Or how about you go fuck yourself, gop troll.

See, I won't stand silent either.

This is fun.

Uh, no. Back to basics: The point I was originally referring to.

You wrote:

The last sentence of Part I, Article I of the CAT says that pain or suffering arising only from lawful sanctions is specifically excluded from the Convention's definition of torture.

It seems clear that, at the time the acts were committed, they were considered to be outside the scope of torture. Therefore, I find the accusation leveled in the title of this post to be false.

You then go on for another paragraph to describe the CAT "loophole." But the loophole you describe is completely irrelevant to the discussion because there are no "lawful sanctions" under discussion. The techniques described are, by everyone's admission, interrogation techniques, not sanctions. I already described what a "lawful sanction" is -- a punishment imposed by a lawfully-constituted tribunal, such as a court of law or a war crimes tribunal à la Nuremberg 1945.

So, to reiterate: The first three paragraphs of your "argument" are a complete irrelevancy. Not a promising start.

The provisions in the CAT that truthseeker77 cites are precisely on point. Your attempt to evade them by citing an irrelevant provision elsewhere in the CAT that deals with punishments imposed by lawful tribunals, rather than interrogation techniques used on prisoners who haven't been so much as charged with a crime, much less convicted, fails.

Point two. You make much of the idea that "[a]t the time the actions were committed, they were considered to not be torture (but rather 'enhanced interrogation techniques'). You cannot now successfully prosecute field personnel for executing orders that were deemed lawful back when the orders were given."

Now that just opens up all kinds of room for mischief. Perhaps a letter to TPM published today best captures this sentiment. As David Kurtz notes on the TPM main page, reader DP wrote in:

If only Saddam Hussein had been smart enough to solicit a legal opinion from his government lawyers that gassing people was within the law, he could have been playing golf in Myrtle Beach right now.

I mean, hey, using the Administration's (and your) logic, that should work, right? And of course we shouldn't stop there. If Bybee, Yoo and Bradbury had authored memos declaring such "rough" interrogation techniques as thumbscrews, the Iron Maiden, the rack, the wheel and the strappado to be "enhanced interrogation techniques" but not "torture", then game over, right? (FWIW, Andrew Sullivan noted some years ago that the term "enhanced interrogation" was coined by the Nazis, back in the day.) Why stop there? How about slicing genitals? I mean, the list is endless -- and it can all be "deemed lawful" simply by writing a memo!

It's worth noting that the most-discussed torture method, "waterboarding", has been recognized as torture for decades. We have pictures (widely distributed on the net, including npr.org) of Khmer Rouge waterboarding -- both photos of the materials used and paintings by survivors. As Jonah Black, anthropologist and former Senior Editor of US News & World Report, who visited Tuol, wrote to David Corn:

Anybody who considers this practice to be "torture lite" or merely a "tough technique" might want to take a trip to Phnom Penh. The Khymer Rouge were adept at torture, and there was nothing "lite" about their methods. Incidentally, the waterboard in these photo wasn't merely one among many torture devices highlighted at the prison museum. It was one of only two devices singled out for highlighting (the other was another form of water-torture--a tank that could be filled with water or other liquids; I have photos of that too.) ....

The similarity between practices used by the Khymer Rouge and those currently being debated by Congress isn't a coincidence. As has been amply documented ("The New Yorker" had an excellent piece, and there have been others), many of the "enhanced techniques" came to the CIA and military interrogators via the SERE [Survival, Evasion, Resistance and Escape] schools, where US military personnel are trained to resist torture if they are captured by the enemy. The specific types of abuse they're taught to withstand are those that were used by our Cold War adversaries. Why is this relevant to the current debate? Because the torture techniques of North Korea, North Vietnam, the Soviet Union and its proxies--the states where US military personnel might have faced torture--were NOT designed to elicit truthful information. These techniques were designed to elicit CONFESSIONS. That's what the Khymer Rouge et al were after with their waterboarding, not truthful information....

These photos are important because most of us have never seen an actual, real-life waterboard. The press typically describes it in the most anodyne ways: a device meant to "simulate drowning" or to "make the prisoner believe he might drown." But the Khymer Rouge were no jokesters, and they didn't tailor their abuse to the dictates of the Geneva Convention. They-- like so many brutal regimes--made waterboarding one of their primary tools for a simple reason: it is one of the most viciously effective forms of torture ever devised.

Waterboarding was used by the Inquisition. And several Japanese officials and soldiers were tried for war crimes following World War II, with evidence of war crimes figuring heavily in those prosecutions. As CBS news reported on 29 November 2007:

Republican presidential candidate John McCain reminded people Thursday that some Japanese were tried and hanged for torturing American prisoners during World War II with techniques that included waterboarding.

Writing in the St. Petersburg Times, 2006-10-22, Robyn Blumner writes of a then-forthcoming article on waterboarding (since published in the Columbia Journal of Transnational Law) by Judge Evan Wallach:

Among the numerous examples, Wallach cites one involving four Japanese defendants who were tried before a U.S. military commission at Yokohama, Japan, in 1947 for their treatment of American and Allied prisoners. Wallach writes, in the case of United States of America vs. Hideji Nakamura, Yukio Asano, Seitara Hata and Takeo Kita, "water torture was among the acts alleged in the specifications ... and it loomed large in the evidence presented against them."

(See: "Waterboarding: a Tortured History" on npr.org; "This is what Waterboarding Looks Like" at davidcorn.com; Scott Horton, "The German Experience with Enhanced Interrogation" at harpers.org; Andrew Sullivan, "Verschärfte Vernehmung" at andrewsullivan.theatlantic.com). I'm done trying to include hyperlinks in comments on TPM; any more than two links and you get these "held for approval by blog owner" messages -- and the approval never happens. Whether bug or feature, it severely limits the ability of commenters to actually cite references for their points.

So sorry, Boyd, with that amount of evidence and historical practice acknowledging waterboarding as torture, going back 50 if not 500 years, you're on pretty thin ice when arguing that, because some criminals in the Administration decided to write a couple of memos, these acts were magically transformed into ones that were "NOT considered torture by the United States government when they were committed" -- and thus the perps can magically evade culpability.

Point three. For all the attention focused on waterboarding, that "verschärfte Vernehmung" ("enhanced interrogation technique") just scratches the surface. Neither time nor space permit anything like a catalog of these techniques, but let's take just one: the innocuous-sounding "stress position". As documented in the Physicians for Human Rights report Broken Laws, Broken Lives: Medical Evidence of Torture by US Personnel and Its Impact (June 2008),, pp. 75-77, available online, stress positions include (but are not limited to) (1) being chained to a winch in the ceiling, which is then cranked until only the detainee’s toes are touching the floor; (2) being tied to a table, hands and feet shackled, naked, wearing goggles and earphones for sensory deprivation; (3) suspension from barbed wire; (4) elevation off the ground (“free suspension”, called “strappado” by the Inquisition and usually resulting in the dislocation of joints and limbs); (5) suspension with one arm elevated and the other tied to the ankle; being forced to stand with broken glass embedded in the feet; (6) “hog tying” (hands and feet tied together behind the back); and (7) chaining or tying in a standing position to the bars of one’s cell, sometimes naked, and being doused with cold water.

Note two things: (1) what we call "free suspension" was well known by the Inquisition and called "strappado." There was a reason that I included that item in my list several paragraphs above. It's a torture technique, acknowledged as such, dating back over 500 years. And (2) As noted in the report, these acts, too, were carried out by US personnel. Perhaps Yoobee did author a memo declaring strappado a mere "verschärfte Vernehmung" (but not, you understand, torture) -- since it was used in some of our "verschärfte Vernehmung" chambers. Presumably the personnel executing those orders did so in good-faith reliance on legal opinions that the techniques were legal.

So truthseeker has cited entirely relevant provisions of the CAT, but that's not the only set of legal principles that argue for prosecution. The Charter of the International Military Tribunal at Nuremberg, chartered as it was to prosecute war crimes, is instructive, and compels the same conclusion.

Article 6.

[...]

The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

[...]

(b) WAR CRIMES: ... shall include, but not be limited to, ... murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, ...

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

Article 7.

The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

Article 8.

The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

In short, the "just following orders" defense for acts such as torture has been dead for over 50 years -- whether or not a criminal government in charge decided to "deem" those orders "lawful."

I'll leave the last word to Andrew Sullivan, cited above.

Critics will no doubt say I am accusing the Bush administration of being Hitler. I'm not. There is no comparison between the political system in Germany in 1937 and the U.S. in 2007. What I am reporting is a simple empirical fact: the interrogation methods approved and defended by this president are not new. Many have been used in the past. The very phrase used by the president to describe torture-that-isn't-somehow-torture - "enhanced interrogation techniques" - is a term originally coined by the Nazis. The techniques are indistinguishable. The methods were clearly understood in 1948 as war-crimes. The punishment for them was death.

Consider that the next time you wish to write a sentence like "At the time the actions were committed, they were considered to not be torture (but rather 'enhanced interrogation techniques')."