Salon: Bush-era waterboarding really was torture

Some hawkish conservatives have made the case that terrorist waterboarding wasn’t really torture — despite a long history of jurisprudence indicating otherwise — because it was done by the CIA in a carefully controlled way designed not to be torture. And that furthermore it’s not torture because American soldiers undergo it during training.

That’s wildly incorrect, according to a new story from Salon:

Interrogators pumped detainees full of so much water that the CIA turned to a special saline solution to minimize the risk of death, the documents show. The agency used a gurney “specially designed” to tilt backwards at a perfect angle to maximize the water entering the prisoner’s nose and mouth, intensifying the sense of choking – and to be lifted upright quickly in the event that a prisoner stopped breathing.

The documents also lay out, in chilling detail, exactly what should occur in each two-hour waterboarding “session.” Interrogators were instructed to start pouring water right after a detainee exhaled, to ensure he inhaled water, not air, in his next breath. They could use their hands to “dam the runoff” and prevent water from spilling out of a detainee’s mouth. They were allowed six separate 40-second “applications” of liquid in each two-hour session – and could dump water over a detainee’s nose and mouth for a total of 12 minutes a day. Finally, to keep detainees alive even if they inhaled their own vomit during a session – a not-uncommon side effect of waterboarding – the prisoners were kept on a liquid diet. The agency recommended Ensure Plus.

This is torture, period. “Inhaling water” doesn’t just create the sensation of drowning, it is drowning … even if done under barely controlled conditions.

Oh, and the idea that it’s OK because we do it to our own soldiers? We don’t.

These memos show the CIA went much further than that with terror suspects, using huge and dangerous quantities of liquid over long periods of time. The CIA’s waterboarding was “different” from training for elite soldiers, according to the Justice Department document released last month. “The difference was in the manner in which the detainee’s breathing was obstructed,” the document notes. In soldier training, “The interrogator applies a small amount of water to the cloth (on a soldier’s face) in a controlled manner,” DOJ wrote. “By contrast, the agency interrogator … continuously applied large volumes of water to a cloth that covered the detainee’s mouth and nose.”

Let’s remind ourselves of the legal definition of torture under American law:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;

The memos discovered by Salon easily clear this definition. You should read the whole article.

At this point, waterboard-defending hawks cannot plausibly say that the technique was not torture. They forfeit any claim to credibility if they do so. I suppose they can claim that national security concerns outweighed the law — that the need to protect American lives forced them to commit war crimes against Al Qaeda terrorists. I suspect it likely that many Americans will agree with them. But let’s not lie to ourselves about what actually happened. The Bush Administration committed torture.

Torture advocate John Yoo is again misleading the readers of the Philadelphia Inquirer

I’m a couple of days late on this, but I’ve got to point out that torture advocate John Yoo has — once again — mislead his readers in the Philadelphia Inquirer.

Yoo’s Sunday column was the latest in his series of public pronouncements on his “vindication tour” since the Justice Department decided not to sanction him for his work providing a legal rationale to torture terror suspects during the Bush Administration.

This time, his distortion comes in a description by the DOJ’s Office of Professional Responsibility, the office that investigated him for possible ethical violations in writing the torture memos:

Not only did OPR’s report reflect pure incompetence, it was obviously biased. OPR selectively tried to persecute only a few officials in the Office of Legal Counsel. OPR failed to interview, and reach conclusions on, the work of then-Attorney General John Ashcroft and other high-ranking officials, even though they received several briefings on our memos and approved them.

This is a finely phrased sentence that is narrowly accurate but broadly misleading. It’s true that the OPR “failed to interview” John Ashcroft and other high-ranking officials — but it wasn’t out of bias or incompetence or any intent to give Yoo the bum’s rush that it failed to do so. Instead, Ashcroft and other high-ranking officials refused to be interviewed by OPR. These were officials who, presumably, could’ve defended Yoo’s memoranda — but instead of noting the omerta approach that may have saved his bacon, Yoo tries to paint a (false) picture of the OPR dropping the ball.

It’s misleading. But we’re used to that from Yoo, aren’t we? He also misleads here:

Attorney General Eric Holder allowed his OPR to conduct a persecution that would placate the far left of the Democratic Party and its representatives in Congress – at the expense of the nation’s security.

This is Yoo again repeating his canard that the Obama Administration was pursuing him for unethical conduct, doing so as a sop to anti-torture lefties. But I’ve said this before and it bears repeating: Yoo’s work was so bad that the OPR investigation started during the Bush Administration — and the initial, much more devastating findings, were also reached during the Bush Administration. Yoo’s so-called “smear job” came under the Republican president. The so-called “vindication” came under the Democratic president. Yoo’s depiction of events here is simply dishonest. And he surely knows it.

There’s a difference between making bad, silly arguments and making misleading and dishonest ones. Yoo’s columns for the Inquirer consistently fall on the wrong side of the line. You’d think the Inky would have more care for its own credibility.

Torture advocate and Inky columnist John Yoo advocates killing unarmed civilians

Near the end of today’s Wall Street Journal “vindication” piece, John Yoo says that he wrote the torture memos to give presidents the latitude to fight the war however they see fit. And though he doesn’t say so directly, he suggests that presidents should be allowed to let soldiers execute unarmed noncombatant civilians in the name of military necessity.

Here’s how Yoo puts it:

Mr. Obama is fighting three wars simultaneously in Iraq, Afghanistan, and against al Qaeda. He will call upon the men and women serving under his command to make choices as hard as the ones we faced. They cannot meet those challenges with clear minds if they believe that a bevy of prosecutors, congressional committees and media critics await them when they return from the battlefield.

This is no idle worry. In 2005, a Navy Seal team dropped into Afghanistan encountered goat herders who clearly intended to inform the Taliban of their whereabouts. The team leader ordered them released, against his better military judgment, because of his worries about the media and political attacks that would follow.

In less than an hour, more than 80 Taliban fighters attacked and killed all but one member of the Seal team and 16 Americans on a helicopter rescue mission. If a president cannot, or will not, protect the men and women who fight our nation’s wars, they will follow the same risk-averse attitudes that invited the 9/11 attacks in the first place.

This is a vague piece of writing. What really happened in 2005? A long piece in the Army Times describes a book by Michael Luttrell, the sole Seal survivor of that incident.

According to his book’s account, the SEALs thought they had only two choices: kill the three goatherds, or let them go.

As Luttrell relates in “Lone Survivor,” Murphy first tried to raise the SEAL tactical operations center at Bagram on the radio for guidance. He couldn’t connect. Then Murphy made an “on-scene call”: He put the decision to a vote. He would not impose his decision on the others.

Axelson voted to kill them, Luttrell said. “We’re on active duty behind enemy lines, sent here by our senior commanders,” the book quotes him as saying. “We have a right to do everything we can to save our own lives. The military decision is obvious. To turn them loose would be wrong.”

Murphy voted to let the Afghans go. Dietz abstained. “I don’t really give a s— what we do,” Dietz said, according to Luttrell. “You want me to kill ’em, I’ll kill ’em. Just give me the word. I only work here.”

Then, Luttrell said, Murphy then warned his men that if they killed the goatherds, they would have to report the deaths, and the Taliban would publicize them, as well.

“[T]he U.S. liberal media will attack us without mercy,” Luttrell quotes Murphy as saying. “We will almost certainly be charged with murder.”

Even at the time he made the decision, Luttrell said, he would have voted to kill the three goatherds if he was assured that he and his teammates would not get into trouble.

Within two hours of letting the goatherds go, the special operators found themselves in a fight for their lives, all but surrounded and massively outnumbered by an estimated 140 Taliban fighters.

So the Seals had a choice: Kill three unarmed civilians who’d demonstrated no hostile intent? Or do nothing and risk detection? Luttrell now says they should’ve killed the goatherds. But forget about the “liberal media” — a convenient if unlikely scapegoat: Would the Seal team have been legally justified in executing the unarmed civilians?

“The killing of non-combatants under the circumstances described is never legally justified unless as an act of self-defense,” Bolgiano said. “Use of deadly force in self-defense is reasonable when responding to demonstrated hostile intent, or a hostile act, which presents an imminent threat of death or serious bodily injury. While imminent does not mean immediate, it is quite a stretch to say that since the shepherds may tip off local Taliban as to the presence of the SOF [special operations forces], then it would be OK to kill them in self-defense.

“On the other hand, if the SOF had a reasonable belief that, in fact, these shepherds were acting as Taliban lookouts or sentries, then deadly force may be authorized. Once, however, any threat (combatant or non-combatant) becomes a prisoner, then one can’t simply execute them for convenience.”

Listen: Luttrell and his colleagues faced a crappy situation. But killing unarmed goatherds would’ve been murder. And in any case there’s a saying: Bad cases make bad law.

And in any case, Yoo is once again being disingenuous: He didn’t write his memos to help the president give legal and political cover for individual decisions made in the heat of the moment by a few individual soldiers — the memos never contemplated such situations. His memos instead helped justify torture in a non-combat situation, where terrorist suspects were already under the control of American officials … who had the time and wherewithal to draft lengthy legal memoranda. It’s a different situation, one that had relatively bright lines until the Bush Administration got Yoo to help muddy them up.

Torture advocate and Inky columnist John Yoo is a big fat liar

Torture advocate (and Inquirer columnist)  John Yoo takes to the pages of the Wall Street Journal today to crow about his “vindication” in a Justice Department investigation that decided he was merely incompetent, not willfully unethical, in signing off on the Bush-era torture memos. And true to Yoo’s style, he distorts and politicizes the situation to create an entirely false narrative of his own victimization.

Obama came to office, he said, planning to break sharply with Bush-era precedents on torture:

In my case, he let loose the ethics investigators of the Justice Department’s Office of Professional Responsibility (OPR) to smear my reputation and that of Jay Bybee, who now sits as a federal judge on the court of appeals in San Francisco.

This would seem to suggest that Obama launched the OPR investigation of Yoo and Bybee. But that’s not true: Yoo’s work was so bad that the OPR investigation started during the Bush Administration — and the initial, much more devastating findings, were also reached during the Bush Administration, as Yoo himself demonstrates when talking about the timeline:

Attorney General Holder could have stopped this sorry mess earlier, just as his predecessor had tried to do. OPR slow-rolled Attorney General Michael Mukasey by refusing to deliver a draft of its report until the 2008 Christmas and New Year holidays. OPR informed Mr. Mukasey of its intention to release the report on Jan. 12, 2009, without giving me or Judge Bybee the chance to see it—as was our right and as we’d been promised.

Get this straight: The so-called “smear job” came under the Republican president. The so-called “vindication” came under the Democratic president. I have my disagreements with that, but for Yoo to portray this process as “fighting off an administration hell-bent on finding scapegoats for its policy disagreements with the last president” is purely and completely dishonest.

John Yoo is ‘vindicated’: Presumably he gets to keep his Inquirer job

Back when torture advocate John Yoo started writing columns for the Philadelphia Inquirer, opponents were given one hope: If Yoo ended up facing criminal charges or professional sanction for his discredited advice allowing the torture of terror suspects, the Inquirer might — maybe — reconsider publishing him. Inky editorial page editor Harold Jackson told me as much last year:

“We have not reached that point. The description of him as a war criminal would not be accurate. He’s a member of a distinguished university faculty with interesting things to say,” Jackson said. “If at some point it goes beyond that, we’ll have more concern about our relationship to him.”

So much for that. Late on Friday afternoon, the Justice Department’s Office of Professional Responsibility announced that Yoo didn’t commit “professional misconduct” — i.e. there’s not enough proof he acted unethically — and thus won’t face penalties or disbarment initiated by the Justice Department.

The Wall Street Journal claims in an editorial today that Friday’s decision amounts to “vindication” for John Yoo; the upshot of the Justice Department memo is that John Yoo didn’t commit ethical violations — it was a “close question”: Instead he produced a “flawed” justification for torture because he was too blinded by his own ideology to provide a fair legal analysis. The money paragraph:

The reason that John Yoo became famous enough to get his op-ed job at the Inquirer is because of his work on the torture issue in the Bush White House. But the Bush White House eventually conceded Yoo’s memos were flawed and withdrew them; the Justice Department has now pretty firmly repudiated the work and castigated Yoo’s judgement. It would seem that the Inquirer could find a smart conservative writer whose qualifications for the job don’t include clumsy and discredited justifications for war crimes. But maybe those folks are in short supply these days.

Then again, maybe the Justice Department memo enhances John Yoo’s standing. After all, the memo above suggests Yoo put “loyalty to his own ideology” above professional competence. That might well be why Brian Tierney has John Yoo writing for the Inky op-ed pages.

Torture advocate John Yoo is misleading the readers of the Philadelphia Inquirer

I understand that I’m not always going to like what Torture Advocate John Yoo(TM) says in his Inky column. Is it too much to ask that it be accurate and up-to-date on the facts?

Today’s column asserts the Failed Christmas Day Crotch Bombing happened because Obama has been “soft” on security and failed to take the fight to the terrorists. But in his recommendations to Obama, Yoo says something exceedingly curious:

Why, for example, are passengers from nations with lax security or heavy terrorist activity, especially those from the Middle East or Africa, not subjected to special scrutiny? Is it for fear of causing “offense” to international public opinion?

Why is this curious? Because, uh, remember this?

All travelers flying into the U.S. from foreign countries will receive tightened random screening, and 100 percent of passengers from 14 terrorism-prone countries will be patted down and have their carry-ons searched, the Obama administration notified airlines on Sunday.

All passengers from countries on the State Department’s “State Sponsors of Terrorism” list — plus all passengers from other “countries of interest” such as Nigeria, Pakistan and Yemen — will receive “full body pat-down and physical inspection of property,” the official said.

That’s news from ONE WEEK AGO. The Obama Administration is doing exactly what John Yoo wants them to be doing in this case, and Yoo is misleading the readers of the Philadelphia Inquirer into believing otherwise.

Conservatives for torture

Not all of them, of course. But Andrew Sullivan offers a good rundown of calls to give Umar Abdulmullatab an “enhanced interrogation,” right here and right now. You should read the whole thing, but some highlights:

The ticking time bomb is now an ancient criterion. Torture, for Cheney, is about treating every seized terror suspect as an intelligence target, and the entire system he created – of lawless prisons, disappearances, black sites, freezing cells, stress position shackles, upright coffins, neck-braces to slam prisoners repeatedly against plywood walls, waterboards, sensory deprivation techniques, dietary manipulation, forced-feeding, threats against relatives and children – was designed for torture as its end.

Notice again how far down the slippery slope we have gone. (Charles) Krauthammer’s first position was that torture should be restricted solely to ticking time bomb cases in which we knew that a terror suspect could prevent an imminent detonation of a WMD. His position a few years later is that torture should be the first resort for any terror suspect who could tell us anything about future plots. Those of us who warned that torture, once admitted into the mainstream, will metastasize beyond anyone’s control now have the example of Charles Krauthammer’s arguments to back us up. Stephen Hayes, Cheney’s stenographer along with Mike Allen, even argued on Fox News that Cheney’s assault on the president as an alien threat to the American people was too soft and wanted to “squeeze” the pantie-bomber for more info. These are neo-fascist sentiments, empowering lawless violence by the government, justified solely by fear of terror incidents. Whatever else junking the entire history of Western jurisprudence and the laws of war is, it is not in any way conservative. It is a radical assault on one of the central pillars of our civilization.

Again: Read the whole thing.

Deborah Solomon’s interview with John Yoo

One person more contemptible than torture advocate John Yoo? Deborah Solomon. I’ve got no idea why she’s got such a prime spot of real estate in the New York Times. When her interviews aren’t vapid, they’re confrontational only for the sake of insult, never for the purpose of (oh, you know) eliciting information.

John Yoo doesn’t want a New York trial for Khalid Sheikh Mohammed

And he might have good reasons. It’s hard for me to know, because as always, the Bush Administration’s torture advocate and enabler simply doesn’t have any credibility. Here’s an early line in his Wall Street Journal op-ed opposing the Obama Administration’s decision to give KSM a civilian criminal trial in New York:

It is a presidential decision—one about the hard, ever-present trade-off between civil liberties and national security.

And here’s why Yoo has no credibility: Go back and read the memos he wrote, the ones saying a president had the right to torture, to turn the United States into a lawless battleground against terrorists, to even suspend the First Amendment if he so chooses. And ask yourself: Has there been a post-9/11 issue in which John Yoo seemed to truly and earnestly balance civil liberties against national security? Or has he thrown civil liberties overboard every time? There’s an easy answer to that question.

Here’s the thing: Over time, I’ve come to suspect that rigorously governed military tribunals — ones that adhere rigorously to federal and international laws of war — might be the best way to try suspected terrorists. A good process can give terror suspects their day in court while holding legitimate national security concerns in balance — and there is the precedent, set by FDR during World War II. Foreigners accused of making war on the United States typically haven’t been granted the same rights as Americans under our system of justice.* And I’m troubled that the Obama Administration has set up a multi-tiered system of justice that gives terror suspects more rights … so long as they’re less likely to succeed at trial. I’m not a fan of kangaroo courts. Better to have one set of transparent rules for everybody.

* This is separate in my mind from the issue of whether New York should host the trial. Sure it should. That’s where the attack happened; it’s where justice should be delivered. KSM is not a supervillain. He’s not going to use his magneto powers to break out of prison and again make war on the U.S.

But I’d have an easier time taking seriously the argument of so many folks arguing for a military tribunal because we’re at war! if so many of the same people — like torture advocate John Yoo — weren’t also advocates for disregarding U.S. law and international war crimes law regarding torture because this is a different kind of war! The laws of war apply only when they’re to our advantage, it seems.

As it is, the decision to hold the trial in civilian courts in New York seems, as they say, to have made “all the right enemies.” Which makes me inclined to support the decision. Which is, frankly, a lousy reason to support it.

Is THIS torture?

Somehow, in all my ranting about the Bush Administration’s torture of terror suspects, I missed this little nugget of information from the Binyamin Mohamed case in the U.K.

The 25 lines edited out of the court papers contained details of how Mr Mohamed’s genitals were sliced with a scalpel and other torture methods so extreme that waterboarding, the controversial technique of simulated drowning, “is very far down the list of things they did,” the official said.

Whether we get to directly see those 25 lines of redacted material is very much an open question at this point.

But assuming it bears out, it raises an interesting question. Waterboarding’s defenders have said that — despite centuries of tradition calling the practice “torture” — it isn’t really torture. I suspect many of them aren’t being entirely honest; they realize that admitting the practice constitutes torture is admitting that the United States as a matter of policy committed war crimes. What they’re really saying, in my humble opinion, is that torture is justified in the name of national security.

If they’re being honest about waterboarding, however, I wonder if they can possibly make the case that genital slicing isn’t torture. I can’t imagine a sane universe in which that would be the case; the word “torture” would lose all meaning if it doesn’t.