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Go Home Tortured Logic

POLITICS MAY 20, 2009

Tortured Logic

BY JONATHAN CHAIT

REMEMBER THE Rule of Law? In the late 1990s, it was all the rage in conservative circles. Having maneuvered Bill Clinton into a position where he could either lie under oath or suffer massive personal and political embarrassment, conservatives reasoned that Clinton must be held accountable for perjury or the basic underpinnings of democracy would be shattered. The Republican sensibility was best reflected by the Wall Street Journal editorial page, which not only crusaded for impeachment but demanded, in 2001, that Bill Clinton be indicted even after leaving office. The Journal rejected the logic of promoting healing and insisted that a post-presidency indictment would uphold “the principle that even Presidents and ex-Presidents are not above the law.”

Over the last decade, though, the right’s thinking on this question has evolved. Today, the administration malfeasance consists of illegal torture, a crime I’d argue is no less serious than lying under oath about fellatio. Yet Republicans now believe that the Rule of Law is not only consistent with letting administration crimes go unpunished but actually requires it. To prosecute the departed administration would make us (to use their new catchphrase) a “banana republic”—the premise being that banana republics are defined not by their use of torture but by their overly zealous enforcement of anti-torture laws.

The GOP line is once again reflected by the Journal editorial page, which now thunders against “a new Administration prosecuting its predecessor for policy disagreements.” The editorial notably fails to even address the question of whether the previous administration complied with the law, which is apparently no longer an important element of the Rule of Law.

The right’s newfound outrage is a more hysterical manifestation of the mainstream sentiment that it would be an unseemly form of vengeance or “looking backward” to hold the previous administration legally accountable for torture. It's a bizarre sentiment. The prosecution of any crime is inherently backward-looking. We prosecute law-breakers to keep them or others from breaking the law.

TNR senior editor Jonathan Chait discusses his latest “TRB from Washington” column with editor Franklin Foer:

Now, exceptions can be made, and the question of whom to prosecute is tricky. It seems unfair to prosecute CIA agents who tortured, as they had been specifically advised that techniques like waterboarding were legal. It’s likewise tricky to prosecute the Bush administration lawyers who wrote torture-authorizing memos. Administration defenders assert that those lawyers were “acting in good faith.” And, yes, they were making a good-faith effort to stop terrorism, but to suggest that they were making a good-faith effort to interpret the law insults their intelligence and ours. A recent Washington Post story leaves the impression that torture-memo author Jay Bybee, now a federal judge, realized the tendentiousness of his memos, which said waterboarding isn't torture (and therefore is legal) because it does not inflict “severe physical or mental pain or suffering.”

The best defense against holding Bush officials accountable for torture is that September 11 freaked out the entire country and that we can’t judge their actions by the standards of how they look “on a bright, sunny, safe day in April 2009,” as Obama’s intelligence director puts it. This argument would carry more weight if Republicans had changed their thinking on torture and could be expected to follow the law the next time they won the presidency. Alas, they show little sign of intellectual progress.

Even after the release of the torture memos, Republicans persist in denying that techniques like waterboarding or chaining a prisoner in a standing position for hours constitute torture. The most common defense of waterboarding is that we subjected our own soldiers to it. That's true—as a way of training them to withstand enemy torture. When you reverse engineer a torture-resistance program, you're almost by definition engaging in torture.

In reality, Bush's waterboarding methods did differ from the U.S. military’s torture-resistance training, in that our soldiers knew how far we’d go and could stop the exercise if they couldn’t bear it. Conservatives have inadvertently confirmed this point. Numerous Republicans object that the release of the torture memos will render waterboarding and other techniques useless—“terrorists are now aware of the absolute limit of what the U.S. government could do to extract information from them,” complain former Bush officials Michael Hayden and Michael Mukasey.

It's true. Nobody expects the Spanish Inquisition, or torture methods devised thereby. Our chief weapon is surprise. (Surprise and fear. ... Amongst our weaponry are such elements as surprise and fear, as Michael Palin might put it.) That’s exactly why training soldiers to withstand waterboarding is different than actually waterboarding.

The worst part is that conservatives continue to view torture through the stylized prism of the Fox drama “24.” They discuss the practice as if the subjects are always terrorists, the interrogators always know just what information to ask for, and the answer can prevent imminent destruction. All of these premises are shaky.

First, there's no such thing as a government policy of “torturing terrorists.” There’s only a policy of torturing people the government thinks are terrorists. Many of the suspected terrorists at Guantanamo Bay, subjected to agonizing stress positions, turned out not to be terrorists—not because the soldiers who captured them were venal, but because they were human.

Second, torture is designed to force prisoners to provide an answer the interrogator already knows. The torturer relents when his subject provides the “correct” answer. Intelligence gathering, by contrast, is designed to garner answers the interrogator does not already know.

Finally, yes, we can imagine ticking-time-bomb situations where regular interrogation methods work too slowly and extreme measures might prove helpful. But this premise bears the same relationship to the question of legalizing torture as the morality of stealing a loaf of bread to feed your starving family does to the question of legalizing theft.

It’s worth thinking about how likely the ticking-time-bomb scenario is to occur, and how our military and intelligence apparatus can be legally structured to account for it. But, first, Republicans are going to have to be disabused of their dramatic fantasies and reminded that a long war needs to be guided by the rule of law.

Jonathan Chait is a senior editor of The New Republic. This article appeared in the May 20, 2009 issue of the magazine.

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77 comments

Bravo, Jonathan Chait, for making the elementary points, which have seemed lost in the sophistry obscuring very basic issues of morality, decency and common sense.

- Mandy

May 5, 2009 at 2:07pm

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What's the point of principles if you abandon them when things get difficult? Also, I disagree with one point Chait makes, I think it IS all about the lawyers. If you're Addington or Gonzales (when he was W.H. counsel), you are pushing the Justice Dept. for maximum power. It's a bit realpolitik, but understandable. It's up the to JD lawyers though to act like adults, to read the law and say 'no, this is ILLEGAL, this is wrong.' The Bush W.H. was famous for pushing VERY hard for conclusions (George Tenet had to scream profanities into a phone to get them to back off the Saddam/Al Qeada link claims) so it's not surprising they pushed hard for 'enhanced interrogation.' It's surprising to say this, but the Justice Dept. needed their own George Tenet to stand up to Addington and friends.

- mmathog

May 6, 2009 at 1:29am

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Also, how does the Defense Dept. fit in here? Could Rumsfeld set policy? He had his own military intelligence and legal apparatus, how does that work?

- mmathog

May 6, 2009 at 1:29am

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I especially like the analogy about a poor man stealing a loaf of bread. Bush Administration officials should be held to account. But as a practical matter, not at the expense of health care and global warming legislation. Better to go the non-prosecutorial truth commission route, shame the scoundrels, and be done with it.

- Dean from Oregon

May 6, 2009 at 1:49am

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Sometimes a nation must weigh wether to protect it's citizens over that of enemy plots. There is no known sophisticated civilized method to get people to give up information other than the infliction of stress or pain. Can Mr. Chait provide the method which would produce such intelligence? He cannot because that method does not exist. There were 3 known terrorists waterboarded who were high ranking al Quada members. Al Quada announced plans to commit more massive attacks than that of 9/11/01 which might have included dirty nuclear bombs. When questioned 9/11/01 mastermind Kalid Mohammond's response was "soon you will find out." After 4 months, he was waterboarded. He gave up plots that several CIA directors, and an attorney general said saved lives. National Security Director Blair said high value intelligence was obtained. Congress called for a law during the Bush era to outlaw waterboarding. That law could have been passed faster than the stimulus law. It's not been passed. Before Mr. Mulkasey's confirmation hearing as Attorney General during the Bush administration, he was asked whether waterboarding was torture. He said he had to study it. The senate confirmed him and accepted the vagueness on waterboarding. Waterboarding as used against these 3 terrorists has yet to be determined as torture.

- Dan

May 6, 2009 at 2:46am

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What is the point of this article? You raise what is perhaps the key issue; "the question of whom to prosecute is tricky", but then avoid a direct answer. You seem to imply that it should be "Bush officials", but again, who? At the end of the day, the buck stopped with Bush himself, so are you advocating that Bush be prosecuted? Regardless of what "Republicans" say, Obama is a Democrat with a Democrat controlled Congress. If he wants to prosecute somebody, he has the power to do it. My bet is he won't, so again, what is the point of this article? Seems like more in a string of endless opinion articles on this subject by third rate, wanna-be political pundits.

- FrankD

May 6, 2009 at 6:17am

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Your commentary crosses the line from banality to evil. Your use tortured logic caused undue and permanent suffering; I think you are guilty of a crime.

- Hillary Rules

May 6, 2009 at 6:24am

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Maybe it is because they broke no law?

- JohnB

May 6, 2009 at 7:16am

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"...illegal torture, a crime I'd argue is no less serious than lying under oath about fellatio." You sure you don't want to back up and read this incredible sentence again? What was the motivation driving each "crime"? Clinton lied to protect his personal political life. If the prior administration lied it was to protect us. Even those of us too craven to appreciate it.

- Steve Teagan

May 6, 2009 at 7:27am

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Your entire argument is based on having waterboarding and other enhanced interrogation techniques being defined as torture....that debate is far from over and you better start getting ready to charge 1000's of military lawyers, and drill instructors and senior brass because these same techniques have been used in training our special ops troops for years.....by your definition, we are torturing our own troops. This is a religious war whether we like it or not so when you members of the "can't we all just get along" foreign policy group see their daughter's heads being cut off while the jihadists are on their way to trying to cut your's off, you may actually begin to understand that simulated drowning (with a Dr. present) is not out of bounds activity for a civilized country. You guys just don't have a clue.

- JRL0912

May 6, 2009 at 7:30am

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To Jonathan, Mandy, and all others who now write with such an air of moral superiority, where were you and what did you do specifically to try to stop these barbaric acts? That the U.S. was engaged in "torture" must be the worse kept secret in the past 7 or so years. Leaving aside the pathetic Nancy Pelosi who clearly new what was happening and did absolutely nothing to stop it, what did each of you do? Did you write your congressman or senator? Did you stand up in front of any local organization in your home and express your outrage? Did you put your legal future on the line by say, refusing to file and pay your income tax? Did you flee to Canada? I admit, I did none of these things. I kept my mouth shut and went on with my life. To come along now and trash only "Republicans" for something we all knew about is the height of hypocrisy.

- Disgusted

May 6, 2009 at 7:42am

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This fine example of simple, clear and rational thinking is like a fresh breeze that cuts through all the spin. Thank you.

- Jens

May 6, 2009 at 7:42am

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I have head and heard most of what your side says on this issue, and can still only conclude you are fanatics who claim the Constitution is a suicide pact. I sick of this ticking time bomb bull crap as well. If the time bomb is ticking, it is already too late, and whether some grammar school or hospital is blown to kingdom come is a crap shoot at best. The ACLU is on record as saying the school or hospital must be allowed to perish. Many others of the same ilk consider such a sacrifice of human life the moral position. I want criminal prosecutions of the lawyers and CIA types and Bush and Cheney. I want Obama and Holder to hire their ACLU dream team to represent the "morality,decency, and common sense" of America in the trials, as they proceed. This will happen in a court of law and rules of evidence applying. Let Americans watch the spectacle of our crimes unfold in the objective setting of a court room. Of course, this will not happen. The smart left are afraid of the outcome. They'd rather prosecute in the court of public opinion, where they can make their idiotic claims unchallenged. Cowards.

- skeptic

May 6, 2009 at 8:31am

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During WWII in Britain, captured and suspected spies were interned at Camp 020, the interrogation center operated by MI5, Britain’s counter-espionage service. MI5’s objective was to break and turn the spies, thus making them double agents. According to Nigel West, the author of MI5, (Stein and Day, 1981, p. 148), “The interrogation methods used at 020 were subtler than the crude use of physical force. A variety of sophisticated techniques were employed but all concentrated on the mental balance of the suspect rather than short-term advantage. To have used obvious torture would have undermined the stability of those experiencing the turning process, and, indeed, affected the confidence of the individual case officers, who were generally not professional intelligence officers and would have resented the use of violence on persons for whom they later had to take a responsibility, quite apart from any humanitarian considerations.” However, not all spies could be broken and turned. Camp 020’s “Hanging Committee” decided if those spies should be prosecuted under the Treachery Act of 1940. All but one of those who were prosecuted were hanged. MI5’s spy breakers had an objective. Their methods of interrogation and their way of dealing with spies who couldn’t be broken were determined by what they had to accomplish. But what about the Guantanamo interrogators? What was their objective? Were their methods of interrogation consistent with what they had to accomplish?

- Robert Graves

May 6, 2009 at 8:42am

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Well, KSM did give up information to another attack after water-boarding. Lives were potentially saved. It's an unfortunate episode, but had they not gotten the information, and thousands more died, what would you be saying now? I believe it wouldn't be "at least they did the decent thing"

- Tommy

May 6, 2009 at 8:45am

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Yes, thanks, esp. for the loaf of bread argument, which will be very helpful in arguing the case.

- KenR

May 6, 2009 at 8:47am

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1.) The rule of law does not apply to un-uniformed, civilian murdering terrorists, represented by no political authority. So comparisons to Pres. Clinton's impeachment offfense of breaking established perjury law in a democratic society is silly. 2.)Waterboarding was used on only a few known terrorists, (not POW's covered by the Geneva Convention), who had "ticking time bomb" info. Making KSM talk potentially saved thousands of lives.

- Louis

May 6, 2009 at 9:26am

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The Clinton rehash is hilarious, really. Man uses the Oval Office to philander, then lies under oath: cut-and-dry violation of the law. Oh, sure, it was just a little fellatio. But, then, a man who will lie about little things like that can surely be trusted with bigger secrets. Meanwhile, you allow that the torturers themselves are in the clear-- no "We followed bad orders" scenarios a la "A Few Good Men" here. You attack Bybee, et al. (again) for tediously analyzing the law and making what you consider a flawed conclusion, but again let them off with a spanking for not following your holier-than-thou interpretation of the law. Then, you finally set sights on... well, nobody. I guess you don't want to come right out and say prosecute Bush, Cheney and Co. If so, I understand: such bold, sweeping statements should go unsaid and simply be acted upon in the Age of Obama. If nobody says anything, then nobody will ever be accountable, right? The "24" shtick is ridiculous. What's far worse is the idiotic, unending movement by you and your ilk to impose American criminal procedure onto war. It must sound great in theory--you certainly have the confidence. But where's the criticism for Obama / Holder fighting the Boumediene decision? You mean, in practice it's actually impossible? Oh, the audacity..

- Don

May 6, 2009 at 9:29am

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It's worth thinking about how likely the ticking-time-bomb scenario is to occur, and how our military and intelligence apparatus can be legally structured to account for it. We already have a method for dealing with the one-in-a-million situation where following the letter of the law does not result in justice. It's the executive pardon. Should the ticking bomb situation ever arise (and to date it has not) I don't think any President would have either moral or political problems with granting a pardon to Jack Bauer for saving us all from Lex Luthor or whatever the threat is. Given that pardons are public I suspect that no President would find it politically possible to pardon Yoo, Bybee, and England, which is as it should be.

- AlanB.

May 6, 2009 at 9:30am

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if you try and prosecute bush, then you must also prosecute truman for the a-bomb, fdr for dresden and japanese-american internment camps, and bill clinton for serbian bombing campaign that killed 500 civilians. you do realize in this article you said you condider chaining a person to a pole and making them stand for hours is torture? are you serious? people stand in line for days at an event venue, or do get their kid the "new" toy for christmas. i have been through the military version of these "survival" schools. suprise is not the weapon; confusion, disorientation, keeping you uncomfortable, not even knowing if it is day or not, that is the weapon, thats how they get you to talk. this article doesn't even warrant the necessary requisite to line a bird cage.

- wtf

May 6, 2009 at 9:47am

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The Justice department issues the guidance, and then the various agencies e.g. CIA, take their cue. Basically, what you have to prove is that Justice Department attorneys wrote memos that they did not believe. Further, these memos are opinions. Do you really want to give every new administration the ability to not only overturn legal opinions (which the Obama administration has obviously done and should be able to do), but to also prosecute those opinions you don't agree with? I don't think any administration will want to work with that hanging over their heads. I would be very surprised if the Justice Dept pursues prosecution of former Justice Dept attorneys... Further, in the article, you seem say that torture is legitimate in certain situations i.e. that we should suspend the rule of law in certain situations ala Jack Bauer. But once you do this, I think you are on a slippery slope. Who is to say what constitutes an extreme situation...

- LWB

May 6, 2009 at 10:05am

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The difference, of course, is that Clinton was in fact guilty of a crime ("purjury") - one that he admitted to in front of the American people - while Bush is not actually guilty of a crime. Waterboarding may be torture (though I do not see it that way), but it is not and has never been a crime. To be a crime, Congress could easily outlaw the practice, but they have not.

- EmpFab

May 6, 2009 at 10:07am

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Excellent analysis, Jonathan Chait. This is the clearest and most compelling approach to this complicatedly simple issue I have yet read.

- Walter

May 6, 2009 at 10:11am

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Glorious - another delicious, searing perfection from the Champ. Not that it will sink in to cognitively impared skulls, but someone has to represent in these matters, and represent brilliantly. This has become the perfect role for you Mr Chait.

- WandreyCer1

May 6, 2009 at 10:14am

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Well the headline is accurate. While police and private security guards routinely taser U.S. citizens willy nilly and government sanctioned homicides are commonly accepted as necessary, the author of this piece demands prosecution for those involved in pouring water onto three terrorist suspects faces. Three teenagers who shared a lifeboat with a U.S. merchant seaman were shot dead. More that 30 innocent civilians were killed when U.S. drones fired missiles into homes in Pakistan's FATWA. These acts are accepted. Every mother washes he child's face by pouring water. The child doesn't like it. Does that make it torture? Some people insist that gently pouring water onto someones face can be done in such a way that it is torture. If that is true, then there must be a line somewhere between the mother washing a face and an interrogation demarcating where the pouring becomes torture. If we want to know where that line is, it would be sensible to ask lawyers to give us an opinion just where it is. Should we prosecute them for giving that opinion?

- Mike Sorensen

May 6, 2009 at 10:19am

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Atta Boy, Jonathan!! Stay focused at all cost. Two words that shatter your premise (although ideological blindness will prevent you from considering them): Scooter Libby. There's an extremely simple reason why this will drag out and eventually lead nowhere: The Obama Administration already knows that no crimes were committed. The only reason this is even on the agenda is false promises made by Obama and co. to far left ideologues. But you won't need to take my word for it, Mr. Chait. If there is never a conviction on these crimes, then you're wrong. Full stop. If there is, then I'm wrong. The smarter move for the far left upon Obama's election was to say "We won, so we can drop this charade now." The undoing of all of it, including the domestic agenda, will be this obsessive need to punish Bush. I used to find it upsetting how thoroughly Bush hatred undermined the public debate, but now I find it sort of amusing. Because there was no crime, there will probably be no trials. If by some unforseen fundraising need there are trials, there will be no convictions. I don't need to defend either assertion, as history will prove me wrong or not. The sad part is, the debate on what we'll do and what we won't in the interest of national security is an important one -- Just not in the hands of blind ideologues like Jonathan Chait, sadly.

- Bob

May 6, 2009 at 10:27am

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Great article! Thanks. I'd like to add one note to this history of the hypocrisy of the GOP during the impeachment (which is when I left the GOP). re: "conservatives reasoned that Clinton must be held accountable for perjury or the basic underpinnings of democracy would be shattered." Starr's charges of perjury and obstruction of justice were first taken to a FEDERAL GRAND JURY... ... and firmly REJECTED. The GOP Congress decided to hold Clinton "accountable" after a Grand Jury refused to indict him! I don't like to give any room whatsoever to the GOP "upholding" the rule of law. The LAW had already told the GOP Congress that the charges were unfounded via a Federal Grand Jury, but the GOP still decided to bring us a multi-million dollar circus anyway. The GOP obviously could not have cared less about the rule of law. Thanks again for a great article.

- Jan

May 6, 2009 at 10:29am

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"Finally, yes, we can imagine ticking-time-bomb situations where regular interrogation methods work too slowly and extreme measures might prove helpful. But this premise bears the same relationship to the question of legalizing torture as the morality of stealing a loaf of bread to feed your starving family does to the question of legalizing theft." Thanks, Jonathan. I've been grasping at a way to crystallize this point, and you say it better than I ever could. On the broader issue of the Republicans' flexible concept of the rule of law, I've given up trying to square the circle and take them to task for their inconsistency and intellectual dishonesty. It's now become clear that at any given moment in time they will say anything, whether they truly believe it or not, if they perceive it politically beneficial to do so. If you try and provoke an honest debate with people whose only intention is to spout the propaganda of the moment, you're just going to end up frustrating yourself.

- Django48

May 6, 2009 at 10:54am

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Where is there any evidence that torturing Khalid Sheik Muhammad prevented any attacks or gleaned any important information whatsoever? Just because Dick Cheney says it does not mean it is true. Also the Geneva Convention is the law of the land so violating portions of it could in fact be considered a potential crime. Also stating that people have no rights because they are terrorists and represent no "political authority" is a pretty dubious argument and has already been rejected by the Supreme Court.

- Pnaut

May 6, 2009 at 11:59am

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I took the trouble to actually read the Bybee memo. It seemed to me that it was not only defensible but in fact correct. Prosecuting him for interpreting the law as he did would unquestionably constitute the criminalization of policy differences.

- kevin

May 6, 2009 at 12:00pm

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I just find it astonishing that there is a whole political class of people who wake up in a sweat every night worrying about whether we are treating terrorists too harshly. They suffer from short term memory loss (September 11) and lack any historical perspective (WW2). Were you all born yesterday?

- Light and Verity

May 6, 2009 at 12:02pm

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Actually, empfab, torture was outlawed and was a crime, under Federal law, at the time. But now we see the "perfect defense." Get a lawyer to write an opinion saying something is legal and both you and the lawyer are off the hook. Except there is no such defense in US law. There is plenty of history of tax prosecutions where people relied on bogus legal opinions, and cases where the lawyers have been prosecuted too for essentially authoring the scheme to defraud under the guise of writing a legal opinion. I say, appoint an independent prosecutor and let'er rip. Get the whole thing out of the hands of politicians and political appointees which is just what the independent prosecutor law is for in cases involving potential misconduct by high officials. And, of course, if the prosecutor finds, as Mike Sorenson suggests, that interrogators were merely gently washing the faces of their captives, nothing more, then there will definitely have been no crime committed

- roidubouloi

May 6, 2009 at 12:38pm

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WandreyCer1: I have a congnitive impaired skull and need help in understanding something. Today's news brings word that up to 100 civilians, including innocent women and children, were killed in US bombing in Afganistan. If Bush is guilty of crimes, shouldn't Obama now be prosecuted for war crimes? If not, why?

- JustAsking

May 6, 2009 at 12:52pm

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What do you do with all the representatives and Senators who knew of this and raised no objection?

- JohnB

May 6, 2009 at 1:27pm

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* 'Robert Graves' (Comment 14 of 25) gets it right, torture doesn't give any reliable information. * The claim by Dan (Comment 5 of 25), that KSM "gave up plots that several CIA directors, and an attorney general said saved lives." is now known to be wrong; he just listed the random U.S. landmarks he knew as possible attack locations (4 months after capture), prompting thousands of hours of unjustified police overtime, just to make the pain stop.-- The question "But what about the Guantanamo interrogators? What was their objective? " of 'Robert Graves' (Comment 14 of 25) has since been answered, it was to find an Iraq-Al Quaida link, but 183 instances of waterboarding were not enough to make him admit such a thing (Perhaps the waterboarders were not clear enough in what they wanted him to say). * People in U.S. custody died, possibly due to torture. * International law requires (criminal)investigation, so it would be nice if you, Jonathan, encourage it clearly, including an impeachment of Bybee. And the low-level guards at Abu Ghraib have been court martialed; so we have here another instance of the law applying only to 'little people.'

- A

May 6, 2009 at 1:31pm

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"But this premise bears the same relationship to the question of legalizing torture as the morality of stealing a loaf of bread to feed your starving family does to the question of legalizing theft." This analogy is not well thought out at all. It assumes that what we did was illegal torture. It was not. No laws were broken... only interpreted differently than the author would like. Still liberals think that if they call water boarding torture enough times it becomes fact and then they can make stupid analogies like this one. Trying to compare the attempts at prosecution of Bush people with the prosecution of Clinton is just as stupid. Clinton clearly committed a crime. No one in the Bush administration has. Lastly, someone explain how liberals can claim moral authority by saying we shouldn't have poured water over a mass murderer's face when under the Obama administration we shot three Somali pirates in the head? How can you ignore that we didn't give trials to the pirates and instead shot them, while calling for prosecution of people who did what they needed to do to some admitted murderer's in order to save lives? What hypocrits.....

- Bryan

May 6, 2009 at 1:38pm

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"Excellent analysis, another delicious, searing perfection, This fine example of simple, clear and rational thinking is like a fresh breeze that cuts through all the spin"? I can't stop laughing. Absolute nonsense that says absolutely nothing but Bill Clinton got a blow job off the Oval Office and lied about it and dumb republicans wanted to prosecute him for it. Although perjury is a crime the last I heard. (He shouldn't have been deposed in the first place but that is another issue) Yes it is a characteristic of 3rd world and 3rd rate governments to try to find something for which to prosecute/persecute the former government. The esteemed senior editor wants to begin the silly games here. Absolute nonsense.

- Gregg

May 6, 2009 at 2:04pm

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This is, of course, all assuming that the interrogation methods in question were actually illegal. A contentious claim to be sure. Most conservatives will contest that assumption rather than the claim that President's should not be subject to the rule of law. Like it or not, immoral actions are not the same as illegal actions.

- Daniel

May 6, 2009 at 2:40pm

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"Many of the suspected terrorists at Guantanamo Bay, subjected to agonizing stress positions, turned out not to be terrorists--not because the soldiers who captured them were venal, but because they were human." With very few exceptions, soldiers did NOT capture the Guantanamo prisoners. The US bought the men through a human-trafficking network that the US advertised widely: Anybody who knew of any 'bad' men were encouraged to seize them and sell them to the US for "bounties" that would make the sellers rich beyond their dreams. The results were predictable. All manner of innocent people, especially foreigners in Afghanistan and Pakistan, were swept up and sold into captivity. These constituted the vast majority of prisoners at Gitmo, as Denbeaux et alii found in the Seton Hall study.

- smintheus

May 6, 2009 at 2:45pm

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Wow. Who called in the flying monkeys? Dan's "There is no known sophisticated civilized method to get people to give up information other than the infliction of stress or pain" is simply false. The word he doesn't know is "interrogation." Look it up, Dan.

- Anderson

May 6, 2009 at 2:54pm

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I don't really watch 24, but my understanding is that Jack Bauer is someone who the President knows personally. I think that is an important point that is never brought up. If the President really had a handful of people (literally 10 or less)who engage in torture on behalf of truth, justice and the American way, then the President would be able to use the pardon power on the grounds of their extraordinary service to the nation. These 10 (do you even need 10)would work on the rare occasions where torture might be justified on some morally ambiguous basis. But that really was not or is not what the Republicans ever had in mind. Regarding the first part of your excellent essay, I believe the Republicans believe that if you are certain sort of person worshipping a certain kind of God living in a certain part of the country, then you don't need the law to tell you what you need to do. But everyone else does.

- brucegg

May 6, 2009 at 2:59pm

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Perhaps the best analysis I've seen so far. Unfortunately, Jonathan, you persist in trying to reason with the unreasonable.

- Mark

May 6, 2009 at 3:03pm

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Another issue with the ticking time bomb case: nothing prevents the terrorist from lying to stop the immediate torture while allowing the impending attack to succeed.

- Bill Higgins

May 6, 2009 at 3:10pm

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I think the comments to this article are a perfect example of the hypocrisy the author is pointing out.

- mghogwild

May 6, 2009 at 3:31pm

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"Many of the suspected terrorists at Guantanamo Bay, subjected to agonizing stress positions, turned out not to be terrorists" Mr. Chait could you please provide a follow up post with the names of the innocent who were subjected to agonizing stress positions at Guantanamo and later turned out not to be terrorists. Could you provide the evidence you cite that the innocent were in fact subjected to agonizing stress positions. Could provide the evidence you cite that the innocent are in fact innocent. I think the total population of current and/or former inmates at Guantanamo is less than 1,000 people. I don't know how many "many" is, but this should not be a difficult task assuming you did the research prior to making the statement quoted above. Doug Santo Pasadena, CA

- Doug Santo

May 6, 2009 at 3:38pm

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And why is it that jerkoff Democrats who were against the removal of the filibuster when Bush and the Republicans were in power are suddenly in favor of it now? Of course with the snake Specter's departure, they don't care as much about it anymore.

- jwl2672

May 6, 2009 at 3:41pm

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Prosecute everyone up to and including Bush. In your spare time, work on the speech that you'll give to the American people when you're unable to stop the next 9/11. If there's still some time left, work on your defense for when the next Republican President prosecutes you for waging a war of aggression in Pakistan and murdering innocent civilians.

- Dimslie

May 6, 2009 at 3:46pm

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Justasking - I find your question to be a classic right wing dodge, but at least its a new approach rather than the tired ranting about ticking time bombs and coddling terrorists. All I can say is those that are pro-torture, you'd better hope the government doesn't come after you some day, and they will if we don't have laws against it that are followed no matter what - the rule of law is basis for our entire civlization, are you ready to change that? Just be honest if so. Either Bush administration lawyers broke the law or they did not, veering off in to partisan motivated irrelevancies like your question won't change that. A jury of these lawyers peers and the political realities they must operate in will have to decide that. Yes, I am a person who dearly hopes they are disbarred - apparachiks like them personify Hannah Arendt's banality of evil. I make my decision based on facts: the last two commadants of the Marine Corp (including the sitting one) have come our numerous times against torture of any kind. The data is really clear that it doesn't work, that its the number one recruitment tool for jihadists and it puts soldiers in grave danger. Yes, I tend to listen to military professionals who know what they are talking about rather than faux bloodthirsty computer cowards and fat radio chicken hawks who dodged military service due to a pimple on their ass. And BTW, I was 20 blocks from the WTC on 9/11, lost 2 friends that day and so far 2 in the service. I work with former firemen in a clinical setting to this day, so please save me the notion that I somehow don't get it. Also BTW: "Although perjury is a crime the last I heard" I almost never pay any attention to anyone who says "last time I heard" I'll answer this. This was not the case according to the federal grand jury, it was not perjury. Perjury is a charge, decided entirely by a grand jury, not ranting partisans. Bill Clinton was prosecuted with a political tool, impeachment has nothing to do with the law. This occured despite the wishes of the American people, who made it clear they did not want him impeached. It was a stupid waste of time, money and focus motivated by nothing but partisan animus, any poll from that era will day the same thing. In the case of the Bush policy of torture, if the administration had the courage and the character, and they ever really did have that ticking timebomb - they'd just come out and say they tortured and accept the legal consequences like men.The constant lies and refusal to acknowledge what even a fourth grader knows (waterboarding is torture, um - duh?) shows the true nature of the entire program - that they knew damn good and well they were breaking the law. This decision is up to the American people as well and I think they have been fairly clear, but would like more information: prosecutions will be counterproductive even if they are technically warranted, but that disbarment is on the table. This sounds about right to me too. The genie can't be put back in the bottle, but America deserves to have this dialouge out in the open. But yes, the notion that its OK to torture, that there is any evidence that it works, does make me wonder about someone's cognitive ability and stand by that. The case is so schizophrenic, I feel embarrassed for these people: no its not torture but we had to do it? That's stupid. You all can go back to hiding under the bed so Osama Bin Laden doesn't get you in your sleep, I'll go back to living life with more courage than that.

- WandreyCer1

May 6, 2009 at 3:59pm

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Just for the record, lying under oath is a CRIME, in our criminal code and agreed that it should be by all political sides. Deciding after the fact that you'll prosecute someone for what you THINK (if you in fact actually think) should be a crime is political witch hunting. Talk about tortured logic!!

- Greg

May 6, 2009 at 4:00pm

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One of the challenges to prosecuting waterboarding as torture is that U.S. law defines torture as causing severe physical or psychological pain. Since none of the 26,000 U.S. military, who have undergone waterboarding, complained of severe physical or psychological pain, that would count as empirical evidence to counter the prosecution.

- Mike Sorensen

May 6, 2009 at 4:54pm

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Well, of course the only difference in the examples between President Clinton and the Bush administration is that President Clinton did, actually, lie under oath, and was disbarred for it - lying under oath being a criminal offense. On the other hand, the accused within the Bush administration have been accused of - what crime is it?

- VDon

May 6, 2009 at 4:57pm

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"not because the soldiers who captured them were venal" What do you mean "the soldiers who captured?" Many of the suspects were captured by bounty hunters and transferred to American custody. Why we accepted the allegations that they were terrorists with no questions is another question that has not been answered.

- sighthnd

May 6, 2009 at 5:08pm

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It is not merely an assumption, bryan, that waterboarding is torture. It has previously been prosecuted as such by none other than the US government. I suppose one could argue that it used to be and isn't any longer, or that those prosecutions were mistaken. But there is no basis whatsoever, other than the normal perverse right-wing ideology, to dismiss the matter on the grounds that no crime was committed. Yo heard that perjury is a crime, gregg? Have you heard that torture is a crime? If not, you're not paying attention. This is the essence of Chait's point: The Republicans were batshit to prosecute the crime of perjury for fellatio in order to "uphold the rule of law." Triviality (or the fact that most people, when asked whether they are cheating on their spouses, would say no) was irrelevant. But, suddenly, in all of the torture debate, nothing is said by Republicans about the fact that torture is and was illegal under Federal law. If waterboarding is torture, and it has been prosecuted as such, then crimes were committed unless there is some legal justification. The question of justification is a legal issue, not a policy issue. Yet, suddenly the Republicans have lost all interest in law as such. To call this hypocrisy would be to insult hypocrites.

- roidubouloi

May 6, 2009 at 6:01pm

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To roidubouloi.... I have heard this claim before that waterbaording was prosecuted as torture by the US govt against foreign governments. Admittedly, I haven't studied the topic. Can you point me to where I can find facts about the issue? All I have heard it from is liberal articles. I would like to know more. My guess is that more was done to our soldiers than water boarding and that liberals are cherry picking this one item and saying water boarding was prosecuted as torture. I'd like to prove / disprove my guess. ....and taking a stab at answering my question regarding the pirates situation would be helpful also. It doesn't make sense that you would want to apply US Federal law and habeus corpus to foreign terrorist who murdered Americans but not to Somali pirates who killed none. Why no calls for action against Obama for letting this murder without trial take place?

- bryan

May 6, 2009 at 7:19pm

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I'm wondering if today's conservatives would take the same approach in advocating non-pursecutorial action against former war-criminals in post WW2 Germany. There were all those camp guards just doing what they were told as part of the bigger machine, yet many were prosecuted for criminal actions. Declaring at the time, certain people as non-citizens for convenience sake does not erase the person's citizenship within the context of international law. It not just a question of whether or not Bush & Company committed actual crimes by advocating torture and then subsequently and vaguely try to rationalize the actions through questionable 'legal' opinions written by lawyers with little experience in international or human-rights law. It's the question of asking ourselves...as a nation whether we prefer the truth and whether or not we will advocate torture in the future. A thorough investigation by a committee should be done and those involved indicted and censured in such a way as to provide closure to the whole issue of whether or not torture as defined by the Geneva Convention, US Law and the US Army Field Manual was condoned and further declarations on torture issued. There should be a process by which to find out the real truth behind the torture documents. This includes bringing many of the Bush Administration before the special committee. Heck we could waterboard and hang them in stress positions until they give the answers we're looking for. The Right has no leg to stand on when they claim any investigation into the Bush Administration is politically motivated. They used many an excuse to politicize and persecute those that didn't agree with them politically in the 50s. McCarthy brought far too many 'left-leaning' scientist before his committee just to politically and professional ruin individuals whom they suspected of being Communists or Communist sympathizers. The Nixon defense "When a President does it, it isn't illegal" is not a valid defense nor one worthy of what America stands for.

- singlespeed

May 6, 2009 at 7:49pm

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What this b.s. all comes down to is whether a lawyer in the Justice Department's Office of Legal Counsel can provide an opinion, which, until the courts make an ultimate decision on the question(s) propounded, is, after all, just a reasoned argument, without fear of later criminal prosecution, disbarment proceedings, or just simple career ruination. Assume arguendo, as we lawyers like to say, Bybee and Yoo crafted opinions that would produce smiles at the ACLU, and the Bush administration felt bound to comply with them; suppose further that we had suffered a further attack within the knowledge of Khalid Sheik Mohammed because he couldn't be "persuaded" to cough up the facts; would Bro Chait be calling for post-attack prosecutions for malfeasance in office? Lenin had a description for thinkers like Chait: useful idiots.

-

May 6, 2009 at 7:49pm

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There are many posts here trying to pooh-pooh Mr. Chait's reasoned post. They are transparent and ridiculous. The frantic, fractionated denial and strawmen remind me of cockroaches skittering around after a rotten board is lifted. I greatly look forward to the day when a special investigator, or investigative panel, is announced. Prosecutions or not it's time to hold this new generation of Nixons accountable.

- Mason

May 6, 2009 at 10:31pm

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Question for roi: if waterboarding a few terrorist slimebags saved the life of your wife and your daughter would you say, "they should have let my wife and daughter die"?

- bulbman1066

May 7, 2009 at 1:31am

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To persuade the defenders of the previous administration is futile. All the rest of the world needs to know from this affair is that USA like a lot of other countries can be hypocritcal when it comes to human rights, rule of law, and free trade etc etc. How can American officials lecturing despots of other nations with straight faces? Are they going to say "Yes we tortured, but you tortured a lot more..."???

- Anonymous

May 7, 2009 at 3:16am

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WanderyCer1: You should stay off the coffee and perhaps take some anger management sessions. Since you didn't answer my first question and have stated that you make you decision based on facts, here is another. Can you please site the specific law(s) that were broken.

- JustAsking

May 7, 2009 at 6:45am

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roidubouloi and all others who think Chait's article is such a wonderful thing, I say again, what is the point? O.k., so I agree; "Republicans" are shamefully doing what all politicians do. But the fact still remains that we now have a Democratic President and a Democratic controlled, nearly fillabuster proof Government. Why not direct your outrage to the people who can actually do something about it, Obama and the Democrats in charge. What is the point of trashing "Republicans", who can be as hypocritical as they want, but cannot stop the Democrats if they really want to go down the path of prosecuting those who broke the law.

- FrankD

May 7, 2009 at 8:04am

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"Every one of us can imagine the following scenario: We get lucky; we get the No. 3 guy in al-Qaida, and we know there's a big bomb going off in America in three days and this guy knows where it is. We have the right and the responsibility to beat it out of him." -- former President Bill Clinton, Sept. 24, 2006.

- Bill C

May 7, 2009 at 9:28am

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I'm just looking for some intellectual consistency. That's all. Like in every story about the evil George Bush and Dick Cheney, we see acknowledgment that Senior Democrats were on board with this from the beginning. Period. Full Stop. They sat in on the meetings. They approved of the policies. They were presented with follow-ups. They said NOTHING at the time. Wander, Roid, etal: please provide the text of the speech that Nancy Pelosi, Jane Harman, and Rockefeller gave to the press or congress that said our government was about to violate the law. You know, back then--when a lot of people--Democrats, Republicans, Independents-- hid under their desks when they saw a plane flying in the "wrong" direction. Oh, and if waterboarding was already torture, why would the Senate vote on the Kennedy amendment to the Military Commissions Act (MCA)in 2006 to ban waterboarding? And if they really want to make sure it doesn't happen again, why haven't they passed a law for future Presidents and future wars? Well, because as Col Nathan Jessup said: "You (liberal pundits) don't want the truth because deep down in places you don't talk about at parties,..." you know that in terms of safeguarding the nation (and politically), Bush was right. If it were ever determined that Obama did not try everything to get information out of KSM type who has operational knowledge of a future attack, and 30 days later a bomb goes off in Witchita, he is done. I believe Anti-Bush sentiment animates this debate. Jon won't get on the soapbox and talk about the Pakistani drone strikes or Japanese internment or firebombing Dresden. No, it's that devil from Texas. And if we have to step all over our pee-pees to get him, we'll, by Gaia, we will...... It's like the Patriot Act. Sails through Congress. Election time rolls around and all of a sudden, we've got illegal wiretapping, feds under the bed, etc. Loafs of bread and perjury and torture? Forget about calling it a bad analogy; these issues are not on the same dimensional plane.

- malwords

May 7, 2009 at 12:07pm

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Is there a single conservative that (1) thinks torture is bad; (2) understands that "24" is a TV show; (3) has any moral qualms at all about torture; or (4) thinks that perjury about a blow job isn't as bad as mendacious memos justifying illegal acts? Apparently not, judging by the people on this blog. If you want to argue that torture was necessary under these conditions, can you at least acknowledge that there are moral implications? And I understand that what is torture is not always clear cut, but to say that sticking someone's head under water and threatening to drown them isn't torture simply twists logic and the English language to unrecognizable lengths. There was a time when I thought conservatives could be a principled counterweight to overzealous liberals. No more. Conservatives don't believe in the rule of law, EXCEPT

- Marc Schneider

May 7, 2009 at 3:18pm

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After reading all of the wingnut rants here, why do I get the distinct impression that all of these good folks want nothing more from this "Socialist Democrat" White House than a full-on prosecution of the CIA agents, OLC lawyers and other Bushies who were involved in the torture program? I guess this satisfies their deep psychological need to be righteous victims and proclaim to the American people how THEY never forgot 9/11, just how high the stakes are, etc, etc, etc. Oh, and the risible right-wing meme that somehow releasing the torture memos and secret prison photos and reviewing the evidence about some kind of penalty on someone over something is tearing the Democratic Party apart and distracting them from Obama's agenda -- this seems like a serious bout of wishful thinking from people who are now seizing on something, anything that Obama does that would propel them back into the good graces of the American voter. Like everything else with the national Republican Party, they have no strategy for dealing with Obama except to hope that he screws up enough for voters to go back to them by default, and they just keep creating new and weirder scenarios about how that may happen. Pathetic.

- wildboy

May 7, 2009 at 3:34pm

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Marc: I’m an independent conservative. 1) Torture is bad. 2) 24 is a television show. 3) I have many moral qualms about torture. 4) You are comparing apples and oranges. Looking back, we know Bill Clinton broke a law. As of today, what law did the OLC lawyers break by giving their client (the President) advice—whether it was poor or not? If the current Justice Dept wants to go after them, stop playing around; let these guys lawyer up. Have a trial. Don’t politicize it. But, and here’s the rub: there’s no upside for Holder and Obama. A) If Holder loses, well, I guess it’s time to zip the piehole and he was wrong all along—this is bad politics. B) If he wins, it goes something like this: the next president can come here and investigate the fact that I advised Obama to release 17 Uighers and they blew up the Chinese Embassy?” There are moral implications to torture—especially if the torture is motivated by revenge; however, if the President is informed that a captured detainee has evidence about future attacks and he doesn’t do what he can to stop them, well, there are moral implications there as well—like witnessing the deaths of thousands. It’s not an easy decision; thank God I don’t have to make it. With respect to defining the word torture: waterboarding is torture if you believe we torture our own Seals. Waterboarding is torture only if you believe the Bataan Death March was something MORE than torture. Coughs and Cancer are both sicknesses, but at different ends of the spectrum. Context is necessary. I always thought “enhanced interrogation” was fine—good a word as any. It’s not a euphemism; nobody believes interrogation is completely pain free—even if it’s just a friendly guy asking polite questions--with a holstered Beretta under his suit jacket. I don’t like the idea of the US government waterboarding terrorists. However, their temporary discomfort does not budge the needle when compared to another 9/11. If the polls are any indication, more than half the people in this county, which necessarily includes democrats and independents, believe that in dire circumstances, these measures should be taken. Oh, and by the way, when posters mention in here that Democrat legislators could be in the (political if not legal) dock next to the OLC lawyers (because they knew of, and approved of, the tactics used), the sound of crickets chirping is deafening. And it only highlites the partisan nature of this whole affair. I consider myself principled: if President Obama captures a Taliban/Al Qaeda operative and they believe he has information that could stop a future attack, well, there's the chair, there's the bucket. The President made a difficult, but correct, choice.

- malwords

May 8, 2009 at 10:37am

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Two points: Clinton did not commit "perjury". He made a false statement under oath, but for it to be perjury the statements must be of a material fact. Any consensual sex with Monica was ruled irrelevant to the Jones case by the trial judge. Also, he may technically have not been lying because he based his answer on the fucked up definition of sex given to him by Jones' attorneys. "According to your definition of sex, I did not have sex with her." It is interesting to learn that conservatives still believe consensual blow jobs are worse than "naked torture games". Makes one wonder what a typical conservative's sex life is like. Secondly, can we all stop saying that John McCain was "tortured"? At worst, they used enhanced interrogation techniques on him which probably provided valuable information that saved lives.

- gocart mozart

May 10, 2009 at 12:56pm

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The Law should pursue EVERYONE involved in torture, and let the chips fall where they may. Plenty of figures from BOTH parties will fall, and THAT is where the "fairness and balance" of Justice will be demonstrated. America might be able to turn over 1/2, or more, of our elected representatives in one fell swoop. Ofcourse, regardless of party, the torture revelations will have an especially heavy effect on the Conservaives all thru our gov't. Most true liberals should be un-scathed, and will remain. Many Neocons will be scrubbed-out of gov't. But it won't happen if we do not pursue Justice because the powers-that-be are allowed to block it, even against the Will Of The People.

- nikto

May 10, 2009 at 10:50pm

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nitko: a principled response. I disagree with an investigation and charges, but if they are pursued, I agree that everyone should be held accountable. But it won't happen--especially for the reasons I outlined above. This is a lose-lose for the Democrats in power--not to mention Bill Clinton (rendition) and other former administrations that conducted such tactics in the last 30 years. It's also a lose-lose for political commentators who wrote columns which espoused the righteousness of the Democrat party.

- malwords

May 11, 2009 at 10:38am

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Hey, Jon, good article. Thanks Suggestion: How about TNR creating a limited torture blog, where all the staff posts and articles relating to the issue are gathered in one place? I'd like to stay up to date as the debate continues, and I"m having a hard time searching here and there on the website. Just a thought.

- tomeg

May 11, 2009 at 6:07pm

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You know, the worst aspect of the torture committed by Bush is that it brought otherwise good and reasonable people to a place where they are defending torture. Only 3 were waterboarded. Hundreds were humiliated and abused. 38 died from their torture. And you defend that? When American prisoners were tortured in Viet Nam or Korea, was that just fine with you?

- Jim

May 12, 2009 at 5:36pm

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Jim: Random thoughts on your post. Define torture. Is humiliation torture? Define humiliation. From whose perspective? Is a woman interrogator? Or touching the Koran without gloves? Having a dog in the room? Serving bacon at breakfast? ....... Reasonable people debate whether waterboarding is torture. When I read the definitions (UNCAT, etc.), I ask these questions: Does it "shock the conscience" when the mastermind behind 9/11, and who we believe has operational knowledge of future attacks, gets waterboarded? No. Is there lasting effects on KSM's psychological or physical being? I don't think so. Was the primary motivation revenge? No. It was to stop the killing of more innocents. No one was going to die from waterboarding--at least if the doctor present had any say in the matter. If you could get John McCain to speak candidly, and his choice was waterboarding and a trial or what he went through in Vietnam, well, I think he'd take the waterboarding. In fact, some of his fellow servicement went through that in SERE training.......... Granted, hundreds were abused but we've held over 50,000 detainees in the last 8 years. Let's be as generous as we can and stay in the hundreds, say 999, and that is 2% of the detainees. If it was 300, that would be 1/2 of 1%.......That being said: all of the soldiers who beat a guy with a stick because he stepped out of line, they need to be punished. And if they beat him until he died, they need to be punished. And they are. And if they stack up a bunch of deadenders like cordwood and then take a bunch of pictures to get their own jollies, they need to be punished. And they were............... However, if you capture KSM and a couple high ranking al-qaeda members and you have every reason to believe they have operational knowledge of future attacks (and on questioning, said detainee gives an enigmatic, "You'll see," to the question "Are there any more attacks planned?"), and their organization is not a signator to the Geneva Convention and follows none of the laws of war, and you've tried months of questioning, and you've got the backing of the relevent members of Congress, and have sought legal counsel, and you've sworn to protect America and its citizens, I think that is different........I just do. And for those who are so absolute in their principles that they would sacrifice their families or friends, well, I salute your principles. But because you feel that way doesn't mean those who see it from a different perspective have been corrupted.....As for NK and Vietnam, of course it wasn't "fine." It was awful. But my opinion doesn't matter 40 years later.......However, I would want more information. Were they signators to the GC? I don't know, but we were. Was torture for revenge, their jollies, or to obtain information? Did they electric shock a draftee grunt who had no idea where he was? Or was it a senior officer? If they thought we were going to drop an H-Bomb on Hanoi (only 30 years earlier, we had dropped two bombs to end another war), maybe SOME of the actions they took would be more understandable. But who can say? Lots of questions in there...... Interesting film for this whole meme: Rules of Engagement with Samuel L. Jackson & Tommy Lee Jones.

- malwords

May 13, 2009 at 10:54am

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I'll try once more. Malwords, you seem like a reasonable person. And that was my point exactly. Why can't you see it for what it is? Enhanced Interrogation is torture. When a few of our captured airmen in Korea were subjected to long interrogations, bright lights, cold cells, and shrieking whistles, we could claim that our society was inherently better. Better because we didn't do certain things, like torture. We used to have a national morality that we stuck to. Now thanks to Bush, who acted like a third-world despot, we have descended beneath the level of our enemies. Enemies--all they wanted was for us to leave them alone and stop using them. Regardless of the really wonderful reasons we have for torture, it's *illegal* - period. Having a good reason for breaking the law doesn't make one unaccountable. Also, everyone who tortures thinks they have a good reason-- Nazis, Soviets, Muslim extremists. The Geneva Conventions were pushed through by US to protect OUR soldiers. Then WE violated them. "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture." Sorry - your defense of torture is illegitimate. They were kept from Red Cross monitors. So many violations, where do i start? How about being doused with chilled water while being held naked, chained to the concrete floor in front of an air conditioner for 18 hours, till you turn blue? Then chained to the ceiling while forced to stay awake for a full week? Confined in a coffin for 24 hours? Kept naked, no toilet, no toilet paper? Then waterboarded? Then attacked by dogs? Deprived of water? Beatings, cigarette burns, humiliation, being forced into sexual contact with fellow prisoners? Then start the cycle over again. Do any of those meet your definition of humiliation? I'm ashamed to belong to such a society, and you're proud of it. Then there's the 38 who died from their torture. I don't care if they signed a treaty. I don't care if Pelosi knew. We did it. We have to face it.

- Jim

May 13, 2009 at 7:31pm

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My understanding is that those who were responsible for barbaric acts (and the not-to-be-released-pictures were proof of that) have been prosecuted. The proof here is that investigators and authorities took the recently discussed pictures and they were used to prosecute these idiots. By that standard, we have "faced it." By that standard, we can claim our society is "inherently better." Do you think North Korea prosecutes the prison guards who abuse political prisoners?.....I'm trying to navigate a grey area that encompasses everything from sleep deprivation to electro shock. I also believe that rendition is worse than what we did to KSM--giving to those countries who you know would treat the detainee worse than us, solely to keep your hands clean, is not honorable. I don't see Congress lining up to prosecute Clinton, Bush, and Obama for that one... The inevitable conclusion of your argument is that KSM and the other two get caught on the battlefield. After a perfunctory debriefing, the detainess (who are not distinguished between--grunt, operative, organizer) are provided three hots and a cot and a lawyer--or be held until the end of the hostilities and then sent back to their country (if the country will even take them)which would either a) kill them after a show trial or b)welcome them back with waiting arms--more trouble soon to come. Meanwhile, the plans they hatched, the people they paid and the weapons they procurred would be untouchable because they simply refuse to talk. And if 10K die in LA, then what? Will you then be proud of your country? Look, there are no clean hands in this. This is war. When you recite those abuses, it makes me sad--that anyone ever thought or did such things. And those whose honor was sullied by revenge, or getting their "torture on," well, those folks are despicable. But the alternative is worse. It's like a line from another Samuel L. Jackson movie, Basic, where he says to a soldier who is either going to come back with him alive to face a court martial or he's going to get killed by Jackson out in the jungle, "I know it's a sh@^^y deal, son." There are no good choices here. But I'm not giving up on my country.

- malwords

May 15, 2009 at 11:43am

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What law was violated? Strangely, the article never says.

- Cia

May 16, 2009 at 12:23am

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I should email you about this.

- Avetreni

May 18, 2009 at 3:35pm

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Can you please cite "the law" that you think was violated by waterboarding? Anyone? This is a myth repeated often by liberals and the press, but it's simply not true. Water boarding is not a crime. If it is, cite the U.S. Federal Statute that says: "Water boarding is a crime".

- EmpFab

June 3, 2009 at 8:23pm

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