Tuesday, October 23, 2007
Israel's Inner Scourge
Academic Treason in Israel
Get your copy today:
2. Islamofascism Awareness Week . Already a Success:
3. Proof that violence falling in Iraq:
5. Fighting the Asslibs:
6. Egads, a Zionist!
7. Funny story: http://www.ynetnews.com/articles/0,7340,L-3462003,00.html
8. Latest on that Oxford "debate":
9. From the Wall St Journal: Getting Serious About 'Torture'
By DAVID B. RIVKIN JR. and LEE A. CASEY
October 22, 2007; Page A19
The question of "torture" is again front and center in the ongoing debate
over how to fight the war on terror. Judge Michael Mukasey, President
Bush's well-qualified pick for the next attorney general, was questioned
closely at his confirmation hearings last week on whether torture is
illegal -- it is -- and what constitutes torture.
He rightly would not commit to answering that question, especially with
respect to the controversial practice of "waterboarding" (that is,
simulated drowning) without more information, and got attacked for his
candor. Yet, defining torture raises complex legal, policy and moral
issues, and cannot be done without taking into account all of the facts
and circumstances surrounding the use of any particular interrogation
technique. It is time for a national debate that involves those facts and
The Bush administration's critics invariably portray all coercive
interrogation methods, from forced standing to waterboarding, as torture.
This obviously gives them an advantage in the debate, since torture is
reprehensible and fundamentally inconsistent with United States policy.
They also act as if the mere asking of what constitutes the permissible
levels of coercion is immoral, at best, and unlawful at worst. Their
arguments, however, are flawed both as a matter of law and policy.
The law defines torture as the intentional infliction of "severe pain or
suffering." The intentional infliction of pain or suffering that is not
severe is not torture, although depending upon the circumstances it may
constitute forbidden "cruel, inhuman or degrading" (CID) treatment.
These terms, of course, are no less difficult to interpret than "severe"
pain or suffering. Congress attempted to give them some meaning in the
2005 Detainee Treatment Act (DTA). This law effectively excluded the U.S.
military from terrorist interrogations because it limits the Pentagon to
techniques approved in the U.S. Army field manual, a highly restrictive
document designed to govern the treatment of honorable prisoners of war
protected by the Geneva Conventions.
However, the DTA left the CIA free to use aggressive interrogation methods
on captured terrorists -- who do not enjoy Geneva protections -- so long
as they are not subjected to torture or CID. Congress further defined CID
by reference to the Constitution's due process and cruel or unusual
punishment provisions, which in turn generally involve a "shock the
The problem is obvious. Like the words cruel, inhuman and degrading,
whether or not a particular interrogation method shocks the conscience
depends very much on the circumstances.
For example, the harsh methods of Marine basic training, designed to break
the soft habits of civilian life and inculcate a warrior spirit and iron
discipline, might well be cruel or degrading if imposed on middle-aged
lawyers or politicians, but not when used on 20-year old recruits. And the
case law interpreting the Constitution leaves more than enough room for
argument about the methods allegedly utilized by the CIA. Based on
published reports, these include slapping, exposure to cold, stress
positions, interrupted sleep and waterboarding, alone or in some
combination. The Justice Department has reportedly approved all of these
Reasonable minds can disagree with this finding, although it is unlikely
that Justice signed off on these methods without regard to the level of
intensity or potential cumulative impact involved. Slapping a man's face
probably does not cause him severe pain. Breaking his nose probably does.
Similarly, forcing a prisoner to maintain an uncomfortable posture for a
period of time is not cruel, inhuman or degrading, although forcing him to
do so while naked, shackled to the floor in near freezing temperatures
might be. It is a matter of degree. The possible exception is
waterboarding, which presents unique issues because its sole purpose and
effect is to create a feeling of suffocation. This involves the
physiological and psychological responses to drowning.
It is difficult to see how this, in and of itself, does not constitute at
least severe suffering. At the same time, of course, there is no actual
danger of drowning or other injury, and waterboarding has been part of
U.S. military training programs on interrogation resistance. (If it is
torture, then it is impermissible for all purposes -- whether or not an
individual has consented.) This is, in short, a difficult and close
question, and an especially wrenching one for those who actually have the
responsibility to decide whether waterboarding should be used to obtain
intelligence that may well save innocent lives. Mr. Mukasey was right to
Regrettably, the response of administration critics to these questions has
largely been one of sweeping and outraged claims of "torture" -- not a
detailed and reasoned discussion of whether and why the approved methods
cross the line. Their bottom line seems to be that any form of coercion is
forbidden, period. That simply is not the law and, taken to its logical
conclusion, this position would effectively eliminate interrogations
By their very nature, every interrogation is coercive. The fact that it is
backed up by some element of force or the threat of force is what
distinguishes it from a mere conversation. More generally, varying degrees
of coercion are present in many public institutions, including
penitentiaries, boot camps for juvenile and adult offenders, police
training academies and many aspects of military life. These approaches
have been debated over the years by the American polity, at both the
federal and state levels, and continue to enjoy public support. All of
this suggests that, at a minimum, stressful interrogations consistent with
the U.S. military's basic training should be permissible as a matter of
course, with other methods to be considered on a case-by-case basis.
For their part, the administration's critics should identify which, if
any, interrogation methods they believe are legal and moral and explain
how their view fits within the broader existing societal consensus on the
permissibility of coercion in certain circumstances. Alternatively, they
should clarify why an American democracy facing an implacable and ruthless
foe should continue to use coercive techniques when training its own
military personnel, but should treat captured (unlawful) enemy combatants
with scrupulous tact and unfailing politeness.
Some, of course, have suggested that relationship-building interrogation
techniques are preferable -- as more reliable in the long run -- to
"stress" methods. If true, this is only a partial answer. What about the
hard cases, such as 9/11 mastermind Khalid Sheik Mohammed, who may not be
susceptible to relationship building?
Many, probably most, Americans will find this debate uncomfortable and
embarrassing because all of the interrogation methods at issue, if not
cruel or degrading, are certainly nasty and aggressive. Whether the
question is holding a prisoner for hours in shackles, or subjecting him to
simulated drowning, this is not the type of activity Americans like to
associate with their government or themselves.
At the same time, Americans rightfully expect to be protected from attack.
But there is no free lunch. Coercive interrogations have been key in
preventing post-9/11 attacks on American soil. To preempt future attacks
the intelligence agencies must continue to have information that can often
be obtained only from captured terrorists. The intelligence agencies are
the first line of defense -- but the body politic cannot expect them to
"do what it takes" and then also claim the right to punish them for
crossing lines that have never been properly defined. We are all in this
Messrs. Rivkin and Casey served in the Justice Department under Presidents
Ronald Reagan and George H.W. Bush, and were members of the U.N.
Sub-Commission on the Promotion and Protection of Human Rights from