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Why torture questions must be answered
Friday, May 8, 2009 | 2:05 a.m.
A May 1 editorial in the Las Vegas Sun called for a bipartisan commission to investigate the Bush administration’s torture policy. In response, a Monday letter to the editor from Bob Lewicki — headlined “Just where would commissions end?” — ironically claimed we should investigate everything then, including George Washington and the cherry tree incident.
Yet there is something unique with the Bush torture policy. It is the first time I know of that the CIA was used by the United States to torture prisoners in our custody.
The idea that our country does not torture is based on World War II policies, but since 1950 the CIA has been studying torture techniques and has been exporting its knowledge abroad through the Office of Public Safety and the School of the Americas. However, torture was not our official policy, until the George W. Bush administration.
We cannot move forward with a torture precedent in our immediate past, even if torture worked. Do international law, our treaties and our Constitution mean nothing? Can American citizens be tortured? Is our fear of what attacks might happen more important to us than what will certainly happen if we permit our government to torture those whom it determines to be “enemies of the people”? Where will it all end, indeed?
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Judge Jay Bybee signed off on his opinion regarding the threshold for "torture" when he was head of the Office of Legal Counsel(OLC) in the Justice Department in 2002. After reading his definition of the threshold for "torture" as stated in that opinion, I am personally in full agreement with Bybee's memo. Further, if there is no intention to pursue criminal prosecution in this matter for Bybee's actions, there is certainly no basis for impeachment or even reprimand in the Washington D.C. jurisdiction, or anywhere else for that matter. I have always believed that if specific laws were broken, and that extends to Pelosi and other members of Congress who were aware of and complicit in the interrogation methods, that those who were alleged to have broken these laws, are entitled to complete due process, and are completely innocent until proven guilty. That is the way we treat people in this country. Nevertheless, Bybee and other members of the OLC and the Bush administration have been judged in the liberal kangaroo courts of this nation without due process. This is wrong and should be shouted down by responsible citizens who know better!
Bybee exercised his right to reveal how shocking inept he is at understanding the law.
As jfNance32 pointed out, US Code Title 18,2340 clearly states:
(1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2)"severe mental pain or suffering" means the prolonged mental harm caused by or resulting from-- (c)the threat of imminent death;
Waterboarding creates a threat of impending death; it's suffocation.
Bybee has shown that he is too inept to hold a J.D., and should be disbarred.
"Waterboarding creates a threat of impending death; it's suffocation.
Bybee has shown that he is too inept to hold a J.D., and should be disbarred."
\
Let's see if due process in the legal system bears you correct. I doubt it.
Houstonjac,
Both you and Judge Bybee need to seriously reconsider both your logic and your ethics. In the torture memo, Judge Bybee wrote:
"Here, because Section 2340 requires that a defendant act with the specific intent to inflict severe pain, the infliction of such pain must be the defendant's precise objective. If the statute had required only general intent, it would be sufficient to establish guilt by showing that the defendant "possessed knowledge with respect to the actus reus of the crime."...If the defendant acted knowing that severe pain or suffering was reasonably likely to result from his actions, but no more, he would have acted only with general intent....therefore, knowledge alone that a particular result is certain to occur does not constitute specific intent."
"Further, a showing that an individual acted with a good faith belief that his conduct would not produce the result that the law prohibits negates specific intent...Where a defendant acts in good faith, he acts with an honest belief that he has not engaged in the proscribed conduct."
Get that? "Knowledge alone that a particular result is certain to occur does not constitute specific intent."
What Bybee is saying here, and what you apparently agree with, is that torture is not torture so long as the torturer maintains that it wasn't his SPECIFIC intent to torture, even if the torturer knew that the treatment of the prisoner would produce the same effects as torture.
I knew it was going to happen as a result of my actions, but it wasn't my specific intent, so you should let me get away with it.
Where's the logic in that?
Officer, I knew that beating the heck out of that guy would produce injuries, but it wasn't my SPECIFIC intent to cause him injury. I just wanted him to see things my way. You should let me go.
What a crock. How dare any civilized person stand up for this piece of garbage?
Even Bybee himself admitted later on in the memo that this argument didn't hold water, calling the notion that a torturer could believe he was not torturing, even though what he was doing produced the effects of torture, an "unreasonable belief":
"Although a defendant theoretically could hold an unreasonable belief that his acts would not constitute the actions prohibited by the statute, even though they would as a certainty produce the prohibited effects, as a matter of practice in the federal criminal justice system it is highly unlikely that a jury would acquit in such a situation. Where a defendant holds an unreasonable belief, he will confront the problem of proving to the jury that he actually held that belief."
Let the law and the facts, and due process make your case, if they can or will. Thankfully we live in a country where you are innocent until proven guilty. Bybee is innocent. Liberal kangaroo courts are not going to turn this around. You don't like what happened. I am grateful that these policies were in effect.You think they are illegal. You can quote until you are blue in the face. Bybee is innocent.
Bybee as an official of the judiciary (as all Bar members are) swore an oath to support and defend the Constitution.
That would include the Eighth Amendment's promise: "nor cruel and unusual punishments inflicted."
The threshold question then becomes whether or not those "arrested" abroad by U.S. instrumentalities (military, CIA, whoever) can claim Bill of Rights guarantees. That was settled last year by the U.S. Supreme Court in Hamdan v. Rumsfeld. The "detainees" are covered by the Great Writ, and it only follows the remainder of the Bill of Rights applies as well.
The end.
Baybee is totally correct.
To convict a person of torture under US Code Title 18, one must convince a jury of 12 beyond a reasonable doubt that the defendent knew that he was not commiting torture and defendent's belief that he was not commiting torture was not unreasonable.
That would be a hard hurdle to overcome considering that many of our troops get water boarded during training and that reporters have been water boarded and that water boarding last less than 1 minute and that no water gets into the subjects' lungs.
I certainity doubt that one could even find a majority of 12 members of a jury, much less the required absolute of all 12 jurists, would believe a CIA employee or agent would intently believe that water boarding is torture.
jfnance32 -- again another typical obtuse post.
The federal Constitution is the touchstone/source code of ALL positive law and is the Supreme Law of this land. Any law in conflict with it is void, period.
Endorsing Imperial Bush Regime doublethink policy has ruined this country and Bybee played his part in it. He is a traitor and should be treated as such.
Mr. Nance,
Since you maintain that waterbording isn't torture, can we say that, unlike Judge Bybee and Houstonjac, you believe that those who do practice torture should be prosecuted?
If so, then prepare yourself for a shock.
It would be very easy to convince a jury that waterboarding is torture. All one would have to do is cite US case law. People have been prosecuted for, and convicted of, torture by waterboarding in this country on more than one occasion; the first instance was over 100 years ago.
The first U.S. solider to be convicted for waterboarding an individual during a military conflict was Captain/Major Edwin F. Glenn. He was convicted of waterboarding Tobeniano Ealdama during the Spanish American War of 1898 in the Philippines.
President Theodore Roosevelt had General Jacob H. Smith court-martialed for not preventing waterboarding on the island of Samar during the Spanish American War of 1898 in the Philippines.
"...following World War II war crime trials were convened. The Japanese were tried and convicted and hung for war crimes committed against American POWs. Among those charges for which they were convicted was waterboarding."
John McCain
In 1983, Texas Sheriff James Parker was charged, along with three of his deputies, for handcuffing prisoners to chairs, placing towels over their faces, and pouring water on the cloth until they gave what the officers considered to be confessions. The sheriff and his deputies were all convicted and sentenced to four years in prison.
So not only did the people who waterboarded get court-martialed, those who knew about it and failed to prevent it got court-martialed, as well.
And yes, if Nancy Pelosi knew it was happening and didn't stop it she should be prosecuted, too.
It is hard to dispute uncited material.
I have hard of similar attempts to link water torture to water boarding.
Most of those links tend to be eispodes where the subject is water tortured in long sessions, water is allowed to enter the lungs and the subject often passes out due to the lack of air and very close to actually drowning.
If you take time to read the Japanese crimes of water torture then you would see that you are comparing apples to steak.
The 19 terrorists were subject to water boarding in which the session last less than one minute, water is not allowed to enter the lungs due to physics and no subject passes out due to the lack of air.
Many of our troops in training are water boarded.
Reporters have been water boarded.
There are other flaws in your list.
Military personal are prohibited by military law from any harsh interrogrations and torture of POWs (offical captured state military actors). One can only ask a POW their name, rank and other information that identifies the person.
The terrorists are not uniformed soldiers representing a country and even Obama has not declared them POWs.
Civilan police officers are prohibited also from any harsh interrogrations techniques along with torture, too. For instance, a police officer can not force a prisoner to listen to Celine Dion for long hours.
killer8:
Obama adminstration has decided not to extend habeas corpus access to person held just like Bush did.
Obama orders the deaths of terrorists along with their wives and children by US military. They are killed in a friendly allied country of which we have not declared war on. They are killed without due process of law.
What do you think about that?
killer8 and JohnF:
Was FDR a war criminal and a violator of the US Constitution?
jfnance32 -- no clue what you're talking about with the habeas corpus. Habeas corpus is not up to the executive to "extend access" or not. On the rest you're just pulling out of the air again.
As for FDR, how is that even remotely relevant to this Discussion?
killer8....thanks for proving more are more concern about attacking Republicans than standing for your principles.
I thought so.
Of course, you do not DARE attack a Democrat especially FDR.
You can not even whisper a bad word about Obama and he is doing some things exactly like Bush.
That would be against your REAL principles.
It is all about the R vs D label and nothing else.
As for habeas corpus, the executive branch can decide not to allow a habeas corpus writ to be passed to judical branch. Lincoln did it. FDR did it. Bush did it. Obama did it. A third party can file a suit to the judical branch challenging that denial and force the executive branch to allow the writs to be processed to the judical branch. Also, the judical branch can uphold the executive decision to not process habeas corups writs. Both of that has happened.
You do know that the Constitution allows Habeas Corpus to be suspended. Right?
jfnance -- I know the Constitution much better than you do.
As to who I "DARE attack" that's up to me who, if and how. No one is above the law.
In Hamdan v. Rumsfeld the court also made it clear this executive power is "not a blank check."
Nice to you try for relevance.
So Mr. Expert.....does the Constitution allow for the suspension of Habeas Corpus or not?
Punting on another question...since you are refusing to say if FDR was a war criminal or have any expressions on Obama who denied habeas corpus access.....
I thought you had opinions....I guess you have become a punt expert.
"It is hard to dispute uncited material."
No, it is hard to dispute facts.
As for checking on their veracity, Mr. Nance, it's very simple. Just google Edwin F. Glenn, Jacob H. Smith, and Sheriff James Parker.
No matter how you obfuscate, the fact remains that, under the law, waterboarding is torture. It does not matter one bit what you and I believe personally, or whether Marines get waterboarded during training, or whether the Constitution allows for the suspension of habeas corpus. It doesn't matter what Roosevelt did during World War II or what Lincoln did during the Civil War. The bottom line is that the law of the United States says waterboarding is torture; all these other arguments are fluff.
So the only question is do you stand for the law or do you stand with those who say that they're above the law? Do you believe in the rule of law, or do you believe in the rule of dictators?
Those who broke the law, whether they be Dick Cheney, Nancy Pelosi, or Donald Rumsfeld, need ot be prosecuted. Nobody is above the law.
" the fact remains that, under the law, waterboarding is torture."
That is not a fact.
That is your opinion.
Many like you believe it is torture.
Many like me believe it is not. I guess that Pelosi and other top Democrats did not believe at first waterboarding to be torture.
It will only become a fact if a jury of 12 voting fully as 12 declares that an act of waterboarding as specifically performed on the 19 terrorists was torture.
Opinions are not facts and never will be.
"Do you believe in the rule of law, or do you believe in the rule of dictators?"
Again, do you believe FDR was a war criminal and a dictator who violated the "rule of law"?
Again, do you believe Obama is a dictator who is violating the "rule of law"?
Hj I agree that Bybee is innocent until proven guilty, but it seems that our justice system is skirting around laws again. If you are a politition you own the lawbooks. I you are a suspected person with suspected questionable ties to a suspected questionable terrorist you can be waterboarded. No trial by jury, no proven guilt, pure speculation can get you waterboarded.
Nance are you there when these people are getting waterboarded(tortured). What website did you get the fact that waterboarding(torture) is only applied for 1 minute?
Are you judge and jury now and refer to these men as terrorists? Have you got video and transcripts of their trials? Is it against the law not to uphold the law?
If Bush, Cheney, Rumsfeld, Powell, Ashcroft were aware and/or took part in this, are they guilty? I guess since they are polititions they are excused. No one is above the law? Right John F?
Nance when our soldiers and reporters are waterboarded, they know that they are being used as a test and the duration of this torture will be momentary. It would seem to me that torture is worse when the duration of said torture lasts longer.
Since a number of our leaders are suspected to have aided and abetted in these crimes, should they now be tried in a court of law and punished if found guilty? When will the laws of the United States be upheld? Are thay above and beyond the laws?
Nance,
Can't you understand that the law is the law?
It doesn't matter if you believe that robbing banks is not a crime. It doesn't matter if you believe that embezzlement is not a crime. It doesn't matter whether you believe murder is a crime nor does it matter whether you believe waterboarding is a crime.
The law says they are all crimes and that people who commit them need to go to jail.
And anyway, it's not just waterboarding. It's absolutely unconscionable that Lynndie England is sitting in jail while those who authored the policy of torture and humiliation that she carried out are not only walking around free, but won't even be prosecuted. Some leadership, huh? Let your subordinates pay the price for doing what you told them to do.
fremmasmind,
That's my very point. Whoever committed these crimes needs to be prosecuted, no matter how high their station. I don't care if it's the Speaker of the House or the President. Everyone has to answer to the law. The Richard Nixon defense won't work.
Whether they actually serve jail time is another matter and one that I hope will ultimately be decided by the courts and the President. Personally, I can't see what justice would be served by sending Dick Cheney or Donald Rumsfeld to jail. I would expect President Obama to pardon them in any event. But these people's deeds need to be be brought to light and they need to be prosecuted. Otherwise we make a mockery of the rule of law.
"Can't you understand that the law is the law?"
Who died and made you king of the law?
It just your and other's opinion of the law.
Nobody is proven guilty by just people's opinions.
We have a justice system for prove guilt and it is not based on people's opinions....at least it is not suppose to be.
Pelosi and leading Democrats at one point in time did not believe it was legal torture.
Many people do not believe it is legal torture.
The law specifally allows for pain and suffering during interrogration. That is not the legal test.
Still, you do not have the just guts to apply your crazed logic to called Obama a dictator or FDR a dictator and a war criminal.
That just proves this has absolutely nothing do with "princples" but with politics and the R vs D label.
JohnF this is what I'm getting at, just because one is a politician, at any level,a trial is the way to find out guilt or innocence.
Executive priviledge does not apply to any one but the President. No one is above the law, but it seems laws are not inforced. Equal rights applies to the duty to uphold our laws and the duty to enforce them. No one is above any written laws!
fremmasmind -- You're pretty close to describing the real problem here.
Impeachment proceedings are trials. Executive privilege actually applies to that entire branch of government, although the buck stops at the president/governor.
It is quite troubling how government got out of the habit of obeying its own laws. The courts are the main culprits here. Judge Andrew Napolitano wrote a good book on the problem "Constitutional Chaos."
Overall I call it the Elmer Fudd Effect -- if you remember those classic cartoons he'd get tricked by the Bunny into stepping off the edge of a cliff and somehow the law of gravity is suspended until he looks down. Laughs all around. Except when government disobeys its own laws the laughs are on us. Its a sure sign we live under a tyranny.
killer8, was Linclon a dictator and ran a government of tranny?
How about FDR?
jfnance -- give it a rest. It's not on topic here and not worth taking your bait.
More on "executive privilege" -- a quick and easy answer from the People's Law Dictionary:
"a claim by the President or another high official of the executive branch that he/she need not answer a request (including a subpena issued by a court or Congress) for confidential government or personal communications, on the ground that such revelations would hamper effective governmental operations and decision-making. The rationale is that such a demand would violate the principle of separation of powers among the executive, legislative and judicial branches. If there is a potential criminal charge, executive privilege will be denied, as Richard Nixon discovered when he attempted to use executive privilege to deny Congress, the courts and the Department of Justice access to tapes and documents in the Watergate scandal (1973-1974)."
http://dictionary.law.com/default2.asp?t...
"jfnance -- give it a rest. It's not on topic here and not worth taking your bait."
Punt....
Yea......executive privilege is spot on topic.....LOL
killer8.....you have absolutely zero princples.
You are a bunch of hot air.
You like to throw around the traitor word but when I bring up other clear examples where I apply your crazed logic you refuse to talk about it because it will reveal that either you are have dubious beliefs or you are just want to applied your junk words to Republicans.
So take your traitor words and shove it.
Killer B, watch out nance has got his dress on again and throwing a hissy fit.It seems that freedom of speech only applies to him. He should start a website of his own and get his thrills by arguing with his self.
fremmasmind -- jfnance and I have been sparring a long time. Once in awhile he's actually relevant.
It's all pretty simple -- I respect anyone who has something thoughtful to add to these Discussions, no matter what their opinions. The rest are to be ignored like the noise of the Herd. As I've said many times before, it is the price we pay for free speech. Thanx for the prompt.
WHAT PHONIES!!!!!
ZERO CREDIBILITY!!!!!
"However, torture was not our official policy, until the George W. Bush administration."
On 9/12/2001 we all understood that our nation was changed forever - our very idea of national security was changed forever. We all understood that drastic measures were needed to prevent such an occurrence from ever taking place again on our soil. A lot of firsts took place during the last administration, most of them because we found ourselves in uncharted territory.
I certainly hope I'm wrong, but like most people I believe another attempt at a similar - or worse - event is inevitable. Will the masses be screaming, "Do something about this!!! But no waterboarding!"