9/11 mastermind Khalid Sheikh Mohammed

Michael Hayden and Michael Mukasey in an Op/Ed for the Wall Street Journal.  They say the point of interrogation is intelligence, not confession.  An important distinction to how intelligence officials approach interrogating terrorists compared how law enforcement officials approach it.  They go to write:

The Obama administration has declassified and released opinions of the Justice Department’s Office of Legal Counsel (OLC) given in 2005 and earlier that analyze the legality of interrogation techniques authorized for use by the CIA. Those techniques were applied only when expressly permitted by the director, and are described in these opinions in detail, along with their limits and the safeguards applied to them.

The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001.

Proponents of the release have argued that the techniques have been abandoned and thus there is no point in keeping them secret any longer; that they were in any event ineffective; that their disclosure was somehow legally compelled; and that they cost us more in the coin of world opinion than they were worth. None of these claims survives scrutiny.

I understand there is a concern about interrogation practices.  While I don’t entirely agree with this Administration’s position on some of the practices I do commend them for not disclosing the names of those who implemented them.  They did so with legal cover, and they should not be punished just because the rules have now changed due to a changing of the guard.

I don’t agree, however, that the interrogation techniques practiced by trained CIA and military interrogators should be considered torture, I think we broaden the definition too much when we do so.  I’ll be clear, that I do not approve of torture.  I do not believe it is effective.  I think we should be above that.  I do shake my head when I hear people who consider sleep deprivation, insults, mind games, loud music, and even waterboarding (while I’m not supportive of that practice) torture.  Do they physically injure or endanger the life of the person being interrogated?  No.

Also to those who bring up Abu Ghrahib, the authors point out the distinction that it was “an incident that had nothing whatever to do with intelligence gathering.”  So to bring up what happened there is disingenuous, and those who favor enhanced interrogation techniques were just as appalled by the behavior of those few soldiers.

I am also unclear, as the writers are, of the value of disclosing all of what had taken place in the past.  Even if those tactics are not employed by the CIA under the Obama administration, how does it benefit us to let the terrorists know exactly won’t be done?

It doesn’t.  Anyway, be sure to read the whole piece.

32 comments
  1. It's darn right the government's hands should be tied to prevent these practices. We are a nation of laws.

    Waterboarding is torture, plain and simple. We're not talking about spanking people or sending them to bed without supper. This is coercive, physically and mentally abusive treatment that leaves long-term damage and is inappropriate for a civilized state. That Muskasey never could admit to what constitutes torture — while testifying under oath — and still doesn't appreciate concepts like transparency and not promulgating a separate, secret legal system speaks badly to his objectivity.

    Read the memos. Read the Red Cross report.

    Other commentary:
    http://blog.beliefnet.com/crunchycon/2009/04/ob

    http://www.salon.com/opinion/greenwald/2009/04/

  2. It's highly unpleasant, I don't support it, but I don't believe it is torture. Mentally abusive? That shouldn't even be a criteria. Again let me say it again though – I don’t support its use.

    My main beef – is why advertise to Al Qaeda what we will and won't do?

  3. “Things can be wrong or disapproved of and not be torture.”

    You wouldn't believe how many times I've had folks try to argue that point….

  4. Umm… The term “torture” does cover more that snipping fingers and snuffing out cigarettes between the victim's toes. Mock fire squads don't cause immediate physical damage but they're also prohibited as torture.

    As for Al Qaeda, do you think that will stop anyone? These memos provide no information that terrorists don't already know. Detainees and soldiers already talked about their experiences. This was *not* national security information; it was is the dry, legal justification used as a cover for acts that the administration wanted to use. Further, these are not torture or operating manuals for interrogation. Instead, these are evaluations made by lawyers about the legality of practices and as such deserve no cover or secrecy classification. Their release was specifically and appropriately ordered by the courts.

  5. Stop terrorism? Of course not. That isn't the intent. The intent of interrogation is intelligence gathering which will prevent terrorist attacks. Knowing what we can and can't do can prepare a terrorist to resist providing information during an interrogation.

  6. Shane, the US agreed not to use torture. This means no mock fire squads, no extreme sleep deprivation (going on to weeks) and yes, no waterboarding too.

    As for why these memos were released. Let's not forget:
    We need to know what are government will and will not do. Particularly, we need to know that the government will neither conduct (oops, waterboarding) nor condone torture (oops, shipping detainees to other states where we know torture will be applied). “Trust us” is not sufficient assurance — transparency is. The courts agreed and ordered the release of the memos. These documents and Red Cross reports confirmed that the legal advice used to justify particular actions are extremely questionable. Maintaining a separate, secret set of laws is extremely dangerous to a democracy.

  7. They used the waterboard 83 times in one month for one person and 183 times in a month for another. Read the memos.

    Shane says he doesn't support the use of this method but doesn't think it's torture. Why? If it's not torture, then it's allowed and it would be 'tying the hands of interrogators' not to use it. Why is it wrong? What's wrong about waterboarding that doesn't fit under category of torture? There are legally defined criteria for torture with which the US has agreed by treaty and even prosecuted individuals for war crimes: What criteria does waterboarding not meet?

  8. Reading comprehension– just because you don't agree with using something doesn't make it torture.

    Feeding them only pork wouldn't be torture.
    Doesn't mean I support the Other White Meat diet.

    If you're trying to pick a fight, at least pretend to respond to something I said, eh?

  9. tor⋅ture   /ˈtɔrtʃər/
    noun, verb, -tured, -tur⋅ing.
    –noun 1. the act of inflicting excruciating pain, as punishment or revenge, as a means of getting a confession or information, or for sheer cruelty.

    I happen to be claustrophobic, and even I don't think that a mental freak-out triggering the mental impression of drowning is torture.

    Check some press releases from the buddies of these guys.
    Using an electric power drill on hands and eyes? That's torture.
    Hacking off limbs? Torture.
    Loud music and lack of sleep? That's a college dorm room.

  10. You attempt to make it sound like a fraternity prank. It's not. Extreme sleep deprivation actually does fall under the heading of torture and can produce long-term mental damage & psychosis. Recently, James Horne, an authority on the effects of sleep deprivation expressed his dismay that his research was misrepresented in the memos to justify the use of this method. It's not that all sleep deprivation is necessarily harmful but that it is clear that in many instances it was used to the degree that it falls under torture.

    That others commit the same crime or worse is no justification, IMO.

    Where do you stand on waterboarding?

  11. Oops. I see from your comments that you think waterboarding isn't torture. So which legal criteria for torture (check out some of the treaties and agreements the US has signed for reference), doesn't waterboarding meet?

  12. You attempt to make it sound like a fraternity prank.

    No, I do not–not in the least because I don't give a fig about frats; I am telling you that it is a fact of life in college dorms around the US.

    So, either you don't have a problem with lower degrees of torture, or your definition of torture which includes sleep dep and loud music is over-broad.

    That others commit the same crime or worse is no justification, IMO.

    I'll thank you not to attempt to project motives on to me, thank you very much. I drew on current, relevant examples of actual torture to allow a contrast.

    “Extreme” physical anything causes damage– that would be why it's extreme. It's in excess of what can be done without harm.

  13. Before we go further, Foxfier, I'd want to be clear that I try very hard not to assume the worst of others that I've never met, particularly over the internet, and certainly have never intended to insult you in any way. I'm sorry if I misread your intentions.

    Point 1) Degree of deprivation: I thought I was careful to describe that extreme applications were the problem, and this is definitely not like something one would find in a dorm. The duration combined with the level of additional stress is very much unlike what happens in college.

    Point 2) The type and level of distress that qualifies: The legal definition of torture also covers mental anguish and impacted mental states. As it turns out, extreme sleep deprivation and waterboarding can produce physical anguish in addition to severe mental distress. The mental distress certainly can and does persist long after treatment.

    FWIW, here's what the US agreed to in the “United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”:
    That with reference to article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from:
    (1) the intentional infliction or threatened infliction of severe physical pain or suffering;
    (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly
    the senses or the personality;
    (3) the threat of imminent death; or
    (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

    See also:
    http://en.wikipedia.org/wiki/Torture_(US_law_de…)

    Waterboarding hits points 1, and 3 (I'd argue for #2 as well). Extreme sleep deprivation covers at least point #2.

  14. If you mean no harm, fine; you're at two strikes, though, and at three I stop bothering as a lost cause. That you instantly try to pick a fight from a simple statement of fact, carefully phrased to be devoid of controversy, makes me a lot less charitable than I might usually be.

    Peeve: Wiki is not a source. Wiki is a collection of opinions that is well known to be flawed, politically slanted and often flatly fraudulent.
    It can be useful for finding more information, but shouldn't be referred to with any more authority than a random, uncited blog post.

    How about a legal opinion?
    http://documents.nytimes.com/justice-department

    As you can see, they did consider your point 1 and point 2. A great lenght, with attention to even possible harm or suffering.

  15. I'm sorry you interpret my first comment as 'picking a fight'. It wasn't.
    ***********************

    Compare the wikipedia article with the text I quoted before dismissing it. What I provided was from the original text. Here is a link to a PDF (see pgs 6 & 7 for the declarations and reservations from the US):
    http://treaties.un.org/doc/Publication/MTDSG/Vo

    As for the legal opinion you cite: The reasoning behind those memos represent precisely the problem being discussed. They go against: 1) US legal history, 2) What the US has complained against other countries' methods of interrogation and 3) the actual text of established US treaties and laws. Furthermore, within memos and the footnotes one will also find that the authors even hedged about the ultimate question of legality. As such, the memos are part of the unvetted, extra-legal system set up by the previous administration and are unvalidated rules that have never been voted upon by Congress. Had the Bush administration wanted to establish legal protection for waterboarding, it could have asked Congress to change the law. It didn't.

  16. You responded to a short, neutral statement that things can be objectionable without being torture with an irrelevant tidbit, and then demanded that I defend Shane's statement by insisting that all things not torture are not objectionable and should be used.
    This is attempting to start a fight, and nothing you've done since has made that value judgment doubtful.

    Compare the wikipedia article with the text I quoted before dismissing it

    No.
    You can cite valid sources, or you can make your own arguments.
    I'm not going to go through an invalid source and see if I can make your argument for you.

    A legal opinion by the justice department is a good example of a valid source; that is why I linked them.
    An actual quote and link to a treaty would be a valid source; they're easy to find.
    Shoot, even a blog post with links and sources that are valid sources would be good.

    As for the legal opinion you cite: The reasoning behind those memos represent precisely the problem being discussed.

    They go against your assertions; this is not the same as a “discussion” in that you haven't shown where they are wrong, or offered a better argument than “they are wrong.”
    Feel free to argue with quoted phrases from them, but I'm done. They quote the law, which mirrors the treaties, and very carefully go through meanings.

    You, on the other hand, demand a legal definition and when offered a detailed legal definition with careful legality applied to shades of meaning and analysis say they're reading the law wrong and oh yeah it's illegal! (Hm, who knew that official analysis of the law in classified documents could be a crime? What is it, practicing law without syndication?) This isn't exactly unheard of on the internet, and it's why I have a three-strikes rule.

    On your Congress rant:
    http://www.captainsquartersblog.com/mt/archives

    Strike three. You're not worth my time, and those who see this afterward are unlikely to believe you to be unanswered.

  17. Tell you what let's let them get lawyered up. We'll see how people feel about calling those things torture when we get attacked again on the homeland because we weren't able to get the intelligence we need to stop it.

  18. As McCain said: “We have come a long way in the fight against violent extremists, and the road to victory will be longer still. I support a robust offensive to wage and prevail in this struggle. But as we confront those committed to our destruction, it is vital that we never forget that we are, first and foremost, Americans. The laws and values that have built our nation are a source of strength, not weakness, and we will win the war on terror not in spite of devotion to our cherished values, but because we have held fast to them.

    http://mccain.senate.gov/public/index.cfm?FuseA

    Do the ends justify the means? Is torture the only way to obtain intelligence?

    As for the legalese… The UN treaty that I referenced is what the US signed in 1988… under Reagan, worked on during Bush administration and ratified in 1994 with the quoted statements under Clinton. I believe that the legitimate Conservative position is that we are a nation where laws matter. If you don't like that laws, work to change them.

  19. Again my point is what you are calling torture is not torture. McCain, perhaps with the exception of waterboarding, would not agree with you.

    Actual torture – no. Not only because the ends do not justify the means, but also it isn't effective anyway.

  20. Comments in restarted thread from here:
    http://caffeinatedthoughts.com/?p=2551&disqus_r

    Foxfier, I appreciate that further discussion with you will likely be unproductive. So, if I do respond to you comments in

    the future, please take it to mean that I'm addressing the response to anyone who cares to comment further. You've

    never been under any obligation to respond. I certainly don't treat this as a game or point scoring activity.
    ************

    1) Valid sources: The UN document is as valid as it gets. There are other relevant treaties and laws that can be found if

    one chooses to investigate.

    2) Congressional oversight: The reference (a blog) that Foxfier includes actually points to a more detailed article from the

    Washington Post (http://www.washingtonpost.com/wp-dyn/content/ar…). Even

    that blog article notes: “That doesn't settle the question as to whether waterboarding constitutes torture, but it

    certainly calls into question the notion that politics has nothing to do with the debate.

    I agree with that conclusion. The original Congressional panel's 'oversight' has come under a lot of fire over the years as being minimal and insufficient. Those few (four) members who could not discuss the meetings outside their conferences, could not take notes and could not consult outside legal experts should be in hot water as well, IMO. Indeed, by following the development of the debate on torture and interrogation practices we see that Congress later demanded fuller briefings across its wider membership. It is interesting to note that the Congress passed the Detainee Treatment Act of 2005 amendment which specifically limited armed forces treatment of detainees to the Army Field Manual in Interrogation (It passed the Senate 90-9). Bush approved the bill with a signing statement. In 2008 legislation passed both houses to constrain groups like the CIA to using the Army Field Manual as well. The ultimate legality of the position must ultimately be decided in courts. I'd suggest that given the court record of past secret decisions, it's not likely to hold water. It doesn't appear to hold water now, after having read the documents.

    3) Excessiveness: The recently released memos make little clear about constitutes excessive treatment. It's hard to see where any line is drawn and if one reads the memo and the footnotes, it's clear that the author hedges his conclusions. In any case, one is hard pressed to justify a claim that 83 or 183 waterboardings within a month or that sleep deprivation out to eleven days are not excessive. Both treatments that were signed off by the author. Note also the original researcher whose work was used to justify the sleep deprivation treatments thought that the memo's author misused his work.

  21. Where do you think I depart from McCain's opinion? I don't claim that all sleep deprivation is torture but that excessive application out to 11 days, as approved in the recently released memos, would qualify.

    As for waterboarding, what is your reasoning for why it's not torture and why would you not use it for interrogations if it isn't torture? Does the technique not hit any of the four criteria in the treaty I cited earlier?

  22. They used the waterboard 83 times in one month for one person and 183 times in a month for another. Read the memos.

    This is akin to accusing a boxer who has had less than a dozen fights of giving out hundreds of beatings– based on how many times his fist impacted.

    Debunked here:
    Hi, Jonah. There seems to be a great deal of disagreement over what constitutes a single instance of waterboarding. KSM himself says he was waterboarded on five occasions, all during his first month of captivity. Each session lasted about an hour, and during each session, he was repeatedly waterboarded. And apparently yes, 183 is the number of times he was waterboarded across those five sessions, always for less than 40 seconds at a time and apparently usually for less than 10 seconds each (more on that in a moment). But calling that being waterboarded 183 times probably suggests incorrectly to many readers that on 183 occasions he was taken from his cell and subjected to a session of waterboarding.
    http://corner.nationalreview.com/post/?q=YWJhMD

    Lest someone come along later on and take it at face value.

  23. When I wrote the 83 and 183 numbers I had assumed they had subjected KSM to 183 instances of suffocation. That assumption seems confirmed. Thanks for the blog confirmation, Foxfier!

    So, why did they use an illegal technique, the same one for which others have been successfully prosecuted for torture in the past by the US (under, among other treaties, Article 3 of the Geneva Conventions), the same one for which we've criticized other countries as being war crimes?

    Have you had a chance to finish reading the memos yet, particularly six pages beyond the page to which you linked, where the author writes on page 15: “We find the the use of the waterboard constitutes a threat of imminent death.”*

    *Sure, he dismisses with clear fit with torture definitions basically by saying, 'but you tell me that subjects recover quickly with no ill effects and so I'll take you at your word'. Sure, much like subjects are relieved at finding they were only subjected to mock execution. There was no research or any hint of actual inquiry on the part of that author to see if what they assumed was true. In fact, there is substantial literature on the subject from those treating torture subjects from other nations. And why didn't the memos' authors cite past cases of successful prosecution of waterboarding?

    I'm seriously upset by the way poor legal advice from the previous administration has left interrogators open to potential legal charges.

  24. I'm “unclear on the concept”? How so? I never held any misconceptions that the numbers referred to anything other that the number of applications. A single application exceeds Geneva conventions. What additional applications do is make the case more egregious and reveal the senselessness of the acts.

    Foxfier, I have to admit that I've found many of your responses to be both unnecessarily defensive (bristly with any questioning of your premises) and confusing*. Still, I remain willing consider any additional clarification you'd care to provide.

    *e.g. http://caffeinatedthoughts.com/?p=2451#comment-… (“appeals to authority”???)

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