Alright, Patriot Clearing House and I have been having dueling diaries over the question of whether Dick Cheney (and others) can be prosecuted for torture or not.
I think we've reached a point in our discussions that it appears PCH is willing to concede my point that the War Crimes Act (18 USC 2441) no longer applies (Nope, apparently Not!) , and I'm willing to concede that the Torture Statute (18 USC 2340) just might.
The question now is, does it or doesn't it?
Neither Just one of us being [an] attorney, I think this is a case where maybe [some more] professionals need to speak up.
The motion that stand before you as judges, is to dismiss this case of Conspiracy to Commit Torture on the basis that none of the techniques specifically authorized by the Yoo and Bybee memos, or authorized by Donald Rumseld would fit this definition under § 2340.
(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;
Arguing from the defense perspective, I've noted that the only action which comes close to violating any of these provisions would be waterboarding - where it would be consider under subsection (2)(C) to be an "threat of imminent death" since the possibility of either suffocation or asphyxiation is patently real.
Torture apologist Marc Theissen has argued that such techniques were clearly not intended to kill. The fact that KSM was waterboarded successfully and "safely" 187 times shows that the likelyhood of death is fairly low. The fact that physicians were always nearby to do a emergency tracheotomy and prevent death is also notable. The captors didn't want KSM dead, and frankly after 187 attempts he had to know that too.
PCH has argued from the prosecution perspective that waterboarding wasn't the only thing done, and that's true. There was the "attention slap", "stress positions", "hypothermic conditions" and "sleep deprivation" that were authorized.
Here's a list of some of the techniques were talking about.
1. The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.
2. Attention Slap: An open-handed slap aimed at causing pain and triggering fear.
3. The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.
4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.
5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.
6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.
Now I originally started out much closer to PCH's position, so If you like you can even draw from some of my own rather extensive notes, where I called this a Torture Conspiracy too when the OLC Memos were released.
Here is what Jay Bybee wrote on this matter.
The goal of the facial slap is not to inflict physical pain that is severe or lasting. Instead, the purpose of the facial slap is to induce shock, surprise, and/or humiliation. Wall standing is used to induce muscle fatigue. The individual stands about four to fie feet from a wall, with his feet spread approximately to shoulder width. His arms are stretched out in front of him, with his fingers resting on the wall. You have informed us that these positions are not design to produce the pain associated with contortions or twisting of the body, Rather somewhat like wailing, they are designed to produce the physical discomfort associated with muscle fatigue.
You have informed us that he (Zubaydah) appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him. You would, however, place a harmless insect in the box) Finally, you would like to use a technique called the "waterboard". This causes an increase in carbon dioxide level in the individual's blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produced the perception of "suffocation and incipient panic," i.e., the perception of drowning.
Any pain associated with muscle fatigue is not of the intensity sufficient to amount to "sever physical pain or suffering" under the statute, nor, despite it's discomfort, can it be said to be difficult to endure. As we understand it, when the waterboard is used, the subject's body responds as if the subject were drowning--even though the subject is well aware that he is in fact not drowning. You have informed us that this procedure does not inflict actual physical harm. Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain.
That's the defense in a nutshell. That these tactics don't meet "severe physical or mental pain or suffering" that could induce "prolonged mental harm".
From the prosecution side I can see a couple flaws in this. "Wall Standing" and "Stress Positions" if carried out for too long don't just produce "muscle fatigue", I've read before that they can lead to renal failure and death. (Looking for the source to confirm that) I beleive Defense would argue, that is why it was limited to just four hours at a time - which was questioned by Donald Rumsfeld at one point.
"Why only four hours?" he asked, since he himself worked 8-10 hours a day at a standing desk. The answer of course is in a stress position your muscles constantly locked in place. You can't shift and move to a more comfortable position, you have to STAY PUT. It's not close to the same thing as simply standing, but being able to move around.
I actually had a teacher in second grade put me through a stress position, standing with my arms straight out, holding a book in each hand. THAT WAS HELL!
But would it, if limited to just four hours at a time, produce a "profound disruption of the personality"?
I don't know.
Would nudity? Use of dogs? Being forced to stand or lay down in a humiliating position?
Yes, it's embarrassing, yes, it's humiliating and even painful - but could it lead to a complete psychological breakdown? Was it used to deliberately induce Heart Failure? (as it just might have an many cases!) Does anyone seriously think that Murder was the goal, since as I said before - they needed these men alive to gain information from them?
Sleep Deprivation can produce a temporary psychosis, but is it permanent? Is it "prolonged"?
Again, I don't think so, but I could be wrong.
Yes, Hypothermia can kill you, but then again - was that authorized? Bybee didn't mention it. Did Rumsfeld go rogue on that?
And again, would they knowingly let it get that far with someone like Zubaydah or KSM?
Could the prosecution argue, that the individual specific techniques don't matter, it's the cumulative effect, particularly since in several cases some of the techniques were used simultaneously and in combination?
That's the debate, that's the argument at this stage. What exact part of this law, 18 USC 2340, did they knowingly, willfully conspire to violate, and how?
Discuss...
9:39 AM PT: Updates from PCH which I was just shown:
I am a lawyer...
and what would happen with sleep deprivation and the other torture used, including waterboarding, is that experts would testify as to the individual and cumulative impacts of these torture techniques on the person, mind and body.
Valtin and others have written about these impacts.
Some think that sleep deprivation, or stress positions are harmless, but they are not. Some think, hey, i stand on my feet 8 hours a day, what harm could happen?
But they have impacts on the mind and internal organs. This is why they were picked because people often think of torture as clear physical harm to the body, like burning or stabbing or pulling limbs apart. so, stress positions sound harmless. but one prisoner, his arm fell out of his socket right before he died.
In addition, the bush team worked out an entire plan from apprehension to imprisonment and torture and each had a role to play in the aggregate impacts of harm on the person.
So, you have to look at ALL the facts, all the torture techniques used on a prisoner and the cumulative impacts from all, not just one technique.
This expert testimony will establish the evidence of the statutory requirements.
Ok, that sounds a lot like my last paragraph and provides I think the answer I was looking for. You can't make a single this technique violates that subsection argument, which is what I thought. You'd have to make a argument that the cumulative effect violates the statute in aggregate.
Update 2 And apparently individual techniques such as Waterboading by themselves violate section 2A, 2B and 2C.
Ok, glad we cleared that up.
Update 3 PCH agrees that as an aggregate and individually this is the case.
Update 4 [Here's one excellent argument that all forms of torture whether painful or not are a violation simply because it's is an attempt to change ones "personality"]
They are using trauma to produce carefully prescribed, modulated stress for the purpose of installing psychological "buttons" to modify the prisoners thought processes. To oversimplify, prolonged and modulated stress causes complex post traumatic stress disorder and related dissociative disorders -- which are permanent, long term effects of torture.
Torture is a purely psychological practice. Bybee and friends were counting on the general public's inability to grasp this concept, as well as its permanent effects. People have no choice but to project from their own experience. They've felt embarassed and humiliated before and recovered, so why should embarassment and humiliation be torture? Most torture criticism ends with a recollection of rush week hazing or such and gets dismissed. The prescribed humiliation is not equivalent to their humiliation experience, though.
The goal of torture is complete psychological breakdown. And it isn't any one enhanced interrogation method that leads to this end -- it is a carefully prescribed combination of them that modulates the type and intensity of the methods.
So the next problem is who has jurisdiction and could bring forth such a case? It's a Federal Statute so it would have to be a Federal Prosecutor, and the current Special Prosecutor on the case John Durham isn't addressing this - at least he doesn't appear to be - yet.
Now what?