How does one NOT know waterboarding is torture?

Especially since it has been in the news since resident bush started using it to extract bad information from victims for four years, at least.

More stunning leadership from our DEM congressman- hang up the nomination of a qualified candidate for the attorney general office.

All because he didn't fall into the nominating committee's semantic trap-

"...Mukasey's failure to pronounce that waterboarding is torture." ?

Congress should be making this pronouncement-in the form of a law specifically calling this technique torture ( which they failed to do) and then by definition the attorney general can then enforce the law...

Heartburn -

Waterboarding is torture. Why can't you understand that? It was torture when it was used in the Spanish Inquisition, it was torture when the Japanaese and the Nazis used it in WWII, it was torture when the Vietcong used it.

If this guy can't admit that waterboarding is torture he should not be confirmed.

Give Mukasey a recess appointment. Then there will be a quality AG and the Demonrats will fume! Best of both worlds.

Congress should be making this pronouncement-in the form of a law specifically calling this technique torture ( which they failed to do) and then by definition the attorney general can then enforce the law...

Many newspapers today said the same thing however,
the problem with this is Bush will just attach a signing statement to the bill as he has done in the past that will just ignore any law the congress passes.

Leahy, Kennedy, Biden, Schumer, Durbin,and the rest of the brainless, stupid, obstructionists, should be voted out of office and forced to earn a living in the real world. Their positions on most of the real issues, I think will come back to haunt them. Just think if waterboarding was officially made to be illegal, then some or most of the prisoners would have a solid case to be tried in U.S. courts. Think of what that would mean to any jerk that would try to plant a bomb or any other act of terror. I could just see these same stupid senators would be the FIRST ones to climb on the band wagon seeking our president's scalp.

"...Mukasey's failure to pronounce that waterboarding is torture." ?

Congress should be making this pronouncement-in the form of a law specifically calling this technique torture ( which they failed to do) and then by definition the attorney general can then enforce the law...

Posted by: heartburn | November 2, 2007 4:25 PM

Waterboy,

Your Republican President 24% already said "we don't torture" so if waterboarding isn't torture in Mukasey's mind he should have no problem answering the question.

If this guy can't admit that waterboarding is torture he should not be confirmed.

Posted by: nisleib | November 2, 2007 4:45 PM

Exactly the opposite- if he were to define this as torture he shouldn't be nominated. If he defines this as torture when congress specifically failed to do so he would be overstepping his role as attorney general... there has to be a law for him to enforce(personal opinions do not matter here)

In fact, right now, there is no law that specifically says that waterboarding is torture-

Many newspapers today said the same thing however,
the problem with this is Bush will just attach a signing statement to the bill as he has done in the past that will just ignore any law the congress passes.

Posted by: lochnessmonster | November 2, 2007 4:49 PM

May be- but this has nothing to do with the attorney general nomination drama..

Your Republican President 24% already said "we don't torture" so if waterboarding isn't torture in Mukasey's mind he should have no problem answering the question.

Posted by: John E | November 2, 2007 4:58 PM

John E

You always seem to understand about 60% of any issue... the rest you fill in with either "24% dead ender", "Bush this", "Cheney that" etc...you should work a little harder, do more homework, maybe get a tutor... just some thoughts..

Congress should be making this pronouncement-in the form of a law specifically calling this technique torture ( which they failed to do) and then by definition the attorney general can then enforce the law...

Posted by: heartburn | November 2, 2007 4:25 PM

Heratburn, is the Congress supposed to detail every possible action or series of actions that could constitute "torture"?

If they did, do you have any doubt that this Administration would make some minor change to the procedure and say that it therefore the law doesn't apply?

"Senator, the "Waterboarding" law passed by Congress prohibits us from dumping water on the detainee in such a matter, however, if you read the report closely, you will see that our interrogators now use club soda, so as not to violate the law."

What a surprise - NOT!!! LEAHY a poor lawyer from VERMONT has 'suckered' the yokels up there and made himself 'RICH'!!! HOW IS IT HIS 'FINANCES' AND THOSE OF HIS FAMILY HAVE NEVER BEEN INVESTIGATED??? MICHAEL MUKASEY has been a longtime DEM and good 'buddy' with SENATURD CHUCK'the-schmuck'SCHUMER. It should be interesting the 'torture' this inflicts on CHUCK'the-schmuck' how his PC VOTE should go??? "Let's do it for the chilluns" and "Bush lied troops died" and "Raise taxes raise taxes" are the usual 'TORURE' DUMB-DEMBHOLES subject us too??? Water-boarding to protect the safety of the UNITED STATES and the world is more sufferable than the usual stupid/moronic/inane DEMBHOLE 'RANTS' including the latest "GLOBAL WARMING was responsible for the CALIFORNIA FIRES!" AH DEMBHOLES ALWAYS 'TORTURING' EVERYONE WITH THEIR BUTT-HEADED POLITICAL SPIN&THEATRE.

Heartburn-

Is there a law that specifically says that hitting you on top of the head with a stapler is battery?

Nope.

That's not how the law work. Laws define a crime.

For example:

"A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual."

It doesn't list every possible action that could comprise that crime.

It is exactly the same with torture. The law defines torture. It is the responsibility of the various members of the criminal justice system, from the cop on the street, to prosecutors, to judges, to the Attorney General to make determinations as to how various acts fall within the definitions of various crimes.

Heratburn, is the Congress supposed to detail every possible action or series of actions that could constitute "torture"?...

Posted by: AJF | November 2, 2007 5:25 PM

Yes they do- if they are going to make defining the legality of a specific technique a condition of nomination they do-

They thought it was important enough to attempt to make the specific technique illegal by defining it as torture- why should they hold Mukasey to a different ( higher) standard than themselves?

It's torture. Period.

John E

You always seem to understand about 60% of any issue... the rest you fill in with either "24% dead ender", "Bush this", "Cheney that" etc...you should work a little harder, do more homework, maybe get a tutor... just some thoughts..

Posted by: heartburn | November 2, 2007 5:23 PM

Is that the best you've got?

You need to check back in with the Wingnut "leadership" for some new material, waterboy
http://s86.photobucket.com/albums/k88/Duke_S/?action=view¤t=gop.jpg

Posted by: AJF | November 2, 2007 5:53 PM

AJF & Nisleib,

Ignore this heartburn clown, he's pulling Wingnut talking points out of his arse.

Posted by: AJF | November 2, 2007 5:53 PM

AJF & Nisleib,

Ignore this heartburn clown, he's pulling Wingnut talking points out of his arse.

How does one NOT know waterboarding is torture?

*****

Posted by: rncbs | November 2, 2007 4:16 PM

Because of the way the torture statutes are written; that's how. The laws do not explicitly spell out that waterboarding is torture or unlawful. Conduct is torture if it is “intended” to result in “severe mental or physical pain or suffering” without regard to the exact details or means employed. If one reads the law, one might be able to see how waterboarding can be torture under some circumstances, and how it often is torture. But that doesn’t make waterboarding torture under all circumstances.

* * * * *

Posted by: nisleib | November 2, 2007 4:45 PM

The law does not say waterboarding is torture. The law nowhere spells out that waterboarding is illegal.

The law defines torture without any examples of techniques that qualify, per se, as torture. The law merely says that torture is an act intended to inflict severe physical or mental pain or suffering on another person. Waterboarding certainly can, at times, fit that definition depending on how frequently, long and intensely the technique is used. That it can amount to torture, however, doesn’t mean that it is torture under all circumstances.

So there.

AJF:

Your battery example is not exactly on point, and it proves too little here. Hitting someone on the top of the head is always battery because it always fits your definition of “mak[ing] physical contact of an insulting or provoking nature with an individual." [Although I’ve never heard it defined like that before.]

Waterboarding has no exact analog to torture like a blow to the head does to battery. Torture is an act intended to inflict severe physical or mental pain or suffering on another person. Waterboarding, if done at infrequent intervals, with low intensity and small amounts of water, will not constitute torture at all. At the other end, waterboarding with great frequency, and large quantities of water, will obviously constitute torture. Somewhere in the middle, it crosses over from an exercise in annoyance to torture. Waterboarding simply does not always fit within the category of torture the way that hitting someone on the top of the head always fits within the category of battery.

Mukasey’s was thus tossed upon the horns of a dilemma. The Senators wanted him to agree that, factually, waterboarding always constitutes torture – when, in fact, that is simply not true. Had they bothered to explain to him what they meant by waterboarding and, perhaps, gave him some factual scenarios to evaluate, he could explained where he would have drawn the line. Short of that, heartburn is right: Congress should make a special statute outlawing waterboarding per se.

AJF & Nisleib,

Ignore this John E. Clown. He has difficulty, at times, emptying out his one - five nanometer brain cell to put refill it with information in for processing.

He thinks everyone with whom he disagrees uses Republican talking points - even when some Democrats take the same positions.

One more sleazebag from the Bush stable. One more asshole that will never have to answer for any of his despicable actions. The Dems in congress are already rolling over for this crap. Thank God George W. Bush is "restoring honor and dignity to the White House." Anarchy is looking more like a viable option than voting at this point.

John W-

Be real. You're a lawyer. You know it would be nearly impossible to legally define waterboarding.

How many seconds exactly. How much water. How often.

ASttempting to precisely make those definitions would merely give those who would torture means to quibble and argue, avoiding the essence of a law outlawing torture.

Again should the laws for assault or batterry spell out every possible means of committing those crimes? That would be silly and impossible to boot.

Fo all your proclaimations that you find torture abhorent, your always pretty quick to defend the torturers.

The law does not say waterboarding is torture. The law nowhere spells out that waterboarding is illegal.

The law defines torture without any examples of techniques that qualify, per se, as torture. The law merely says that torture is an act intended to inflict severe physical or mental pain or suffering on another person. Waterboarding certainly can, at times, fit that definition depending on how frequently, long and intensely the technique is used. That it can amount to torture, however, doesn’t mean that it is torture under all circumstances.

So there.

Posted by: John W. | November 2, 2007 9:00 PM

Seems like someone who "used" to work at the White House might disagree with you, "lawyer" John.
http://abcnews.go.com/WN/DOJ/Story?id=3814076&page=1

So there.

John W., you want to have it both ways do you? Sometimes it's torture and sometimes it's not...

Do you really believe that a CIA or military interrogator will use this technique "sparingly" in his effort to extract information from a possible terrorist? I don't. It's an ignorant and specious argument you make.

In fact, right now, there is no law that specifically says that waterboarding is torture-

If he defines this as torture when congress specifically failed to do so he would be overstepping his role as attorney general...

Posted by: heartburn | November 2, 2007 5:19 PM

Heartburn... there also is no law specifically saying that pouring battery acid into one's eyeball is torture. I guess in your world, that means that'd not qualify as torture, right?

We wouldn't need an attorney general if every possible infinitesmal contingency were coded into law by congress. We'd just need some guy with the ability to read. But that's an impossibility to expect that arrangement. Congress' job is to set laws. The Justice Department's job is to INTERPRET those laws. We need an AG to INTERPRET the law.

You're statement that the AG would be "overstepping his bounds" to simply interpret the law shows that you are ill-equipped to simply debate the topic.

Seriously, man... you're usually much better than this. You're not a watercarrier. This is the second time you've used horrendous logic/debate to defend the Admin's possition on this issue. It shows that you're without a leg to stand on with this waterboarding issue. Just admit that it's not what our country should be doing. It's not in our best interest. For Crissakes, we've set our own precedent here. We sent a Japanese Officer to prison for 15 years with a conviction on Torture charges for waterboarding in 1947. I mean, the bottom line is that we're forcing people to tell us things that may or may not be true for no other reason than physical and phsycological horror/discomfort. There's really not much grey area here. It doesn't take that much interpreting.

How about this.. let's define "torture" as any physical and/or mental abuse that is sufficiently severe to force a human being to say things they otherwise would never say. True or not. That's what torture truly is, right?

We can get that info much more reliably with carrot-and-stick bargaining that doesn't destroy human dignity (OURS and theirs). By TORTURING people to get what we want, WE BECOME THE TERRORISTS!

John W, Waterboarding isn't torture if we only use a little water? You're kidding, right? As you so clearly stated in a previous post "the definition of torture under the federal torture law includes both physical and mental torture. By way of illustration, the statute specifically includes under mental torture any conduct which creates the imminent apprehension of death. By that definition, waterboarding is torture if continued to the point of creating that apprehension."

Since the whole purpose of the procedure is to simulate drowning in order to cause fear of imminent death and mental distress in the victim, it seems pretty plain to me that waterboarding is torture. I suppose it's possible that the CIA definition of waterboarding consists of using just a little water to moisturize the detainee's face or applying warm moistened towels to open the detainees pores, but then it isn't really waterboarding, is it?

This shouldn't have been a tough question for Mukasy. Waterboarding is torture, no matter how much water is used and no matter how gentle and kind the CIA officer is as he makes you feel you are about to die.

To the US Senate and House of Representatives,

Why are you all wasting so much time worrying about the rights of the guilty, the
Terrorist and all those that want to do harm to OUR country. Those people want us all dead… You, Me , our children, grandchildren, our friends,,, well just all of us …
Some of you are going to all means to gain political power for yourselves at my expense. Maybe just maybe if you spent as much time trying to catch and convict those who, want to do this nation harm instead of trying to protect them, your votes would come to you naturally. You are not above those young brave people you send off to defend us. I have been through interrogations my self as a member or Our US Military. I would suggest that each one of you go through a water board. You will learn that it is effective and the lasting side effect is that you will see how information is obtained and that your face will be cleaner than when you started…

There is something in the water that makes dumb Senator Depends go off on tangents. Jumpin Jim Jeffords and socialist Bernie Sanders all hail from Vermont as does Howard Screamin Dean.
Mukasey is more qualified than either Depends or our own Dickie Durbin who is not known as a smart lawyer.
I agree with posters here who question how badly these doveish Senators want to win the War on Terror by rewarding AlQuaeda members with cushy prayer beads, warm weather in Cuba, prayer mats and copies of the Quaran. We should be sending these Islamic jihadists to 40 degree below real estate in cold cold Alaska. That would give them something to pray about.
America has never been safer than with W as President these liberal Democrat Senators prove once more we can't trust America's security to the reins of doveish liberal Democrats in the mold of George Mc Govern. Jerry White, Springfield, IL P.S. Note to Roger Morris:Bush will not be impeached eat your all caps heart out!

Posted by: crafty b | November 3, 2007 3:23 AM

Easy answer- I am completely against waterboarding, and I think it is torture.

The problem is that my opinion does not make it illegal. The congress needs to pass a law defining it as torture before the attorney general is entitled to an opinion-the current law is not clear enough. Mukasey is entitled to an opinion as a private citizen, but not as the AG. He was acting appropriately when he reserved judgement until he was properly briefed on how/if the practice is being used.

Congress backed itself into a corner by attempting to make waterboarding illegal ( by defining it as torture) that failed, so now defining waterboarding as torture ( illegal) is subject to interpretation. This is a trap that the confirmation committee attempted to set- they played a game and Mukasey didn't participate.

AJF:

It is perfectly possible to define waterboarding. It is not perfectly possible to define the precise moment when it becomes torture. Read the article John E. posted. It's here:

http://abcnews.go.com/WN/DOJ/Story?id=3814076&page=1

In it Daniel Levin, an acting assistant attorney-general who actually underwent the ordeal of waterboarding, is quoted as saying "waterboarding could be illegal torture unless performed in a highly limited way and with close supervision."

One look at the statute defining torture (18 U.S.C. § 2340) and you know why this is true. The definition is not free from ambiguity, and it does leave a lot of room to quibble over stuff like the frequency, duration, amounts, and so on. The fact that it can be performed “in a highly limited way” under “close supervision” to prevent it from becoming torture – according to Levin - means that it is not torture per se.

Furthermore, I wasn’t defending torturers. I was defending Mukasey for having been forced to take a position on a technique that he could neither defend nor condemn without knowing the precise factual scenario.

Greg L:

I said waterboarding could be torture, but that it could be employed in a manner that does not constitute torture. The technique of waterboarding is sufficiently intimidating and dreadful before it becomes torture. Go read the article John E. posted in his reply to me. John E. gives a link to it. Read in it what Daniel Levin said about the process. He said it “could be” torture if not monitored and limited. The implication is that it could be something less than torture under the circumstances he prescribes. That comports with the definition of torture in 18 U.S.C. § 2340. Thus, a CIA or military interrogator might use the technique to extract information without using it to the extent that it became torture.

We are not here talking about what is actually done. We were talking about whether it was proper to skewer Mukasey for failing to take a firm, black and white stand on whether the technique of waterboarding is torture under all circumstances. The fact that it can be performed without falling into the definition of torture makes his hesitancy understandable. That is neither a specious or ignorant argument.

John E.:

Thanks for the article. Contrary to what you assumed, the acting assistant attorney general, Daniel Levin, agrees with me. He said waterboarding could be torture if it isn’t carried out in a limited manner and under supervision. That is not the same as saying that waterboarding is per se torture under all circumstances.

You should read the article yourself.

So there.

Tom O:

The point I was making is that if one looks at the technique of waterboarding itself, and then read the definition of torture as found in 18 U.S.C. § 2340, one must conclude that waterboarding can be, and often is, torture – but also that it doesn’t have to be torture, and is not torture per se.

The technique does permit gradations of application (which is what I was trying, inartfully, to say regarding the quantities of water), and it is a sufficiently intimidating and terrifying technique before it becomes torture. In your correct quote from my previous post, I wrote: “By that definition, waterboarding is torture if continued to the point of creating that apprehension.” The clear implication of my statement was that waterboarding does not become torture until it reached the point of creating the apprehension of imminent death. The further implication was that the technique of waterboarding could be employed without being torture.

Your claim that “the whole purpose of the procedure is to simulate drowning in order to cause fear of imminent death and mental distress in the victim” is not factually supported. It can be used for that purpose if one wants to commit torture. It doesn’t have to be used for that purpose. And, if it isn’t used that way, it can be used without inflicting the level of mental terror needed to make it torture. Again, I refer you to the article John E. posted, which discusses the ordeal in which Daniel Levin, once an acting assistant attorney general, underwent the experience of waterboarding to see what it was like. The article goes on to state:

“After the experience, Levin told White House officials that even though he knew he wouldn't die, he found the experience terrifying and thought that it clearly simulated drowning.

Levin, who refused to comment for this story, concluded waterboarding could be illegal torture unless performed in a highly limited way and with close supervision.”

The url for the story (thanks again to John E.) can be found at

http://abcnews.go.com/WN/DOJ/Story?id=3814076&page=1

A technique that “could be illegal torture unless performed in a highly limited way and with close supervision” is not torture per se. This sort of blows your point out of the water (pun intended) that, “Waterboarding is torture, no matter how much water is used and no matter how gentle and kind the CIA officer is as he makes you feel you are about to die.” These things matter very much indeed.

The question posed to Mukasey was actually a lot harder than it looked at first blush. He should not have been asked to pass on the issue without some factual scenario to judge where to draw the line.

The congress needs to pass a law defining it as torture before the attorney general is entitled to an opinion-the current law is not clear enough.

Posted by: heartburn | November 3, 2007 2:33 PM

Heartburn... again... If congress were required to codify every single possible human action into law, we wouldn't need an AG to be "entitled to an opinion". We'd just need some dude with the ability to read to crosscheck the action against Congress' law. We could pay this guy $6 an hour.... sheeet... we could even outsource his job to India and pay 25c an hour.

Soooo, your solution to this issue isn't to find an AG that can interpret the current laws, it's to force Congress to create a list of the trillions and trillions of different possible things we can do to a human. On one side of the list is "torture", on the other side is "not torture".

Great. That's much better governance than just finding and AG that's willing to interpret laws, as per the job description.

And there's no reason for this guy to find out what the administration's secret "program" is. No matter what secrets they've go or under what contingencies their using waterboarding. The law is a public document. We're all free to read it. We all know what waterboarding is. It's a black and white call. It's the AG's job to interpret the law. He's got all the info needed. It's called a Confirmation, not a Rubberstamping. Congress would be negligent if they didn't clear up these issues and this current AG nominee is not fit for the job if he can't interpret a law's application to this interrogation technique.

John W, We aren't going to agree on this one. First of all, carefully pouring water on somebody without creating the sensation of drowning isn't torture, but it isn't waterboarding either. Giving the guy a shower isn't torture. Wiping his face with a damp cloth isn't torture. But cutting off his air supply, however briefly and carefully, is torture. As Mr. Levin pointed out, he knew for a fact that he wasn't going to be killed, but he was still reacted with terror to the sensation of drowning. He was simply unable to control his gut reaction to it. Secondly, I seriously doubt that our torturers perform waterboarding "in a highly limited way and with close supervision". I'm sure the supervision is better than it was at Abu Ghraib, but do you seriously think they are careful to avoid giving these people the impression that death is imminent? That's the whole point of waterboarding. And as for "highly limited", I'm sure they stop right after they break the subject and not a minute sooner. Mr. Levin did leave room for the possibility of non-torture waterboarding, but I don't believe it exists. Even if it did, it would never happens in real life.

Tom O:

We were talking about a legal question, like the one posed to Mukasey. We were not talking about the unknown practices of our civilian and military intelligence gatherers.

The question to which I responded was whether waterboarding is per se torture. The answer is no, it is not per se torture. It is not per se torture because it can be performed - and probably still be effective as a means of coercing information - without intending to inflict, or actually inflicting, the level of physical or mental pain or suffering required to make it torture. We are answering this question in the abstract, and not with reference to what you think intelligence gatherers actually do based upon your poor opinion of them.

Let me make this simple so we don't lose sight of the forest due to one tree too many: This is an exercise in dispassionate legalism, and not a discussion of what happens in the field. Mukasey wasn't informed by Duh'bya as to what happens in the field – or so we are told. He was asked a legal question by Senators in a congressional hearing room. An answer to a legal question requires an examination of a statute or relevant case law as applied to a set of facts. With only a general idea of the technique of waterboarding (which may or may not have included your idea of its purpose) and the statutory law (since very few cases discuss the federal statute), the question is whether Mukasey was wrong to balk at committing to a black and white, yes or no stance that waterboarding is per se torture.

I am saying that, in response to this legal question, Mukasey was not wrong to balk. The way the statute is worded, questions of degree, duriation, frequency and intensity are unavoidable. If it is at all conceivably possible to perform an interrogation technique without inflicting severe physical or mental pain or suffering on a person – as Levin indicated could be true in the case of waterboarding – then it cannot be classified as torture per se. A technique is torture per se only when it cannot be employed under any circumstances without reflecting an intent to inflict severe physical or mental pain or suffering on another person. Once one concludes that a technique is not torture per se, then one has to actually look at a factual scenario to determine whether the duration, frequency, intensity and method reflect an intent to inflict severe physical or mental pain or suffering. This is unavoidable.

Be clear that I am not defending torturers. I, too, would like to see a ban on waterboarding. I wish Congress would amend the torture statute to do just that. I realize that it is not always prudent to include specific examples in a statute, but doing so is not without precedent, and it would be prudent in this case owing to a disparity of opinions on the subject. However, the problem remains that the torture statute, as worded, does not make waterboarding, per se, an illegal form of torture. And so, Mukasey was not wrong.

John W, So your opinion is that waterboarding can break the resistance of these people and make them talk to us without without inflicting "the level of physical or mental pain or suffering required to make it torture"? I disagree. Waterboarding is designed to simulate the sensation of drowning. The whole point is to terrify the victim with the feeling of imminent death. Mr. Levin's suggestion that it might be possible to waterboard without torturing is not much to build your case on. He KNEW he was perfectly safe and yet he was still terrified by it. I doubt any suspected terrorist could be as confident of his own safety as Mr. Levin was. Since it is designed to simulate drowning, I frankly don't see how anyone could argue that it does not create "the apprehension of imminent death". I guess we'll find out who's right when and if this ever goes to trial.