A variety of outlets (here (FoxNews) and here (The Hill)) report on the POTUS’s decision to defer to SecDef Mattis on whether the US will use interrogation methods that some have argued constituted torture under international law. It is unclear if SecDef’s view, which is that the US should not use interrogation techniques such as waterbording because they do constitute torture, will be applied to DOD actions abroad or all US agency actions abroad. The Army Field Manual has always prohibited torture, including waterboarding, so DOD operations are clearly governed by SecDef’s view. But it is unclear if CIA covert actions would be bound by SecDef’s view. 

Thoughts on how US policy on torture has now been shaped by judge advocates?  Anyone ever advise then-General Mattis on this topic?

78 Responses to “POTUS Defers to SecDef on Definition of Torture”

  1. OPLAW JA says:

    DISCLAIMER: Although I do OPLAW, including detainee ops, the below comments are in my personal capacity and do not reflect the position of any DoD agency or component.
    The law on this is unique. The Detainee Treatment Act of 2005 references Army FM 2-22.  But, it does not specify a specific edition of the Manual, nor control how the manual is revised.  Thus, the Act is a bit illusory – it puts the control of what techniques are permitted in the hands of DoD, i.e., the Executive Branch, simply through revision of the manual.  Note that the Act covers only DoD.  All OGAs are outside its provisions, unless they are inside a DoD facility.  I have never had any actual knowledge about this, and am simply speculating, but it wouldn’t be hard to create a classified chapter to the manual which changed the rules under certain circumstances.  I think it unlikely that such a work-around would be done because of the political risks, but the possibility exists, and has long been a criticism of the Act.
    There is a “catch all” provision in 42 USC 2000dd, which prohibits “cruel, inhuman, or degrading” treatment to anyone under the control of or in the custody of the US Government.  That is a pretty vague standard, but is at least an “out” to address highly egregious treatment.  It does reference the UN Convention Against Torture, which has some more teeth in it.  The interplay between the two statutes is also undeveloped.  How any case would be brought under either statute is also a major question, considering this always happens in the shadows.
    Bottom line: Pointing to SECDEF as the decision maker is illusory.  He is bound by the Act just like the rest of us.  The true players here are the OGA’s, and that is beyond the scope of us as JAs.

  2. Mike "No Man" Navarre says:

    Thanks OPLAW JA. That background is very helpful for our readers. So is your read of the current administration policy that other agencies could come to other conclusions about treatment of detainees?

  3. Zachary D Spilman says:
  4. Concerned Defender says:

    I was also former OPLAW JAG on 4 OIF tours, under two POTUS.  This is not a legal issue.  Saying it’s a legal issue is an illusion.  The law can be changed, or re-interpreted.  It often is.  It’s a legal issue only so much as some lawyer and commander want to follow the current, arbitrary law, so they don’t appear on CNN and face termination and Court Martial.  The US can change the law, or participation, with a pen stroke. 
    This is purely an issue of optics and effectiveness.  Is there a single Soldier that would not commit horrible acts upon a known terrorist if it were guaranteed to prevent a 9/11/01 style attack tomorrow, with your family and your home town the target of a mushroom cloud?  I think the rhetorical answer is “no.”   Oddly, we waterboarded (which is training that many Service Members actually receive in advanced schooling, so I question whether it’s “torture.”  I digress) what, 3 people.  At least one of them gave us highly valuable intel that probably saved lives.  Perhaps the life of your wife, or infant baby, or mom and dad?  Nobody will know.  
    Therefore, this is a morality, ethics, effectiveness, and politics question. I tend to believe it is effective.  But I am comfortable deferring to the experts.  I am NOT comfortable deferring to the snowflakes of America in making this decision, and sadly they have at least in appearance put so much political pressure on America that it’s a hot potato issue.  Trump has deferred to Mattis’ view that it is not effective.  I’d suggest Mattis is perhaps more of an authority than anyone on this forum, and provided they are making the decision based on morality, ethics, and effectiveness, and NOT on politics, I’m comfortable where-ever the shoe falls.  

  5. Mike "No Man" Navarre says:

    So I question for those that say this is not a legal issue. His compliance with an international convention to which you are a signatory a legal issue or a policy issue?

  6. OPLAW JA says:

    It has always been the case, under at least the last two administrations (suggesting that party affiliation or ideology has little to do with it) that the OGAs play by their own rules, determined by their own commanders. DoD routinely trains that this issue (and UAS, to hit another hot button topic), have different rules for the OGAs than for DoD. I see no reason that this administration will be any different. I also feel comfortable saying that at least the first of Zack’s comments is dead on target. Whatever cheetah flips are done to make it legal I leave to the GCs in the OGAs. None of my business. 
    Howver, CD, I only partially agree. This is a legal issue, like so much of OPLAW, so long as leadership says it is a legal issue. Right now, for better or for worse, it is policy that DoD ‘follows the law”. I agree that the law is amorphous (see my original comment). But the idea that we, as the US military, follows the law, is paramount to our own definition of who we are and what we do. “I was just following orders” is no defense, as we all know. I think that’s where 42 USC 2000dd comes in. It sets the floor on what is acceptable conduct. We all know there has to be a line somewhere, else we repeat the mistakes of history. So, at least for DoD, these two statutes set a pretty realistic standard, at least from where I stand. 
    As for effectiveness, I am wholly unqualified to judge. I’ve seen the damndest things have incredible results, which I will not utter here, but let’s just say they were things completely commonplace to us. The decision on what is effective belongs to the people who advise POTUS and SECDEF. My job is simply to advise commanders as to what the law is and give my recommendation as to which COA to take. 

  7. Vulture says:

    “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”  Justice Potter Stewart.
    I’ve been through a near drowning that is equivalent to water boarding.  It is terrifying.  You barf on yourself.  Your laryngeal muscles spasm and block all air movement.  Then you heave to evacuate the blockage only to have more water start the process again.  The only thing you can do is wait for it to end before you black out.  All you gung ho guys that want to parade this crap as a end to justify the means, …
    I have it under reasonable authority that if you have nothing nice to say, then say nothing at all.

  8. Mike "No Man" Navarre says:

    Thanks OPLAW JA. So the question remains, what is the administration’s policy for agencies other than DOD. I don’t think we know.

  9. OPLAW JA says:

    And we likely never will.

  10. Widowmaker6 says:

    Vulture, that sounds like an awful experience, for sure, and I have sympathy for you and others who have gone through such a thing.  Of course, I take it as a given that you and others who have experienced near accidental drownings also don’t have a burning desire to cut my head off in a propaganda video.  So, the thought of all those murderous extremist Muslim terrorists choking, vomiting, spasming, etc. gives me zero pause whatsoever…fucking zero.

  11. Concerned Defender says:

    Thank you Widowmaker6.  
    I also struggle to have sympathy for Kalik Sheik Mohommad and his ilk for an uncomfortable experience given his direct and indirect responsibility for murders of untold thousands (10,000+) and injuries of tens of thousands of America civilians and service members – who burned to death, suffocated, drowned (in vehicle rollovers in canals), were shot, blown up, etc.  
    This issues is almost entirely political grandstanding.  Vulture’s experience sounds like an accidental near drowning – which happened to me as a kid too in a frozen river.  I’m all for waterboarding known terrorists for key intel, if it works.  I will follow the law but I don’t care whatsoever about the atmospherics.  IF it works it should be legal.   Snowflakes wanting to save lives might focus on the 50,000,000 aborted babies since R v. W if they’re interested in human rights (by comparison, it’s about to surpass all the deaths of WWII at 60 mil.).  That’s the biggest human rights violation in daily modern life. 

  12. Vulture says:

    Not accidental.  Parts of the planet scream for enough clean water to drink.  It is a sick, sick self ingratiation that we would use it to deprive some of oxygen. 

  13. jagaf (snowflake) says:

    “IF it works it should be legal.”
     That’s quite a statement from a lawyer isn’t it, CD? Particularly one who drones on about the injustice of this and that in other contexts. Get rid of those pesky rights to an attorney and silence and would we get to the truth more effectively? I mean, it probably would work so…
    Torture?…and I’m not just talking about waterboarding; let’s burn folks with hot irons and rip out fingernails, but only if it works. And while we’re at it, why are we even dealing with this backward part of the world when we have the technological means (N, B, C) to fix the problem once and for all in what one could call a, I don’t know, maybe “Final Solution?”
    But why am I fixated on little things like that anyway? Ensuring that every fertilized egg becomes a walking, talking human that you doubtlessly are more than happy to pay to provide with health care, education and other services is the more important discussion of the day.

  14. OPLAW JA says:

    It seems we have an intersection of three different issues here: law, policy, and ethics. I’ve seen this before, whether it be on ROE, proportionality, UAS, and dozens of other issues.
    My reply is the same: for law, see the JA.  For policy, refer to the chain of command, and ultimately, the appropriate Cabinet-level officer and POTUS.  For ethics, go see the Chaplain.  While as the JA, I find the ethical and policy questions interesting and of interest in my personal capacity, I do not, and cannot, allow non-legal ethics or policy to enter into my advice.  I am a JA, not a Zampolit or a priest.
    I think the legal questions here have been answered.  The rest is beyond my purview, so I bid all a good day.

  15. Lieber says:

    Except that Title 50 actions are subject to congressional oversight in a way that Title 10 actions are not (even though Title 50 actions aren’t under the SecDef). 
    As for CD and Widowmaker, we’re not on the same side.  My side is against torture (even of evil people), gratuitous murder and idealists who believe the end justify the means (whether they carry the black flag of ISIS or even an American flag).

  16. Widowmaker6 says:

    Lieber, you can set up that straw man all you want, but I said nothing of the sort.  Gratuitous murder?  Ends justifying the means (in all circumstances, I suppose you meant)?  Not hardly.  And never said such a thing.  Waterboarding is not torture, by the way.  And, your use of the term “idealist” is just flat out LOL-worthy.

  17. Concerned Defender says:

    Ah yes, the snowflakes and torture.  You want to talk slippery slope and torture?  
    Is it not torture to be put in a cell for 5, 10, 50, 100 years or life with no hope of getting out?  Is not the messing with the mind the most torturous thing imaginable?  Maybe a father losing custody of his children – is that “torture?”  Who decides what is torture, and where that philosophical line is drawn?  Would you push a button to end the life of 1 innocent random person, so that 5 billion can live, knowing that 5 billion will otherwise die?  Would that “end” justify the “means.”  I don’t know, this is a question for the snowflakes. 
    Those same snowflakes which claim moral superiority and, by the way, are usually politically liberal and will gleefully support a doctor reaching into a cervix and crushing the head of a 19 week old baby, generally for the mom’s convenience.  I could go on with examples, but we all know them. 
    On the topic of “torture,” let me know when people are being burned alive or having digits cut off.  In the meantime, advanced warfighting schools like SERE, SEAL training, and Divers school all put their students thru perceived drowning exercises to graduate. I guess we’re violating our own civil rights and need to prosecute all those involved.  And perhaps we should also define eating DFAC food as torture while we’re at it.  That lettuce was never very ripe and those frozen burgers were terrible. 

  18. stewie says:

    Gotta love CD’s flexible ethics.
    And no OPLAW JA, ethics is not a law-free, Chaplain-only purview.  What a perverse viewpoint that speaks to the worst stereotypes of attorneys.  The law and ethics are not wholly the same, but they most certainly are connected.   Torture is not some malum prohibitum offense that is just randomly a crime but ethically not problematic. It’s mal in se. So much so that it’s pretty much a universal conceit among most civilizations and cultures that torturing is wrong.
    And we’ve considered waterboarding torture going back to WWII when we prosecuted our own for doing it. Against the Japanese. Who did some pretty brutal things to a lot of people, as bad as anything terrorists have done in the modern era.
    And no CD, torture rarely works if at all, and you have no documented evidence that it’s led to actionable intelligence on any regular basis, nor do you have any evidence that we’ve only ever used it against guilty terrorists as opposed to innocent people.
    But hey, gotta break a few Muslim eggs right?
    Disgusting that folks sworn to uphold the Constitution are not universally in agreement on this.

  19. OPLAW JA says:

    I try very hard in legal discussions not to engage personally.  It clouds the legal issues and frequently does a disservice to my client.  I find the emotional arguments and personal attacks in this thread to demonstrate that relying on “what is right” or “malum in se” provides no standard at all and tacitly concedes the point that the law as written does not match the policy that some would like it to me, nor their ethics.  I sympathize.  I often have legal issues I must advise upon with which I do not agree personally, but I never allow myself to confuse what I believe with what the law says.  To subscribe to the contrary means that the law is completely malleable to whatever I, as the JA, want it to be today, based on my own views of right and wrong.
    If I were a judge, or held a high policy position, that might be appropriate, under certain conditions.  But I am an adviser – not the decision maker.  It is my place to say only what the Congress, with the consent of the President, as interpreted by the Judiciary, has determined the law to be.  That is what the Constitution requires of me, nothing else.  I see nothing written in the text of the Constitution that allows me to disobey the law as written, to change the instructions given me, or to reinterpret the decisions of the courts because I disagree with them.  As a matter of fact, the oath I took, and I assume you did too, says the opposite:  “I will obey the orders of the officers appointed over me.”  The only option I have, if if something is too odious, is to resign.
    I stand by my prior statement that the law is sufficiently clear in this area and the proper legal standard is set by 42 USC 2000dd.  Everything beyond that is outside my lane as a JA, and is inappropriate for me to engage as any sort of adviser on policy or ethics.

  20. Vulture says:

    Avenues to prosecution.  I can’t think of an act that provides more than torturing someone.  If the UCMJ don’t get you, MEPS will.   And if you think that guy was having trouble talking before, he certainly will when he gets some kind of release.  If you don’t like the UCI from Congress over sexual assaults and walking off FOBs in Afghanistan, you are going to love what they are going to do if you get caught taking a pair of pliers and blow torch to somebody. 
    Got is Commander?
    Sincerely, Your Tool.

  21. stewie says:

    Couple of responses:
    1. Torture is a pretty “personal” thing.
    2. Malum in se v malum prohibitum is not an “emotional argument,” it’s basic legal ethics 101. That different people have different ethics does not render ethics somehow no standard at all.  We have a pretty clear consensus, across time, across cultures, and across civilizations that torture is unethical, truly malum in se.
    3. This isn’t a question about whether marijuana or prostitution should or should not be illegal. Or whether one should criminalize drug use. Or other issues where one has a personal belief one way, but the law says another. Your attempt to smear it all up into “that’s just like your opinion, man” isn’t clever or useful.
    4. Anyone who thinks their job as an advisor is not to, ya know, advise, isn’t a very good one IMO. That’s not personal, that’s just my own observation.

  22. OPLAW JA says:

    1. That’s the problem. When it gets personal, the wrong decisions are made. This is a legal question, period.
    2. A legal argument built on the idea that something is inherently wrong once and for all time. i.e. “malum in se” would mean that nothing could ever be changed. To follow that line of thinking to its logical conclusion would mean, for example, that all homosexuals would still be subject to the death penalty today – by stoning.  Of course, regardless of how much some of us think that homosexuality or same sex marriage or numerous other things are wrong, the law as written now says otherwise.  We, as a society, have laws, through the appropriate Constitutional process, that sometimes changes even the most basic building blocks of society. Again, what I think of them in my own mind is my own business. But I am sworn to uphold the Constitution, its subordinate laws, and the orders of the officers appointed over me.  If I cannot, I must resign.  It is that simple.
    3.  See #2 above.
    4.  I advise on my lane, not others.  If the Surgeon attempted to advise the Commander on the law, or the Communications Officer about how to conduct close air support, this would be just as wrong. I speak on my subject and do not editorialize.
    I leave you the last word, as my position is sufficiently clear and have nothing more to say.

  23. stewie says:

    1. No, that’s the reality, and when things have a personal impact on someone like this, it raises the stakes. We aren’t talking parking tickets.
    2. Cannibalism is inherently wrong. Wrongful murder is inherently wrong. Rape is inherently wrong. You expecting those things to change anytime soon? Homosexuality is not inherently wrong. It’s been tolerated to encouraged for the whole of human history by many cultures for long periods, scourged by many cultures for other long periods. Clear difference.
    3. Still not compelling.
    4. Ethics and the law is your lane, that you don’t think so is…perplexing.

  24. Concerned Defender says:

    Cry me a river about “waterboarding.”  If there’s a valid military need for self preservation, I don’t lose a second of sleep over someone with probable cause and high level of likelihood they have intel that can save Americans from an attack and the aftermath of American lives.  I’ll trade one terrorist life for one American life at any given moment.  If you wouldn’t you shouldn’t wear a US uniform and have no business in the armed forces profession.
    Ethics is situational perspective policy, which becomes law.  There is little that is “inherently wrong.”  Murder even has exceptions, and it’s called “self defense” or “legitimate military target or enemy.”   Look at Muslim culture.  Not only is torture not wrong, it’s to be video taped, rewarded, and praised.  Ethics also change over time as we get – hypocritically – more “enlightened.”  Take slavery.  Slavery is bad.  Slavery is evil.  Shout down slavery.  Yet most Americans have no problem buying products made in effective slavery conditions from Asia where employees literally are worked to death in rigid economic slavery which is akin to conventional slavery (powerless, no resources, no escape, no voice, no rights, etc.).  Or animal abuse.  Most people cannot tolerate the thought – but they’ll buy shampoo tested on animals in extremely cruel tests that blind the animal before it’s killed, or cruel bio-testing on animals where limbs are cut off without anesthetics and then sewn back on, or animals are burned alive to test fire retardants, etc..  Or child abuse.  Down with child abuse, march against child abuse, blah blah blah, but 50,000,000 babies (rivaling the human losses in WWII) have been legally murdered since R v. W.  
    So, in reality, for most people as long as they don’t see it, they don’t care.  Most aren’t even concerned or smart enough to learn about or understand the ethics of anything.  That’s “ethics” in the modern world.  Situational.  Now, to be clear, I do consider myself more dialed in.  But I have zero issues with effective non-permanent and non lethal enhanced interrogation, such as water boarding. Again, we do it to our own advanced infantrymen.  So how can it be torture?
    Also, some of you failed actual philosophical ethics in that you’re trading the comfort of one person, for the lives of perhaps millions.  You’d fail ethics.  
    It’s also situational in the respect that if I presented the following, 99 out of 100 people would torture the person for information.  
    Situation.  It’s early September 2001, a few days pre-9/11/01.  You are senior US XYZ position and based on humint and other credible intelligence you have probable cause intelligence about an imminent WMD attack in Washington DC and NYC.  You oversee a raid in Boston and capture 3 individuals you believe are engaged in an imminent mass casualty attack plan September 2001.  You know that if you waterboard all 3 there is a high likelihood you will gain enough information that could avert something on an WMD scale attack, which of course could kill millions of Americans and lead us into war.  Your wife works in DC, and your son works in the twin towers.  You chose to not waterboard these three and they are released.  The 9/11/01 plan is executed.  3,000 Americans including your family members die, and the US enters two global wars where a million people including 10,000 Service members die, and the US dives into deep recessions and trillions in debt and deep division not seen since Vietnam.  Congratulations for your “ethics.” 
    Now let’s change the scenario.  You are at home one evening and an armed home invasion happens and threatens your wife, your baby daughter, and you.  You grab your home defense gun, and in a shootout you kill both invaders.  Are you “morally correct?”  How is this perceived imminent in your home any different than a perceived imminent WMD threat on our soil which threatens millions globally?
    If you don’t think it’s the same “ethics” in both, you’re a liar or a coward.  There’s no third option.  You’re saying effectively you would not act in self defense to save your loved ones and Americans in the terrorist prevention, but you would when faced with armed attackers on the spot.  Both are self preservation and self defense, and while one is a “less imminent and certain”, it’s on a grander scale with more lives at stake.  
    We can go round and round on the law, but the law is malleable.  
    Instead of putting the burden on us to do the subjective “right thing,” I have a great suggestion for terrorists.  Stop being terrorists.  Then you won’t be waterboarded.  Or if you’re threatened with water boarding, the terrorist is in control by uttering these simple words. “I’ll talk.”  The end.  Those nations that seem to breed terrorists need to step up and self-police.  They are too tolerant to their terrorist breeding.
    As an American and former Soldier, it sickens me how weak willed the nation has become.  If we had applied the namby-pamby rules we use today in WWII, the Axis would have won or at least there would have been more years of war and hundreds of thousands of lives additionally lost.  Dropping nukes on Japan saved lives.  This is the same scenario. 

  25. stewie says:

    LMAO CD…the last time we court-martialed someone for waterboarding was…World…War…well heck I’ll let you guess the number.
    Your “hypo” either means you don’t under the concept of begging the question or you do and you don’t care.
    “Presuming” that you will get highly accurate information from torture is like “presuming” homeopathy will cure a disease. All the evidence says the opposite for both, but hey let’s pretend it does for the hypo.
    If it worked, then you could at least reach the risk/reward portion of the thought process, except it doesn’t work. So you end up doing it just to do it.
    But hey it makes a great episode of 24!

  26. Widowmaker6 says:

    Folks who treat this as an academic debate do not understand the consequences of these Muslim thugs’ twisted version of Islam.  They have a burning desire to kill you and every person in your family and all your non-Muslim friends.  Let that sink in.

  27. stewie says:

    Actually, they have a burning desire to fundamentally change my way of life. One of the ways I don’t let them is not giving up all the values I hold out of fear of them.

  28. jagaf says:

    I’ll play your game, CD. The legally and morally correct answer is we don’t waterboard and if I as a JAG were asked, I would feel duty-bound to give that answer. Now if I was ignored, would I lose a lot of sleep if we prevented an attack? I’ll admit, the answer no. And if I were asked to sit in judgment of those who made the call, would the situation you just laid out be mitigating as hell? Absolutely. But the decision was still legally and morally wrong. But what if they were wrong?
    And since you get to create fun hypos, let me play. You said “I have zero issues with effective non-permanent and non lethal enhanced interrogation, such as water boarding.” Well take your same hypo and riddle me this: you waterboard and waterboard and waterboard and it doesn’t work; but you’re still sure Johnny Jihad has the information locked away in there somewhere, so now what? Remember we’ve only got hours now until this attack that our infallible intelligence says will happen, happens. Beating? Probably non-permanent and non-lethal. Electric shock? Probably non-permanent and non-lethal. But what if non-permanent and non-lethal doesn’t work? Again, we “know” he knows, right? And we “know” Americans will die so now tell me honestly, with your version of situational ethics do you really mean to say you are only okay with non-permanent and non-lethal? Hell, maybe he’d talk if we waterboard his kid a little? At least it isn’t abortion.  

  29. Mediocre JA says:

    We use it at SERE school…it must work…can’t be that bad…so thought James E. Mitchell and John “Bruce” Jessen.  Their participation in the development of EIT resulted in a strategic disaster for the United States.  The evidence of how many people have fought against us because of this is about as reliable as evidence of waterboarding actually working…but the strategic implications are hard to argue with IMHO.   

  30. DCGoneGalt says:

    Torture Hierarchy Scale:
    Beating > Watching the View > Water Boarding > Reading These Comments > Electric Shock

  31. stewie says:

    Add in “DCGG I’m above it all comment” in just before Electric Shock.

  32. Widowmaker6 says:

    Stewie, yeah, dying would fundamentally change things, alright.  But if you’re worried about something less than dying, you shouldn’t.  Cause we both know you won’t be doing any of the waterboarding, shooting, jumping, deploying, fighting, etc.  If our doing any of those things offends you, well, there’s always Canada.

  33. stewie says:

    Well, I don’t make it a habit of doing grossly illegal and immoral things if I can help it so…yeah, ya got me.
    Dying would fundamentally change things…then again, I’m at more danger of dying mowing my lawn statistically, or driving my car, or walking up stairs than I am from refugee terrorists or regular terrorists for that matter. I don’t go waterboarding my Ford because of said danger though.
    Your doing those things would offend me, and since it is as much my country as it is yours, I’ll stay right here…thanks!

  34. Widowmaker6 says:

    And there you have it, folks.  The dirty underbelly of the liberal left.  Stewie just admitted he’s offended by the those things, which, save for waterboarding, are things that our warfighters do as a matter of course.  Keep debating and sleep tight at night, Stewie.  And, by the way, your Ford is not trying to kill you…

  35. jagaf says:

    @ Widowmaker6, apropos of nothing, I am definitely imagining all of your commentary as coming from that most revered patriot, Colonel Nathan R. Jessup, USMC, particularly as you admonish Stewie to “sleep tight (son).” He shared your apparent disdain for silly, pinko-commie creations like rules and ethical standards of civilized behavior (probably conceived of by Stewie’s ilk before heading to a cocktail parties) if they get in the way of his conception of what needed to occur in a given situation involving enemies trained to kill him. Worked out well for Col Jessup too… 

  36. Widowmaker6 says:

    Jagaf, I have no disdain for rules and ethical standards.  I’m a hell of a reasonable guy.  But I do have disdain for those who speak from ivory towers but don’t have the cajones to put any skin in the game.

  37. Concerned Defender says:

    I noticed Stewie isn’t able to answer my scenario.  Is there any difference or material gray area between waterboarding a suspected terrorist for information that could imminently save Americans or shooting an armed thug trying to harm your family?  And if so, how much gray area?
    Are they not in reasonable defense of others?  Are they not both in reasonable apprehension for imminent (loosely defined) grave harm?  Is there not a balancing test?  Heck, it’s right in the OPLAW handbook under “anticipatory self defense”  and “preemptive use of force.”  So, we can kill innocent people, but we cannot waterboard suspected terrorists for intel?  This is the twisted world of liberal logic, frankly. http://www.loc.gov/rr/frd/Military_Law/pdf/operational-law-handbook_2015.pdf

    A modern-day legal test for imminence, consistent with the above, was perhaps best articulated by Professor Michael Schmitt in 2003. He stated that States may legally employ force in advance of an attack, at the point when (1) evidence shows that an aggressor has committed itself to an armed attack, and (2) delaying a response would hinder the defender’s ability to mount a meaningful defense.21 

    Any OPLAW attorney knows the proportionality argument where civilians can actually be killed if necessary to the mission and to hit a viable military target.  Civilians cannot be expressly targeted, but are acceptable collateral losses.  Such attacks are not per se prohibited.  Guarantee that lots of innocent civilians are DEAD now due to US operations in OIF and OEF.  That’s death folks.  
    Now, please enlighten me how waterboarding is evil. Maybe someone smarter or more ethical can me can show the the difference.  

  38. stewie says:

    lol I’ve deployed just like most of the folks on here…sorry if I didn’t specifically go combat arms, apparently not all Soldiers who go to war count for you eh widowmaker6, just the killas amirite?!
    Anyone who types the words “I’m a helluva…”
    usually isn’t.

  39. DCGoneGalt says:

    Speaking of Ivory Towers . . . I was at an installation once and the legal office was moving buildings and I suggested that the commander empty out the water tower, paint it white, name it the Ivory Tower, and move the legal office into it.  As I recall, I was the only one that laughed.

  40. Widowmaker6 says:

    Thanks for confirming my comment about your disdain for our warfighters, Stewie.  And I’ve met plenty of “in the rear with the gear” folks, including lawyers, who have put plenty of skin in the game and for whom I have the utmost respect.  Based on your comments, you are not in that category.

  41. jagaf says:

    If you had given me the general context of this discussion and asked me to take the over or under on it taking 35 comments to get to the first invocation of the “Ivory Tower,” I’d have definitely taken then under.
    But seriously: Widowmaker6, is it only folks in combat arms who get to have an opinion on these matters? I certainly respect, and frankly revere, those with the mental and physical courage to undertake those roles and I certainly don’t claim their experience or discount their opinion. That said, what you are doing with Stewie, discounting his input by basically calling him a fobbit/pogue/wus etc, while not really engaging the substance of what he’s arguing is at least intellectually dishonest (though pretty standard for the level of discourse in our country currently). I respectfully submit that one does need to be a hardened combat vet to be familiar with the the DoD LoW, the US Army Field Manual, the UN Convention Against Torture, or hell, the Lieber Code. Does combat experience give one a perspective that absolutely should be taken into perspective? Sure. But that is not the be all, end all. And in any case, do you think your opinion is universal within the community you are (justifiably in my view) lionizing? I don’t think it is, but don’t take my word for it; ask Senator McCain or SECDEF.
    I’ve been taught that a fundamental responsibility of a JAG when advising command is to have a can/should discussion. Can we do something legally? Okay, if so, should we? In this case, I actually think the answer is pretty easy: no, legally we can’t do what is being discussed. But even if we could, should we? Does tactically actionable intel always trump the strategic consequences of going down this road? Ignoring the basic illegality question, maybe in CD’s Tom-Clancy-wet-dream scenario the benefit is worth the strategic cost; but is that honestly what we are dealing with?

  42. Burner says:

    Concerned Defender- You are arguing from a utilitarian perspective. Any hypothetical in which a finite amount of pain inflicted on one individual results in preventing the deaths of one or more others will pass ethical muster under that perspective. I suspect that you are committed to that perspective and no one will be able to convince you otherwise.
    That said, here are two possible responses:
    1. Real life scenarios are rarely, if ever, as clear cut as the above hypothetical. We generally don’t know that a particular person has specific information that will result in saved lives if we can just obtain it. Our intel on what information an individual has is often murky. We often can’t be sure whether the information we obtain through waterboarding is reliable. Even if it is reliable, it may be trivial and lead us nowhere. Not to mention the fact that using torture against our enemies could result in our enemies ramping up their tactics against us when given the chance (see, e.g., ISIS.)  All this is to say that even from a utilitarian perspective, implementing a broad policy allowing waterboarding to obtain potentially useful information will not necessarily result in a net benefit for America or humanity in general. It’s not as easy as simply proclaiming that waterboarding terrorists is preferable to letting Americans die and considering the matter settled. 
    2. There are other ethical rubrics to consider apart from utilitarianism. Some might say that waterboarding and similar “enhanced interrogation tactics” are always wrong. That we should treat all human beings, even evil ones, with a certain amount of dignity based on shared humanity. That when we fail to recognize others’ humanity we cede the moral high ground and undermine American values. This is the position John McCain, a victim of torture, has consistently held. http://truth-out.org/archive/component/k2/item/58579:senator-john-mccain-tortures-terrible-toll

  43. Widowmaker6 says:

    Jagaf, Stewie is arguing that waterboarding is grossly illegal and immoral.  Neither is true.  How can waterboarding be torture?  No lasting physical effects whatsoever.  And the mental anguish?  You don’t want to go down that road given what we do to our own citizens in the penal system.

  44. Vulture says:

    Well, actually, the things done to some portion of our own citizens in the penal system is pretty much the reason I have been on here.

  45. Concerned Defender says:


    “KSM, an accomplished resistor, provided only a few intelligence reports prior to the use of the waterboard, and analysis of that information revealed that much of it was outdated, inaccurate or incomplete,” according to newly unclassified portions of a 2004 report by the CIA’s then-inspector general released Monday by the Justice Department.
    The debate over the effectiveness of subjecting detainees to psychological and physical pressure is in some ways irresolvable, because it is impossible to know whether less coercive methods would have achieved the same result. But for defenders of waterboarding, the evidence is clear: Mohammed cooperated, and to an extraordinary extent, only when his spirit was broken in the month after his capture March 1, 2003, as the inspector general’s report and other documents released this week indicate.
    Over a few weeks, he was subjected to an escalating series of coercive methods, culminating in 7 1/2 days of sleep deprivation, while diapered and shackled, and 183 instances of waterboarding. After the month-long torment, he was never waterboarded again.
    “What do you think changed KSM’s mind?” one former senior intelligence official said this week after being asked about the effect of waterboarding. “Of course it began with that.”

    Except for the inconvenient truth that waterboarding in fact, DOES produce valid results.  But like anything, it almost certainly depends on the individual and his/her hardness and dedication.  Some might flinch and spill their information at the mention of any enhanced interrogation, and some might die with their secrets.  Would be wise for any of them to simply give up their information without suffering.  Again, ironically, the captive has the power doesn’t he?  Talk = no enhanced interrogation.  If a captive simply offers up every piece of info and all is confirmed it’s in his best interest.  Isn’t it?  
    Cue those chiming in that it doesn’t work, Mattis says it doesn’t work, etc.  Again, I’m no expert on this or that particular tactic. But my human ethics are unimpeachable. I defer to the experts and there is enough division on this that I believe that it likely does work in many instances.  Perhaps it’s unreliable.  But we should never remove a valid tool from the inventory of options.  I suspect the threat of it would be enough to break some… I’ll trade the comfort or life of a jihadist for that of an American at every opportunity – and no, they don’t get Constitutional rights.  They get minimal due process IMO, and since they are non uniform wearing, nonstate terrorist actors, they are covered under few to no rights.  Rights less than combatants, and less than noncombatants.  They are nonstate belligerents.  
    Much of this battle is over semantics and definitions.  It really just depends on what you label as torture.  I sleep deprivation really “torture?”  I’ve gone days without sleep in law school, or in the military, or in college…. was that “torture?”  Where do I file my grievance?  Is a stress position “torture?”  Again, the bar exam was a stress position.  As was some military training.   Where can I file my grievance?  
    This is the nonsense rabbit hole that the left wing has driven us down into – debating how kind we need to be to those that will slit our throats or burn us alive on video to broadcast it to the world.  It’s tiresome debating with folks who claim to have the  high ground, but are dangerously inept at defending a nation.  In trying to preserve some perceived “ethics” they would knowingly or ignorantly condemn millions or billions to war and death…  You’d fail any “ethics” test if that is the case.  

  46. Widowmaker6 says:

    More revelations from the left fringe:  first, Stewie openly admits he’s offended by our warfighters doing what they do, and now Vulture openly alleges that America is torturing its own citizens in the penal system.  Thank God that Trump won…

  47. stewie says:

    lol I have disdain for warfighters for what they do, when they don’t actually do the thing we are talking about?
    I’m not sure what military you have been a part of, or if you’ve actually even been in the military, or are even combat arms, but our Soldiers don’t actually waterboard because, wait for it, it’s not allowed. By the military. They actually didn’t consult me when they decided it was something we aren’t going to do. GEN Mattis is against it too by the way, he must be another fringe leftist who never had any skin in the game huh?
    Apparently skin in the game means agree with me politically lol

  48. Burner says:

    CD, ethics are about right and wrong action in an absolute sense.  It has nothing to do with constitutional rights or how one defines torture. And declaring that waterboarding “works” does not even begin to answer the question. I’m not sure what ethics tests you are taking. I’ve never seen one with a question as simpleminded as “Would you waterboard someone to save millions and billions of people from war and death?” You can rant and rave about being unimpeachable all you want, it’s pretty clear you don’t understand ethics at all.

  49. Widowmaker6 says:

    Burner, you may be on an even higher floor of that ivory tower.  There is nothing “absolute” about ethics.  They are important but they will yield…they will always yield…to real threats about survival or intense human suffering.  Life is more precious than your precious ethics.

  50. Vulture says:

    Window Washer 6.  You where the one that wrote, “You don’t want to go down that road given what we do to our own citizens in the penal system.”  Perhaps you should clean your glasses.
    This is by and large a discussion of the application of military justice as it effects those war fighters.  If you don’t realize that you should need to go someplace and be Wills and Trusts Maker or something.

  51. stewie says:

    I have to marvel at how “don’t waterboard” or “don’t torture” is somehow a “leftist” thing. As if it’s not been a basic underpinning for decades in the entire Western world, and really the entire civilized world.  It’s not a “leftist” thing.
    And anyone who says “I have unimpeachable ethics” is just…ridiculous.

  52. Widowmaker6 says:

    Again, Stewie, waterboarding is not torture.  No lasting physical effects.
    Vulture, right, you don’t want to go down that road b/c then you’re accusing thousands upon thousands of players in our judicial system of committing or abetting torture.  I don’t believe that’s true.  Apparently, you do.  Not that your opinion is worth two squirts of piss…which I already knew but has been confirmed by your name-calling.  Such a solid debate style.  LOL.

  53. stewie says:

    Then why did we prosecute folks for it way back in WWII when those menly men were around and those girly liberals weren’t?
    Why have real men like GEN Mattis continued to be against it like girly libs like me? Did I get to him and infect him with my weak liberal ways?
    Where do you get your “torture must involve ‘lasting physical effects'” mantra? I can literally kill someone and then bring them back to life in ways that don’t involve “lasting physical effects.” I can induce severe pain and break bones that will heal with “no lasting physical effects.”
    What thousands and thousands of people do you think are committing torture?
    And you are calling out name-calling? You? Really? lol That’s…a special kind of hypocrisy.

  54. Burner says:

    Widowmaker6, I realize I’m probably wasting my time trying to explain this, but…Whether an action (say, waterboarding) is justified by circumstances (say, “real threats about human survival or intense human suffering”) is an ethical question. When you say ethics “yield” in those circumstances, you are not speaking from outside of ethics. You are just saying that the action is justified, which is an ethical claim.

  55. Widowmaker6 says:

    Burner, as long as you and I agree that waterboarding is A-OK in certain circumstances, then we’re on the same page.
    Stewie, your argument is not convincing.  Broken bones?  Killing someone?  Those sound like lasting physical effects to me.   And you’ll have to ask Vulture about the thousands of folks committing torture every day, as that is apparently his belief.  And what names have I used???  I’ve intentionally refrained from calling anyone a snowflake, bedwetter, fart-sniffer, etc…and I intend to continue exercising such restraint.

  56. Vulture says:

    Water Walker INRI.  I did not mean to make a Ecce Hominum argument.  It’s a thorny thing, you know, to start a conversation and then say someone else bought it up.  But I guess that is cross you will have to bare,

  57. Widowmaker6 says:

    Vulture, glad to see you are coming around and learning your place, son.  And I believe “bear” is the word you were groping for…

  58. stewie says:

    Burner…spoiler alert, it WAS a waste of time!

  59. Vulture says:

    Empathy is the self defense against sociopaths.

  60. Matt says:


  61. Widowmaker6 says:

    Matt gets it.

  62. jagaf says:

    Well if by get’s it you mean Matt’s preference for the original Red Dawn versus the horrible remake, I’m with you Widowmaker6. If, on the other hand, you’re taking time out from advocating torture waterboarding to now seriously advocate summary execution of prisoners, I respectfully suggest you need to seriously and thoughtfully read any document created in the last century that includes the terms “law,” “ethics,” and “profession of arms” before you speak to or God Forbid) advise any of the combat arms troops that you clearly (and rightly) admire, lest you all end up before a court-martial.   

  63. Widowmaker6 says:

    jagaf, a few points:  Jed Eckert (played by Patrick Swayze) needs no authorization other than his own to shoot bad guys (this rule also applies to Chuck Norris); you needn’t say “original” Red Dawn…there is only one as far as I’m concerned; Patrick Swayze ascended to Heaven as his Red Dawn character, Jed Eckert, and he currently serves as God’s personal bodyguard (Dale Earnhardt and Paul Walker take turns as God’s limo driver, BTW); and just b/c I like to troll military lawyers on a military appellate law blog doesn’t mean I’m a lawyer

  64. Concerned Defender says:

    Eh, lots of opinions given by liberals who live on fantasy island where they simply don’t get or understand the threat.  Clearly ethics are situational.  If, afterall, you can kill someone (the most severe deprivation) based on the situation (self defense, capital crime sentence, military target, etc.), or imprison them for life for property crimes, then surely there are situations where you can do less than kill them. 
    I can’t speak for Gen Mattis, and again I defer to such an expert on these matters.  Having said that, it probably comes down to the headache of simply too much of a hassle and political nightmare to do it, even if it does have some benefit.  I guess when the next WMD style attack occurs we’ll be reminded how terrible liberals are.  It’s almost assuredly going to be because of the totally irresponsible Clinton-esq Obama style of apologize, surrender, retreat, ignore the threat, and invite them in style of governing…  We need only to look at those eras to see what the short and long term consequences were.  Under Obama we’ve been attacked an average of several times per year by ISIS on US soil, and ISIS has led attacks in several foreign nations (France, Germany, Turkey, S. Africa, UK, etc.).  
    The snowflakes have won partial victories in their dismantling of America by causing weak-willed leaders to bend.  I agree, thank GOD Trump won to reverse some of the unmitigated disasters we’ve experienced under the apology tour man in charge from 2008-2016 where the US lost a lot of ground in the world.  Hopefully Trump won’t yield to the nanny-state created by these anti-American folks. 

  65. snowflake says:

    CD’s thoughts, clarified: “Again, I can’t speak to why Mad Dog (praise be unto him) is against waterboarding and I defer to him because he is an expert. I will assume, however, that General Mattis secretly does support waterboarding, even though he says the opposite, and that he advises the President against waterboarding because otherwise liberal snowflakes will be mad.”

  66. stewie says:

    A troll who isn’t an attorney? No! Let me show you my shocked face!
    CD so if you can kill them with a bullet, surely you can kill them with poison gas right? And if you can kill them, surely you can break all of their bones but not kill them right?
    That whole Geneva Convention thing is a bunch of weak liberal BS huh?
    Yes, I’m sure the outspoken brash Marine General who is on Team Trump is TOTALLY against waterboarding because of “snowflakes.” I can see why folks think you aren’t real, because you are a cartoon version of a conservative.

  67. Concerned Defender says:

    You keep talking about these WWII prosecutions for “torture.”  As you should know, no two cases are alike.  I’d also remind everyone that WWII involved literally carpet bombing entire populated areas and dropping 2 nukes on large populated cities.  It’s widely reported that surrendering German or Japanese Soldiers were shot in the face because of the inability to take prisoners during some heated battles.  So it would seems that a qualified lawyer could make a contemporaneous and successful argument in a non-guilty sense given the comparison treatment of civilians or POWs in war.  
    Grandstanding aside, few ethics are absolute.  As I said, which those above have never addressed, there’s even exceptions for the permanent taking of human life.  Death>”torture”>waterboarding>stress positions or sleep deprivation.   
    Unless of course we tag a prosecution for the million civilians we killed in OEF and OIF….  for which I am not advocating.

  68. Burner says:

    CD, when I say ethics are about right and wrong in an absolute sense, I am referring to the principles that support your conclusions. Of course any particular ethical question will involve contingent circumstances. But the ethical principles you refer to should not be grounded in legal definitions or constitutional rights. For most people, the constitution is not a foundational source from which we derive right and wrong. It is simply a foundational document for a particular political system. Saying that waterboarding is ethically permissible because “jihadists” are not entitled to constitutional rights, or because waterboarding does not meet a particular legal definition of “torture”, is nonsense. Not everything that is permissible by law is necessarily ethical.
    Your argument seems to be: Sometimes it’s okay to kill people; waterboarding is not as bad as killing people; therefore sometimes it’s okay to waterboard people. I won’t argue with that. The problem is that policymaking is not that simple. When we decide it’s okay as a matter of policy to waterboard people, we undoubtedly end up doing so under dubious circumstances. It’s never as simple as “if we waterboard this person, we will save lives.”  Meanwhile, we fuel our enemies’ hatred, lose standing in the international community, and, I believe, undermine fundamental American values.
    I get that you disagree and that’s fine. I just think your ethical arguments are overly simplistic.

  69. The Heat says:

    Waterboarding is not nearly as bad as all of you are making it out to be.  I bet you don’t believe in spanking your children, either? 

  70. Concerned Defender says:

    Let me be even more clear. 
    I have no personal moral qualm about causing a presumptive bad non-American (battle field combatant who surrendered, with no Constitutional rights, and as a non-state actor few international rights under the LOAC) pain or discomfort if I believe it would extract valuable specific intelligence (who are you working for, what is your mission, where is your head quarters, etc.).  If you’re willing to kill them, which I was, and am, under certain situations (self defense NOW) then what’s the difference of killing or harming them for self defense of millions of people in 10 minutes, or 5 hours, or 2 days?  The differences are simply academic and pointed out by the bleeding hearts of the world.
    Various laws and conventions and such aside, since they are arbitrary and fluid, I don’t have any inherent issues with this.  This isn’t abuse.  It’s not frivolous.  It’s not for twisted pleasure or enjoyment.  It’s for national defense, a concept so foreign to some people they have no business being in it. 
    Again, however, it should be done if and only if it’s reliable.  If it’s not, then it’s just pointless.  I’m not a cruel person.  I’m highly ethical in fact.  I certainly would not ever enjoy seeing anyone in pain.  But to save 1 American I would cause unimaginable pain to 1 Jihadist.  It’s really that simple.   We are at war.  I am not a coward.  I wonder if some (here) are.  Perhaps some here were or are in the wrong profession.  
    I wonder if some would stand by and watch a violent person do horrible things to his wife while he stand idly by and wets his pants and sucks his thumb pleading for the bad person to stop….

  71. jagaf says:


  72. Concerned Defender says:

    Oh how clever.  A Meme.  What a brilliant intellectual argument.  

    Ethics: noun


    moral principles that govern a person’s behavior or the conducting of an activity.
    “medical ethics also enter into the question”

    moral code, morals, morality, values, rights and wrongs, principles, ideals, standards (of behavior), value system, virtues, dictates of conscience

    “your so-called newspaper is clearly not burdened by a sense of ethics”



    the branch of knowledge that deals with moral principles.

    In simple terms for the peanut gallery, this deals with placing value on human life and suffering.  I’ve offered several examples of when humans have lawful justification for taking the life of another and will repeat for the slow to understand.  Self-defense, capital punishment, war/military targets and collateral damage.  
    Let us not forget that we are talking about less-than-innocent individuals in suspected terrorists, nonstate actors, battlefield catches, etc.  However, this resolution could be seen as the classic Utilitarianism vs. Deontological ethics debate known as the Trolly dilemma, and there is no absolute answer.  It largely depends on your outlook of innocent life and human value. Utilitarianism would most certainly support the affirmative, as utilitarianism states that what is morally good is one that results in the greatest good for the greatest amount of people. Therefore, killing or harming one person to save more innocent people is morally good because saving several innocent lives is a greater benefit for society than just saving one innocent person.  However, the deontological ethics pioneered by Immanuel Kant states that the morality of an action depends on the action itself, regardless of the consequences of the action. Therefore, ends never justify the means in deontological ethics. Even if killing one innocent person were to save more people, it is not morally permissible because the action of killing is immoral in all cases.
    In the Trolly dilemma, essentially you’re picking between acting to save 5 lives by sacrificing 1, or doing nothing and letting 5 die.  It’s a thought experiment with some application here.  If you care to read the arguments please research it or go here: http://debatepedia.idebate.org/en/index.php/Resolved:_It_is_morally_permissible_to_kill_one_innocent_person_to_save_the_lives_of_more_innocent_people
    We also have the body of philosophy/ethics known as the life raft ethics, which obviously places value on human life. 
    Not one anti-water boarding person in ~70 posts has engaged in any intellectual response or dialogue other than circular logic that it’s illegal (it hasn’t always been, and laws are made by man), or speculation that it doesn’t work (again, I’ve offered proof that it does work at least some times).  
    Still waiting for these intellectual big brains on this forum to wage in on this topic…  because clearly humans have crafted legal justification for taking life (even innocent life as collateral military damage) which is far greater than water boarding…
    I offer one of perhaps hundreds of examples of recent proof:  In 2016 an apparent criminally negligent attack was administered on a 100% civilian hospital in Afghanistan killing 42 innocent doctors and patients.  Media ran the story for a couple days, and most of you probably never heard about it.  It was determined “human error” and “technical error” and not an arbitrary “war crime.”  Sure.  Whatever.  So we waterboard 3 known bad guys and the snowflakes and media can’t stop talking about it for 10 years.  But we bomb a hospital because we mis-identify it and kill 42 innocents, and nobody bats and eye?  The hypocrisy is simply staggering.  If you can’t see something wrong with this picture you have no business or credibility discussing legal ethics.  I strongly suspect Mr. Obama didn’t want a war crime on his watch so this was swept under the rug, and only 16 individuals given administrative action.  
    So to be clear, if you purposefully cause fear or discomfort to a known terrorist, that’s a war crime.  But if you grossly negligently mis-identify a hospital and bomb it and murder 42 and injure dozens of innocents including nurses and doctors, that’s somehow not a war crime??  Try making that argument in a court of law.  This is an example of the lunacy and hypocrisy of the enlightened elite policy and rule makers.  

    The Pentagon announced Friday that 16 military personnel will be disciplined for the deadly U.S. strike on a hospital in Kunduz, Afghanistan, in October, but maintained that it was not a war crime because it resulted from unintentional human error and equipment failure.
    The military said some personnel involved “failed to comply with the rules of engagement and the law of armed conflict,” and that a general officer was among those facing discipline for their roles in the bombing of the Doctors Without Borders hospital.  

  73. Burner says:

    Not one anti-water boarding person in ~70 posts has engaged in any intellectual response or dialogue other than circular logic that it’s illegal (it hasn’t always been, and laws are made by man), or speculation that it doesn’t work (again, I’ve offered proof that it does work at least some times).  

    CD, I and others have responded to these arguments directly several times now.  The responses seem to be sailing a few feet over your head.

  74. anon says:

    If you modify your argument to adjusting the interrogatee of circadian rhythm or some level of sensory depravation you’ll likely find a stronger footing (be it combat arms, POG, or general public).  Messing with someone’s sleep pattern promotes less of a visceral reaction than image a dude being held down while someone tries to simulate drowning.

  75. stewie says:

    CD, rest assured, while you are wondering if some of us are cowards, we are certain in some things about you.

  76. Concerned Defender says:

    Stewie and Burner, it’s not lost on anyone that my cerebral comments are met with yet more person attacks and no counter points.  

  77. stewie says:

    lol @ cerebral.  I can no longer tell if you are real or parody.

  78. Other OPLAW JA says:

    Since the comments seemed to have turned quickly away from the law, for anyone who’s still looking at these and wants a legal discussion, I’m just going to leave this here: https://lawfareblog.com/annals-trump-administration-5-would-waterboarding-count-force-and-must-it-be-disclosed
    On the international side, the prohibition against torture is jus cogens.  US courts, including SCOTUS, recognize that we’re bound by CIL. Also, we’re party to UNCAT.  Our Understandings to UNCAT state that torture “must be specifically intended to inflict severe physical or mental pain or suffering”.  Even the Bybee memo stated that severe pain or suffering is “of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body functions will likely result.”  It doesn’t say that you have to get to death, organ failure, or permanent damage – just that the pain has to be equivalent to an act that would… like drowning.