What Is Torture?

[judgeposer]

Again, it doesn't matter if someone signed the Geneva Convention or not, you or correct. But the Geneva Convention is not a universal document that protects everyone. It does not protect un-uniformed terrorists hiding amongst civilians and using children as shields. There are other treaties we have doubtlessly signed on to that might protect them, but no one has tried to cite them yet. I probably should as the International Studies major, but I have no need to since I would disagree with them anyway. There shouldn't be anything that protects a terrorist. A terrorist is a new kind of evil, we have never seen something like this before (to the degree we do today) and the fact that anyone has any interest in trying to protect an individual who would willingly strap explosives to a young child's body... well it boggles my mind.

To that end I'm not a supporter of torture, I would prefer we send them to hell as fast as possible.

Vlad - nice reply.

I think we have arrived at some consensus about the Geneva Conventions. The only area(s?) of departure that seem to remain is whether the Conventions apply to terrorists. I would agree, in the least, that until we have a straightforward definition of what a terrorist is, answering whether the Conventions apply to them remains a debatable topic. But, like you said, it might not necessarily matter since it is the case that other treaties might have something more straightforward to say. I wouldn't go as far as to say that no one has cited any of these treaties yet, as I have here, in my citation to the UN Convention Against Torture and my mentioning of domestic law prohibiting torture (18 U.S.C. § 2340), to make no mention of the learned international law scholars grappling with these very questions, who also often cite what I have and numerous other conventions that have something to say on the topic.

Perhaps putting it as "There shouldn't be anything that protects a terrorist," or "the fact that anyone has any interest in trying to protect an individual who would willingly strap explosives to a young child's body... well it boggles my mind" strawmans your opponents' arguments some, don't you think? I don't think 'the opposition,' and to some degree me, given my recent posts, seeks to protect terrorists, properly understood, as much as they (we) seek to consist our behavior to ethical and legal guideposts. Somewhat similar, our Consitution doesn't protect the guilty by demanding a burden of proof that rests with the state to prove guilt (beyond a reasonable doubt). Perhaps that's just a cynical, but somewhat overstated view of what's going on.

I don't have any respect for those armed militants hiding among civilians, nor do I have any for those who strap bombs to young children and tell them to walk into a crowded market - they're certainly cowards and deserve a hot piece of lead that hopefully ends their crusade. My only argument, if I could make only one here, is that once captured, once taken off of the "battlefield," is that we do not resort to torturing these men, to the extent that we can secure them and handle them humanely. I'm not saying just yet that they be allowed to sue our government in our courts, or that we have to treat them better than we do our domestic criminals, just that we treat them just as well as we would any prisoner.

[Vladimir]

I can fully understand that argument. The problem I have with it is that optimally yes, we should treat them just as well as any other prisoner. The problem is they don't treat war, or our soldiers, as they would treat any other war, or our soldiers. And though giving them the benefit by being the only ones interested in holding up our side of that "ideal" relationship may gain us a lot of PR points, when it gets down to it I haven't seen anything that proves to me it would be worth it on the battlefield, where PR points don't really count for much.

Yes PR points may net us less enemies, or even just enemies less willing to go to the same lengths (I won't pretend we haven't done anything to encourage terrorists in their actions), but like I said the battlefield is about more than that. The fact is we do these things and most Muslims are still more than happy to work with us, because they realize what war is. They also realize the governments these terrorists are supporting do the exact same things, and much, much worse to their own citizens and fellow Muslims. Therefore my conclusion is only irrational people are fueled by our interrogation methods. And irrational people, though requiring provocation, can find that provocation anywhere. In other words, if it isn't water-boarding, it is capitalist greed, Christian evangelism, Western cultural subversion, or any number of things that could serve as that provocation instead of basic means of torture.

Though I still consider what we do to not be torture. I believe torture requires context, no matter how you look at it. Putting an innocent man in prison for 40 years is obviously torture, few would attach the same label to a child molester who was handed a 40 year sentence. Water-boarding a soldier of Saddam's who, defended his country's capitol city in a war, and surrendered... would be very different than water-boarding a determined al-Qaeda in Iraq operative, who was captured on the battlefield. (To provide a second example of context). Edited May 9, 2009 by Vladimir

[judgeposer]

I can fully understand that argument. The problem I have with it is that optimally yes, we should treat them just as well as any other prisoner. The problem is they don't treat war, or our soldiers, as they would treat any other war, or our soldiers. And though giving them the benefit by being the only ones interested in holding up our side of that "ideal" relationship may gain us a lot of PR points, when it gets down to it I haven't seen anything that proves to me it would be worth it on the battlefield, where PR points don't really count for much.

Yes PR points may net us less enemies, or even just enemies less willing to go to the same lengths (I won't pretend we haven't done anything to encourage terrorists in their actions), but like I said the battlefield is about more than that. The fact is we do these things and most Muslims are still more than happy to work with us, because they realize what war is. They also realize the governments these terrorists are supporting do the exact same things, and much, much worse to their own citizens and fellow Muslims. Therefore my conclusion is only irrational people are fueled by our interrogation methods. And irrational people, though requiring provocation, can find that provocation anywhere. In other words, if it isn't water-boarding, it is capitalist greed, Christian evangelism, Western cultural subversion, or any number of things that could serve as that provocation instead of basic means of torture.

Though I still consider what we do to not be torture. I believe torture requires context, no matter how you look at it. Putting an innocent man in prison for 40 years is obviously torture, few would attach the same label to a child molester who was handed a 40 year sentence. Water-boarding a soldier of Saddam's who, defended his country's capitol city in a war, and surrendered... would be very different than water-boarding a determined al-Qaeda in Iraq operative, who was captured on the battlefield. (To provide a second example of context).

I should say at the outset that I loathe arguments of pragmatism. I mean by that that while I can understand and even accept that pragmatic, "on-the-ground" concerns should inform our decision-making, I don't accept that our decisions should hinge on these concerns, nor do I believe that we should place these concerns foremost in our decision-making calculus. Doing those things can have us concede or otherwise disregard, say, for instance, ethical considerations for the sake of efficiency and too produces a patchwork of approaches when taken together amount to inconsistent application. For its part, the law, again, generally doesn't really operate this way.

I would acknowledge that 'holding up our end of the bargain' gains us credibility and PR points, I don't think that's why we should do so; incidentally, I don't think it costs us much to do so either. Nor should we refrain from torture because it might provoke others - because, as you said, those so provoked are usually just as easily provoked by some other fictive reason. We should refrain from torture because it's animalistic and unjustly retributive. We should refrain from torture, not because it will make "American exceptionalism," or "American ideas" devoid of meaning, or lose us friends among the International Community, but because it requires us to act as less than human, less than ideal.

Again, I say that I accept the internationally agreed on definition of torture and would agree that whatever context we need, we can seek out in determining whether "Interrogation Technique X" fits that definition. In that way, I am quite legalistic. So, in a technical sense, I wouldn't admit that wrongful imprisonment is torture, though perhaps I might refer to it as such conversationally. I mean to say that in this context, in this discussion, "torture" has technical, legal definition against which we can measure techniques and methods of interrogation. So, torture, as I have used, and should be used, isn't respective of whom we apply certain techniques and methods of interrogation to, but is a legal standard against which we measure what those techniques and methods of interrogation are.

[Balthazar]

Though I still consider what we do to not be torture. I believe torture requires context, no matter how you look at it. Putting an innocent man in prison for 40 years is obviously torture, few would attach the same label to a child molester who was handed a 40 year sentence. Water-boarding a soldier of Saddam's who, defended his country's capitol city in a war, and surrendered... would be very different than water-boarding a determined al-Qaeda in Iraq operative, who was captured on the battlefield. (To provide a second example of context).

I've been following this thread for a while, and I have to ask: have you ever read a single definition of the word 'torture'? It sounds like the waterboard-apologists is trying to define torture out of who its done to. That's simply wrong. Sticking a knife under the finger nails of a man is torture, whether it's done to an innocent family man or Bin Laden himself. Of course, most people would agree that it's worse in the first case. But that's a normative view, both cases are torture to the exact same degree. Waterboarding is recognized as torture by just about everyone in the international community. You can say that the ends justify the means. But that does not mean that what you do is not torture. It simply means that you think that just ends justifies torture. I'm not going to argue moral here, but it's pretty mind blowing how some people try to contextualize torture.

And as a last question, for those claiming that torture requires physical pain: Doesn't the Chinese water torture qualify either? Edited May 10, 2009 by Balthazar

[Vladimir]

But that's a normative view, both cases are torture to the exact same degree. Waterboarding is recognized as torture by just about everyone in the international community.

1. The world is not black and white, it is normative.
2. The international community has done and said a lot of things. Very few of which are admirable. Hence why you will never see me argue something on the basis of "the international community," because I would never try to defend an argument on the consensus of a group that has a historical record of being cowardly, ignoring genocide, being generally stupid, etc. This is the same community that was pretty cool with Hitler for a while too.

Judge, I will try to respond to your post tomorrow, for now it is much too late .

[Balthazar]

It's pretty ironic that a person who tries to define the term "torture" contextually by talking about "good" and "bad" people (classic "us" - "them") talks about black and white. Torture has clear definitions. You did not answer any of my questions.

If I beat the shit out of a innocent guy it's violence. If I beat the shit out of a guy who just raped my daughter it's violence. I think we can all agree that it's way easier to justify it in the latter example. I would never judge someone who beat up a person after doing something like that. But that does not mean that the latter is not an act of violence. By your standards, anyone can define any word just as they please.

Seriously. Your normative view of what is right and what is not does not allow you to redefine whatever word it is that you need to redefine to make it sound prettier. I am not going to judge anyone in favor of waterboarding as an interrigation technique. But by every meaningful definition of the word it certainly is torture. I call Tolstoy syndrome. It's also pretty funny that you talk about the Europeans "being cool" with Hitler given the American tradition of bromances with dictators, but this is not the place for that discussion. Edited May 10, 2009 by Balthazar

[Vladimir]

I should say at the outset that I loathe arguments of pragmatism. I mean by that that while I can understand and even accept that pragmatic, "on-the-ground" concerns should inform our decision-making, I don't accept that our decisions should hinge on these concerns, nor do I believe that we should place these concerns foremost in our decision-making calculus. Doing those things can have us concede or otherwise disregard, say, for instance, ethical considerations for the sake of efficiency and too produces a patchwork of approaches when taken together amount to inconsistent application. For its part, the law, again, generally doesn't really operate this way.

I agree with you to a degree, but I would lump saving lives, and efficiency in separate realms. If any form of torture (including things I would not call torture) only sped up the war, I would have a different conclusion. But the added hope of saving lives makes it a different ball game, so to say.

I would acknowledge that 'holding up our end of the bargain' gains us credibility and PR points, I don't think that's why we should do so; incidentally, I don't think it costs us much to do so either. Nor should we refrain from torture because it might provoke others - because, as you said, those so provoked are usually just as easily provoked by some other fictive reason. We should refrain from torture because it's animalistic and unjustly retributive. We should refrain from torture, not because it will make "American exceptionalism," or "American ideas" devoid of meaning, or lose us friends among the International Community, but because it requires us to act as less than human, less than ideal.

I believe this goes back to our previous exchange though. War is a dirty thing, the very fact that we are going to war is animal, it is less than ideal, and it is inhuman. Water-boarding, subjecting people to sleep deprivation, cold temperatures, and loud music is inhuman sure. But its just a step down the path we have already embarked on in entering war. I would caution obviously it is a dangerous path to strut down, and you obviously cannot take many steps down that path.

Again, I say that I accept the internationally agreed on definition of torture and would agree that whatever context we need, we can seek out in determining whether "Interrogation Technique X" fits that definition. In that way, I am quite legalistic. So, in a technical sense, I wouldn't admit that wrongful imprisonment is torture, though perhaps I might refer to it as such conversationally. I mean to say that in this context, in this discussion, "torture" has technical, legal definition against which we can measure techniques and methods of interrogation. So, torture, as I have used, and should be used, isn't respective of whom we apply certain techniques and methods of interrogation to, but is a legal standard against which we measure what those techniques and methods of interrogation are.

The definition of torture isn't simple though. And whose definition do we use? The United Nations...

... 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.

... is quite a curious definition indeed. I particularly like the caveat at the end, "It does not include pain or suffering arising only from ... lawful sanctions." The entire definition would rule out the threat of prison except for this caveat. But then, who determines what is lawful? It is lawful to threaten a killer with life in prison, but most would agree it should be unlawful to threaten a drug dealer with death- yet some countries do it regularly.

This is why I think the legalistic side of the argument has issues. First off, for me it is entirely a moral issue. For myself, laws only have weight (particularly international law) when they are just and moral (and inherent in that would be logical I suppose). Therefore if I am arguing from a legalistic perspective, I would not only have no problem disregarding an international opinion, or law, if I found it to be morally unfounded or unsupported... but I would also feel like it should just reach to the foundation of the argument- morals- and therefore should not be a legalistic debate, but a moral one. In which case there is surely no end to the argument, just growth on either side as the marketplace of ideals helps our ideas solidify and mutate (or on that rare occasion, change, perhaps).

It's pretty ironic that a person who tries to define the term "torture" contextually by talking about "good" and "bad" people (classic "us" - "them") talks about black and white. Torture has clear definitions. You did not answer any of my questions.

The world isn't always simple. Sometimes it is. If you strap explosives to a child, you are bad. There is no relativism there, there is no cultural elitism, it is simply bad. If you kill millions of Jews, there is no... well you get the point. Sometimes it is possible to make things black and white, or more accurately good and bad.

If I beat the shit out of a innocent guy it's violence. If I beat the shit out of a guy who just raped my daughter it's violence. I think we can all agree that it's way easier to justify it in the latter example. I would never judge someone who beat up a person after doing something like that. But that does not mean that the latter is not an act of violence. By your standards, anyone can define any word just as they please.

Ah but if it is a moral argument then you have proven my point. Indeed if it is a legalistic argument you are correct. But unless you attach yourself to any law that has been written on paper simply for the fact that it has been written, debate may in fact be pointless. The fact of the matter is, if it is a moral argument the context you have described is entirely proving my point. Hitler invaded France, it was war, and it was wrong. The Allies "invaded" France, it was war, but it wasn't wrong. Just because x=x, does not mean that y=y. You can throw any example there you like, Kuwait for example, or in my opinion torture. Where we must differ (unless you choose to ascribe to following any law simply for the fact that it has been written) is on the moral grounds- in which case this context is critical.

Seriously. Your normative view of what is right and what is not does not allow you to redefine whatever word it is that you need to redefine to make it sound prettier. I am not going to judge anyone in favor of waterboarding as an interrigation technique. But by every meaningful definition of the word it certainly is torture. I call Tolstoy syndrome.

Yes, in the legalistic sense water-boarding is torture. But is water-boarding torture (in the sense that it is wrong)? Again we dive into the moral argument, in which case my argument has not ignored any evidence. It seems the legal argument of whether or not it is torture is pointless as that is left to lawyers and not individuals with moral foundations (not that lawyers lack moral foundations, but their arguments are not based in morals but instead in law).

It's also pretty funny that you talk about the Europeans "being cool" with Hitler given the American tradition of bromances with dictators, but this is not the place for that discussion.

Bait and switch? Did I ever say anything about the United States? This is one of those, "Unemployment is high," and you yell "GEORGE BUSH'S FAULT" kind of things? My point was merely that the international community allowed Hitler's aggression go unchecked for years, and now not long after you expect me to embrace the international community for being moral, just, correct, and any other positive adjective you see fit? I said nothing about the United States there.

[Balthazar]

There's a pretty good reason for the legalist approach. If "torture" should be defined by ones moral standards, would you apply the same standards to other terms?

For instance, some people might argue that executing Hussein was the wrong thing to do (this would be their moral point of view). Now, if I chose to counter this with: "Well, sometimes the ends justify the means. Saddam Hussein was a monster. We ended his life, but I would not call it an execution, because it was the right thing to do". Would you accept this? That I chose to redefine a common word, and because it's a word with negative associations refuse to accept that it applies to the situation?

To me, it does not seem like you are discussing whether water-boarding is torture or not. You're discussing whether we can justify the use of one specific method of torture in situations like these.

[Vladimir]

There's a pretty good reason for the legalist approach. If "torture" should be defined by ones moral standards, would you apply the same standards to other terms?

For instance, some people might argue that executing Hussein was the wrong thing to do (this would be their moral point of view). Now, if I chose to counter this with: "Well, sometimes the ends justify the means. Saddam Hussein was a monster. We ended his life, but I would not call it an execution, because it was the right thing to do". Would you accept this? That I chose to redefine a common word, and because it's a word with negative associations refuse to accept that it applies to the situation?

Though I can see your proposition there, I believe torture and execution are two very different terms. Torture is one which is up in the air, the very fact that we are having this debate proves that torture is an abstract idea. Execution on the other hand is not, execution is execution, it is a simple shift in status from alive to dead. There is no ambiguity in it. I am trying to think of an example that better plugs into your above proposition, but I cannot. I am sure many exist, but my mind is warped and mangled from the homework crunch this weekend has been and indeed still is .

To me, it does not seem like you are discussing whether water-boarding is torture or not. You're discussing whether we can justify the use of one specific method of torture in situations like these.

Spot on, basically. I believe the foundation is still connected. Torture is not a static simple term. To pull from your execution example, the process of execution is insignificant. If you were executed, you were executed. It does not matter if you were executed by beheading, electrocution, or hanging- the result does not change. Torture is a different concept I believe because the process is the significant aspect, not the result.

Torture is torture regardless of whether you gave the interrogator the information he sought or not. The result is insignificant, it is entirely the process that makes it torture. Therefore it is the very fact that it is the process, and not the result, that makes the idea of torture ambiguous. Execution on the other hand is not ambiguous because it is a simple status switch- again, alive to dead, easily measured. That is impossible when it comes to torture. For this reason, because it is process-driven, and therefore ambiguous, it is entirely a moral argument. Even if one is to adopt a legalistic approach, by accepting, for example, the United Nation's definition, you are inherently accepting their moral argument.

I believe therefore it is not only a moral argument of whether torture is okay or not (and to what degree), but also that whether something is torture or not (and I believe that the two are inseparably linked). Edited May 10, 2009 by Vladimir

[Balthazar]

I am largely in agreement with most of your post. As I stated, I am not interested in arguing morals, and if you are in disagreement with the UN definition that defines torture as "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.", then there is not much for me to argue about.

Your separation of terms that describes results and terms that describe processes makes sense, and does indeed make my execution-analogy worthless. But as a last point: the simple fact that we are able to recognize torture as a term describing a process, does this not prove that there is indeed possible to find some characteristics of the act (or process), and therefore that it is not doomed to be entirely based upon ones moral judgment? For example, I don't assume that you would disagree on the fact that it involves one (or more) party(/ies) trying to gain information from another, and that it involves techniques that induce physical of psychological suffering? That alone gives us something of a definition, vague as it may be.

"Even if one is to adopt a legalistic approach, by accepting, for example, the United Nation's definition, you are inherently accepting their moral argument."

How so? Seeing how I'm not a state, and haven't signed the United Nations Convention Against Torture I can with no problem accept their definition of torture and still argue for it being used. See Dershowitz' "Want to Torture? Get a Warrant". He promotes approval of torture in certain situations. In other words: he is largely sharing your view, yet he does not try to contextualize it by refusing to calling it torture. Also: the definition I pasted is highly instrumental. If you could show me the moral argument in it, that would be great.

[judgeposer]

I agree with you to a degree, but I would lump saving lives, and efficiency in separate realms. If any form of torture (including things I would not call torture) only sped up the war, I would have a different conclusion. But the added hope of saving lives makes it a different ball game, so to say.
[...]
I believe this goes back to our previous exchange though. War is a dirty thing, the very fact that we are going to war is animal, it is less than ideal, and it is inhuman. Water-boarding, subjecting people to sleep deprivation, cold temperatures, and loud music is inhuman sure. But its just a step down the path we have already embarked on in entering war. I would caution obviously it is a dangerous path to strut down, and you obviously cannot take many steps down that path.
[...]
The definition of torture isn't simple though. And whose definition do we use? The United Nations...
[...]
... is quite a curious definition indeed. I particularly like the caveat at the end, "It does not include pain or suffering arising only from ... lawful sanctions." The entire definition would rule out the threat of prison except for this caveat. But then, who determines what is lawful? It is lawful to threaten a killer with life in prison, but most would agree it should be unlawful to threaten a drug dealer with death- yet some countries do it regularly.

This is why I think the legalistic side of the argument has issues. First off, for me it is entirely a moral issue. For myself, laws only have weight (particularly international law) when they are just and moral (and inherent in that would be logical I suppose). Therefore if I am arguing from a legalistic perspective, I would not only have no problem disregarding an international opinion, or law, if I found it to be morally unfounded or unsupported... but I would also feel like it should just reach to the foundation of the argument- morals- and therefore should not be a legalistic debate, but a moral one. In which case there is surely no end to the argument, just growth on either side as the marketplace of ideals helps our ideas solidify and mutate (or on that rare occasion, change, perhaps).

I'm not sure I agree with your assessment of war, in the sense that I don't believe it is necessarily unhealthily or unduly retributive - necessarily speaking. In other words, I'm not so sure that we resort to animalistic behavior, rationality displaced by instinct, or some other passion-driven motivation. Most charitably put, it's an act of self-defense, assuming, of course, a just reason, and a just execution. What we're witnessing now in our "war on terror(ism), but not be that though.

I do like your take on legalism vs. moralism - I agree too. Laws that lack justness and originate from an illegitimate institution are not laws, properly understood. That's quite Aristotelian/Thomistic, both intellecual havens for me. I suppose, to make clear, I have assumed a legalistic perspective here because the treaties that have defined torture for our purposes were freely ascented to by the signatory nations, especially in the case of the United States, which has Constitutional regard for them. In other words, I take these defintions as workable and legitimate because we freely ascented to their binding power by signing onto these treaties and having our Senate ratify them - which then incoroprates them to the extent that they bind our behavior internationally and domestically. They, in fact, become domestic law.

As an aside, I do agree -if you're saying something to this effect- that laws cannot be morally neutral. They do convey some moral perspective. What distinguishes laws from other non-legal moral edicts is that they've been codified, and incoroprated into the legal framework - at least in our country.

[TheScotsman]

Here is a bit of a what-if:

Situation...
At present Al Queda is moving on Pakistan, they have made vocal their desire to destabilize the sitting gov't, and, more frightening, get their hands on a few nukes. The Paki gov't (IMO) don't really stand much of a chance against them in the end. For the sake of discussion, move forward to a Pakistan freshly under al queda control, mass executions of old regime leadership, sharia law, and pakistan making a final assault on facilities storing thermonuclear weapons. India mobilizes for a preemptive strike, then hesitates out of fear the weapons have been moved

question...
Now we get our hands on a few Al Queda members, a few more in leadership positions. Would you think waterboarding so bad when the alternative is a group of radical terrorists with a nuke pointed at your town? Lack of intel will result in an eventual first strike against pakistan, resulting in millions (literally) vaporized.

Personally, I would more than willing to scrape every inch of skin off them with a electrified-salty-cheese-grater to find out where and how they were planning on moving on the nuke storage, much less using such. To hell with waterboarding, that is not fast enough.

Does your opposition to torture hold up in the real world? If so, you are naive, if not you become a hypocrite.

[judgeposer]

Does your opposition to torture hold up in the real world? If so, you are naive, if not you become a hypocrite.

I'm not sure what we've been discussing in this thread aside from "real world" concerns. And, as for your hypo, you seem to have prejudged the possible answers to an extent not warranting a reply.

[TheScotsman]

I prejudged nothing, I simply outlined a specific, and highly probable choice. Torture is not right, but J2 operated in a world where "not right" is second to survival and national protection. Congress is supposed to oversee the whole debacle, but with a lair like pelosi sitting in a leadership position, that isn't working.

There is no winning answer. In a perfect world we wouldn't have to wonder which was right, but in the world we live in the choice becomes one of survival. I understand, and respect your point, but feel under the harsh light of reality it falls completely apart.

[judgeposer]

Does your opposition to torture hold up in the real world? If so, you are naive, if not you become a hypocrite.

I prejudged nothing, I simply outlined a specific, and highly probable choice. Torture is not right, but J2 operated in a world where "not right" is second to survival and national protection. Congress is supposed to oversee the whole debacle, but with a lair like pelosi sitting in a leadership position, that isn't working.

There is no winning answer. In a perfect world we wouldn't have to wonder which was right, but in the world we live in the choice becomes one of survival. I understand, and respect your point, but feel under the harsh light of reality it falls completely apart.

I think you're making an argument that theory, and moral responsibility, remain forever unconnected to reality, something with which I disagree, obviously. Or, perhaps, even worse, that we can never do what's called applied ethics, that is we cannot or do not let our moral intuition regulate our actions. I'm not sure why "reality" has us check our moral responsibility (our knowing right from wrong). Seeing as though waterboarding -as a practice- has yet to be vindicated, in the sense that it has yielded actionable intelligence, it seems then that the one's stuck in a theoretical vacuum are those who support its use. Edited May 12, 2009 by judgeposer

[mustang_steve]

Here is a bit of a what-if:

Situation...
At present Al Queda is moving on Pakistan, they have made vocal their desire to destabilize the sitting gov't, and, more frightening, get their hands on a few nukes. The Paki gov't (IMO) don't really stand much of a chance against them in the end. For the sake of discussion, move forward to a Pakistan freshly under al queda control, mass executions of old regime leadership, sharia law, and pakistan making a final assault on facilities storing thermonuclear weapons. India mobilizes for a preemptive strike, then hesitates out of fear the weapons have been moved

question...
Now we get our hands on a few Al Queda members, a few more in leadership positions. Would you think waterboarding so bad when the alternative is a group of radical terrorists with a nuke pointed at your town? Lack of intel will result in an eventual first strike against pakistan, resulting in millions (literally) vaporized.

Personally, I would more than willing to scrape every inch of skin off them with a electrified-salty-cheese-grater to find out where and how they were planning on moving on the nuke storage, much less using such. To hell with waterboarding, that is not fast enough.

Does your opposition to torture hold up in the real world? If so, you are naive, if not you become a hypocrite.

The problem with this scenario is that there is a lot of what if variables in it. Namely pre-emptive actions can easily be wrong entirely, and then serve to cripple us more. Iraq was a good example....we went after the wong nation, and are paying for it. Originally it was Al Quaeda ties, then WMDs, when those weren't found, then we said it was for the people....in the end, we made a pre-emptive movement that fucked an entire nation. How many have died there as results of our actions? Namely how many people have been robbed, beaten, raped or murdered by the factions that once were too scared to do anything, but now are terrorizing their lands? That damage is probably on par with any nuclear strike in history, or greater....so before we talk about body counts, we need to factor in the harm of making bad assumptions, and have someon that's willing to take FULL responsibility for it (which has NEVER happened in the history of war).

Yes Saddam was an asshole, but he was an asshole that kept things in some degree of balance and safety for the majority of his nation...which is more than we can say they have now....We'll see how it is in 20 years...but if it's not as safe or better by then, then we have a failure of monumental proporitions...the destruction of a nation over incorrect (and often fabricated) data.

Now, here is where it gets interesting.....

What's the success rate for torture information? And how often has it merely collaborated with info that's recieved from agents who have infiltrated the organization? You'll find infiltration is a far safer and far more accurate method.

With that said, why interrogate? Is there an immediate need for info (as in the next 48 hours) that there is no other information on currently? Highly doubtful...the world is not an ongoing episode of 24.

When you have a problem with unwanted plants in your lawn...do you document the location of every one, then pluck them....or do you poision them? That's what we should be doing...poisioning their ranks, ensuring that we know as much about their movements as possible...this yields the best intel, and does it in the best manner possible.

[TheScotsman]

Call it torture, or not... the good part of the whole mess is that it looks like her lies about it are going to cost Pelosi her position. I have no doubt when an embattled house speaker calls the CIA, and another member of the House a bunch of lairs in an open statement, they are going to prove her the unfit rep she is.

You don't really believe Iraq never had WMD's do you? Take the tin foil hat off. There is more then enough proof they had an active NBC program. The frightening part is that we somehow missed capturing the damn things.


I believe there is more than one moral responsibility in place. While torture, in an ideal world, is wrong, the act of terrorisim, and killing civilians with WMDs is worse. The need and moral obligation to protect ourselves, our families, and our nation supersede the rights of a terrorist to not get wet.


Why do it? well, that is easy to answer, it works. Trained intel officers will get the truth out of them in the end.

[mustang_steve]

Call it torture, or not... the good part of the whole mess is that it looks like her lies about it are going to cost Pelosi her position. I have no doubt when an embattled house speaker calls the CIA, and another member of the House a bunch of lairs in an open statement, they are going to prove her the unfit rep she is.

You don't really believe Iraq never had WMD's do you? Take the tin foil hat off. There is more then enough proof they had an active NBC program. The frightening part is that we somehow missed capturing the damn things.


I believe there is more than one moral responsibility in place. While torture, in an ideal world, is wrong, the act of terrorisim, and killing civilians with WMDs is worse. The need and moral obligation to protect ourselves, our families, and our nation supersede the rights of a terrorist to not get wet.


Why do it? well, that is easy to answer, it works. Trained intel officers will get the truth out of them in the end.

Never had was not the issue (saying never means you can go back to whenever you want to make a point...never doesn't fly when talking about now)...the point was they obviously didn't have them recently, or we are unable to locate them when we went in. And absence of evidence is that....no evidence to go by. We assumed, and we were wrong. There's no tinfoil at all here....the evidence after the fact showed we had no justification other than a UN mandate to go by, which even the UN said not to enforce at that time....so we actually did not even act on that in essence as we went lone wolf into this.

As for missing the capture of them....if the proof existed, then the items would have been found. Instead we had false news reports depicting oversized G.I. Joe toy guns, and a truck that was misbranded as a lab (which was actually a repair vehicle WE SOLD THEM in the 80s)...the fact such reports happen strongly suggests there never was any evidence, and they were trying to save face. Either way, the intel was bad, since it would be near impossible if they had any large scale operations of that nature, to move them within a week, let alone a few days.

The Iraq scenario is just one example of how easy it is to jump the gun and do stupid things when we feel enraged....what we need though is very serious and level headed decisions.

[TheScotsman]

Call it torture, or not... the good part of the whole mess is that it looks like her lies about it are going to cost Pelosi her position. I have no doubt when an embattled house speaker calls the CIA, and another member of the House a bunch of lairs in an open statement, they are going to prove her the unfit rep she is.

You don't really believe Iraq never had WMD's do you? Take the tin foil hat off. There is more then enough proof they had an active NBC program. The frightening part is that we somehow missed capturing the damn things.


I believe there is more than one moral responsibility in place. While torture, in an ideal world, is wrong, the act of terrorisim, and killing civilians with WMDs is worse. The need and moral obligation to protect ourselves, our families, and our nation supersede the rights of a terrorist to not get wet.


Why do it? well, that is easy to answer, it works. Trained intel officers will get the truth out of them in the end.

Never had was not the issue (saying never means you can go back to whenever you want to make a point...never doesn't fly when talking about now)...the point was they obviously didn't have them recently, or we are unable to locate them when we went in. And absence of evidence is that....no evidence to go by. We assumed, and we were wrong. There's no tinfoil at all here....the evidence after the fact showed we had no justification other than a UN mandate to go by, which even the UN said not to enforce at that time....so we actually did not even act on that in essence as we went lone wolf into this.

As for missing the capture of them....if the proof existed, then the items would have been found. Instead we had false news reports depicting oversized G.I. Joe toy guns, and a truck that was misbranded as a lab (which was actually a repair vehicle WE SOLD THEM in the 80s)...the fact such reports happen strongly suggests there never was any evidence, and they were trying to save face. Either way, the intel was bad, since it would be near impossible if they had any large scale operations of that nature, to move them within a week, let alone a few days.

The Iraq scenario is just one example of how easy it is to jump the gun and do stupid things when we feel enraged....what we need though is very serious and level headed decisions.

In June of 2006 the National Ground Intelligence Center, a Defense Department intelligence unit, released portions of a declassified report which stated unequivocally that “Since 2003, coalition forces have recovered approximately 500 weapons munitions which contain degraded mustard or sarin nerve agent.” Now most of those (if not all) were made prior to DS. But an old chemical can kill as fast as a fresh one (in some cases faster!)

-that would be a WMD... or maybe 500. but since you only believe what PMS-nbc tells you you may have missed it. (call it tin foil shielding)

What about that 550 Metric tonnes of yellowcake our Canadian friends were willing to take off our hands after we found it in barrels in Iraq? Contrary to media images portraying the Mid East as some backwater filled with hicks, the Mid East is populated with some of the most innovative scientists around. Iraq had a very efficient thermonuke design ready, they just lacked the refined fisionable material. Their yellowcake would have made more than enough for a few dozen warheads.

Saying no one found a WMD when what they happened to be were many binary weapons, is insane, but that is what the media, suffering from "bush derangement syndrome", did. There were significant numbers of SA2's fitted with binary nerve agent warheads... they technicaly were not a WMD until deployed. Sometimes the devil is in the detail. But believe what you want... time to slide those rose-coloured specs back up, and pull down the foil hat!

[mustang_steve]

You got sources for that?

If that is true, then it's news to me.

[mustang_steve]

I found the PDF of it.....they did say they found 500 pre gulf-war munitions, but it seems the rest are "could be" statements instead of hard facts.

So in other words, still no proof of an operational weapons program in that document....just some pre gulf war munitions, which of course are still deadly.

I saw no meniton of binary weapons being discovered.

Still no tonfoil on my head or rose anything....just doing my duty as a citizen of this nation, and doubting my government until any doubt is removed. If there was tinfoil on my head I'd say the US sold Iraq those bio-weapons...but I didn't say that, did I?


BTW.....about the yellowcake.....it wasn't even secret, regulatory inspectors knew about it and documented it, without any reason to believe it had anyhting to do with a weapons program. http://www.snopes.com/politics/war/yellowcake.asp

[liquidglass]

I'm not expecting a big debate but I would like to throw in my two cents.

Just something to think about.

This is something many of you have hinted at and to those I would like to agree.

Torture is subjective. America considers torture something that causes grave and/or permanent injury. In other countries it's only torture if the person can no longer divulge information or if they're dead. So there never really can be a set rule of what is and isn't torture at least universally.

If anyone remembers the mental 'treatments' used back in 50's-70's those would today be considered torture but at the time they were considered the prime treatments of mental illness and to be the best solution for the greater good of society.

While our country can consider itself civilized then many people expect us to hold the same value when treating enemy combatants (enemy is not defined in this case as someone who is truly evil, just someone that would kill you if you didn't kill them first). But unfortunately war is an ugly (necessity) thing. (if anyone wants clarification on the necessity of it, i'll happily give my point of view) And in a situation such as war a civilized person that participates must lower his/her actions to meet the level of his/her enemy.

War, covert or overt, transforms those of the civilized nature into more carnal creatures of basic instinct and survival. And while many people hate to think that we as a country could do possibly inhumane things to other human beings it, like war, is a necessity and will continue as long as wars do. For someone/a country to believe it can ultimately define and prohibit torture they are sadly mistaken, for as war and technology develops so will the definition of torture. Things that are considered 'humane' now will in the future be viewed as inhumane and torture.

I hope this makes sense to most of you, and if you need clarification, just ask.

[judgeposer]

I'm not expecting a big debate but I would like to throw in my two cents.

Just something to think about.

This is something many of you have hinted at and to those I would like to agree.

Torture is subjective. America considers torture something that causes grave and/or permanent injury. In other countries it's only torture if the person can no longer divulge information or if they're dead. So there never really can be a set rule of what is and isn't torture at least universally.

If anyone remembers the mental 'treatments' used back in 50's-70's those would today be considered torture but at the time they were considered the prime treatments of mental illness and to be the best solution for the greater good of society.

While our country can consider itself civilized then many people expect us to hold the same value when treating enemy combatants (enemy is not defined in this case as someone who is truly evil, just someone that would kill you if you didn't kill them first). But unfortunately war is an ugly (necessity) thing. (if anyone wants clarification on the necessity of it, i'll happily give my point of view) And in a situation such as war a civilized person that participates must lower his/her actions to meet the level of his/her enemy.

War, covert or overt, transforms those of the civilized nature into more carnal creatures of basic instinct and survival. And while many people hate to think that we as a country could do possibly inhumane things to other human beings it, like war, is a necessity and will continue as long as wars do. For someone/a country to believe it can ultimately define and prohibit torture they are sadly mistaken, for as war and technology develops so will the definition of torture. Things that are considered 'humane' now will in the future be viewed as inhumane and torture.

I hope this makes sense to most of you, and if you need clarification, just ask.

Although I understand your post, I would like some clarification on some points.

With respect to the subjectivity of "torture," or defining "torture," what do we make of the law that provides a definition? The United States Code (18 U.S.C. § 2340) provides a definition, as do the International treaties the United States is a party to, namely the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the UN Convention Against Torture. In signing and ratifying these treaties, the United States has incorporated them into its domestic law. In the case of the Convention Against Torture, the United States excepted to an addendum, for which it yielded to our Bill of Rights proscription of cruel and unusual punishment, but that still left the Conventions definition accepted, and untouched.

I can see the subjectivity in the sense that our domestic law can change, of course through an act of Congress, but don't these definitions provide, until that time, a standard? For their part, these laws and conventions do supply a workable, discernible, and applicable measure (a definition) against which we can assess whether certain practices constitute torture. Of course there will be debate about whether certain practices of ours (or of any other participating nation) constitutes torture, but does debate on the matter signify subjectivity? So, my question is, in what sense is torture subjective.

The Bush Administration argued that torture constitutes something close to how you phrased the United States' definition, "something that causes grave and/or permanent injury," but that definition seems more lenient that what the phrasing of our Code says, and even more away from the conventions we've signed onto say about the matter. The Bush Administration's argument is new, in other words.

[liquidglass]

I'm not expecting a big debate but I would like to throw in my two cents.

Just something to think about.

This is something many of you have hinted at and to those I would like to agree.

Torture is subjective. America considers torture something that causes grave and/or permanent injury. In other countries it's only torture if the person can no longer divulge information or if they're dead. So there never really can be a set rule of what is and isn't torture at least universally.

If anyone remembers the mental 'treatments' used back in 50's-70's those would today be considered torture but at the time they were considered the prime treatments of mental illness and to be the best solution for the greater good of society.

While our country can consider itself civilized then many people expect us to hold the same value when treating enemy combatants (enemy is not defined in this case as someone who is truly evil, just someone that would kill you if you didn't kill them first). But unfortunately war is an ugly (necessity) thing. (if anyone wants clarification on the necessity of it, i'll happily give my point of view) And in a situation such as war a civilized person that participates must lower his/her actions to meet the level of his/her enemy.

War, covert or overt, transforms those of the civilized nature into more carnal creatures of basic instinct and survival. And while many people hate to think that we as a country could do possibly inhumane things to other human beings it, like war, is a necessity and will continue as long as wars do. For someone/a country to believe it can ultimately define and prohibit torture they are sadly mistaken, for as war and technology develops so will the definition of torture. Things that are considered 'humane' now will in the future be viewed as inhumane and torture.

I hope this makes sense to most of you, and if you need clarification, just ask.

Although I understand your post, I would like some clarification on some points.

With respect to the subjectivity of "torture," or defining "torture," what do we make of the law that provides a definition? The United States Code (18 U.S.C. § 2340) provides a definition, as do the International treaties the United States is a party to, namely the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the UN Convention Against Torture. In signing and ratifying these treaties, the United States has incorporated them into its domestic law. In the case of the Convention Against Torture, the United States excepted to an addendum, for which it yielded to our Bill of Rights proscription of cruel and unusual punishment, but that still left the Conventions definition accepted, and untouched.

I can see the subjectivity in the sense that our domestic law can change, of course through an act of Congress, but don't these definitions provide, until that time, a standard? For their part, these laws and conventions do supply a workable, discernible, and applicable measure (a definition) against which we can assess whether certain practices constitute torture. Of course there will be debate about whether certain practices of ours (or of any other participating nation) constitutes torture, but does debate on the matter signify subjectivity? So, my question is, in what sense is torture subjective.

The Bush Administration argued that torture constitutes something close to how you phrased the United States' definition, "something that causes grave and/or permanent injury," but that definition seems more lenient that what the phrasing of our Code says, and even more away from the conventions we've signed onto say about the matter. The Bush Administration's argument is new, in other words.

I appreciate you asking for clarification, I'll see if I can help smooth out my thoughts for everyone lol.

I completely agree that until such time we as a country deem necessary that these laws provide some sort of standard. But unfortunately the legal boundaries by which the participating countries are 'bound' are rarely enforced and it would be hard to do so.

Yes that definition I gave is lenient I agree, but under the Bush administration which most of the torture questions came to light this was the current definition given to field operatives in their legal bounds (which it gave them plenty of grey area).

Now about torture being subjective. My point was, that people have different points of view, especially in countries other than our own. Yes they have voluntarily signed a piece of paper. Which might help deter some of the lower level and more honest folks. But in a time of war, as I mentioned earlier, the primal nature of man is clearly evident. A signature made by a leader of an individuals respective country no longer matters as much as gaining the information needed. Then, is when you find out what is truly inside someone (the torturer) rather than the standard they have agreed to. And on such a basis, the levels of torture would vary from country to country.

I get what you're getting at, you're saying, hey there's a set of rules, people agreed to them, how could it be subjective. But just like the level a torturer subjectively decides the 'rules' regulating this were subjectively decided. Not to say most countries don't at least attempt to stay within the bounds, but there is still subjectivity no matter what.
It's subjective from many angles, 1) people created the rules, based on the popular opinion, subjective. 2) Tortures don't always follow the 'nice rules,' subjective. 3) The person being tortured could consider it to break the rules even if it doesn't, subjective. 4) Then the reviewing council has to interpret all that subjectivity as objectively as possible, by applying the situation to the rule.

*let me take a moment here to say, I love the law, I study it, I debate about it, etc. So if I'm playing the devils advocate a lot it's not because I'm against any particular set of rules, but simply because I like to make myself and others think, rather than just accept*

Now on a separate topic of the convention and definition you posted.


In 18 U.S.C. § 2340 I can't say that the definition is wrong in any way, but I can say, in the sense of information to save lives being greater than the psychological or physiological well being of one person, I disagree with it.

" © the threat of imminent death; or (D) 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;"

and

""torture" means an act committed by a person acting under the color of law" (get to this one later)

There are some other places I would nitpick, but these two should not be held to the level of scrutiny in a case where torture is present. Of course, you'll ask why. Honestly, because the threat of injury/death of yourself or someone else are the most effective tools in harvesting information from a suspect. The actual actions of it, normally are not as effective because it simply builds their resolution and if they die they become a martyr. There are many other methods of torture that do not lie within this definition that are extremely effective, and should be used, however, using this particular method from time to time doesn't hurt either.


I have one problem with the convention

"(Article 1), and commits parties to taking effective measures to prevent any act of torture in any territory under their jurisdiction"

That is what truly needs definition. Because in this form, torture in a country in which you have no jurisdiction is only limited by local law.

Interesting.

Now given, in a military occupied country many territories have jurisdiction claimed over them. But there are as equally as many, and even more (after power begins to shift back to the people) territories that the occupying military has no jurisdiction over. Allowing for some small (and painful) allowances of which full advantage would be taken.


This also relates to my other problem with the definition of torture

""torture" means an act committed by a person acting under the color of law"

I'm sure you know what this means. And even though it's just a few words, it changes everything. Because as you may or may not be aware there are members of our country that have the ability to act outside the law especially when dealing in foreign affairs and information harvesting. And to be honest, most of the torture done by the USA is done in this way. The whole 'solider ordeal' was just a psychological trip that some of the soldiers took as a result of their position (read 'The Lucifer Effect' , you'll see what I mean)


I hope this helps clear up a few things, and possible give a few people more questions (either for me or their own thoughts).

[judgeposer]

I appreciate you asking for clarification, I'll see if I can help smooth out my thoughts for everyone lol.
I completely agree that until such time we as a country deem necessary that these laws provide some sort of standard. But unfortunately the legal boundaries by which the participating countries are 'bound' are rarely enforced and it would be hard to do so.

I would go further to say that these laws, both the provisions of our Code and those international treaties and conventions we've signed onto provide the standard. A proper analysis would synthesize all these legal strands into one workable standard. Such an analysis would rely on the canons of statutory interpretation, but specifically the "Charming Betsy" canon, which says that a domestic statute must be construed so as not to conflict with international law (most certainly one agreed to by the United States), and the Rule of Lenity, which says that in construing a criminal statute, such as our Code provision against torture, the court should resolve any ambiguity in favor of the defendant. The result would, it stands to reason, lean closer to the definition provided in the UN Convention Against Torture, since it is the most limiting on government action, and is an international law purportedly followed by the United States.


As an aside question, is it significant that a law or a statute is difficult to enforce or rarely enforced? – for our purposes, I mean. I can acknowledge even that with respect to International Law and treaties, violations, particularly of provisions like I've quoted, carry no threat of legal sanction; but that's not an argument for a lack of an objective standard, but one about the dispensation of the law.

Yes that definition I gave is lenient I agree, but under the Bush administration which most of the torture questions came to light this was the current definition given to field operatives in their legal bounds (which it gave them plenty of grey area).

Now about torture being subjective. My point was, that people have different points of view, especially in countries other than our own. Yes they have voluntarily signed a piece of paper. Which might help deter some of the lower level and more honest folks. But in a time of war, as I mentioned earlier, the primal nature of man is clearly evident. A signature made by a leader of an individuals respective country no longer matters as much as gaining the information needed. Then, is when you find out what is truly inside someone (the torturer) rather than the standard they have agreed to. And on such a basis, the levels of torture would vary from country to country.

Does debate on a topic (having different points of view) suggest or indicate the topic being discussed is merely subjective? – For "subjective," I take to be those topics that do not lend themselves to a consensus because they are about—in some inherent sense—a subject's perspective, particularly feelings, beliefs, and desires. Something like pain tolerance, for example, I understand as subjective—in that ever person has a particular threshold, which is untranslatable with respect to another person's. For our discussion, torture, too, might have a subjective dimension, especially if we assess the subjective experience of someone undergoing techniques alleged to be torturous. Perhaps my understanding of "subjective" might account for my need for clarification on your points.

With respect to torture, a concept about which we have firm legal definitions, I don't see much room for subjectivity, at least not about its definition. Reasonable minds might disagree on which techniques constitute torture, like waterboarding, which I believe is torture, but on which, I too believe, reasonable minds can disagree.

"A signature made by a leader of an individuals respective country no longer matters as much as gaining the information needed," seems then an argument appealing to utility for torture, at least in those cases where the utility provided by information expected outweighs the utility owed to the person undergoing torture. Do you see this somehow connected to the goal/endeavor of defining torture?


I don't disagree—and can't—that countries define torture differently, but in any case, and especially ours, we have a set—yet to be repealed—definition. So, the subjectivity surrounding torture, of our intents and purposes, ceases, as we do have an objective standard. How we, and whether we, apply that definition to our behavior is another debate, of course, one in which there's tremendous room for "subjectivity," I would acknowledge.

I get what you're getting at, you're saying, hey there's a set of rules, people agreed to them, how could it be subjective. But just like the level a torturer subjectively decides the 'rules' regulating this were subjectively decided. Not to say most countries don't at least attempt to stay within the bounds, but there is still subjectivity no matter what.
It's subjective from many angles, 1) people created the rules, based on the popular opinion, subjective. 2) Tortures don't always follow the 'nice rules,' subjective. 3) The person being tortured could consider it to break the rules even if it doesn't, subjective. 4) Then the reviewing council has to interpret all that subjectivity as objectively as possible, by applying the situation to the rule.

See above. To put it differently, in a vacuum of laws, defining torture would be an entirely subjective enterprise; but in a world where we have a definition and laws regarding torture, we have an agreed-to standard. I see law working in this way—to be found guilty of a crime, generally speaking, one has to have committed the actus reus (the proscribed act), with the appropriate mens rea (the intention). Inbuilt in the law, in other words, we have often an objective and a subjective component. Put even another way, it makes no difference in the eyes of the law that someone thought they were not breaking the law, so long as they intended to do what the law prohibits.


For your first point – what we choose to proscribe is certainly subjective, but once proscribed, we create an objective law/standard of behavior.


For your second point – I would agree. Not following the rules doesn't mean, however, that the rule is subjective, in that it applies to some and not others.

For your third point – again, I say it makes no difference in the eyes of the law that someone thought they were not breaking the law, so long as they intended to do what the law prohibits.

For your fourth, last point – I agree, I think (but in law, and this might mean the same thing, but we apply the rule to the facts—sorry to nitpick).

*let me take a moment here to say, I love the law, I study it, I debate about it, etc. So if I'm playing the devils advocate a lot it's not because I'm against any particular set of rules, but simply because I like to make myself and others think, rather than just accept*

Out of curiosity, are you a law school student or a lawyer? PM me if you'd rather not answer that here – I can definitely respect not wanting to share that widely.

Now on a separate topic of the convention and definition you posted.

In 18 U.S.C. § 2340 I can't say that the definition is wrong in any way, but I can say, in the sense of information to save lives being greater than the psychological or physiological well being of one person, I disagree with it.

I don't have qualms with this law, but I do with so many others (but usually, they're not statutes like this, but judge-created).

I have one problem with the convention

"(Article 1), and commits parties to taking effective measures to prevent any act of torture in any territory under their jurisdiction"

That is what truly needs definition. Because in this form, torture in a country in which you have no jurisdiction is only limited by local law.

Interesting.

Now given, in a military occupied country many territories have jurisdiction claimed over them. But there are as equally as many, and even more (after power begins to shift back to the people) territories that the occupying military has no jurisdiction over. Allowing for some small (and painful) allowances of which full advantage would be taken.

Perhaps I have misunderstood how you've read Article 1 and Article 2, but am I correct in understanding that you're reading these articles together, in that you believe that Article 2 places a qualification on Article 1? Reading the two in that way yields that a signatory country can torture so long as they do so in another area over which they do not have jurisdiction.

If that's your understanding then I think you're misreading the law some. Article 2 makes it a requirement of signatory nations to prohibit torture in their respective jurisdictions. It doesn't create a jurisdictional vacuum, in other words. Article 1 of the Convention Against Torture defines torture. Article 2 says that signatory nations have to prevent torture in the areas they claim jurisdiction. The two together don't mean that a signatory nation cannot commit acts of torture in areas where they lack jurisdiction. If the definition of torture depended on the jurisdiction, it stands to reason, that Article 2 would have been a qualification/caveat written into Article 1, instead, Article 2 is a separate article. In other words, if Article 2 really meant that to constitute torture one would have (i) jurisdiction and (ii) commit acts that cause "severe pain or suffering, whether physical or mental" to obtain information or a confession from someone or a third party, Article one would have divided the definition into those elements. The proper reading of the two articles is that they stand separately.

This also relates to my other problem with the definition of torture

""torture" means an act committed by a person acting under the color of law"

I'm sure you know what this means. And even though it's just a few words, it changes everything. Because as you may or may not be aware there are members of our country that have the ability to act outside the law especially when dealing in foreign affairs and information harvesting. And to be honest, most of the torture done by the USA is done in this way. The whole 'solider ordeal' was just a psychological trip that some of the soldiers took as a result of their position (read 'The Lucifer Effect' , you'll see what I mean)

The term "color of law," as I understand it, and have seen it used, is a legal term of art that means having the appearance, without the substance, of a legal right (as per Black's Law Dictionary). The US Code doesn't define it explicitly (although it is mentioned in a similar context in 13 USC Sec. 242). For the Code's definition of torture, it means that the accused must otherwise appear to operate within his capacity as an agent of the government, to have the legal right (to interrogate and/or torture), e.g. a federal law enforcement officer (but doesn't actually have the right, given the conduct). It means, most simply, that the accused attempts to operate with the protection of his position/duty, but for the conduct he engages he would have maintained his protection from liability because he would have otherwise behaved within the scope of his job.

In this context, the potential offender seems to have to be a government agent, otherwise "color of law" would be meaningless since civilians cannot, in this sense, operate "under the color of law." This, I believe, is further evidenced by the complete definition, which in whole reads: "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. That last clause, "within his custody or physical control," indicates that the accused have custody and control, a power which civilians, to a great extent, do not have, let alone have when combined with "acting under the color of law." In other words, even in those instances when a civilian can have rightful custody or control of another, we cannot also say that that civilian operates under "the color of law." Law enforcement or some such government agents are the only sort of individuals that can satisfy simultaneously the elements of "a person acting under the color of law," and having another "within his custody or physical control.," to make no mention that they are also the only ones entitled to "lawful sanctions" mentioned in the definition's parenthetical.


Moreover, this statute, in this form, became law contemporaneously with the ratification of the UN Convention Against Torture, November 20, 1994, which sought to prohibit states/governments from utilizing torture, in satisfaction of Article 2 of the Convention.


I wrote this analysis because I don't suspect we understand "under the color of law" the same, given your mention of those who operate supposedly outside of the legal bounds of federal law. Whether "most of the torture done by the USA is done in this way," and I am in no position to contradict this assertion inasmuch as it seems implausible, the documented cases of alleged torture, such as what took place at Abu Ghraib, were conducted by those operating openly under the color of law (e.g. military personnel or civilian contractors, who by their contractual arrangement, were agents of our government)—many among those interrogators were later convicted of torture and/or dishonorably discharged (at least in the case of uniformed interrogators). Additionally, Sec. 2340 A b outlines the jurisdiction of these anti-torture statutes, which it says applies when "(1) the alleged offender is a national of the United States; or (2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender." So, since the anti-torture statutes claim jurisdiction over every US National and alien, so long as they're present in the US, it seems that the law doesn't countenance those who operate for the US, but outside of its jurisdiction, and/or it is implausible that such persons exist.

P.S. Some of the awkward citations were to avoid being made into smileys. Edited May 21, 2009 by judgeposer