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To prosecute or not to prosecute
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Yulie



Joined: 22 Mar 2007
Posts: 1150
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PostPosted: Sun May 17, 2009 12:13 pm    Post subject: Reply with quote

OK, I'll bite, with the caveat that I'm not American and not very familiar with the specific debate you guys are having. I do believe that the issue is not just relevant to the US debate on who approved what, who knew what, etc.

1. I am fairly certain that by the definitions used by some posters here, my country has tortured people. How to define torture and when, if ever, it should be used is an important thing to consider. It's very easy to say never, but also very easy to talk about ticking bombs and the like. Those are the extremes. In between there are a lot of unpleasant questions to deal with. As this is not my focus here, I will leave that debate to others.

2. I think that incoming administrations need to be extremely careful when deciding whether or not to prosecute thinsg that occred in previous adminstrations. Assuming that people acted in good faith and where not Nazis (seriously who brought that up? I call Godwin's law), tread very cautiously. If you allow for the prosecution of certain acts, what's there to stop the next administration, which might be completely opposed to the current one ideologically, to declare different actions, all done in good faith, as against the law and deserving of prosecution? Do we want to go there?

A few years ago, Israel pulled out all of its settlers and army forces from certain parts of the occupied territories. I was very supportive of this and am only sorry it was not done as part of a peace deal. To Israel's religious right (which is not the same as the US version), this was a traumatic experience and those who planned it and implemented it are considered by many of them criminals and traitors. So, what if they should eventually become the major political power? Should they be able to prosecute? I'm sure justification can be found for this in our laws if anyone wants to try.

Sometimes it is better to investigate and implement major changes, but assume that people were not knowingly breaking the law (or at least, were acting in good faith) and avoid legal action. Get the legal counsels who advised them disbarred. And have a truth and reconciliation committee or something.

3. I'm not familiar with the US military justice system. During my military service I was taught to differentiate between three types of commands: legal, illegal, and clearly illegal "a command over which a black flag flies" ("hey guys, go loot that family's belongings, we could use some new TVs" would be a non-deadly example, I think). A soldier is supposed to obey an illegal command but to protest against it and if necessary call for investigative action later. A soldier may not, under any circumstances, carry out a clearly illegal command, and is subject to prosecution if he or she does so. Using this system, were the commands given to US soldiers legal, illegal or clearly illegal? I think they were probably illegal, and I am sure there were those who spoke against them and who continue to do so now.

Physical torture, as far as I know, is not effective. It doesn't serve the purpose it purports to. But this isn't all you guys are discussing, is it? I hope whatever ends up happening in the US, that it leads to a serious conversation on the national level about this issue; and that the people involved (from the soldiers up to the people at 1600 Pennsylvania) and the people whose job it was to exercise proper oversight (yes, that includes congresswoman Pelosi) take responsibility for their actions.

Although with the politicians in that group, it's probably best not to expect much.

Kass, people in Europe will happily prosecute anyone and everyone. I have serious issues with this; I believe that if there is a tribunal in the Hague, that's the appropriate venue for such legal action. Whether or not any Americans can be prosecuted there, I don't know. It's not quite in the same league as Slobodan Milosevic, is it?
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Kass



Joined: 23 Mar 2007
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PostPosted: Sun May 17, 2009 3:01 pm    Post subject: Reply with quote

Quote:
How to define torture and when, if ever, it should be used is an important thing to consider. It's very easy to say never, but also very easy to talk about ticking bombs and the like.

--Yes, and experienced FBI interrogators have already come out and said that torture doesn't work, so even if it were legal (ehich it is not) it is ineffective at producing good information. So no good person who wanted to produce good information would use it, as it would be ineffective in a ticking time bomb scenario.

Quote:
Assuming that people acted in good faith and where not Nazis (seriously who brought that up? I call Godwin's law

--Barack Obama did, when he resurrected the "orders are orders" defense discredited at Nuremburg. I don't think he'll listen to you. He hasn't listened to me so far in my numerous e-mails and calls to the White House.

Quote:
If you allow for the prosecution of certain acts

--"These acts," as you call them, are torture and illegal under our laws and international treaties to which we are signatories. If we don't want to prosecute them, then we should never have signed those treaties and passed those laws. We did. We are now bound by those laws. I find it disgusting that you would advocate for our government to do such a criminal act as refuse to prosecute torture, as it must do under our laws.

Quote:
Sometimes it is better to investigate and implement major changes, but assume that people were not knowingly breaking the law

--They were knowingly breaking the law. That's why they suborned lawyers in the Office of Legal Counsel to write them memos to give them cover, even though their opinions were clearly written to order to cover up the administration's war crimes.

Quote:
Kass, people in Europe will happily prosecute anyone and everyone. .... It's not quite in the same league as Slobodan Milosevic, is it?

--So if the military and CIA were not just torturing mostly innocent people, but killed some of them, you'd be for justice...but because they left them alive, you think what they did should be shielded from prosecution?! How can you? Europe needs to prosecute this because the U.S. isn't. You may not like that, I certainly don't, but pressure from the international community is the only way I can see our government actually taking action against these things which are clearly illegal under our laws and which we've sentenced others to long prison terms for doing.
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dick



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PostPosted: Sun May 17, 2009 5:07 pm    Post subject: Reply with quote

I would still like to read a definition of torture. What is torturous for one, might not be torturous at all for another. At my age, it's rather difficult to admit that I am absolutely terrified of total darkness; I suffocate. Others are probably not bothered by it at all. A mild example, I suppose, but it is the opposite of the continuous bright lights noted as one of the "enhanced" interrogation techniques.. Because of my own phobia, I would find that far less torturous than the bright lights.
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Yulie



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PostPosted: Mon May 18, 2009 2:11 am    Post subject: Reply with quote

Kass, did you actually read my post, or did you just skim it to pick and choose bits you wanted to use in order to reiterate things you've already said? Your response to my last point about Europe makes me think it's the latter, and your response to the first part you quoted basically repeats something I wrote later in my post.

What you posted is not part of a discussion; it's you screeching at me (even if not in person) and misrepresenting what I wrote to suit your purposes, and I don't appreciate it. I'm not the only person you've responded to in such a way. If anyone whose views you dislike is a "torture apologist", why bother discussing anything?

I rarely post on this board because I feel it's very difficult to have political discussions in a way that is respectful of one another - even if we disagree with some of the opinions. I can see this was a mistake, and one I don't intend to make again.
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tirlittan



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PostPosted: Mon May 18, 2009 12:40 pm    Post subject: Reply with quote

dick wrote:
I would still like to read a definition of torture.


I'm a bit hesitant to get involved in this discussion as well, it's obviously a hot button, but your question prompted me to do some reading:

The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which 145 countries (including the US) have signed and ratified. It defines torture as follows:

(I bolded the parts that seemed most relevant to this discussion.)

Quote:
"Article 1
1. For the purposes of this Convention, the 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, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application."


In Article 2 this definition is further clarified:
Quote:

"1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture."


Also pertinent to this:

Quote:
"Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

[snipped]

Article 4
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature."




Someone mentioned The International Criminal Court in Hague, which the US is not a member of. It (according to Wikipedia, I ran out of time researching their own site) also defines torture as:
Quote:
"intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions".


Also according to the Wikipedia article:
Quote:

Under Article 7 of the statute, torture may be considered a crime against humanity "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack". Article 8 of the statute provides that torture may also, under certain circumstances, be prosecuted as a war crime.


It's worth noting also, that
Quote:
"the ICC came into existence on 1 July 2002 and can only prosecute crimes committed on or after that date. The court can generally exercise jurisdiction only in cases where the accused is a national of a state party to the Rome Statute, the alleged crime took place on the territory of a state party, or a situation is referred to the court by the United Nations Security Council. The court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore reserved to individual states.



Then there are the Geneva Conventions (which I didn't have time to get into), but which are relevant to this discussion as they protect people who fall into enemy hands, and which the US has of course also ratified.

- - - - - - - - - - - - - - - - - -

I didn't read through and post all this to "thumb my nose" at the US, or something. I'm just honestly interested in the debate and very concerned about the consequences all of this might have in the rest of the world. I find it highly questionable that torture would be effective in interrogations*, and the ramifications of doing it seem to far outweigh the possible benefits. (It's my understanding from the news that it was also used in interrogation situations where the aim was something other than preventing an "imminent threat".)

I don't claim to have (m)any answers here, but what troubles me most about this is that it cannot remain undealt with: It is very difficult to get other countries to stop torture if the US is willing to do it. And there are plenty of countries in the world where torture is not something "a few high-ranking enemy combattants" are facing, but rather a widespread problem in the military and judiciary(sp?) systems, and if this matter isn't solved in some way in the US I feel those countries can claim it to mean they have a carte blanche at this as well. That's the trouble with being an authority figure in world politics, I guess.

I do hope that this whole Pelosi-CIA-knew-knew-not -game comes to an end (whatever that may be) soon, and the discussion moves back on track where some decisions on what to do next can be made.

*) as a sidenote: IRRC it's been proved that the threat of torture is more effective than actual torturing, but I can't remember where I heard/read that from.

Edited to correct some spelling etc.

- - - - - - - - - - - - -

Edited again to add this link to the US Department of Justice "MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL, Dec 30. 2004" It's my understanding that this overrode the earlier "enhanced interrogation" definitions of "severe physical pain". It's pretty philosophical and heavy reading, but at the center of that debate is defining the deeper meanings of the sentence "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person" in the Convention Against Torture definition.

Quote:
"This opinion interprets the federal criminal prohibition against torture codified at 18 U.S.C. 2340-2340A. It supersedes in its entirety the August 1, 2002 opinion of this Office entitled Standards of Conduct under 18 U.S.C. 2340-2340A.

That statute prohibits conduct "specifically intended to inflict severe physical or mental pain or suffering." This opinion concludes that "severe" pain under the statute is not limited to "excruciating or agonizing" pain or pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death."

The statute also prohibits certain conduct specifically intended to cause "severe physical suffering" distinct from "severe physical pain". "


I edited this post again to put the quotes inside quotations, just because I feel it makes the text a bit easier to read.


Last edited by tirlittan on Wed May 20, 2009 11:03 am; edited 1 time in total
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tirlittan



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PostPosted: Mon May 18, 2009 2:42 pm    Post subject: Reply with quote

I think Yulie had an interesting point when she said
Quote:
Physical torture, as far as I know, is not effective.

I'm not implying that this is in any way what she meant, but that made me think if it could then be said that mental torture/mental pain would be more effective? It would be interesting to read some facts about that.

I remember seeing a documentary where they investigated the effects that severe deprivation of the senses has on people. Among other things they interviewed a hostage who'd been kept in a pitch black room for months as well as a prisoner who'd served time in a (pitch black) isolation cell. (The latter by the way I guess would not constitute torture as it is "pain or suffering arising only from, inherent in or incidental to lawful sanctions"?)

They also had test subjects who were closed in complete darkness in a room alone for 48 hours. They did a series of tests before and after the 48 hour period. And it was obvious that their capacity to think clearly was very poor afterwards. Interestingly, the men were also found very susceptible to suggestion afterwards, so that the interviewer could very easily put words in their mouths/get them to make mistakes. I wish I could remember the name of the documentary, it was very interesting. I think it was by BBC? ETA: It was Total Isolation

I agree with the rest of Yulies comment:
Quote:
I hope whatever ends up happening in the US, that it leads to a serious conversation on the national level about this issue; and that the people involved (from the soldiers up to the people at 1600 Pennsylvania) and the people whose job it was to exercise proper oversight (yes, that includes congresswoman Pelosi) take responsibility for their actions.


I also think that it takes quite a strong character to go against orders in the military or the like (or for that matter, it seems in the civilian life as well these days). It is a lot to ask of a person to do that instead of just following orders, especially if you're told that the orders are in fact legal. And I'd also assume that such disobedience is not something that the military as an institution actually enforces in a soldier. Quite the opposite in fact. But then again it being difficult is of course not a very good reason not to do the right thing...

I realized that as "an outsider" at this point I don't really have an opinion on the original question of whether or not to prosecute, whom and how. I guess what I'm hoping for is an independent investigation to have more facts to base such decisions on. Again, Yulie mada a good point in the new administration having to be very careful in making decisions to prosecute the previous administration. But would it actually be "the new administration's" job to make that decision or would that be up to the DOJ or something?
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Yulie



Joined: 22 Mar 2007
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PostPosted: Tue May 19, 2009 1:36 am    Post subject: Reply with quote

tirlittan wrote:
I think Yulie had an interesting point when she said
Quote:
Physical torture, as far as I know, is not effective.

I'm not implying that this is in any way what she meant, but that made me think if it could then be said that mental torture/mental pain would be more effective? It would be interesting to read some facts about that.

I remember seeing a documentary where they investigated the effects that severe deprivation of the senses has on people.

tirlittan, thanks for taking the time to do the research (previous post), I knew in general what the Hague tribunal could do but it's good to have more information. Re physical/mental torture, I have read that physical torture is not effective but simply don't know anything about mental torture (which is more dificult to define, I would think).

When I was doing my undergraduate degree (in psychology) I remember the issue of complete sensory deprivation came up and IIRC the lecturer mentioned that people who were subject to such experiments quickly began to show psychotic symptoms - that is, they lost contact with reality, which is what normally characterizes patients with schizophrenic disorders. I assume this was not a long-term effect, though. Regardless, I certainly wouldn't want to be placed in such a situation and I can't imagine anyone would.

BTW, according to Wikipedia, the European Court of Human Rights ruled in 1978 that sensory deprivation is not torture but is a violation of human rights and as such, in breach of the European Convention of Human Rights.
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dick



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PostPosted: Tue May 19, 2009 9:58 am    Post subject: Reply with quote

Thanks, tirlittan, for the excellent information.

I suppose, like Persig's "quality," we would each recognize torture when we see it, although even then, what would be torturous for one might not be for another. It's deliberate, I suppose, that laws are general rather than specific.

I've always quarreled with the "acting under orders is no excuse" business, for many times obeying is not a matter of choice but of ignorance that repercussions could even exist.


.
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tirlittan



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PostPosted: Wed May 20, 2009 10:53 am    Post subject: Reply with quote

Yulie wrote:
BTW, according to Wikipedia, the European Court of Human Rights ruled in 1978 that sensory deprivation is not torture but is a violation of human rights and as such, in breach of the European Convention of Human Rights.


That's interesting. When I went through the info in my first post I was a bit surprized at how detailed some of those documents were. And in contrast (as dick pointed out) how deliberately vague many of those conventions and treaties are in some aspects. I guess it's the nature of the system that you make contracts that have a certain vagueness to them (because they, more often than not, are compromises) and that the actual substance of those treaties is then eventually tested in courts through various lawsuits...

dick wrote:
I suppose, like Persig's "quality," we would each recognize torture when we see it, although even then, what would be torturous for one might not be for another.


I agree. But I also think that this is somewhat a case of "seeing is believing" in the sense that many things that don't sound so bad are very different (=very bad) if you have to face them in your life for real.
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Kristie(J)



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PostPosted: Wed May 20, 2009 6:39 pm    Post subject: Reply with quote

As another non-American, IMO, until those who participated and authorized torture are punished, the administration - whichever one is in power - is guilty of gross and unforgivable hypocrisy. Once the original reason for the invasion of Iraq was proved to be nothing but a pack of lies, they (meaning the previous administration) changed their tune and said it was because the country was ruled by a dictator who practiced torture. And then to discover the U.S. did the exact same thing. Shame, Shame on them. And for the current government not to not prosecute them, condones them.
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LizE



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PostPosted: Tue May 26, 2009 8:34 pm    Post subject: Reply with quote

tirlittan wrote:
I do hope that this whole Pelosi-CIA-knew-knew-not -game comes to an end (whatever that may be) soon, and the discussion moves back on track where some decisions on what to do next can be made.


Great discussion everyone, lots of food for thought! I just wanted to add that while I used to agree with tirlittan on the Pelosi thing, I've been having second thoughts. On the one hand, it's distracting attention from the former administration--but on the other hand, she was there during the former administration, a member of the House Intelligence Committee. If she was really briefed and let the use of "enhanced interrogation techniques" pass without question or comment, then isn't she as guilty as the guys who planned and implemented it? In fact, isn't she one of them? On the other hand (oops, that's my third) if she wasn't briefed--or if secrecy rules prevented her from speaking out but she protested privately--then we should know that, too. She's not some junior member of Congress, she's the Speaker of the House. Her history on this issue reflects on her character--and that of the Obama administration. It's not an "us and them" scenario, it's a question of justice. Why not get to the bottom of it?
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dick



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PostPosted: Thu May 28, 2009 11:48 am    Post subject: Reply with quote

I wish I had some of Kass's certainty, because I admire her staunch defense of legality. Unfortunately, I've never been able to believe that codification of attitudes or beliefs could achieve justice in every case that comes down the pike; were that so, laws would never change and they do. Certainly, a layman such as I am, would be hard-pressed to argue legality or illegality with a lawyer. Justice and injustice are other matters entirely.

In one way, I think Obama correct in choosing not to prosecute. It's sometimes best to stir the pot as little as possible. Still, a good stir would at least let us see for ourselves. And I would like to.

So I agree that the entire matter, including what Pelosi knew and when,
should be investigated far more thoroughly than it has been.
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bbmedos



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PostPosted: Thu May 28, 2009 4:31 pm    Post subject: Reply with quote

tirlittan wrote:
I realized that as "an outsider" at this point I don't really have an opinion on the original question of whether or not to prosecute, whom and how. I guess what I'm hoping for is an independent investigation to have more facts to base such decisions on. Again, Yulie mada a good point in the new administration having to be very careful in making decisions to prosecute the previous administration. But would it actually be "the new administration's" job to make that decision or would that be up to the DOJ or something?


The Department of Justice is always part of the current administration. It's one of the cabinet positions under the President. (Attorney General instead of Secretary of "Somesuch")

I think the thing to remember is that under "ordinary" circumstances the legislature would appoint a special prosecutor acting on their orders to investigate any suspicious activities in the executive branch. However, with the crossover into "what did they know and when did they know it" in regards to the legislators it becomes necessarily at the very least to create a special commission made up of both branches for investigative purposes. And both sides have to agree to it. Which is much more difficult to accomplish, especially when you're dealing with key members of the legislature and national security issues.

That has nothing to do with the rightness or wrongnes of the issue. That is simple politics.

And around and around we go.
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Mark



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PostPosted: Sun May 31, 2009 10:57 pm    Post subject: Reply with quote

http://www.washingtonspectator.org/message.cfm?msg=0notsubs1&CGI_script_name=/articles/20090601letterfrombremen.cfm&PageName=%2Farticles%2F20090601letterfrombremen%2Ecfm
If the above link doesn't work, just go to the Washington Spectator site & look for the June 1 issue.
http://www.washingtonspectator.org/index.cfm
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