Barry Eisler

Thursday, January 17, 2008

You Betcha

Director of National Intelligence Mike McConnell acknowledges in an interview in the January 21 New Yorker that to him, being waterboarded would be torture. But he won't opine about whether waterboarding is torture legally speaking because "If it ever is determined to be torture, there will be a huge penalty to be paid for anyone engaging in it."

Engaging in it? What about the people who *ordered* it? The US is a party to the Geneva Conventions and to the UN Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment. Both prohibit torture; both, by virtue of Article VI of the Constitution, are the Law of the Land in the United States.

A violation of a treaty obligation is therefore a violation of US law. A conviction for violating of US law -- aka, "high Crimes and Misdemeanors" -- is grounds for removal from office pursuant to the Constitution's Article II, Section 4. That is:

ordering waterboarding = ordering torture = high crime = impeachment offense

Still wondering why the CIA destroyed the torture tapes?

Two interesting pieces from the front page of today's Wall Street Journal. First, "A CIA official apparently acted against superiors' wishes when he ordered the destruction of interrogation tapes, said Rep. Hoekstra after a closed hearing in which the agency's acting counsel testified." Second, "The White House said it reused backup email computer tapes before October 2003, possibly erasing messages pertaining to the Iraq war and the CIA-leak case."

Right now, the White House has two imperatives: (1) sever links between the White House and waterboarding to create deniability (the narrative then becomes, yes, waterboarding happened; no, we did not authorize or order it); (2) obscure any evidence that the White House has directed a coverup (the narrative then becomes, anyone who destroyed evidence related to waterboarded did so on his own initiative, or else the evidence was lost accidentally).

My guess is that the "lost" emails included information on who in the White House specifically ordered or authorized that prisoners be waterboarded. Expect additional such "accidents."

Unsurprisingly, McConnell insisted in his interview that "We don't torture" and instead use "special methods" of interrogation. Equally unsurprisingly, the "special methods" have worked:

"Have we gotten meaningful information? You betcha. Tons! Does it save lives? Tons! We've gotten incredible information."

Let me ask you something about this speech pattern. If it came from a salesman, especially one on commission, would you trust him? Would you believe in what he was selling?

Update: A great post on the CIA's destruction of its interrogation tapes, on why it ordered that such taping cease, and on how to address such problems going forward. More on my website discussion board.
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14 Comments:

Anonymous Word Thug Sween said...

One might think the American people would be far more up-in-arms about this. Unfortunately, nobody in this country cares about what doesn't affect them directly... probably why they haven't brought the draft back yet.. Because then there'd be real pressure to leave, rather than the "let's go to the protest before we hit the mall" mentality...

Maybe, in the sense of waterboarding, they should just announce that, since it's not really *torture*, that civilian law enforcement will now be allowed to use it on civilian criminal suspects...

Maybe that would shock the public into demanding accountability.

Thursday, January 17, 2008 10:35:00 AM  
Blogger Jim Winter said...

Wow. Thirty-five years ago, all we wanted to know was whether seventeen minutes of tape mentioned anything about a second-rate burglary to undermine an already losing candidate's election chances. I might have only been seven or eight at the time, but I knew there was outrage.

Where is the outrage now?

Thursday, January 17, 2008 12:01:00 PM  
Blogger David Terrenoire said...

Excellent question, Jim. Where is the outrage?

And for all those who claim that waterboarding isn't torture, the guy who waterboards SEALs in their training so they can better withstand interrogation if captured testified before Congress that waterboarding is, without question, torture.

Yesterday I posted this quote by a JAG officer who resigned over this: "Waterboarding was used by the Nazi Gestapo and the feared Japanese Kempeitai. In World War II, our grandfathers had the wisdom to convict Japanese Officer Yukio Asano of waterboarding and other torture practices in 1947 giving him 15 years hard labor. Waterboarding was practiced by the Khmer Rouge at the infamous Tuol Sleng prison. Most recently, the United States Army court martialed a soldier for the practice in 1968 during the Vietnam conflict."

My question now is not whether there's probable cause to believe that people in this White house have engaged in criminal behavior, but why Pelosi has taken impeachment off the table.

Criminal Republicans and cowardly Democrats.

What has happened to us?

Thursday, January 17, 2008 12:50:00 PM  
Blogger Laursie said...

I am a conservative. Not ashamed of that fact. I am not as educated as I should be to comment on this but I just thought i would give my opinion. I do not agree with most of the things this president has done. If he has broken the law then he should face the consequences or any of the people under him in government. That being said I am pro life that means all life including people that wish us all to die as Americans. I do feel however that we are limiting our ability to protect ourselves. Does our enemy follow the Geneva Convention? They do not. The fact is what they do is far far worse then waterboarding. I have unfortunately seen video of what they do. I will never forget it. Are we supposed to handle them with kid gloves while they cut the throats of our people? Why would they tell us anything if they know our hands are tied? They wont. This has saved many lives. It does not take their life. I have to admit I am conflicted. Life is precious. I know what i feel is not PC but I cant help it. If waterboarding will save us from another WTC I cant help but feel ok with it. I really dont mean any disrespect. I promise. Maybe that is why the outrage is not as strong at you and the other posters think it should be.

Thursday, January 17, 2008 1:32:00 PM  
Blogger desertstar said...

Torture in any form is unacceptable. There is no 'the ends justifies the means' - but of course I'm being redundant.

I think the question asked earlier 'where is the outrage?' is the correct question.

Thursday, January 17, 2008 1:34:00 PM  
Blogger spyscribbler said...

I was only thinking that if I had my druthers, I'd choose credible information over incredible information any day.

Thursday, January 17, 2008 7:11:00 PM  
Anonymous Gorilla Man said...

great blog, Barry. From a personal note, I used to brief Mike McConnell when he was a Navy Captain and the Commanding Officer of the Naval Security Group at NSA back in the late 1980's. His words are haunting to anyone who ever really understood our history, our constitution. When did we become the bad guys? And that is what we have become. The bad guys. You can justify torture, holding people without charges for years in Gitmo Bay, Cuba while we figure out what to do with them, having the CIA kidnap people off the street in NATO countries and take them to countries that will look the other way while we torture them. When we allow the FBI and CIA and NSA to spy on Americans (a violation of US law) all in the name of something called the War on Terror. And nobody gives a damn. We became the bad guys.

Thursday, January 17, 2008 7:18:00 PM  
Anonymous Mr. G said...

After reading Barry's account of the water boarding of Dox in Requiem, I am damn sure its torture.

"Have we gotten meaningful information? You betcha. Tons! Does it save lives? Tons! We've gotten incredible information."

Well if you were not in the position where you had to water board people to "Save lives" then a whole lot less people would be dying for nothing anyway.

Thursday, January 17, 2008 7:33:00 PM  
Blogger PBI said...

laursie,

I appreciate your conflicted response, but I think the fundamental question is whether or not we should be judging ourselves by the standards of terrorists, or whether we should be adhering to the standards we expound and to which we have declared we will adhere in treaty and in law. We lose when we anandon our prinicples and what we have always tried to pursue as our national ideals.

Paul
Sensen No Sen

Friday, January 18, 2008 11:13:00 AM  
Blogger PBI said...

Barry,

I had a very similar reaction to McConnell's interview; what an untterly revolting position to take privately, let alone in public and as a "leader" in our government. On the other hand, it dovetails with the fact that, despite an expressed desire to close Guantanamo Bay by even President Bush, that facility is still running 6 years - SIX YEARS - after it opened. As I noted in my own most recent post, Gitmo's not going anywhere soon.

Oh, and Canada has now added the United States to the list of countries on its torture watch list. (See here.) When polite and tolerant Canada thinks you're a bad apple, you've generally earned it, and we certainly have.

Friday, January 18, 2008 11:19:00 AM  
Blogger Chuck said...

Hey Barry,
I always enjoy reading your blog. I do have a question though. If waterboarding is torture and we should not do it to people who we have captured, should we be allowed to do it to our own guys? I have been through waterboarding when I was in survival school in the Marine Corps (the same school the Seals go through) and can verify it is a most unpleasant experience. Given that the consensus seems to be that waterboarding constitutes torture, is it ethical for us to torture members of our armed forces as part of training? You could argue that it does no permanent damage and the benefits of being better prepared in case of capture and torture justify it, but isn't that basically an ends justify the means argument? If it is unethical to do to prisoners then it should be unethical to do to anyone.

Tuesday, January 22, 2008 12:47:00 PM  
Blogger Barry said...

Here are a few thoughts I posted in response to comments on my MySpace blog, where this post also appears. I think they're relevant here, too...

You say, "Opining on half of what the military and administration knows is dangerous." Dangerous to whom? You seem to be suggesting that civilians should surrender their opinions, and indeed their judgment, to people who claim to know more. I can't agree that such a course is a sensible one for a free country. A kind of "don't ask, don't tell" arrangement between a people and a government doesn't sound like a description of democracy to me.

Just as I don't trust a salesman working on commission when he tells me I look great in the suit I'm trying on, I don't trust the government to offer up unbiased facts. The people involved have too much incentive to exaggerate both the level of threat and their success in combatting it. Fear is an excellent tool for control.

You also say, "While I do not like the government waffling on legal issues I also do not like being tied down in the legalities...". Here you seem to be advocating a theory in which it's okay for the government to break laws if the people involved think doing so is important. Again, I don't think a theory like this bodes well for a nation that wants to live under the rule of law, rather than the rule of a man.

Maybe it comes down to a personal choice. Probably some people are more willing than others to surrender additional freedom and adherence to the rule of law to those who promise that in exchange for such a surrender we can all enjoy greater physical safety. One problem I see with such a bargain is that once you've given up the amount of freedom and adherence to law you're willing to part with, you will probably have lost the means of stopping the people you've bargained with from taking more. At which point I doubt you would even be left with the safety you originally hoped the exchange would buy you. But if you trust in the beneficence not only of the people who constitute our government today, but also in the ones will will govern tomorrow, you will probably disagree.

Tuesday, January 22, 2008 1:12:00 PM  
Blogger Barry said...

Chuck, I understand where you're coming from, but I think waterboarding prisoners as part of their imprisonment is fundamentally different from waterboarding servicemen as part of their training.

First, there is consent (or lack of it). Consent changes everything -- sex without consent is rape, surgery without consent is battery, entering a house without consent is burglary... you get the idea.

The intent behind the practice seems relevant to me, too. Extracting information, on the one hand; preparation to withstand such attempts, on the other. The severity of many crimes turns on an inquiry into the intent (in criminal law, called mens rea) behind the act.

Finally, there is context. I've never been waterboarded by either friend or foe, but my sense is the experience must be infinitely worse when it's being done by people who've captured you, who are holding you, who might kill you, on the one hand, then when it's being done by Americans for training purposes with built-in limitations, on the other. One analogy that comes to mind is the difference between a boxing match, with rules and a referee, on the one hand, and a street fight, on the other. Another analogy is early efforts by scientists to use LSD to mimic psychosis. The idea was that by taking the drug, the experimenter could understand what it's like to be psychotic. The scientists quickly realized, though, that knowing the "psychotic" effects of an LSD trip were caused by a drug and were temporary made the experience utterly unlike true psychosis.

-- Barry

Tuesday, January 22, 2008 1:25:00 PM  
Blogger Chuck said...

Well said Barry. Your point about consent is an excellent one. The significance of intent is certainly debatable but in my system of ethics it is huge. I cannot speak about what it feels like to be waterboarded by hostile forces who have captured you. I can tell you that when I had it done to me, I was not worried about whether this was training or the real thing, I was worried about not being able to breathe and sucking water into my lungs. There were other times in the training when I didn't buy their act such as when they pointed a pistol at my head. I knew they weren't gonna shoot me, but when you feel like your drowning it didn't really matter of it is in training. The water was real and it was really going in my mouth and nose. How this differs from a prisoner having it done to them is something I cannot comment on.

To be clear, I don't believe that this should be done to prisoners. I do not believe that it is moral. I also don't believe that it is an effective way to gain accurate information. I do think it serves a function in training and as you have pointed out Servicemen do volunteer for the training (although I was not advised that waterboarding was in the plan of the day prior to getting strapped down).

Tuesday, January 22, 2008 10:00:00 PM  

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