Should Bush Administration Be Prosecuted for Torture?

So far the thread is proceeding along predictable lines, and I won't jump in the middle of the same old same old. I do have a few questions on the main topic of the thread about which I'm curious to see what people think:

I'm very confused on this issue, because politically for all the reasons cited above my gut wants Obama to ignore this for now, but morally I think there should be a full investigation of the counterproductive formerly illegal and inept interrogation techniques used to obtain information that invalidated many cases of known offenders from being brought to trail, and that served as recruiting posters for Al Queda, and may have resulted in harsher treatment for captured American troops. Those to me are valid objections to the torture, above and beyond the moral ones which make it unacceptable. Most of the time it doesn't work and produces unreliable and flat-out erroneous intelligence as strangely enough, people will make things up with amazing virtuosity to get the pain to stop.

I'm wondering what the effect is outside the US if these crimes are forever swept under the rug because it's politically expedient to ignore them, in particular in the Muslim world. Does investigation/prosecution send a message of moral strength or moral weakness--i.e., we are too weak to do the nasty bloody things that terrorists who are willing to die for their cause probably look on as nothing. Where does the rule of law come in, and leading by example and so forth? Is it effective or ineffective to hold the concept of a Gitmo over the heads of those who see us as mortal enemies?

So lots of hand waving and rehashes of the usual positions.

Does anyone dispute the Administration broke laws? Lets set aside all the arguments over necessity and efficacy, we all know where we stand on those, lets assume Bush kept America safe for seven years by simulated drowning, wiretaps and telling everyone who the CIA agents are and pretend it was all done in good faith with the best intentions. Was it all done legally or were laws broken because the Administration needed to break them?

V7 said:

So lots of hand waving and rehashes of the usual positions.

Does anyone dispute the Administration broke laws? Lets set aside all the arguments over necessity and efficacy, we all know where we stand on those, lets assume Bush kept America safe for seven years by simulated drowning, wiretaps and telling everyone who the CIA agents are and pretend it was all done in good faith with the best intentions. Was it all done legally or were laws broken because the Administration needed to break them?

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The Administration decided to write its own laws, therefor they didn't break the laws they wrote, which were different from the laws under which we prosecuted others for identical war crimes. Welcome to Bush World.

V7 said:

So lots of hand waving and rehashes of the usual positions.

Does anyone dispute the Administration broke laws? Lets set aside all the arguments over necessity and efficacy, we all know where we stand on those, lets assume Bush kept America safe for seven years by simulated drowning, wiretaps and telling everyone who the CIA agents are and pretend it was all done in good faith with the best intentions. Was it all done legally or were laws broken because the Administration needed to break them?

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I dispute that the Administration broke laws. Every one of those actions has been debated in the administration, run thru the justice department for legal blessing, and run by congress for legislative approval. Just because Saint Barack changed the rules yesterday doesn't change the legality of the actions at the time they occurred.

Thoughtful questions:

magerette said:

I'm wondering what the effect is outside the US if these crimes are forever swept under the rug because it's politically expedient to ignore them, in particular in the Muslim world.

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PJs better placed to answer from direct expierence, my instinct would be that they'' continue to see the US as hypocritical and willing to throw out principles of freedom, justice and democracy as soon as someone pokes it with a sharp stick.

magerette said:

Does investigation/prosecution send a message of moral strength or moral weakness--i.e., we are too weak to do the nasty bloody things that terrorists who are willing to die for their cause probably look on as nothing.

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Both, but different people will draw different conclusions, the militants would almost certainly see it as evidence of the weakness of the decadent West. I suspect most of the general muslim population will see it as strength though and wish they had even a fraction of that check on their own governments.

magerette said:

Is it effective or ineffective to hold the concept of a Gitmo over the heads of those who see us as mortal enemies?

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Inneffective, they think they've got right and god on their side the threat of torture in a concentration camp won't stop them any more than the Gestapo did the French resistance.

dteowner said:

I dispute that the Administration broke laws. Every one of those actions has been debated in the administration, run thru the justice department for legal blessing, and run by congress for legislative approval. Just because Saint Barack changed the rules yesterday doesn't change the legality of the actions at the time they occurred.

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Ah thats interesting, I didn't realise congress had aproved - got a reference?

magerette said:

I'm wondering what the effect is outside the US if these crimes are forever swept under the rug because it's politically expedient to ignore them, in particular in the Muslim world. Does investigation/prosecution send a message of moral strength or moral weakness--i.e., we are too weak to do the nasty bloody things that terrorists who are willing to die for their cause probably look on as nothing. Where does the rule of law come in, and leading by example and so forth? Is it effective or ineffective to hold the concept of a Gitmo over the heads of those who see us as mortal enemies?

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First: As said a few times before there are at least two groups of "enemies". The first and smallest are the fanatics that will hate you no matter what, including chums like Osama. They will hate your guts either way. The second group is more passive (and sort of serves as a recruitment base for the first) mostly just wants to be left alone. They will probably be able to normalise relations with the US over time, as long as the offensive policies are stopped.

I dont really think that prosecutions would help with group #2 except for a short term boost (and one partially offset by the opening of old wounds). The main positive effect would probably be domestic in boosting the self esteem of parts of your population, but for the reasons PJ outlined that benefit wouldnt be extended to the entire population.

Overall old crap is very hard to handle. I'm not very positive towards taking up prosecution long after the deed either, that tends to make the process a tool of whatever administration takes up the process and might make the whole thing farcical. Morally this is worse than immediate prosecution even if more practical.

Last I dont think the decision should be treated as a practical or moral question. IF anyone within the administration broke US law they should be prosecuted like any other criminal. Rule of law shouldnt be a matter of expediency. EDIT: That should be US law and US courts, the American judicial system is mature enough to deal with the question.

magerette said:

Does investigation/prosecution send a message of moral strength or moral weakness--i.e., we are too weak to do the nasty bloody things that terrorists who are willing to die for their cause probably look on as nothing. Where does the rule of law come in, and leading by example and so forth? Is it effective or ineffective to hold the concept of a Gitmo over the heads of those who see us as mortal enemies

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The moral strenght message is too subtle to have much effect, but Gitmo is also way too mild to be a deterrent. In order to instill enough fear into loony non-state actors who really hate your guts you need boots on the ground and brutality a few orders of magnitude greater than Gitmo. Even if you were prepared to use sufficient brutality (which I think America is too civilised to do) you dont have enough boots. Heck, Israel hasnt been able to neutralise a threat that is contained in a very small geographical area, and you are dealing with the whole muslim world. Intimidation is a dead end in this struggle, the only method that will work long term is to erode the recruitment base by eliminating sore points (which you can do and Obama at least hinted at tackling) and development of the horribly mismanaged muslim world (which isnt really under your control).

V7 wrote:

Ah thats interesting, I didn't realise congress had aproved - got a reference?

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As far as I know, which isn't very far, the extent of legalizing the interrogation techniques was for the Department of Justice to issue two memos to that effect:
Justice Department Memo Says Torture May Be Legal

I don't have the facts at my fingertips, but at least some in the Senate don't seem to share the idea that the memos from the DOJ actually constituted laws that they approved:
Rockefeller Reacts to News of memo

Sen. Jay Rockefeller, who chairs the Senate Intelligence Committee, spoke out in reaction to the news this morning that the White House endorsed controversial CIA interrogation techniques in memos requested by then CIA director, George Tenet.

"The Senate Intelligence Committee is in the midst of an investigation of the CIA's interrogation program, including the Department of Justice's determination that the use of waterboarding on prisoners is lawful," Rockefeller said in a statement.

"If White House documents exist that set the policy for the use of coercive techniques such as waterboarding, those documents have been kept from the Committee. That is unacceptable, and represents the latest example of the Bush Administration withholding critical information from Congress and the American people in an attempt to limit our oversight of sensitive intelligence collection activities."

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This is all I could find in a quick google--and one is from a noted leftie source, so dte, if you can fill out the picture from your side, go ahead.

magerette said:

Is it effective or ineffective to hold the concept of a Gitmo over the heads of those who see us as mortal enemies?

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I'll just add as well that I think its a waste of time to address the militants, by the time they take up arms its them against the world, you can't deter, placate or buy them off. You can kill them but there's an effectivly inexaustable supply created by conditions in the ME, North Africa and Central Asia. The people I think you need to talk to are the rest of the Musilm world.

magerette said:

As far as I know, which isn't very far, the extent of legalizing the interrogation techniques was for the Department of Justice to issue two memos to that effect:
Justice Department Memo Says Torture May Be Legal

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I'm not as familiar with the American legal system but I didn't think the Justice Department had any leglislative powers? As far as I can see this is only a legal opinion (and one flatly contridicted by the Washington Post article you referenced above).

V7 said:

Ah thats interesting, I didn't realise congress had aproved - got a reference?

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http://www.washingtonpost.com/wp-dyn/content/article/2007/12/08/AR2007120801664_pf.html

It wasn't put to a vote, so perhaps "approved" has inaccurate connotations, but plenty of members of congress were well aware of the practice and had no objections to its use.

edit @magerette- don't know that I'd call the Washington Post "my side", but it says what needs saying, so I guess I'll claim it for now.

dteowner said:

I'd very much like you to find a quote from me in this thread that says that, or even something in that general vicinity. I think you'll come up empty, which will probably eliminate the need for a bookmark.

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You're right, I was just mistaking one Republican for another -- very easy to do when you get your party hats on. You were claiming all along that "kid-gloves treatment" doesn't work, and it was JDR claiming that the rest of the world is only down on torture because they've never experienced terrorism.

IOW, the message I'm getting from both of you is that torture is a required component in fighting terrorism. I happen to disagree strongly with that, both on ethical and practical grounds, but that's a different point. I apologize.

Opponents of torture began challenging the Bush administration the moment the facts about the Guantánamo Bay detention camp surfaced. That was obviously anticipated and was the main reason for locating it outside the United States.

IMO, the fact that that information surfaced at all speaks well of the United States, even under these embarrassing and, frankly, obscene circumstances. This isn't the first time Americans as a group decided it was best to ignore the constitution for the sake of the country in times of war (e.g. FDR).

Bush and his administration created a smokescreen for themselves and asked Americans to do the right thing, to trust them during a time of emergency. It was good enough for me, I hate to admit. But we put our faith in an incompetent ass ass it turns out.

Having said all that, dte's initial response in this thread was spot on. It ain't easy, being the lead dog on the team.

dteowner said:

Then, once again, take the kerchief from your nose, hop in your Pininfarina, and drive us to the promised land.

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We would have, if you'd let us. Unfortunately, it's a long, winding, and very bumpy road, and you grabbed the wheel and looked for a short cut via Baghdad, that ended up trashing the car. Now we have to repair the car first before we can go anywhere.

That's the thing, you know -- there really is only one car, and if you, as the 600-pound-gorilla on the block, insist on grabbing the wheel, there really isn't a whole lot we can do about it.

dteowner said:

http://www.washingtonpost.com/wp-dyn/content/article/2007/12/08/AR2007120801664_pf.html

It wasn't put to a vote, so perhaps "approved" has inaccurate connotations, but plenty of members of congress were well aware of the practice and had no objections to its use.

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Thanks dte. It's obvious that many crying foul in Congress after the fact now are tainted with a complicit agreement in the procedures as that article points out, similar to their complicity in voting for the invasion of Iraq. That's another factor that makes investigation/prosecution look like a partisan witch hunt.

V7 said:

I'm not as familiar with the American legal system but I didn't think the Justice Department had any leglislative powers? As far as I can see this is only a legal opinion (and one flatly contridicted by the Washington Post article you referenced above).

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A legal opinion put forth by those severely compromised as partisan hacks. Just scroll down-page on the second link for all kinds of DoJ factoids, including questionable hiring polices that put neo-conservatives into as many slots as possible:

The evidence in our investigation showed that Schlozman, first as a Deputy Assistant Attorney General and subsequently as Principal Deputy Assistant Attorney General and Acting Assistant Attorney General, considered political and ideological affiliations in hiring career attorneys and in other personnel actions affecting career attorneys in the Civil Rights Division. In doing so, he violated federal law - the Civil Service Reform Act - and Department policy that prohibit discrimination in federal employment based on political and ideological affiliations, and committed misconduct.

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More lefty propaganda

I do think the Mold Spores comment shows a nice sense of humor, though.

magerette said:

So far the thread is proceeding along predictable lines,

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Yeah, I thought it quite plucky of you to grab this particular big brick and heave it at the hornet's nest.

I'm wondering what the effect is outside the US if these crimes are forever swept under the rug because it's politically expedient to ignore them, in particular in the Muslim world. Does investigation/prosecution send a message of moral strength or moral weakness--i.e., we are too weak to do the nasty bloody things that terrorists who are willing to die for their cause probably look on as nothing. Where does the rule of law come in, and leading by example and so forth? Is it effective or ineffective to hold the concept of a Gitmo over the heads of those who see us as mortal enemies?

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The main problem in the Arab world is the perception that the USA is waging a war against them; torture, Gitmo, Abu Ghraib and what not are seen as simply skirmishes in that war.

So, I think that closing down Gitmo and pulling out if Iraq will do a fair bit to defuse that perception; if, in addition, there's some movement to be not so completely one-sided with regards to Israel/Palestine, perceptions could change a good deal.

Now, prosecutions for torture address a different thing: not the war itself, which is the main problem, but the means for waging that war. Since most Arabs live under rather nasty regimes, they don't have that high expectations of what governments do. Prosecuting the torturers would send a very powerful message that the USA sets higher standards for itself than the Arab countries, but I honestly don't know what impact that message would have. I have a feeling it's not as important as defusing the perception that there's a colonial war/Christian crusade in progress against them.

Lots of us Euros would be pleased as punch, of course, but that would make very little difference on the ground.

IOW, I see the torture prosecution question as fundamentally about America's self-image, not the rest of the world. Do American values include tolerance of torture? If so, are these values you want to retain?

If the answer to both of these questions is "yes," as I suspect it would be (there are several people on this thread angrily defending the use of torture in the war against terror, for example), then obviously no prosecution is needed. If it is "no," then America should conduct the investigations and prosecutions for its own sake, not in order to please the rest of the world.

In no case should you do that kind of stuff out of political expediency or to win brownie points in Baghdad or Gaza.

Prime Junta said:

Yeah, I thought it quite plucky of you to grab this particular big brick and heave it at the hornet's nest..

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As long as no one starts throwing shoes--I'm a little slow on my feet, what with my advancing years and all...

The main problem in the Arab world is the perception that the USA is waging a war against them; torture, Gitmo, Abu Ghraib and what not are seen as simply skirmishes in that war.

So, I think that closing down Gitmo and pulling out if Iraq will do a fair bit to defuse that perception; if, in addition, there's some movement to be not so completely one-sided with regards to Israel/Palestine, perceptions could change a good deal..

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That's a very reassuring insight, as I think things are indeed heading in that direction now, though who knows of course. See Obama's remarks yesterday.

Now, prosecutions for torture address a different thing: not the war itself, which is the main problem, but the means for waging that war. Since most Arabs live under rather nasty regimes, they don't have that high expectations of what governments do. Prosecuting the torturers would send a very powerful message that the USA sets higher standards for itself than the Arab countries, but I honestly don't know what impact that message would have. I have a feeling it's not as important as defusing the perception that there's a colonial war/Christian crusade in progress against them.

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So reasoning along these lines, the torture of Al-Queda combatants is just one part of the radical recruitment motivation I worry about. I'm concerned about the big picture, how what we've done has worked against us in these policies that were meant to protect and save American lives. To me the moral issues surrounding torture are totally obvious and I see no justification for them either situationally or practically, but if prosecution would really not make any difference to the people we're fighting, then it seems to be not worth the expenditure of political capitol, at least on that front.

Lots of us Euros would be pleased as punch, of course...

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And as this thread shows, you know we just live for that...

[/IOW, I see the torture prosecution question as fundamentally about America's self-image, not the rest of the world. Do American values include tolerance of torture? If so, are these values you want to retain?

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That's the hardest question, of course. I think what's happening now is very typical of Americans(and possibly human beings in general)--we have two really opposing sets of extreme partisans for and against, left and right, and a vast middle who are unsure of how far it's necessary to go in order to be safe. I think it's a very good thing that one of the first signals Obama sent in his inaugural address is that we shouldn't have to choose between our ideals and our safety.

Prime Junta said:

You're right, I was just mistaking one Republican for another -- very easy to do when you get your party hats on. You were claiming all along that "kid-gloves treatment" doesn't work, and it was JDR claiming that the rest of the world is only down on torture because they've never experienced terrorism.

IOW, the message I'm getting from both of you is that torture is a required component in fighting terrorism. I happen to disagree strongly with that, both on ethical and practical grounds, but that's a different point. I apologize.

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Would you agree that intel is a key component of fighting terrorism? How do you propose to get that intel? Infiltration is highly impractical and audio/video surveilance only works if you're looking/listening in the right place at the right time. What better source than a captured terrorist? It's not like these guys are going to sing like canaries just because you give them a hug and ask them politely. How do you get that guy to talk? The line between hard questioning and torture isn't exactly crystaline for anyone, and globally there's going to be half a billion different lines. Who gets to sit in judgment?

dteowner said:

Would you agree that intel is a key component of fighting terrorism?

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More like *the* key component of fighting terrorism. Without good intel, all you have are indirect methods, and while they do work over the long term, you also need to be able to stop all the attacks you can in the short term.

How do you propose to get that intel? Infiltration is highly impractical and audio/video surveilance only works if you're looking/listening in the right place at the right time.

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Actually, infiltration is highly practical. It's a key component in all successful counter-terrorism and counter-insurgency campaigns. Unfortunately, it takes time, patience, and understanding of the local culture to pull off. You can't just send in a troopship full of Marines and have it over and done with.

What better source than a captured terrorist?

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A bought-off terrorist. An undercover operative posing as a terrorist. A bought-off terrorist's brother, uncle, father, mother, or sister. And so on.

It's not like these guys are going to sing like canaries just because you give them a hug and ask them politely. How do you get that guy to talk? The line between hard questioning and torture isn't exactly crystaline for anyone, and globally there's going to be half a billion different lines. Who gets to sit in judgment?

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The problem is that torture isn't very effective. Everyone breaks sooner or later. The trouble is that when they break, they start telling the torturer what they think the torturer wants to hear. Things being as they are, quite often you'll be asking the wrong questions or torturing the wrong guy, which means you'll get a lot of made-up bullshit that may or may not be plausible. Fact-checking this bullshit is extremely time-consuming and uncertain, and will have you doing wild-goose chases as often as not. What's more, the tough and trained ones will be prepared for it, and will pretend to break before they actually do, and fill your ears with completely bogus intel as well. Think Princess Leia and the destruction of Alderaan.

Don't take my word on this; the effectiveness of torture as an interrogation method has been studied a great deal, and it really doesn't work very well; certainly not as well as softer methods (which, of course, don't work all that well either). To get good intel out of a prisoner, you have to actually turn him around -- through brainwashing, bribery, or what have you. That can be done -- from time to time. But quite often it's just not possible. "Accidental" torture usually happens this way -- you have an interrogator asking questions, the prisoner grinning stupidly and making hurtful remarks, so they snap and beat the shit out of them with some wire. Read up on the Brits in Kenya if you're interested -- there are plenty of stories like this from there, with police shooting body parts off prisoners because they wouldn't play ball.

Once more, dte, you're laboring under the illusion that quick and dirty solutions exist: "bomb their capitals, kill their leaders, and force them to convert to Christianity," as Ann Coulter put it. It doesn't work that way: there are no quick solutions, the use of force, whether off the wing of a B-52 or the pliers of an interrogator, is often counterproductive, and this stuff takes *time.*

And you know what? There's nothing new about this stuff. Had you only asked, the Brits, French, Germans, Spanish, and Japanese would have been delighted to walk you through their counterterrorism techniques and tactics that have actually been proven to work in practice. But you preferred to bomb the shit out of a few countries instead, and then put up huge bounties for terrorists in Afghanistan, which caused everyone with a grudge or a greed to turn in people they didn't like. Now that they've been in Gitmo for the better part of a decade, I'm pretty sure many of them have decided to *become* terrorists, though, as well as lots of their families. Which is another reason this is such a bad idea.

And finally finally, the moral argument. I believe very strongly that if my way of life requires torture to defend, it's not a way of life that's worth defending. I would rather grow a beard and wear a turban than torture.