit?</I>I think the vagueness of the text does make it explicit, if that makes any sense. I mean, I only skimmed the post, but those treaties don't say "you can't torture citizens" or "you can't torture adults." They say "you can't torture." The only possible object of that verb, then, is "anyone."John Bishophttps://www.blogger.com/profile/07424394755512677489noreply@blogger.comtag:blogger.com,1999:blog-14072474.post-68721912116741786802009-04-27T13:05:00.000-04:002009-04-27T13:05:00.000-04:00To respond to Trizzler, w/ respect to the Conventi...To respond to Trizzler, w/ respect to the Convention Against Torture: the obligations fall solely upon the signatory (in this case, the US is bound to respect the treaty terms as they ratified the CAT in 1998). As for the Geneva Conventions, The US Supreme Court held that Article III protections apply to Guantanamo detainees (I believe it was the Hamdan case).Daniel P. Billingsworthhttps://www.blogger.com/profile/16574245890283689057noreply@blogger.comtag:blogger.com,1999:blog-14072474.post-25561815055080322182009-04-27T12:06:00.000-04:002009-04-27T12:06:00.000-04:00Thanks for this. One thing I notice is that these ...Thanks for this. One thing I notice is that these excerpts do not codify who is covered. My assumption is anyone, but I've seen the argument that "enemy non-combatants" are not privy to these restrictions (because they are not citizens) not to Geneva conventions (because they are not signatories). Can you make this explicit?trizzlorhttps://www.blogger.com/profile/05016481182443269925noreply@blogger.comtag:blogger.com,1999:blog-14072474.post-14485581428082193122009-04-24T11:46:00.000-04:002009-04-24T11:46:00.000-04:00Amen. This is the argument the torture supporters ...Amen. This is the argument the torture supporters do not want to have precisely because it is exceedingly clear. Torture is against the law (and, as you point out, multiple laws). Additionally, the legal precedents also exist that waterboarding is torture. This is where this battle (to prosecute those in the Bush administration that authorized torture) needs to be fought and won, not on the question of whether torture works or not. However, the torture supporters have thus far succeeded in presenting the strawman of torture efficacy in defending the previous administration's position.MikeDhttps://www.blogger.com/profile/07481514748318770741noreply@blogger.com