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On Being A Government DJ, Or, “Torture? You Call That Torture?” October 25, 2009

It’s become more or less common knowledge that US forces have been using music as an operational tool for some time now, and I’ve begun seeing lists of the songs that are being used either to inflict pain, to demoralize, or to just generally disorient various people in various sorts of situations.

There are others, wiser than I, who will opine as to the questions of efficacy and the moral issues surrounding these kinds of operations; I will opine, instead, as to the quality of the songs used.

Frankly, had anyone asked, I could have put the torturers onto much better musical choices, just by selecting from my own “My Music” folder–which left me thinking: “hey, it’s the weekend…why not do exactly that?”

Got any psychological warfare mission planned for the weekend? Expecting to have to direct amplified sound at an angry mob in a defensive maneuver Saturday night? Planning a Halloween haunted house that goes a bit…fuurther?

Come along with me then, soldier, and I’ll provide you a playlist that should do the trick in almost any foreseeable emergency.

vistrola.jpg

Before we go any further, a word of warning: some of the links in this story will lead to material that is extraordinarily offensive and, in some cases, exceptionally distressing in nature.

If you are reading this, and you’re, say, eleven years old, go get your parents and make them read this with you so that they can also learn about some sweet death metal; later on you can all listen to better music in the car on family outings.

What’s On Guantanamo’s iPod?

So the obvious first question: what songs are the government using?

If the lists that I’ve been seeing can be believed, there is a fair collection of songs being used to create “environmental manipulation“, including songs like Eminem’s “White America” and Kim, the obvious choices like Born in the USA, songs from the super-patriotic county song genre like that “boot in your ass” song, sexually suggestive songs like Christina Aguilera’s Dirrty (which has a waaaay dirtier video than lyrics…), and a heavy diet of heavy metal. (According to Justine Sharrock’s reporting at Mother Jones, MPs on duty in the detention facilities would often be making the choices about what detainees would hear.)

“The healthy man does not torture others — generally it is the tortured who turn into torturers.”

Carl Jung

The odd thing about the metal: most of the songs seem to be far more tame than what they could have found–and a lot of the songs are actually among my “Rocktober” favorites…although at least one song was new to me, and I liked it, too.

Examples included Nine Inch Nail’s March of the Pigs, AC~DC’s Hell’s Bells, Drowning Pool’s Bodies, Mettalica’s Enter Sandman, and a song by Deicide that I had never heard before…but, to borrow from “American Bandstand”, it had a great death metal beat and you could mosh to it.

Now if it had been me in there, I would have suggested, for starters, some good old New Orleans Goatwhore, like Alchemy of the Black Sun Cult, or maybe some delightful Cannibal Corpse (Barbaric Bludgeonings being a good place to start), or perhaps something that draws from Phil Spector’s “Wall of Sound” concept, like Upper Decker, by The Red Chord.

One of my friends suggested I consider a Norwegian Black Metal band (which is a good choice due to the Satanic messages that are literally at the core of the music); and you can’t go wrong with either Gorgoroth’s most excellent Carving a Giant or a selection from Emperor’s The Nightside Eclipse (which should also be mandatory for any haunted house soundtrack anywhere).

Did You Say Sex?

Songs with gay-oriented themes work in both PsyOps and “friendly” haunted house environments; my suggestions would include two long-time favorites: The Mike Flowers Pops’ rendition of Don’t Cry for Me Argentina (which actually manages to be amazingly perky, unabashedly “pop”, samples “The Macarena”, and, despite all that, doesn’t suck), or, when you’re ready for the big guns, the Keta-Men’s super-masculine, give-it-a-beat, four-part-harmony reworking of Sheryl Crow’s Strong Enough; which should be effective, as I said, for any PsyOps you may have planned–or any friendly haunting.

As for other songs with a sexual connection: well, you could do a lot better than Christina Aguilera. How about, just to get things rolling, 20 Fingers and Gilette’s Short Dick Man …and then, after midnight, you gotta dig up the impotent sea snakes’ Kangaroos (Up the Butt) (which is, indeed, about an Australian lifestyle choice gone horribly, horribly, wrong).

maxell.jpg

Apparently songs like “Wind Beneath My Wings”, “Mandy”, Air Supply’s Lost in Love, the entire Celine Dion catalog, and Morris Albert’s unforgettable Feelings (unforgettable? After you hear it, you wish you could forget it…) did not make the list (although the public record is incomplete, and that may yet prove to be incorrect). The “Saturday Night Fever” soundtrack apparently did make the cut, which confirms some theories I’ve had about the Brothers Gibb and torture that date back to the 1970s…but that’s a subject for another day.

It also appears that no one went for the industrial/dance bands, and as far as I’m concerned, no serious haunted house (or PsyOps mission) is complete until the Negativland comes out to play–but there’s a lot of other top-quality disorienting and jarring music available, including music from :wumpscut: and ohGr and Einstürzende Neubauten…or even Twink’s Pussy Cat.

Finally, a few words about what might be the cruelest songs to make it on the list.

The theme from the Meow Mix commercials made the list.

The Sesame Street theme song made the list.

And, finally, in what might be the most barbaric act ever perpetrated by the American Government…Barney the purple dinosaur’s I Love You, a song you always said was torture to have to listen to, has now actually been used to soften up detainees for interrogation at Guantanamo Bay.

Amazingly, the song that might be the worst ever to have deployed against you in any PsyOps operation–or any haunted house, for that matter–is not on any list I’ve seen so far: the theme from the Disney ride “It’s a Small World“. I can testify to this personally: as a kid at Disneyland I was stuck on the ride, one summer day, for about an hour-and-a-half.

All I can say…is that it changes you.

Check out the link. It’s almost 11 minutes long, and I challenge you to sit through the whole thing. If you do make it, I challenge you to get that song out of your head…ever…again. Good luck.

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On Torture And War Crimes, Part Two, Or, Dr. Addicott And I Find Common Ground May 30, 2009

When last we met, Gentle Reader, it was to work through a series of legal precedents and statute law; the goal of the exercise being to determine if we could or could not define waterboarding as torture.

We have the kind assistance of Professor Jeffrey Addicott, who has provided us with his written testimony from his recent appearance before the Senate Judiciary Committee and a personal interview, where he walked me through some of his thinking on the matter.

Today we’re going to take a look at the precedent that he has used to reach the conclusion that waterboarding is not torture.

It’s also possible that the analysis may result in the discovery of a bit of common ground…but as I noted in Part One, it’s common ground that neither one of us might have seen coming.

To begin, a quick review from yesterday:

Dr. Addicott wants you to know that waterboarding is not torture.

He relies on the argument that since the “Five Techniques” (“Wall-standing”, “Hooding”, the application of excessive noise, sleep deprivation, and the withholding of food and water) used on Irish prisoners by the United Kingdom were found not to be torture by the European Court of Human Rights, and waterboarding is not worse than the five techniques, it logically follows that waterboarding is not torture.

Although waterboarding might be cruel, inhuman, and degrading, Dr. Addicott would remind you that legally, torture requires severe physical pain over an extended, but unspecified, period of time.

He also notes a lack of lack of legal precedent specifically defining waterboarding as torture in either US or international courts.

I asked Dr. Addicott why 18 USC § 2340 (which defines torture, in part, as “…an act…specifically intended to inflict severe physical or mental pain or suffering” and defines “severe mental pain”, in part, as “the threat of imminent death…”) wouldn’t be the definition of torture that should apply.

His basic responses were that the alleged acts took place overseas to non-US citizens, therefore there is a jurisdictional issue; and that a lack of specificity in the statute males it unclear whether waterboarding would be torture.

Here’s how he expressed it to me:

“Those are words, those are descriptive words…that only find meaning when we have a court define what that means; that’s the whole problem with our Anglo-Saxon tradition, is that you have words that are put out in statute but what, you know, what does “severe” mean, what does “prolonged” mean, is it five minutes, is it 10 minutes…is it four drops to the head, is it three drops of water on your head, what does it mean?”

He also wants you to know that we do the same thing to our own military personnel who undergo “Survival, Evasion, Resistance and Escape” (SERE) training, which indicates the procedure isn’t torture.

He also tells us in his written testimony that the “shock the conscience” standard should apply to define torture.

Additionally, he cites Blefare v United States (362 F.2d 870) and Leon v. Wainwright (734 F.2d 770) to suggest that coercive interrogation is already permitted under US law.

With the catch-up complete, let’s have a look at Dr. Addicott’s assertions.

Right off the bat, Dr Addicott does correctly assert that…

“…the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.

168. The Court concludes that recourse to the five techniques amounted to a practice of inhuman and degrading treatment, which practice was in breach of Article 3 (art. 3)”.

…in the opinion of the European Court of Human Rights.

However, there is precedent that declares waterboarding is torture, as another international tribunal saw things a bit differently.

You undoubtedly are aware of the Nuremberg Trials, which addressed the conduct of officials of Nazi Germany at the end of World War II. A similar process took place to bring Japanese officials to account, the International Military Tribunal for the Far East. Here’s what they had to say about waterboarding:

“Torture and Other Inhumane Treatment

The practice of torturing prisoners of war and civilian internees prevailed at practically all places occupied by Japanese troops, both in the occupied territories and in Japan. The Japanese indulged in this practice during the entire period of the Pacific War. Methods of torture were employed in all areas so uniformly as to indicate policy both in training and execution. Among these tortures were the water treatment [euphemism for waterboarding], burning, electric shocks, the knee spread, [page number removed] suspension, kneeling on sharp instruments and flogging.

The Japanese Military Police, the Kempetai, was most active in inflicting these tortures. Other Army and Navy units, however, used the same methods as the Kempetai. Camp guards also employed similar methods. Local police forces organized by the Kempetai in the occupied territories also applied the same methods of torture.”

Dr. Addicott feels that 18 USC § 2340 doesn’t apply because the acts took place outside the US to non-US citizens…but the statute tells us jurisdiction applies if “the alleged offender is a national of the United States”.

Conspiracy to torture is also a crime, meaning that those who ordered this behavior would also face potential legal liability, even if the person doing the torturing is not a US citizen.

So what about the argument that SERE trainees are subjected to the same treatment?

The difference, I suggest, is that there is no threat of imminent death when a trainee is waterboarded, which is what 18 USC § 2340 requires.

Can waterboarding actually carry the threat of imminent death?

I know someone who can tell us.

Dr. Allen Keller, MD is an Associate Professor at New York University and the founder and Director of the Bellevue/NYU Program for Survivors of Torture, which has provided care for more than 2000 torture survivors. He’s also a member of the Advisory Council of Physicians for Human Rights.

He offered this assessment in testimony before the Senate Select Committee on Intelligence

“Water-boarding or mock drowning, where a prisoner is bound to an inclined board and water is poured over their face, inducing a terrifying fear of drowning clearly can result in immediate and long-term health consequences. As the prisoner gags and chokes, the terror of imminent death is pervasive, with all of the physiologic and psychological responses expected, including an intense stress response, manifested by tachycardia, rapid heart beat and gasping for breath. There is a real risk of death from actually drowning or suffering a heart attack or damage to the lungs from inhalation of water. Long term effects include panic attacks, depression and PTSD. I remind you of the patient I described earlier who would panic and gasp for breath whenever it rained even years after his abuse.”

Dr. Addicott also relies on court rulings to demonstrate that coercive methods of obtaining evidence are permissible under US law.

He points two cases for guidance. In the first, Blefare v United States (362 F.2d 870), he tells us (in written testimony) that:

“the appellants were suspected of swallowing narcotics which were lodged in their rectums or stomachs…Then, without Blefare’s consent the doctor forcefully passed a soft tube into the “nose, down the throat and into the stomach,” through which fluid flowed in order to induce vomiting. This resulted in the discovery of packets of heroin and the subsequent conviction of Blefare.

Unlike Rochin [Rochin v. California, (342 U. S. 165)], the Ninth Circuit refused to hold that the involuntary intrusion into Blefare’s stomach shocked the conscience.

While all that is true, it’s also irrelevant to the facts of the case as it appears in the record.

First, the Ninth Circuit had no reason to reach a conclusion about whether evidence was obtained from Blefare in a manner that “shocked the conscience” because the evidence that the appeal was trying to suppress did not belong to Blefare, but to his co-defendant, Donald Michel (who had voluntarily consented to the intubation that led to the recovery of the challenged evidence).

The second reason the challenged evidence was not suppressed had to do with the fact that the searches of Blefare and Michel were held to be “border searches”.

This, from Blefare:

“No question of whether there is probable cause for a search exists when the search is incidental to the crossing of an international border, for there is reason and probable cause to search every person entering the United States from a foreign country, by reason of such entry alone. That the customs authorities do not search every person crossing the border does not mean they have waived their right to do so, when they see fit…Mere suspicion has been held enough cause for a search at the border.”

Dr. Addicott also misstates the effect of Leon v. Wainwright (734 F.2d 770).

From his written testimony:

“For instance, in Leon v. Wainwright the Eleventh Circuit brushed aside the fact that police officers had used “force and threats” on kidnap suspect Jean Leon in order to get the suspect to reveal the location of his victim. When apprehended by a group of police officers in a Florida parking lot, Leon refused to reveal the location of his kidnap victim (the victim, Louis Gachelin, had been taken by gunpoint to an apartment where he was undressed and bound). In order to get the suspect to talk, police officers then physically abused Leon by twisting his arm and choking him until he revealed where the kidnap victim was being held. In speaking to the use of brutal force to get the information needed to protect the victim, the Court deemed that the action of the officers was reasonable given the immediate concern to find the victim and save his life.”

It is inaccurate to say the Court “brushed aside” the use of force and threats.

What actually happened was that the defendant confessed twice—and it was that second confession that was being challenged.

The first confession…the one taken by force…was not admitted into evidence; therefore its admissibility–and by extension, the means by which it was obtained–was not an issue to be considered by the appeals court.

This, from the ruling in Leon v Wainwright:

“Meanwhile, Leon was taken to the police station. He was questioned there by detectives who had neither been involved in the threats and use of force at the scene of his arrest nor witnessed it. After being thoroughly informed of his rights and signing a Miranda waiver form, he gave full oral and written confessions of the crime. This entire process was concluded about five hours after his arrest…

…The totality of the circumstances in this case clearly confirms the finding that the second statement was voluntary.[4] The police, motivated by the immediate necessity of finding the victim and saving his life, used force and threats on Leon in the parking lot.[5] Hours later, Leon was questioned at the police station by a completely different group of police officers. These officers were not even participants in the surveillance team at the parking lot. Prior to questioning him the officers meticulously explained to him his constitutional rights. He specifically waived his right to have counsel present. The necessity of saving the victim’s life, the different physical setting, the different group of questioning officers, and the meticulous explanation to appellant of his constitutional rights constituted a sufficient break in the stream of events to dissipate the effects of the first coercion. The challenged confession was properly admitted into evidence.”

There is a question of what to do if it is suspected that torture has been committed. Here is a portion of Dr. Addicott’s comment on the matter, from his written testimony.

“…those who order, approve, or engage in torture must be criminally charged. If the United States determines that waterboarding as practiced by the CIA is torture, there is no option. Under the Torture Convention violators must be prosecuted. Similarly, lawyers at the Department of Justice who approved the practice must also be prosecuted… In short, in my legal opinion, the subject waterboarding technique used on the al-Qa’eda operatives did not constitute torture and requires no binding obligation to prosecute.”

With all respect to the Professor, this looks like circular logic. To “determine” that torture occurred requires a trial, as Dr. Addicott has previously noted, yet he says here there’s no need for a trial because, by his determination, no torture occurred.

It also appears that his analysis on this point is factually inaccurate, in that there is no obligation to prosecute under either the Geneva Conventions or the Torture Convention. Here are the pertinent texts:

“Article 12

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee [sic] in any territory under its jurisdiction.”

UN Convention Against Torture

“Article 129

The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.”

Geneva Convention relative to the Treatment of Prisoners of War

The phrase “bring such persons…before its own courts” will be a subject of controversy, so let me clear it up now. In Europe, the “court” process involves the use of “investigating magistrates” who would decide if this sort of case should or should not be brought to trial; a function that, in the US, would be handled by a Special Prosecutor or the FBI and the appropriate US Attorney, possibly through the federal grand jury process.

As you can see, there is an obligation to investigate people suspected of torture…but no mandate to prosecute every suspected offense…which means, just like in a RICO case, you can round up the lower-level “actors”, convince them to “flip” on the other co-conspirators up the chain in exchange for immunity…and then you prosecute the ringleaders.

We have spent some considerable time addressing the questions around what is and what is not torture…but now we get to an issue that makes the “torture question” irrelevant.

Remember way back in Part One when I asked you to keep that “cruel and inhuman treatment” phrase in the back of your mind?

And remember the European Court of Human Rights ruling that called the “Five Techniques” cruel and inhuman?

Well, guess what?

If a prosecutor can demonstrate that waterboarding is not torture, but merely “cruel or inhuman” (a standard that only requires “serious” mental or physical pain, not the “severe” standard required for torture)…that’s a “war crime”, as defined by the War Crimes Act of 1996 (18 USC § 2441(d)(1)(B)).

And those who commit a war crime, it turns out:

“…shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.”

And that’s where we get to the point that Dr. Addicott and I finally reach some common ground:

Maybe torture prosecutions are bad policy.

Especially when it’s easier to prove a war crime than it is to prove torture.

Once again, we have come a long way to get here, but let’s review it all before we finish:

Dr. Addicott and I differ on where we should look for a definition of torture.

Despite the language of 18 USC § 2340, he does not feel there’s jurisdiction to prosecute under the US Code.

He does not feel waterboarding is torture, but he acknowledges that the “Five Techniques” are “cruel and inhuman”.

There is precedent in international law to draw the conclusion that waterboarding is torture which Dr. Addicott did not note in his written testimony.

Because waterboarding does create the threat of imminent death and does cause severe and long-lasting mental problems, I feel it is also torture as defined by US law.

Dr. Addicott proffers legal precedent to support his position that the use of coercive techniques does not violate US law…but when you actually examine the texts of the rulings he cites, it appears that he either misunderstands the rulings or misstates their application to this question.

He also testifies inaccurately when he asserts that all cases “determined” to be torture must be prosecuted…firstly, because of the circular logic of “determined”, and secondly, because the two pertinent texts simply don’t read the way his testimony reports they read.

But all that said, it turns out that even if waterboarding is somehow not torture…that it does not cause “severe physical or mental pain or suffering”…it appears highly likely that the technique causes “serious physical or mental pain or suffering”…which, mirabile dictu, is the legal standard for proving a war crime.

Which leads us to the one point upon which we both agree: there should be prosecutions.

Prosecute under 18 USC § 2441 or treat it like any other “organized crime” case: start inviting “parties of interest” to flip on their co-conspirators, immunize the cooperative…and if a judge and jury decides it’s the right choice, people are going to have to go to prison.

So there you go: we started out questioning how torture is defined, and we ended up at a place where, because of the War Crimes Act, that definition become less relevant, a bit of common ground might have been found, and in the search for that common ground we’ve discovered a better way to ensure that justice can be done.

AUTHOR’S NOTE: I want to offer a hearty “thank you” to Dr. Addicott for taking the time to talk to me for this story. If we wish to do serious journalism, interviewing the people in the news is critical, and I very much appreciate his willingness to make himself available during the production of this pair of stories.

WARNING—Self-promotion ahead: I am competing for a Netroots Nation scholarship, and I was not selected in the first round of voting. There are two more chances to be selected, and the voting has restarted from scratch…so even if you’ve done so before, I still have to ask you to stop by the Democracy for America site and click on the “Add your support” link to offer your support for me again. Thanks for your patience, and we now return you to your regular programming.

 

On Torture And War Crimes, Part One, Or, I Interview Dr. Addicott May 29, 2009

I can’t tell you the number of times I began a story with a plan for where it would go, only to discover that the plan isn’t going to work.

The stories sometimes seem to write themselves…but other times, the research seems to do the writing instead; this being one of those times.

When the production of this story began it was with the intention of trying to explain what should be the “controlling authority” in terms of defining torture, a precedent set by the European Court of Human Rights, or Title 18 of the United States Code.

Having reviewed both statute law and numerous judgments in law courts worldwide as well as the recent Senate Judiciary Committee testimony of Professor Jeffrey Addicott, and having conducted an interview with Dr. Addicott personally, I’ve come to two rather surprising conclusions:

It may not really matter whether waterboarding is torture…and although neither I nor Dr. Addicott might have seen it coming, it’s starting to appear that he and I might agree on one thing:

Waterboarding, whether it’s torture or not, is a war crime.

There’s a big backstory here, so off we go:

Everybody remember the Senate Judiciary Committee’s “Torture Hearings” back on May 13th…the one where the FBI interrogator testified from behind a “security screen”?

Excellent.

One of those giving testimony that day was Professor Addicott; he of the Center for Terrorism Law at St. Mary’s University in San Antonio, Texas. In his testimony Dr. Addicott suggested that the words waterboarding and torture are thrown around in each other’s company rather casually and without much in the way of law to guide those doing the throwing.

In both his written and oral testimony, he suggested the best guidance for answering the question of whether waterboarding is torture can be found in an examination of a 1978 ruling of the European Court of Human Rights, Ireland v. the United Kingdom.

Well, I read that ruling, and a wee bit of statute law…and I began to wonder if Dr. Addicott might have missed a thing or two.

18 USC § 2340 and 2340A are the sections of the United States Code that deal specifically with “Torture”. Torture is defined in the statute, and jurisdiction applies if…

(1) the alleged offender is a national of the United States; or

(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

(18 USC § 2340A(c) tells us that conspiring to commit torture is also a crime.)

Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

18 USC § 2340A(a)

I mentioned that torture is defined…and here is the part of that definition that we’ll be discussing:

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

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

(c) the threat of imminent death…

18 USC § 2340

The more I kept at it, the more I couldn’t shake the feeling that it made more sense that surely the United States Code should be the “controlling authority” on the question of what is or is not torture, not the ruling of a foreign court.

I sent an email to Dr. Addicott asking two questions:

–if he might be kind enough to explain why the US Code isn’t the final authority here, and if so,

–isn’t the fact that waterboarding is predicated on a threat of imminent death enough to make it torture, based on the definition laid out in 18 USC § 2340?

After a weekend of phone tag, Dr. Addicott was kind enough to explain to me some of his thinking on the matter. Some of that conversation will be repeated here, along with excerpts from the written testimony he provided the Senate Judiciary Committee.

(I’ll be “Q”, Dr. Addicott will be “A”.)

Q: “Why is the European Court of Human Rights ruling more dispositive, when you’re defining torture, than the US Code?”

A: “…basically, the individuals that we are alleged to have tortured, I use the word alleged because I don’t believe it amounts to torture…are not US citizens.”

He also noted that because the alleged torture took place outside the US, international law applies, specifically the United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Convention”).

Q: “OK, but when I’m looking at 18 US Code, 18 US Code says “whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned.” So wouldn’t that imply that Americans, wherever they are, would be covered under the statute?”

A: “It would be hard…Regarding the shocking the conscience standard in the latest case, which was Chavez v. Sanchez, [ actually Chavez v. Martinez, (538 U.S. 760) ] if you read that case, that court did not even look at…uh…US Code in deciding whether or not shock the conscience, so I think when you’re looking at an international sphere it’s better to look at the international cases in regards to torture, particularly when you have a case that defines…uh…interrogation…”

Further light is shed on the question by reading this portion of Dr. Addicott’s written testimony:

“In the Anglo-Saxon legal tradition, we generally look to authoritative judicial decisions to define key terms in treaty and legislation. Perhaps the leading international case in the realm of defining “severe pain or suffering” in the context of interrogation practices against suspected “terrorists” comes from the often cited European Court of Human Rights ruling, Ireland v. United Kingdom. By an overwhelming majority vote (16-1), the Ireland court found certain interrogation practices (called the “five techniques”) by English authorities to investigate suspected terrorism in Northern Ireland to be “inhuman and degrading,” i.e., ill-treatment, under the European Convention on Human Rights, but not severe enough to rise to the level of torture (13-4). According to the Court, the finding of ill-treatment rather than torture “derives principally from a difference in the intensity of the suffering inflicted.””

(That phrase “inhuman and degrading”? Keep it in mind, as it will figure prominently in Part Two.)

The “Five Techniques”?

Wall-standing”, “Hooding”, the application of excessive noise, sleep deprivation, and the withholding of food and water.

From Dr. Addicott’s written testimony:

“To the reasonable mind, considering the level of interrogation standards set out in the Ireland case, the conclusion is clear. Even the worst of the CIA techniques authorized by the Department of Justice legal memorandums – waterboarding – would not constitute torture (the CIA method of waterboarding appears similar to what we have done hundreds and hundreds of times to our own military special operations soldiers in military training courses on escape and survival).”

You may recall a reference to the “shock the conscience” standard. It’s pertinent here because of doctrine found in the May 2005 “Torture Memo” written by Steven Bradbury of the Office of Legal Counsel, quoted here:

“Given that the CIA interrogation program is carefully limited to further the Government’s paramount interest in protecting the Nation while avoiding unnecessary or serious harm, we conclude that the interrogation program cannot “be said to shock the contemporary c.onscience””

The standard came from Rochin v. California, (342 U. S. 165). Long story short, police officers forced capsules full of morphene from inside Rochin’s body after watching him swallow them. In overturning the conviction, the Supreme Court ruled:

“…that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience…They are methods too close to the rack and the screw to permit of constitutional differentiation.”

Dr. Addicott’s written testimony also notes that the circumstances of Blefare v United States (362 F.2d 870) are similar to Rochin and support his view that if forcing evidence from the body does not “shock the conscience” waterboarding must not, either.

Additionally, Dr. Addicott asks us to consider a case that originated in Florida, Leon v. Wainwright (734 F.2d 770), in which a suspected kidnapper was choked and otherwise physically abused to obtain the information needed to save the kidnap victim. Since the conviction was upheld, we can surmise that even coercive interrogations have a place in American law.

Finally, the written testimony tells us we should consider the degree of physical pain that is inflicted by the interrogation method in deciding what torture is and what it is not.

“Certainly the red thread in these definitions is a combination of two essential elements: (1) the infliction of severe physical pain to the body or mind used to; (2) punish or obtain information. International law adopts this formula but sharpens it by stipulating that a State actor must carry out the act of torture.”

Add it all up, Dr. Addicott would tell you, and waterboarding, which fulfilled a vital interest and doesn’t rise to the level of behavior in Rochin, is not torture.

Let’s stop for a moment and review where we’ve been:

Dr. Addicott tells us that waterboarding is not torture first because it’s being done outside the US to non-citizens, and secondly, because of that Ireland v United Kingdom ruling, among others, but I’m of the opinion that the US Code is the better place to look for a definition of torture.

If an interrogation method doesn’t involve enough physical pain, over some period of time, to “shock the conscience”, Dr. Addicott feels, it’s not torture.

And in his view, the fact that coercive methods are used to obtain evidence is not necessarily illegal under American law.

Once again, this has become one of those stories that will require us to take a pause and pick it up tomorrow…but when we do, we’ll take a second look at some of those court rulings, and we’ll see if there might be other precedent that matters—and then we’ll consider a section of the United States Code that might shed an entirely different light on the whole question of what whether the question “waterboarding: is it torture?” even makes much of a difference in obtaining convictions for this behavior.

There will be a lot more in Part Two, so come back tomorrow for the rest…of the story.

WARNING—Self-promotion ahead: I am competing for a Netroots Nation scholarship, and I was not selected in the first round of voting. There are two more chances to be selected, and the voting has restarted from scratch…so even if you’ve done so before, I still have to ask you to stop by the Democracy for America site and click on the “Add your support” link to offer your support for me again. Thanks for your patience, and we now return you to your regular programming.