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Lawlessness, Without Purpose Or Effect

The truth is sometimes a hard pill to swallow. It sometimes causes us difficulties at home and abroad. It is sometimes used by our enemies in attempts to hurt us. But the American people are entitled to it, nonetheless. … I have often said, and will always maintain, that this question isn’t about our enemies; it’s about us. It’s about who we were, who we are and who we aspire to be. It’s about how we represent ourselves to the world. — Sen. John McCain, December 9, 2014.

The Senate Select Committee on Intelligence released a 499-page “executive summary” of a more than 6,000-page long study of CIA intelligence-gathering techniques performed on people kept in its detention facilities today.

After all this time, after so much has been disputed and argued about, it would seem that what we learn about today is simply more of the same. Indeed, it may seem like it’s simply a more detailed version of what was already known. What isn’t new is that what’s been made public today is going to become a partisan football; what isn’t new is that people whose personal and professional reputations are subject to profound criticism by the report continue to insist that they were justified and did the right thing; what isn’t new is that active measures were taken to keep what was being done in our names secret from us; what isn’t new is that officials acting on behalf of our government did things to people within their custody and control, things which by any reasonable definition of the word would be considered “torture.”

What actually is new, or at least seems so to me, is that the people doing it did their best to conceal it not just from the media, and not even from Congress, but from the President and his chief advisers, and indeed higher-level administrators within the CIA itself. It was a program run amok, self-directed and self-important, producing little if any tangible good, doing substantial harm and realizing substantial expense.

I’ll quickly summarize the findings here, although I’ve provided above a link the the full report.*

  • The CIA’s use of its enhanced interrogation techniques torture was not an effective means of acquiring intelligence or gaining cooperation from detainees. All of the information of interest extracted from detainees came before EITs were torture was used.
  • Interrogations of CIA detainees and conditions of confinement were brutal, harsher, and far worse than the CIA represented to policymakers and others. EITs Kinds of torture were used that had not been approved by the Department of Justice or even by supervisorial-level decision-makers within the CIA itself. Interrogators who violated EIT torture policy were rarely disciplined or held responsible for their actions; critiques and objections from both within and without the organization were marginalized or ignored.
  • Information about detentions and interrogations released to the media was consciously manipulated to present an appearance of greater effectiveness than was actually being realized. The CIA’s justification for the use of enhanced interrogation techniques torture rested on inaccurate claims of their its effectiveness.
  • Internal administration and policymaking control of the rendition, detention, and interrogation of prisoners by the CIA was haphazard, uncoordinated, and took nearly three years before administrators could confidently direct what interrogators were doing. Accurate records of the number of detainees were not kept; many detainees did not meet the legal standards for detention, and the CIA misreported the number of detainees under its control.
  • Two contract psychologists with no interrogation experience devised the interrogation torture techniques and trained CIA investigators in the use of EITs torture. They received a $180 million dollar contract, of which a total of $81 million was paid between 2005 and 2009.
  • The program effectively ended, however, in 2006, because one by one, nations hosting the secret prisons where these interrogations occurred withdrew their consent. By March of 2006, the program operated in only a single country (which is redacted but which I presume to be Afghanistan) and the last use of an EIT torture was on November 8, 2007.
  • The CIA repeatedly and willfully provided inaccurate information to the Department of Justice, the White House, its own Inspector General, and Congress. Specifically, CIA operatives took care to not allow information about their activities to reach Secretary of State Colin Powell for fear that he would “blow his top stack.” Not only did this impede oversight and prevent a proper legal analysis of the program, it complicated and impeded other national security missions performed by other agencies within the Executive Branch.
  • Furthermore, the Detention and Interrogation Program damaged the United States’ diplomatic and moral standing around the world, obstructing cooperation with intelligence-sharing efforts with allies, classified diplomatic confrontations with otherwise-friendly foreign nations, and costing over $300 million in non-personnel costs, including the construction of two detention facilities that were never used.

At no point does it appear that anyone in the CIA considered that all of the internal and external criticism of its activities pointed to either a moral or a legal failure on its part. Rather, it appears that the people running things came to believe that perpetuation of the program was of inherent and reflexive importance and adopted an “us against the world” attitude in which even lying to their own higher-ups was a necessary and justified part of process.

If nothing else, it’s stopped now, and we’re telling the unpleasant truths about it to ourselves and the public. Which is better than the alternatives to both of those states of affairs. While Americans disagree about a number of things, it ought to be quite evident by now that we need not sacrifice security, intelligence, or strength in order to comply with our own basic morals and ideals — including, but not limited to, government under the rule of law and basic human decency.

To see how far from those fundamental ideals agents of my government strayed renders me furious, beyond even my considerable powers of description.

When virtue is lost, benevolence appears. When benevolence is lost, right conduct appears. When right conduct is lost, expedience appears. Expediency is the mere shadow of right and truth; it is the beginning of disorder.Lao Tzu.

Grief And History at US Capitol

* At the suggestion of commenter Emile, I have replaced the phrase “enhanced interrogation technique” or the acronym “EIT” with a more appropriate word for what is really being discussed: “torture.”

Image source: wikimedia commons, with modifications by the author. Allegorical figures of Grief and History stand by the United States Capitol’s dome, at First Street NW and Pennsylvania Avenue, part of a series of statutes and monuments near the United States Capitol commemorating the United States Civil War.

 

Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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117 thoughts on “Lawlessness, Without Purpose Or Effect

  1. I have on my desk a rendering of the Tao by Ursula K. LeGuin. In her rendering, the second stanza of poem 38 (which I think might be the source of your quote) is:

    The good the truly good do
    has no end in view.
    The right the very righteous do
    has an end in view.
    And those who act in true obedience to the law
    roll up their sleeves
    and make the disobedient obey.

    I am more pleased today with both Sens McCain and Feinstein than I recall ever having been. They have rolled up their sleeves and done some work, that, I think, will make the disobedient a little less so.

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  2. Could be true. Those happy to see the CIA indicted in the court of public opinion might ask why the report had to be put together in such a way as to lend credence to the charge of unfairness – or, as a certain Jose Rodriguez Jr put it: “I’m bemused that the Senate could devote so many resources to studying the interrogation program and yet never once speak to any of the key people involved in it, including the guy who ran it (that would be me).”

    It also seems to me that there is large amount of scapegoating going on here. It’s rather easy to accuse the CIA and Bush Administration figures of betraying “democracy” when there is a reasonable argument that the program at the time, certainly the overall concept, enjoyed supermajority support from the American public, as well as bipartisan support among politicians. In that sense, it wasn’t “democracy” that was betrayed, but rather a type of liberalism, which isn’t to say that betraying democracy on behalf of that type of liberalism is a bad thing, only that it is a different thing, and easier to advocate uncompromisingly form positions of responsibility in 2014 than it was in, say, 2002.

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    • Senator Feinstein’s preface acknowledges that there was a lot of fear and cloudy thought going on back when some of these decisions got made, including within Congress and even by members and staffers of the Committee that issued this report (originally more than two years ago). She assigns blame, but does at least make a token gesture towards spreading some of that blame around.

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      • To your point Burt, I’m not at all sure that the report need to be read in such a way that ascribing blame is necessary. I mean, that’d be nice and all, but blame in this context is pretty doggone legalistically defined and finding “culprits” would require a trial. That ain’t gonna happen.

        This report – the descriptions and accounts contained within it – seems to me about the most significant and purposeful thing gummint is *capable* of when it comes to self-policing (or checking and balancing).

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      • Stillwater,
        these people didn’t see the need to even apprise the President of their actions, to bow to any authority but their own conscience, which seems to have been deficient in morality.

        Justice, for these scofflaws, might be found, not in the pale cloak of the law, but in a few “happy accidents.” I hope and pray that justice may be served.

        These are worse than murderers — for the dead sleep easy. It’s only the living who scream.

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    • The report also says the CIA lied to Congress and the administration and the American people, suggesting they knew what they were doing didn’t have popular support, at least of the specifics were known without a doubt. The support seems to have been for them to do what they did without telling us, so that we wouldn’t have to feel complicit.

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      • To a very limited extent, that is my position, actually.
        I think that admitting and justifying torture has done more harm to America than the actual pain inflicted on divers individuals.

        I do believe that folks who torture, even in the government’s name, should be punished. But punishment should only be part of the costbenefit (as is training to identify when this might even be a good idea, which is rare in the first place).

        But it’s not a matter of feeling complicit. It’s a matter of putting the color of law, of nobility, on the truly abhorrent. I can accept my complicitness in the killing of innocent pakistani children, ya know?

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      • Actually, , I don’t see why consciousness of lack of popular support is the only or most likely conclusion to draw from (alleged) lies to Congress, to whichever presidential administrations, or to the American people. There are many ways in which an admission or, differently, “too much information” can be deemed unwise or imprudent without also representing a potential loss of “popular support.” As for the second part, I think there’s an element of truth in that observation – kind of a “popular plausible deniability” argument – and it’s part of what I mean by scapegoating. Scapegoating serves the purpose you describe in that it allows one section of the public and its tribunes to jump from one bandwagon of self-righteousness to another. I also think, however, that the description leaves out the sizable portion of the population, even today much less in 2002, that supports harsh and even very harsh treatment of detainees, apparently as much as a form of just, exemplary punishment with a possible deterrent effect, as for the nominal purpose of acquisition of “actionable intelligence.”

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      • Documented lies are not “alleged.” They are demonstrated.

        As I’ve said elsewhere, though, I have no doubt that the majority of Americans supported what they knew and supported what they knew they didn’t know.

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      • @chris: As a general characterization, there is much in the report that is being characterized as lying – such as in the widely discussed comparisons of Hayden’s testimony to statements of “incongruency” in the report – that is disputed by those who stand accused. Documentation is not the same as proof, and what it demonstrates even if accurate may also be subject to disagreement. There is also a tendency in political discussion to call anyone whose description of an event favors his or her interpretation of events rather than one’s own a liar. Speaking in general terms about lying, implicitly affirming one side’s honesty and the other’s dishonesty, seems obviously prejudicial to me.

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      • Do documents say not to let Powell find out, do interrogation reports contradict statements made to Congress and the administration at the time, and do the documents say little to no good info, particularly related to Bin Laden, came from torture? If the answer to any of these questions is yes, they lied, and it matters not how honest anyone else is about anything.

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      • “Do documents say not to let Powell find out,”

        Don’t have time right to nail down all the details, but, according to Gonzales, I believe, Powell did in fact “find out,” shortly after the “document” was written – an email (wasn’t it?) which purported to characterize the views of WH lawyers, not of the CIA. In the event, he didn’t, contrary to expectations of some, “blow his top.” In other words, the document represented a point of view, but, if this rendering of the facts is correct or close enough, that point of view was speculative and mistaken, and not representative of a policy or of the CIA’s conduct, and the use of it would be a good example of how a document can be made to seem to express something it doesn’t.

        “do interrogation reports contradict statements made to Congress and the administration at the time,”

        Undoubtedly, but you’d have to be more specific in order to show that a general characterization of dishonesty with intent is justified. Undoubtedly, there were lies, just as there were serious abuses (some or according to Hayen all self-reported and in at least one case prosecuted), and just as, not to make light of those abuses in any way, as there are abuses, errors, and sooner or later lies in every human enterprise of any scope or seriousness at all (and in most of little significance or seriousness, for that matter).

        ” and do the documents say little to no good info, particularly related to Bin Laden, came from torture?”

        “Documents” are incapable of making such a determination. At most, they can reveal the (disputable and in this case strongly disputed) opinions of some people to that effect, or can be arranged in such a way as to support a pre-determined conclusion, one not reached or shared by, among others, Leon Panetta, at least according to his public statements on the question and on the basis of much fuller access to the evidence than you or I will ever possess.

        “If the answer to any of these questions is yes, they lied, and it matters not how honest anyone else is about anything.”

        I dIsagree with both conclusions, or with putting them that way. If I were of mind to, I could then, following the same rationale, accuse you of being a liar about lying. I think in fact that you honestly believe both statements, and that you’re not resting on some trivial construction by which any misstatement or the misstatements of one bad apple or a few mean the whole bunch is rotten. But I especially disagree that “it matter not how honest anyone else is about anything.” If everyone is lying, then the charge of being a liar would be trivial. To be less subject to the charge of being a liar about lying from someone who is not convince as I am of your good intentions, you’d have to specify who you meant by “they” and which lies you have in mind. It might then be possible to determine how fair the characterization is.

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      • the link refers to the narrow issue of the destruction of the tapes. Perhaps you understand the legal issues better than I do. However, that’s just Rodriguez, and, anyway, if the objective is truth-finding, maybe blanket immunity should in fact have been granted – or, as ACLU Executive DIrector Romero argued today, maybe pardons should have been given to a range of leading officials: http://www.nytimes.com/2014/12/09/opinion/pardon-bush-and-those-who-tortured.html

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      • It seems like somebody with such a strong desire to see the truth come out might not have destroyed those tapes in the first place. But I wasn’t there on the ground, so I suppose the tapes might have been reaching for his gun.

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      • Rodriguez’s possible desire to see the truth come out, or for praise or blame to be apportioned fairly, is in this scenario secondary. He is an individual being asked potentially to incriminate himself. (Our long-standing and foundational rejection of compelled self-incrimination are directly connected to other prohibitions on mistreatment of the accused including torture.) He is also in jeopardy due to his agreement not to divulge secrets.

        Could be, at least according to some constructions, but according to reasonable constructions numerous signatories of the torture convention – if that’s the treaty obligation to which you are referring – have been in regular and flagrant violation of it ever since they agreed to it. When the US Senate ratified the convention in 1994, it did so with a specific exception that “.. nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.” https://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-9&chapter=4&lang=en#12 You don’t need to be a legal genius to understand how that exception could be extended to Presidential pardons.

        The page linked also has a list of signatories (as well as some states that committed to the convention without formal signature or ratification). Though the list includes many countries not widely known for their careful treatment of prisoners and detainees – Syria, Egypt, China, Pakistan, Afghanistan, and the former USSR are included, for example- some signatories sometimes do take their obligations quite seriously. Still, it seems likely to me that Reagan, when he offered those nice words, was not thinking of anyone construed to have acted in technical violation of the torture convention, as filled out by the US Code (as per Mr. Likko below). When he referred to “torturers,” he likely had in mind exemplary figures, not every cop in a precinct who said something he shouldn’t.

        Still, what you say does point to further complications for proposals like the one from the ACLU head or in that suggestion below about a presidential plea bargain. Especially if you take the position, as many will without necessarily thinking through the implications, that international human rights norms take precedence over traditional legal immunity of officials executing policy of a sovereign state (i.e., the traditional American position), anyone who “cops a plea” on this one may still be subject to a range of civil and state penalties, including in foreign jurisdictions, for what he or she has just copped to. So, if, say Obama were to issue a pardon to Bush, Cheney, Yoo, Bybee, et al, extended to everyone in the CIA or otherwise connected to the EIT program, for crimes related to torture, there would still remain strong motivation for all of them to continue to maintain their innocence and to avoid self-incriminating statements, and there would still be a problem in whatever fairly constituted court of their inability to mount a proper defense – to call witnesses or produce evidence hidden behind the veil of national security.

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      • ck,
        “international human rights norms take precedence over traditional legal immunity of officials executing policy of a sovereign state (i.e., the traditional American position)”

        … we only take this when it’s convenient for us. see sadaam hussein, among many others.

        I wasn’t thinking just that one — we also are an unratified signatory to the ICC (which handles issues of this caliber).

        And America may very well refuse extradition of these august people.

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      • We might refuse extradition, but John Yoo might like to be able to take a vacation in Europe without having to fear arrest. He might already have some concerns along those lines, but getting up and saying everything his enemies would like him to say might deepen them – and that’s leaving aside reputational damage, as well as damage to friends and colleagues. That said, I would see some justification for grants of immunity in the interest of fact-finding. I just wouldn’t expect them to fill out the whole picture or lead to the results that EIT critics hope for – which latter may partly explain why they haven’t been offered.

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      • “He is also in jeopardy due to his agreement not to divulge secrets.”

        This is incorrect – any testimony as to classified matters to the Select Committees is itself considered to be classified and the CIA/DOJ has no right to sanction someone for their testimony to the Select Committees as to classified materials. There are a boatload of hurdles that have to be cleared for the Select Committees to release any classified information, with the President essentially having a veto over any such release.

        Whether or not he should have been granted immunity – about which I’m ambivalent – though, its disingenuous for him to complain that the report is incomplete and should be dismissed because it doesn’t include his testimony when the primary reason for that is his own insistence on dictating the terms under which his testimony was to occur.

        And it wasn’t just Rodriguez – the CIA told the Committee that it wouldn’t cooperate in procuring the testimony of any of its officers for these hearings and this report.

        Nor is it as if the Committee never received testimony on these issues from CIA officials – in fact, that testimony is addressed at length in the report. It’s just that the testimony it considered came from hearings not specifically under the auspices of this report, and which turned out to be contradicted by the actual documents. Had CIA officials appeared again to testify and gave the same answers they gave the first time around, the report would have been no different, because that testimony would have been no less easily refuted. Similarly, if they had given different answers, they at most would have provided additional support for the Committee’s findings.

        And, lest we forget, the security apparatus has been caught lying to the Committee repeatedly in recent years when it has served the apparatus’ political purposes. Indeed, as much as anything else, those lies are likely why this Report even got released – DiFi’s been the security apparatus’ most important ally on Capitol Hill for years, and there was no reason to think that was going to change anytime soon . . . until she figured out that agencies she was protecting have been returning that loyalty by lying to her.

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      • See above – you might not get the scoop you wanted, you might get a bigger serving if not the whole scoop, and anyway there are several questions in play at once. If investigators and critics were more interested in fairness than in getting the particular actionable intelligence that they want for their own purposes, I believe they would have acted differently.

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      • You understand the legal considerations relating to testimony better than I do – but your description only strengthens Rodriguez’s point regarding the investigators “never once speak[ing] to any of the key people involved in [the program, including the guy who ran it (that would be me).” If he and others have good reason to trust in those “hurdles” you mention (I can’t say), to the point that they would have no reason to request further guarantees, why not speak to them? On the specific question of the tape destruction, Rodriguez or his lawyer made strong claims that he would in fact be in legal jeopardy, but I was also addressing the general problem for Rodriguez and others especially in trying to defend themselves in the “public court.”

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      • If he and others have good reason to trust in those “hurdles” you mention (I can’t say), to the point that they would have no reason to request further guarantees, why not speak to them?

        I can come up with a number of reasons for this, but first and foremost of those is the well-documented contempt that the CIA has always had for the notion of Congressional oversight. That contempt is particularly strong here, where the Committee, for once, made clear that it actually intended to exercise that oversight for the first time in almost 40 years. The leadership at Langley seems to believe that Congressional oversight is illegitimate in the first place, so why cooperate with it?

        If they were just going to go back and repeat their previous lies, there’d have been a nonzero chance that this time around, the Committee was actually going to call them on it and possibly even refer them for prosecution. If they were going to go forward and tell the Committee the truth, then they’d just be helping the Committee expose what happened.

        But there’s more to it than that. This WaPo article from earlier this year indicates that it became clear early on that CIA witnesses were not going to cooperate with the probe and gives as the reason the existence of a DOJ (read: FBI) criminal investigation that was presumably underway.
        http://www.washingtonpost.com/world/national-security/public-feud-between-cia-senate-panel-follows-years-of-tension-over-interrogation-report/2014/03/12/f0633d1c-aa1d-11e3-b61e-8051b8b52d06_story.html

        Whatever testimony was given to the Committee would have probably wound up in the hands of the FBI (or at least FBI elements with the requisite security clearances). The FBI, of course, has never gotten along well with the CIA, but in this case, the differences between the two agencies are especially wide. With or without individual immunity, I’m quite certain that CIA folks don’t like the idea of giving the FBI the tools to go after other CIA folks.

        Also worth mentioning, while we’re here – whether or not it permitted its officers to testify under oath, the CIA did in fact provide a point by point rebuttal to the Committee (this is discussed in the WaPo link above). Presumably, this rebuttal is the basis for most of the minority’s dissent (which, as I’ve mentioned elsewhere, has a lot of very questionable assumptions). The thing is, it turned out that much of that rebuttal was a fabrication, directly at odds with the CIA’s own earlier internal review (again, see link above). When the CIA found out that the Committee had somehow obtained that earlier review, we now know that their response was to spy on Congress and accuse the Committee of stealing that review (which the Committee did not include in its final report). What it did not do is deny the truth of that earlier review.

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      • You make some interesting observations, but none of them answers the question. You explain why CIA operatives for their part might not want to answer questions, but not why the SSCI would not ask any – the latter being the cause of Rodriguez’s “bemusement.”

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      • Both the link and the Senate report indicate that the CIA made clear to them that they would not provide testimony in light of the ongoing DOJ investigation. The CIA officers now appear to be implying differently, but under the circumstances I have a very hard time believing them given the extraordinary lengths the agency has gone to in lying on this subject already.

        If you trust the Committee’s representation over the CIA’s, then it’s hard to blame them much for failing to push harder to get the testimony – to do so would be akin to saying that prosecutors should call defendants to the witness stand when they know that the defendant has no intention of testifying and they lack the power to compel that testimony.

        Of course, if you trust the CIA’s representation here – which is not wholly unreasonable – then you would come to a different conclusion.

        One last thing – and this is more slightly educated speculation than anything else – but I have a sneaking suspicion that a deal was made between the CIA and the Committee. Remember, this whole investigation was spurred by the destruction of the videotapes, which really got Congress angry and led to the CIA providing some documents to Congress to placate them. Those documents wound up revealing that a lot of the CIA’s previous testimony to the two Intel Committees was misleading at best, which led to the present investigation in which Congress got access to boatload of documents. But that access, everyone acknowledges, was heavily negotiated. It strikes me that it is more than a little possible that the Committee had to more or less agree to forgo calling Agency witnesses in exchange for getting access to the documents.

        I can assure that, without the documents, testimony would have been utterly worthless, especially since that would have given the Agency the chance to just come up with an explanation for the discrepancies between the previous testimony and the limited documents the Committee had already been given.

        Honestly, even with the documents I’m skeptical how much value testimony would have had, since they’re so extensive (6 million pages). Regardless, if I’m serious about investigating this and I have to choose between the documents and testimony, the documents are the easy choice because they’re far more reliable than testimony.

        I also, if I know that the Agency really doesn’t want its people testifying and know that the Agency can shut off my access to the 6 million pages of documents at any time if it so desires, probably don’t want to risk enfuriating the Agency by calling its people to testify. That’s true even if I don’t have a formal agreement with them not to call witnesses.

        This is doubly true if I already have access to loads of interview transcripts of the relevant Agency operatives on this exact topic but conducted by the CIA itself (which the Committee did in fact review and use in its report).

        Honestly, the only thing that getting testimony would have accomplished (assuming it didn’t cost the Committee its document access) would have been to allow the Senate Democrats to ask tougher questions than the CIA had already asked.

        In other words, the only possible result of testimony could have been to make the CIA come out looking even worse. The complaint Rodriguez, et al are making, that the report is biased because the Committee didn’t get additional CIA testimony honestly strikes me as weird. It’s like a party in a lawsuit complaining that the result of a case was unfair because the other party’s attorney chose not to cross-examine him after answering his own attorney’s questions on direct examination.

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      • The CIA people are not just implying that the explanations from Feinstein and others for their not having been consulted are false. They’re saying so forthrightly and aggressively.

        I’ve now heard several contradictory explanations about why EIT architects and operatives were not consulted, but whatever the truth of the matter, the lack of input from them represents, as Jeffrey Toobin was just saying on TV, a “big hole” in the product. In other words, you might accept Feinstein’s explanation or speculate about a deal, but the more fundamental complaint is simply that the report is one-sided, whether as a result of CIA gamesmanship or Democratic obstinacy, an argument further supported by the partisan breakdown, and for that matter your comparison of the proceeding to a court case, which is, ironically enough, one of the main talking points in the CIA’s defense: That the SSCI report is prosecutorial or adversarial rather than balanced.

        You might say that the Democrats felt they had no choice but to go ahead anyway, and that others can put together what they can from a careful comparison of the majority report, the minority report, the CIA’s report, and any other material. If so, then, it’s a “lie” to treat the report as anything more than it is, a partial and one-sided narrative – even for those who are not picking out the most sensationalistic claims, like the “rectal feeding” story (treated as though a mandated “torture technique”) or the death of the detainee by hypothermia (as though the victim were one of the “high value” detainees and part of the program Hayden was being asked about). If the objective had been to produce a thorough and fair product analysis or history of the EIT program, then a different approach would have had to have been taken.

        Not sure I can take the argument further on my own without starting to bring in other readings from the other side or trying to advance my own theory of it all. Thanks for your thoughtful and informative responses.

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      • MacLeod
        [[We might refuse extradition, but John Yoo might like to be able to take a vacation in Europe without having to fear arrest. He might already have some concerns along those lines, but getting up and saying everything his enemies would like him to say might deepen them – and that’s leaving aside reputational damage, as well as damage to friends and colleagues.]]

        Poor babies. John Yoo and his “friends and colleagues:” should experience first-hand just what they gave cover to.

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  3. Its true that the American public largely did, and does, support torture.

    That’s what people do when they are terrified -the thin veneer of civilization comes off pretty fast and the better aspects of our nature vanish before survival from some existential threat- real or imagined.

    But of course, its worth asking how the people became so terrified, what hyenas were snapping at the herd to provoke the stampede. That thread of logic leads directly to the Oval Office.

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  4. They had CNN on at the gym. No volume and I could only make out half the closed-captioning. But they kept blasting across the screen something to the effect of “NEW THREAT IN RESPONSE TO REPORT ON CIA!”

    “Egads! We’ve acknowledged torture and now they’re pissed and are coming back at us!” I thought.

    But then I looked closer and realized it said something more akin to “FBI: NEW THREATS COULD EMERGE IN RESPONSE TO REPORT!”

    Ahhh… so it did not so much seem that a new threat was actually being issued by actual threatening agents. Instead, the FBI was saying that it is POSSIBLE that a new threat COULD emerge because of a report critical of the CIA. Which, to me, sort of seems like a threat itself. By perhaps the most threatening of agents… the FBI.

    Am I taking crazy pills?!?!

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      • Anyone who’s likely to bomb something in retaliation for torture, already knew about it.

        It’s only Americans who were absolutely determined to deny this stuff for the past decade and more who are going to be surprised by it – and their cognitive dissonance will ensure that they either avoid reading about it, disbelieve it, or forget it in short order.

        The real threat is to the CIA, from democratic processes.

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    • If revealing what they did might trigger new threats, and they can think of that now, perhaps they should have considered that before? That mistreating prisoners might encourage additional threats? It’s not a difficult conclusion, right?

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      • Seriously. If an accurate reckoning of what happened will lead to such catastrophic threats to national security, then the torture program was one that was only effective so long as it remained secret indefinitely – in other words, a program that was not effective even if we take these people at their word. And considering the degree to which this report indicates that the perpetrators lied to everyone about basically every aspect of the program, we’d have to be crazy to take these people and their enablers at their word.

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      • Don,
        It’s… not so much… that I’m against torture, as that I”m against the United States of America saying that they tortured people, and that was a good thing, because we’re “whitehats”.

        That’s corrosive beyond belief.

        If this had been an actual secret program (as opposed to Cheney/Rumsfeld admitting it on live TV), we could actually have a conversation. I would still be in favor of bringing the perpetrators to justice, but … that’s justice for the men involved. Not justice for bespoiling America’s image.

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    • Well, there’s no doubt that the United States has enemies, that there are people out there in the world who mean to do us harm. By “us,” I mean some amorphus combination of our government, our military our economy, and American citizens generally.

      Is issuing a report in which we acknowledge that people within our government have acted lawlessly and unethically going to make those people hate us more?

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    • achhh the “the truth will make them hate us more” is a giant box of dumb. Our enemies, the people that hate us and actually try to kill us, think we are murderers who have oppressed them, mindlessly slaughtered their families corrupted their governments and are generally EVILLLLL. So yeah a report about torture, most of which was already known is really gone make them just that much more angry. Ohhh yeah they wanted to kill us before but now they are mad. It’s an argument that should be laughed at.

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    • There’s a really twisted logic behind the argument that releasing this report will “embolden” our enemies. I mean, the premise is that we’re justified in hiding all the nasty, illegal, immoral illegitimate stuff the US did because releasing it might result in legitimate blowback.

      Or something like that….

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  5. I’m curious what you think should be done? What should the response be?

    Jonathan Bernstein suggests pardons to prevent radicalizing the GOP into a pro-torture party. I’m aghast that; a choice of action should not rest on picking some specific outcome on the part of Republicans, who, despite their actions, are not children; not characters from Lord of the Flies.

    I’m not sure if I’d think trials in US courts or foreign courts the best thing; but I think trials, not pardons, appropriate for torture and for lying to the Senate about torture. No matter how the GOP might react.

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    • I can’t see how trials would ever happen. That would be gummed up and demagogued until the cows come home. However if pardons are to offered they have to come with full transparent disclosure. A truth commission. That of course would be gummed up and demagogued until the cows grandcows come home.

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    • The infuriating logic here is that the perpetrators are still sufficiently powerful and influential that, if there’s any significant threat of trials, then they’ll never cease defending these crimes in public; they have to to protect themselves.

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    • I’m not convinced that prosecutions are appropriate even for the torturers. Thanks to some legal opinions commissioned by Attorney General Gonzales, what constituted acceptable interrogation techniques as opposed to unacceptable torture was a legal question that was unclear.

      What I want to see now is the President announcing that his interpretation of law — of the U.S. Code, of the Geneva Convention, of the Army Field Manual, etc., is congruent with what I have been saying for a long time about this issue:

      No torture. Ever.

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      • because “uncertainty as to the law” is not the same thing as “ignorance of the law.” It puts us in the zone of something called qualified immunity. One of the reasons that the Yoo memos commissioned by AG Gonzales pissed me off so much was that they obscured rather than clarified what role torture might play for a theoretical interrogator, who wanted to be as aggressive as was legally permissible without actually crossing the line into illegal conduct.

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      • a theoretical interrogator, who wanted to be as aggressive as was legally permissible without actually crossing the line into illegal conduct

        This is where a “no torture, ever” principle runs into trouble for me. Does no torture, ever allow that an interrogator might ever ought to be thinking about starting down the road of aggression which at some point arrives at torture if traversed far enough? Or is even entertaining any such aggression, ever, exactly what “no torture, ever” proscribes? Under “no torture, ever” is torture only and exactly whatever the law says is torture (and thereby makes illegal)? Or does “no torture, ever” potentially seek to be more restrictive than just reaffirming what the law says while not condemning anything the law doesn’t condemn? And if it seeks to condemn more than just what the law condemns, then what is the line?

        Drawing a line more permissive than “don’t even think about starting down the road of aggression at all, ever” but more restrictive than “just don’t do what’s illegal” that also successfully proscribes all torture (always) seems like kind of a dicey proposition to me, especially if you want and expect the existence of that line to in fact cause there to never, ever be (official, government) torture. Which doesn’t mean it’s not what should be done. I think I think it is. But it’s dicey: “don’t even think about starting down the road of aggression at all, ever” is probably a better prophylactic. But I’m not clear if you’re saying you want that in the above quote (and I’m not sure I want that, either).

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      • Respectfully, , I think this is overwrought, overly subtle, and over-complicated. Particularly in a message to be delivered from a high-level leader to an on-the-ground person who necessarily must use discretion in performing her duties. Furthermore, our law doesn’t punish people for thinking bad thoughts. Rather, the law punishes people for doing bad things.

        Therefore, let [X] be a given action that an interrogator might use. The interrogator wants to drain the subject’s memory, accurately and thoroughly. She should and must ask herself, “is [X] torture?” From there the decision tree ought to be tripartate:

        a) Yes, [X] is obviously torture. Therefore, I will not do it.
        b) No, [X] is obviously not torture. Therefore, if [X] is likely to produce new, accurate information, I should do [X] while interrogating my subject.
        c) It is unclear if [X] is torture or not. Therefore, I will not do it and I will seek both legal and moral guidance from others whose judgment I respect before I will permit myself to do [X].

        An interrogator who determines that [X] is torture, or who does [X] without having satisfied herself that it is not torture, but does [X] nevertheless, makes herself a candidate for discipline and prosecution. Maybe this means the only technique available to an interrogator is to talk quietly and offer the subject Big Macs if they offer up anything new.

        Better that than we become what we accuse our enemies of being.

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      • Michael,
        Burt’s right. But, really, let’s be sensible here. We get decent info from people by saying “Here, you can talk with your wife again.” or “your kids are okay, see, here’s a picture”.

        If a person is willing to be judged in a secret court of law, for having tortured someone… okay, go do it. Don’t tell the world, and we’ll hang you if we wanna. Point is: consequences for this are a good thing, not a bad one. It keeps people honest.

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      • …And also, not really that complicated at all. The basic question is just, does no torture ever mean no harsh stuff at all, ever? Or just no torture? And if just not torture, is torture just whatever the law says it is, or something else. These are questions that, in full evidence now, are ones people having to apply such rules *have* to confront – not just in theory, but in application. I used somewhat more exact language than that (it was my first go-round with the basic set of questions, and that;s how it cam out; sue me), but I deny I complicated it much beyond that.

        And it’s only as subtle or unsubtle as we choose to make the line-drawing. If you want it less subtle, then just choose one of the edge options: no harsh stuff at all ever, or no torture where torture just and only what the law proscribes.

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      • Michael,
        It’s real easy when it comes to solitary confinement or sleep deprivation. Look at the research, we already know when you’ve compromised someone’s decision making capabilities. At that point, which happens well before “torture” (I think, in that people seem to subsist on 6 hours sleep a lot of the time), you’ve ceased to be effective.

        Why would you ever need to be harsh with someone? You want their cooperation, and if you simply convince them to lie, you’re going to waste tons of manpower chasing down their idiotic ideas.

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      • As to your protocol for applying the rule, you initially take the perspective of the policy-maker, telling her to give the “no torture” rule and leave application to the discretion of the practitioner. (First of all, if the practitioner is also charged with getting all the information she can with a very high degree of prejudice short of applying torture, then if you want there to be no torture, you really can’t leave what torture is or isn;t to her discretion: there is a set of things you want her not to so. That’s the point of the injunction.)

        Then you move down to the perspective of the practitioner. Obviously, if X is torture, you hope she recognizes that and doesn;t do it (but you have given her discretion, so all you can really do is hope). But then you acknowledge edge cases: “It is unclear if [X] is torture or not. Therefore, I will not do it and I will seek both legal and moral guidance from others whose judgment I respect before I will permit myself to do [X].”

        She seeks guidance from you. You have to tell her at this point what is and isn’t torture – what you want her to do to get information and what you don’t. But you don’t follow through there. So we find that this protocol ends up being nothing but a delaying loop that brings us back to the same questions I ask that you’d clearly prefer not to answer.

        “Don’t torture (that’s illegal!), but you figure what to do (short of torture!) to get information we want” actually, believe it or not, was roughy the top-level policy that brought these disgraces upon us. Torture is illegal. The torturers to this day will tell you that the rule (and fact) was no torture, ever.

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      • Michael,
        “you figure what to do (short of torture!) to get information we want”
        … see, the rule from Clinton’s time was this. But, “what to do” is simply BE NICE TO YOUR PRISONERS.

        If the guidelines are so blasted far away from torture that even getting close is violating the “good practices”, one doesn’t really need to think about “harsh treatment” because it is Bad Policy that is Ineffective.

        The government does not have infinite resources. And lies need to be followed up on, and cross-checked, just as much as truths do.

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      • Let’s get one thing straight: “No torture, ever” is the opposite of clear. You need to get that through your head, because you’re acting like you have a simple answer to all this that should answer all questions even as you yourself sketch out scenarios where the specifics of what that may or may not mean in practice eventually present themselves to the person giving that rule (but no more guidance).

        I ask about “harsh stuff” because of what you said above “a theoretical interrogator, who wanted to be as aggressive as was legally permissible without actually crossing the line into illegal conduct.” Are you saying that such interrogators wanting to be as aggressive as is legally allowable is acceptable under a “no torture, ever” rule? If not, that’s great, then obviously they won’t be doing any harsh stuff at all, and that’s your answer. I’m not saying that should;t be your answer; I’m asking you questions about your rule here.

        But if you do want her to be as aggressive as is legally possible (meaning anything but torture, perhaps), or even just fairly aggressive at all, then obviously the question arises, what may she do? Everything up to and not including torture (or maybe somewhat less than that?)? So then what is torture, and what is not? What may she do if she is going to be aggressive? It doesn’t seem crazy to me to wonder whether some of what she may do might be harsh but not torture. Which is not to say it is, I’m asking you.

        I don’t understand your resistance to these questions. They present themselves immediately on initial honest inquiry into this question.

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        • I’m not trying to be either snide or defensive with you. But I truly don’t understand your concern. “No torture” means just that, no torture. When you say, “What can the interrogator do?” the answer is that she can do things that aren’t torture. (There may be other rules about what she can or cannot do, but those are not under discussion here.)

          Are you asking me for a precise definition of the term “torture”? If so, I refer you to 18 U.S.C. § 2340.

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      • your line of reasoning here is disturbing.

        The International Red Cross posts the Geneva Convention rules:
        https://www.icrc.org/eng/assets/files/other/icrc_002_0365.pdf

        Summary: Basic rules of international humanitarian law in armed conflicts
        1. Persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and their moral and physical integrity. They shall in all circumstances be protected and treated humanely without any adverse distinction.
        2. It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.
        3. The wounded and sick shall be collected and cared for by the party to the conflict which has them in its power. Protection also covers medical personnel, establishments, transports and equipment. The emblem of the red cross or the red crescent is the sign of such protection and must be respected.
        4. Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions. They shall be protected against all acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
        5. Everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act he has not committed. No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.
        6. Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.
        7. Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Neither the civilian population as such nor civilian persons shall be the object of attack. Attacks shall be directed solely against military objectives.

        Point 5 matters in this conversation; and someone who wants to go right up to the line without crossing it a huge problem; because they’re looking for a hard line of what intimidation techniques they can use, they’ve already crossed the line.

        Withholding food, sleep, stress positions — these are already torture. Waterboarding, stress positions, etc., are way beyond the line. If you think withholding sleep might help, withholding food or water, you’ve already crossed. It’s not complicated, it’s simple.

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      • Are you asking me for a precise definition of the term “torture”?

        I think I was fairly clear all along that I was, and further that I was specifically asking whether your definition was exactly coterminous with how the law describes torture, or whether you would seek to proscribe things as torture that even the law wouldn’t proscribe, but which someone might make a reasonable argument nevertheless are torture. I also asked whether you thought that “a theoretical interrogator, who wanted to be as aggressive as was legally permissible without actually crossing the line into illegal conduct” would be an interrogator you would allow to operate in your counterterrorism apparatus, and if so, what forms you would endorse that aggression taking (obviously short of torture, as that is you policy).

        This is disturbing subject matter, but my line of questions is basic, obvious, and necessary, and is no more disturbing than the topic itself.

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      • Sometimes what’s necessary is to make it really clear you have a basic disagreement over a point that someone repeats as obvious over and over, in hopes that at least the sense of obviousness is jarred a bit loose. I didn’t think I was going to convince Burt that the meaning of that (in practice) wasn’t clear (or indeed the opposite of clear), but I hoped I might get him to wonder whether it was quite the near-truism he was presenting it as. I think I may have succeeded, as well.

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      • I truly don’t understand your concern. “No torture” means just that, no torture. When you say, “What can the interrogator do?” the answer is that she can do things that aren’t torture.

        Yep, Burt’s backpedaling so furiously he’s going to fall ass over tip if he doesn’t slow down.

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      • I don’t have much time to stick around today, but I think I get where is coming from. It’s worth mentioning that is known to me to be very much on the side of the angels on torture. I think he’s just trying to explore the full implications of our general consensus around here, which is always a worthwhile exercise.

        If I’m understanding him correctly, I think the best way to illustrate his questions is through a reductio:

        Does “no torture, ever” mean that you can’t/shouldn’t do something that, in isolation, would clearly not be torture, but if continued for a sufficiently long period of time, very well might?

        The reductio here would be the example of excessively lengthy interrogation sessions without breaks. At some point, such sessions at least arguably become torture, and they certainly become what the CIA euphemistically termed “EITs” – at some point, they start to deprive the detainee of sleep, and there’s certainly been plenty of research over the years that, even in the absence of sleep deprivation, excessively lengthy interrogation can have psychological effects similar to torture, as the suspect/detainee becomes willing to say whatever he thinks the interrogator wants him to say just to end the questioning.

        Does “no torture, ever” mean the interrogator can’t ask questions at all, then? Of course not, even if we say that continuing with that line of questioning for too long can eventually become torture. Going a step further and making it less absurd, does “no torture, ever” mean that the interrogator must respect the detainee’s requests for breaks and may only resume interrogating when the detainee consents? Even I don’t think it does or should, though others might disagree. But if I’m right, at what point does “no torture, ever” kick in such that the interrogator should/must stop?

        With that in mind, here’s my response: this scenario shows just how Orwellian the introduction of the euphemism “enhanced interrogation techniques” was. It forces even those who believe that the word “torture” has a real meaning to treat “EITs” as wholly synonymous with torture even as it removes “torture” from everyone else’s lexicon. Not all “EITs” are in fact torture. Some are just harsh techniques that would perhaps render evidence inadmissible in a court of law or are of questionable ethics but are probably not the sorts of things that we would traditionally have considered to be “torture.”

        But those tactics are, by and large, also not the tactics that have really outraged those of us who oppose torture; moreover, they’re also the tactics that torture proponents specifically seem to claim led to actionable intelligence (though the Senate report -quite rightly, IMHO – disagrees). Those tactics, then, are treated by proponents as indistinguishable from waterboarding, “rectal feeding,” forcing detainees to stand on broken limbs, mock executions, running the gauntlet, etc.

        We complain that “EITs” are a euphemism for torture, and torture doesn’t work. They get to claim – and the minority report does exactly this, or at least the portions I’ve reviewed so far – that EITs worked and that EITs – all EITs – are thus legitimate interrogation tools and thus not torture. They also, because the internal logic of torture is so insidious, get to claim that information obtained at any time after any EIT (including EITs that are arguably not torture) was used was a result of the use of EITs and thus justified ever-more severe EITs (including EITs that are clearly and indisputably torture), regardless of whether information was procured during the use of those methods and regardless of whether additional information was obtained after the use of those further (indisputably torturous) EITs.

        One other thing I picked up on from the portions of the minority report that I read, though this is not really related to the rest of this comment – the report seems to claim that only after Abu Zubaydah confirmed some information during one of the August 2002 torture sessions did the CIA become aware that the information (which it already had) was important and worthy of follow-up. This information had been in the CIA’s possession for two months, and the minority report notably does not say that Zubaydah was refusing to answer questions related to it during that time (a period in which even the minority report acknowledges that Zubaydah was cooperating and during which no “EITs” were being used, though they attribute this cooperation to the April 2002 “EITs”). It almost seemed to me that the minority report was suggesting that what made the CIA decide this information was valuable was the fact that it was confirmed under “EITs” rather than that it was confirmed via other means. And therein lies the internal logic of torture. This raises another question in my mind – that torture generates false leads that wastes resources has long been understood and presumed; but the internal logic of it is such that perhaps the bigger issue is how many good leads were ignored because they were not produced through torture and thus were deemed less reliable?

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        • FTR, I’ve never considered to be doing more than searching for precision where he doesn’t see it; good faith is not in dispute here.

          and what we seem to be getting at is the void for vagueness doctrine, the notion that a law so significantly fails to provide sufficient advance notice of what conduct is prohibited as to constitute a violation of due process of law. If the wording of the language is precise enough that reasonable people can form a consensus about a particular set of facts, it is not void for vagueness. But nevertheless, U.S. law uses all sorts of terms that are not rigorously precise when it defines things.

          The terms “trick” and “material fact” are not explicitly defined in the Federal fraud statute, 18 U.S. Code § 1001(a). But the criminal prohibition against defrauding the Federal government is not void for vagueness. Someone who came in to court and said, “What’s a ‘trick,’ anyway? Is it a play on words?” would at best hope to survive that test of the judge’s patience.

          “Sexual harassment” as actionable discrimination under Title VII consists of conduct of a sexual nature so severe and pervasive that a reasonable person of the same sex as the plaintiff would find it alters the terms and conditions of the employment relationship. Not a definition that can be applied at all absent a jury, yet the law is not void for vagueness.

          Malicious mischief with respect to tampering with consumer products is a federal felony; it requires the prosecutor to demonstrate “circumstances manifesting extreme indifference to … the risk that another person will be placed in danger of death or bodily injury … .” 18 U.S. Code § 1365(a). What are these circumstances? How do we define them in advance? What’s to put a prankster on notice that she has stopped being harmless and has crossed the line into violation of this law? Yet it is not void for vagueness.

          What, precisely, is “slavery?” 18 U.S.C. § 1584(a) comes close to trying to define this as “involuntary servitude,” but it takes little imagination to conjure up ways to slip through such a definition. One need not make a claim of chattel ownership of another human being to enslave him; nor is uncompensated exploitation of the subject’s labor necessarily “slavery” by definition. No one wants to condone slavery; it is morally abhorrent on a level roughly equivalent to torture for most folks. Are the anti-slavery laws found at 18 U.S.C. §§ 1581-1597 void for vagueness, and it’s just that no one has wanted to attack a sacred cow that we still have these well-intentioned but unconstitutionally vague laws on the books? Or can reasonable people come to a consensus about what the word “slavery” means in particular situations?

          We can’t always have the luxury of defining things with the precision of a “jumbo shrimp” (16-20 count; indeed, even this definition is not as precise as it could be — how much does a single “jumbo shrimp” weigh; how long is it? We only know if shrimp are “jumbo” or some other size when we gather a lot of them together). There is a point at which we need to rely on the reasonability of a person reading the law and understanding what it means.

          Another way we fill in definitions that are insusceptible of ultra-precise definition is by example. Most employers’ sexual harassment policies contain laundry lists of things that are examples of violations of such policies without providing the sort of ultra-precise definition that seems to be demanded here with respect to “torture.” Let’s look at some of the contents of the Senate report, and see if there is really any controversy here, shall we?

          Waterboarding. Can anyone reasonably say that this is not torture?

          “Walling,” a chilling new addition to the public lexicon, meaning to slam a prisoner against a wall. Is this really going to be subject to dispute by reasonable people as something other than conduct intended to inflict severe pain on its subject?

          Rectal feeding. In at least two instances, “forceful” rectal feeding. Is anyone going to seriously suggest this wasn’t “torture”? I suppose we might conceive of circumstances in which this is a medical necessity and decide that in that case, it wasn’t torture; such circumstances are wholly absent from the Senate report.

          Forced stress positions. Almost by definition, this has to be torture. I can hold my arms out straight to either side for a short period of time, but after several minutes, holding that pose becomes exhausting and painful. Precisely how long before that threshold passes may not be susceptible of advance description and even if we try, the actual point of experiencing pain, and the degree of pain experienced, will vary from individual to individual. But that doesn’t mean that forced stress positions aren’t “torture.”

          Which brings us to offers a reductio, a borderline case, of a seated interrogation that goes on for a very long period of time. We’d likely all agree that one continuous hour is not torture, and even if the subject finds such a session uncomfortable, that’s “incidental” to being a captive in the first place. But we’d likely all also agree that seventy-two continuous hours is getting to be pretty cruel, if only because we’re now looking at other things like sleep deprivation entering the mix. Maybe that’s the point that we say it’s “torture.”

          But maybe we’re okay with a case-by-case analysis, too. We’re okay with that in lots of other kinds of criminal cases. We’re okay with defining things by general terms and examples fro precedent with lots of other kinds of laws. While torture is morally abhorrent, as a matter of undertaking a reasonable understanding of the meaning of that word, I truly don’t see why this concept is any different.

          I say that we have a precise enough definition of slavery already. If we’re really in a factually marginal situation, that’s not going to be a good case for prosecution and that’s what the doctrine of “qualified immunity” is for. As a moral matter, a marginal situation is one where anyone ought to seek guidance. That guidance should be cautious. offers a reductio of a prolonged but peaceful interrogation session. Before that gets done, it needs to be roudtabled and thought through carefully and with an eye towards erring on the side of moral caution. And no, it may not get more precise than that when you dissect it down to the granular level in advance.

          But if your President has told you, “No torture, ever,” then when someone suggests, “Hey, let’s interrogate this guy for seventy-two hours straight,” someone else is going to say, “But the President said ‘no torture.’ Is this torture?” and then you’re going to have the discussion and the goal of the discussion will be not torturing the prisoner. It will become substantially more likely that the outcome will be “not torture” than “torture” and if it turns out it is “torture” but no one could have known that beforehand, then you invoke qualified immunity and future interrogators get to learn from the example and not do what you did.

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      • Yep, Burt’s backpedaling so furiously he’s going to fall ass over tip if he doesn’t slow down.

        I think he is, a bit. His whole shtick is “No torture, ever, it’s that simple.” To be clear, I’ve never been arguing against the substance of “no torture, ever.” I’ve been arguing for its substantive insufficiency. The whole time I’ve explicitly been asking for a functional definition, explicitly offering the option to make clear that the legal definition is the same as his. He declined *until* I hit him with “get it through your head, you’re not actually being clear about anything with that. (After all we already know that torture per se is illegal, and that those who authorized torture in their minds had a policy of no torture.)”

        Thanks, but I can’t claim to be on the side of the angels. After 9/11 my position was that of course interrogators would be, to use an odd phrase, “mildly harsh.” Back-of-the-hand slapping, even threats (never to be carried out, of course) against family members. In no way would I have considered any of that torture. I further would have considered the use of torture in a true ticking-bomb scenario potentially justifiable, even though it should remain illegal and prosecutable. In my defense, I was 23-24 years old and had no idea what the law was. (Not much of a defense, but a lot of people a lot older and more educated than I had worse views.) I’ve completely turned around on all that, in particular on TTB scenarios, as the problems of factual confirmation of the relevant questions in any real situation defeat the possibility of justification for torture. But I admit that I sometimes still struggle with the line-drawing, and don’t have a sense that it’s obvious why existing law is the obvious ethical guide for what would and shouldn’t be considered torture. Clearly, that law could be wrong, or it could have come to be that we ended up in a country where torture is not formally illegal under domestic law, leaving much vaguer international standards, etc. Even beyond that, I admit I struggle with the idea that a back-of-the-hand slap is torture, not that it matters a lot for these purposes, as what is a slap going to get you, anyway?

        That’s why I asked Burt about even heading down the road of aggression, or “being aggressive.” I don’t know that I disagree with that if you’ve even moved toward considering “being aggressive,” perhaps you’ve moved too far. I wish might have noticed that I asked that question as true question, and didn’t remotely suggest that my own position (now) isn’t what hers is. It;s just that one comes with some actual personal wresting with the issue.

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      • Here’s what I was really getting at.

        just how Orwellian the introduction of the euphemism “enhanced interrogation techniques” was.

        I agree that that that language is Orwellian. But I don’t think the problem really stems from the dishonest language. Burt’s very honest, “a theoretical interrogator, who wanted to be as aggressive as was legally permissible without actually crossing the line into illegal conduct,” to the extent we do want such interrogators to be aggressive, really raises the same issue.

        What the the EIT language does (or, actually did in this era because of the fact that torture-in-fact was implemented in its name) is basically bracket the term “torture” and completely set aside the substance of what the torture prohibition means. From my perspective, talking about “no torture ever” at the same time as talking about “a theoretical interrogator, who wanted to be as aggressive as was legally permissible without actually crossing the line into illegal conduct” (if we want such interrogators) similarly brackets, not quite so completely, but still critically if we want some aggressive interrogation, the tough substantive issue of what the torture prohibition means.

        Now, it helps to clarify that “no torture, ever” means “not torture as defined under 18 U.S.C. § 2340, ever.” But it only helps so much. That’s (a) a U.S.-centric definition, which is fine, it doesn’t mean it won’t do the job, but we could have lived in a worse system that got that definition horribly wrong, but (b) if you look at it, in fact the reality is that it, too will need fleshing out in practice. To me, simplifying the necessary fleshing out with an absolutist “no torture, ever” doesn’t really advance anything, because there is already a nominal consensus on that point: there was among the people who instituted the the torture regime. It’s basically a superfluous statement.

        In a world where we know we will be tempted to torture (maybe not any more because of the degree of the horror, but I submit if it had been kept to face-slaps and threatening people’s mom’s we wouldn’t have such clarity now and would be much more likely to a) still be doing it, or b) resume when real threats re-emerge), to me the better thing s to move toward greater specificity, not greater vagueness.

        “No torture, ever” is vaguer on the question of what is actually proscribed than is 18 U.S.C. § 2340, and 18 U.S.C. § 2340 in turn could be made even more specific (not necessarily in the statutory language, though it could, but in the development of practical guidelines). “No torture ever” is glib and dismissive of the obvious problem of edge cases, and the even more obvious problem of just identifying what is best practice under high-stakes interrogation practice. It talks down to everyone who spends a minute thinking about any of this, and it’s just a restatement of a categorical but vague consensus about whether “torture” is consistent with our values. It’s not the conversation-ender Burt suggests it is.

        If Burt needs to keep saying it to reassure himself of his own position, though, that’s fair enough.

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        • I think it’s a good point, , to say that “No torture, ever” is already in the law, since torture is defined as a crime. I think it would be nice to hear our leaders affirm this directly and forcefully. I think if our leaders didn’t waffle with weasel words like “enhanced interrogation technique” even if the product is a little too glib and pat for your preference, we’d have seen a very different sort of conversation happening eight years ago when all of this torturing started to go down, and we’d not have seen nearly so awful a report yesterday.

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      • I appreciate Burt’s much more involved explanation of his views at 1:25.

        I guess my issue is just that, in a discussion like this, if your catch phrase is “No torture ever,” but in fact that means, “No torture ever and what we’re going to do is sit around the table on a real-time basis deciding what is and isn’t torture as things come up,” then the reality of that latter position belies the glibness and presented simplicity of the catch phrase. Basically, it’s talking down to people trying to puzzle through the substance of what you yourself say will have to be puzzled through. And it’s something there’s broad agreement about. I just wasn’t sure what the point of it really was,, but now knowing that there’s an Anti-Torture chamber (Guess what? activist will eventually turn that back into a rhetorical torture chamber through hostile interpretation of what were truly meant to be good-faith determinations of what is and isn;’t torture, but leave that for another day…) that’s sitting in the background doing all the parsing of that statement, unmentioned, now it makes a lot more sense. But to me, that’s a different statement from “No torture, ever (and that’s it).”

        The other thing I’d say is that the evidence suggests that this may be optimistic:

        But if your President has told you, “No torture, ever,” then when someone suggests, “Hey, let’s interrogate this guy for seventy-two hours straight,” someone else is going to say, “But the President said ‘no torture.’ Is this torture?” and then you’re going to have the discussion and the goal of the discussion will be not torturing the prisoner. It will become substantially more likely that the outcome will be “not torture” than “torture” and if it turns out it is “torture” but no one could have known that beforehand, then you invoke qualified immunity and future interrogators get to learn from the example and not do what you did.

        To say again, by my reading the president who in fact authorized torture had a nominal policy of no torture. The people who wrote legal memos in fact authorizing torture did not write memos arguing per se that torture would be legal. They said that torute is legal illegal, but here’s what isn’t torture. Are we saying that if the president had used the word “ever,” then the dynamic inside his administration on torture would have been different? If he’d said it once more, with conviction?

        Or would it have been different if he had said, “We’re not going to anything that is at all like torture,” and then when the security services came back with, “Well, don’t you want us to be aggressive at all?”, and he said, “Well, yes,” and they said, “Well what do you want us to do, exactly?”, if he had said, “Tell me every specific kind of thing you can do, and I will get to work telling you exactly what it is on the list I want you to do and what you may not do,” and then in fact crossed off everything that is torture (according to a team of legal advisors you have not instructed to tell you anything but at they truly think the law says on the subject), is THAT when it would have been different?

        The research on what might have been done for EITs was available. The president could have demanded to see a list of precise techniques proposed and specifically disallowed them one-by-one. Instead, he said, “No torture; keep us apprised; we’ll let you know if you’re going too far.”

        I’m not sure that “No torture ever” plus discretion plus reviews of edge cases brought back by practitioners with doubts (Who also face an imperative for successfully extracting usable information) really gets us where we need to be. My view is the the up front focus should be on substantive approvals and disallowances, not a general but vague decree of principle and law on which there is pre-existing nominal consensus.

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    • Can the president pro-actively commute instead of pardon? Say that all involved in the torture will, if convicted, have their sentences commuted to one year in prison (or less, if the actual sentence is less) and some way to pay toward restitution to the victims. That let’s the torturers off the hook, but not completely.

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    • Well, as much as I’d like trials, I’d settle for the CIA policing itself.
      We do know exactly how accident-prone former spys are, don’t we?

      I hope every single one of these fools gets run over by a beer truck (without license plates) on a college campus. [I’m not making this “accident” up, in case it’s not clear. Bonus points if you get the reference.]

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    • Yep, Burt’s backpedaling so furiously he’s going to fall ass over tip if he doesn’t slow down.

      I think he is, a bit. His whole shtick is “No torture, ever, it’s that simple.” To be clear, I’ve never been arguing against the substance of “no torture, ever.” I’ve been arguing for its substantive insufficiency. The whole time I’ve explicitly been asking for a functional definition, explicitly offering the option to make clear that the legal definition is the same as his. He declined *until* I hit him with “get it through your head, you’re not actually being clear about anything with that. (After all we already know that torture per se is illegal, and that those who authorized torture in their minds had a policy of no torture.)”

      Thanks, but I can’t claim to be on the side of the angels. After 9/11 my position was that of course interrogators would be, to use an odd phrase, “mildly harsh.” Back-of-the-hand slapping, even threats (never to be carried out, of course) against family members. In no way would I have considered any of that torture. I further would have considered the use of torture in a true ticking-bomb scenario potentially justifiable, even though it should remain illegal and prosecutable. In my defense, I was 23-24 years old and had no idea what the law was. (Not much of a defense, but a lot of people a lot older and more educated than I had worse views.) I’ve completely turned around on all that, in particular on TTB scenarios, as the problems of factual confirmation of the relevant questions in any real situation defeat the possibility of justification for torture. But I admit that I sometimes still struggle with the line-drawing, and don’t have a sense that it’s obvious why existing law is the obvious ethical guide for what would and shouldn’t be considered torture. Clearly, that law could be wrong, or it could have come to be that we ended up in a country where torture is not formally illegal under domestic law, leaving much vaguer international standards, etc. Even beyond that, I admit I struggle with the idea that a back-of-the-hand slap is torture, not that it matters a lot for these purposes, as what is a slap going to get you, anyway?

      That’s why I asked Burt about even heading down the road of aggression, or “being aggressive.” I don’t know that I disagree with that if you’ve even moved toward considering “being aggressive,” perhaps you’ve moved too far. I wish might have noticed that I asked that question as true question, and didn’t remotely suggest that my own position (now) isn’t what hers is. It;s just that one comes with some actual personal wresting with the issue.

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      • I think I was really offended by the sarcastic quip Hanley pointed out; and less than charitable. I hope you’re charitable in hearing that I’m not condemning you; but the notion that a not-torture vs. torture line is hard to define.

        In 2000, I wrote for the local paper. After 9/11, I started getting calls from people frightened of this or that, and wanting me to investigate, as if I was some fearless warrior. I found this endlessly amusing, but it was frequent enough that I sought out advice from the man in the State Police force charged with local security; and I wrote several pieces about fear, actually witnessing something to report, and how to report. For over a year, I fielded those phone calls from people sure they were witnessing a terrorist at work; usually someone who looked Arabic just going about his or her business.

        So first off, much of this is driven by ignorance of other cultures and racism. At the time, it was overt racism, too. But when you get fifteen or twenty phone calls because a Sikh came to town and stayed at a local inn, it becomes more and more obvious that fear is irrational.

        I’ve never had to interrogate a terrorist. But I have had to interview people who’ve done shitty stuff, and I have a pretty good understanding of what works to build sympathy and what doesn’t. That the CIA had to go outside it’s ranks of professionals to find people lacking that knowledge is, to me, the most telling. They knew what torture was, and the sought out people who were willing to ignore or did not know that because they were afraid.

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    • I believe trials are necessary in order to make it clear that torture is a crime, not a policy difference. As long as there are no charges brought against people for using torture, as long as it’s consequence-free, as long as it’s just another political argument, the Republicans have a lot more space to just bring back torture in their next administration.

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  6. Reagan, according to Sully, had a signing statement on the Geneva Convention accord he signed:

    “The United States participated actively and effectively in the negotiation of [this] Convention. It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.

    The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called ‘universal jurisdiction.’ Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution,” – Ronald Reagan’s signing statement on the ratification of the UN Convention on Torture.

    So these actions were a violation of both US and international law; and by Reagan’s understanding, should be prosecuted or extradited. The Yew memo would, obviously, be allowed a a defense; but I don’t think it removes the obligation to prosecute known violations, documented torture, that happened. Let the courts decide; defaulting to Yew instead of prosecuting was (and remains) a disturbing executive power grab. Remember the good ol’ unitary executive?

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    • Sully did yeoman’s work reading all that disgusting sh**. I particularly liked two things he said. One, that when the congressional committee investigation all this nastiness asked the WH for 9400 pages of CIA documents, he (the WH anyway) not only didn’t comply, they didn’t even respond to the request. So much for transparency…

      The other thing he said that struck me began with what you mentioned here: that under international law, Obama is obligated to prosecute torturers. (This. Will. Not. Happen.) It’s what follows from that I found compelling:

      If the Obama administration refuses to bring these war criminals to justice, it will effectively render moot any international efforts to curtail torture anywhere in the world. It will be arguing that crimes as grave as these need have no legal consequences. That, simply speaking, ends the United States’ participation in the civilized world, and removes any standing for us to criticize any foul despot anywhere who uses torture techniques as hideous as the ones we are now reading about.

      Is that the legacy Obama wants?

      That statement may be a bit hyperbolic, but the point stands. Obama’s failure to prosecute will have some pretty serious implications around the world and for him personally.

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      • Those interested can read Sully and his staff’s granular examination of the report here. I agree that some of the remarks seem to be hyperventilation, but hey, Sully does that. Along the way, there are some good points — like the apparent compulsion by the Geneva convention to prosecute people involved in the torture campaign.

        I don’t want to think about whose heads are actually up for rolling at the moment. It’s a bit late for me and I ought to be working on day job stuff at the moment. Perhaps tomorrow I’ll have a chance to be more clear-headed about it all.

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      • If the international conventions the U.S. has signed compel prosecution and prosecutions will. not. happen., doesn’t it explain why this White House has slow-walked this investigation?

        The previous administration and a Congress that predates his time there have left a flaming paper bag of excrement at the front door of the WH and Obama now gets to be the one who to go stomp it out. No matter how he handles it, he ends up covered in sh*t.

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      • ,

        Yeah, I think that’s right as an account of why Obama has been acting as he apparently has. I was just highlighting that the politics of all this look really bad for Obama and the US down the road. And by “politics” I don’t mean “getting votes on election day”.

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      • No matter how he handles it, he ends up covered in sh*t.

        True, but there’s politics of the moment shit and there’s legacy shit. It’s not clear to me what a lame duck president facing a hostile Congress gains from worrying about politics of the moment shit. This is the time when Obama really ought to be thinking about his legacy shit.

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      • I agree, , and I’m ever so hopeful Obama choses legacy (his and the country’s) over the concerns of the moment. But, when considering the magnitude of the storm that would come if Cheney, or even Hayden, were fully prosecuted, I have to say the “moment” in the “politics of the moment” is going to be a long and enduring time – well past the end of Obama’s term, if the opposing party’s animus toward any Democratic president and the CIA’s contempt for any oversight is any indication.

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  7. It seems a good bit of the discussion (from the right) is just claiming that the end justified the means, which of course is a very old argument. The report suggests that the end did not justify the means because the desired end was not reached.

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  8. Few disjointed comments:

    I’m glad this report came out, although it’s a bit too little too late. Of note was Sen Wyden on NPR last night refusing to even discuss prosecutions, even when pushed. He kept weaseling around it to talk about how the american public can now have a “debate” about this. Right. Disappointing. I had expected better of him.

    Sadly Feinstein’s role in all this wasn’t investigated. She’s been a big support of the intelligence agencies. I expect this report will make a splash and then she’ll go back to supporting them full stop.

    I used to have conversations with a guy who said, and believed, that “it’s not torture when we do it.”. That’s the level of critical and moral thinking we’ve got in this country.

    There will be no prosecutions. The higher ups knew what was going on. Maybe not in full details, but enough to be complicit. Plausible deniability don’t cut it when you attorney details out what you can do and it’s not “torture”. They just didn’t want to know. You think abu graib was done by a bunch of lowly privates working without orders?

    To the folks (and cia) who said that torture has yielded actionable effectively timely intelligence, I say, document and prove it. Oh but it’s “classified” so we can’t show you. Right.

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      • It’s something about how he doesn’t answer questions. Obviously all politicians do this, but most have a way of subtly emphasizing the shift from the point of emphasis of the question to the one the pol wants to emphasize, that amounts to a kind of acknowledgement that they know we know they’re not answering. Wyden has this way of acting like the actual question that was asked was the one he actually is answering, as if we can’t tell. And then, often, he’s saying nothing, answering no question of any conceivable importance. He’s very, sorry, lawyerly.

        It’s much more important that the way he does his work in the Senate when not being interviewed is impressive. It’s just a talking thing.

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  9. If the CIA took my son who was currently innocent of anything and took him to a different country and tortured him for months, my idea of justice would not be so paltry as to be satisfied by the release of this report.

    There’s a cover on top of that pit. It’s not a good place, down there.

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    • I have to say I am particularly horrified by the uses of “Rectal Feeding” aka rape as a tool of behavior modification.

      That is just so plainly evil that I get even more depressed by the people defending this stuff.

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