Mr. President, stop saying you banned torture.

[Deep13]

Stop saying it is a mistake or a policy and stop basing your opposition on "values" or utilitarian considerations. Congress banned torture when it enacted 18 USC 2441. Torture is a crime and a president has no discretion in allowing the commission of a crime. Torturing is a criminal act that has banned for quite some time. If you care at all about the rule of law, the only thing to do is to let the AG bring indictments.

Thank you Keith and Rachael for keeping this issue on the front burner.



18 U.S.C. § 2441. War crimes

(a) Offense. Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), 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.

(b) Circumstances. The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act <8 USCS § 1101>).

(c) Definition. As used in this section the term "war crime" means any conduct--
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

(d) Common Article 3 violations.
(1) Prohibited conduct. In subsection (c)(3), the term "grave breach of common Article 3" means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
(A) Torture. The act of a person who commits, or conspires or attempts to commit, an act 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 for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
(B) Cruel or inhuman treatment. The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.
(C) Performing biological experiments. The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons.
(D) Murder. The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.
(E) Mutilation or maiming. The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose.
(F) Intentionally causing serious bodily injury. The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war.
(G) Rape. The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object.
(H) Sexual assault or abuse. The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact.
(I) Taking hostages. The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons.
(2) Definitions. In the case of an offense under subsection (a) by reason of subsection (c)(3)--
(A) the term "severe mental pain or suffering" shall be applied for purposes of paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in section 2340(2) of this title <18 USCS § 2340(2)>;
(B) the term "serious bodily injury" shall be applied for purposes of paragraph (1)(F) in accordance with the meaning given that term in section 113(b)(2) of this title <18 USCS § 113(b)(2)>;
(C) the term "sexual contact" shall be applied for purposes of paragraph (1)(G) in accordance with the meaning given that term in section 2246(3) of this title <18 USCS § 2246(3)>;
(D) the term "serious physical pain or suffering" shall be applied for purposes of paragraph (1)(B) as meaning bodily injury that involves--
(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
(iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty; and
(E) the term "serious mental pain or suffering" shall be applied for purposes of paragraph (1)(B) in accordance with the meaning given the term "severe mental pain or suffering" (as defined in section 2340(2) of this title <18 USCS § 2340(2)>), except that--
(i) the term "serious" shall replace the term "severe" where it appears; and
(ii) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006 , the term "serious and non-transitory mental harm (which need not be prolonged)" shall replace the term "prolonged mental harm" where it appears.
(3) Inapplicability of certain provisions with respect to collateral damage or incident of lawful attack. The intent specified for the conduct stated in subparagraphs (D), (E), and (F) or paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (a) by reasons of subsection (c)(3) with respect to--
(A) collateral damage; or
(B) death, damage, or injury incident to a lawful attack.
(4) Inapplicability of taking hostages to prisoner exchange. Paragraph (1)(I) does not apply to an offense under subsection (a) by reason of subsection (c)(3) in the case of a prisoner exchange during wartime.
(5) Definition of grave breaches. The definitions in this subsection are intended only to define the grave breaches of common Article 3 and not the full scope of United States obligations under that Article.

[sandnsea]

1. "severe" "extreme" "substantial"

Those terms can be argued in a court and different juries will have different views on what those terms mean. That's the problem.

[merh]

5. Those things are argued in courts all the time, the arguing

represents defenses, not immunity and/or absolution.

And as long as the revisions made to the Army Field Manual under bush are allowed to stand, Obama has not outlawed torture - there are loopholes.

http://ccrjustice.org/get-involved/action/close-torture-loopholes-army-field-manual

[sandnsea]

14. If you define all uncomfortable conditions

as torture, then yes there are loopholes. Then again, people will always find loopholes which is not the same thing as broad language in the law that has now been tightened considerably.

[merh]

18. That's not the loopholes I refer to.

Those are efforts to defend the wrongs, to allege that they do not constitute "severe" or whatever adjective used.

This discusses the loopholes.

Close Torture Loopholes in the Army Field Manual
Synopsis

President Obama's three executive orders of January 22, 2009 call for the closing of Guantanamo within one year, the closing of secret CIA 'black sites,' and the limiting of interrogation techniques to those allowed in the Army Field Manual (AFM). Join us to close torture loopholes that remain.
Description

President Obama's three executive orders of January 22, 2009 call for the closing of Guantanamo within one year, the closing of secret CIA 'black sites,' and the limiting of interrogation techniques to those allowed in the Army Field Manual (AFM), eliminating the numerous executive orders and opinions issued during the Bush administration that granted official approval for torture, cruel and inhuman treatment, and abuse. These executive orders certainly represent an extraordinary step forward, but we remain concerned about potentially exploitable loopholes. Please take a moment to ask him to close the loopholes.

While the current Army Field Manual does not allow waterboarding, it does include approved techniques that constitute torture. One glaring problem with the executive order on torture is the implicit approval of the current AFM as it stands. The Army Field Manual is a guidebook for U.S. interrogators, meant to set a standard in accordance with the law. However, it has serious shortcomings - particularly following a Bush-era 2006 revision that attempted to legitimize some of the abuses taking place at Guantanamo and elsewhere.

Please join us in urging President Obama to clarify that his executive order truly means an end to U.S. torture and cruel, inhuman and degrading treatment.

Appendix M of the Army Field Manual - a new section introduced in 2006, applicable only to "unlawful combatants," the category applied to detainees in Guantanamo, at secret CIA prisons, and elsewhere - allows the use of techniques such as prolonged isolation, sleep deprivation, sensory deprivation, and inducing fear and humiliation of prisoners. These techniques, especially when used in combination as permitted by the AFM, constitute cruel, inhuman and degrading treatment, and in some cases, torture. These techniques have caused documented, long-lasting psychological and physical harm and were condemned by a bipartisan congressional report released last month, as well as by the Bush-appointed head of the military commissions at Guantanamo.

~snip~

http://ccrjustice.org/get-involved/action/close-torture-loopholes-army-field-manual

[sandnsea]

34. Yes, uncomfortable conditions

sleep deprivation can be anything from having sleep delayed a few hours, which is uncomfortable but wouldn't cause long lasting psychological or physical harm, elsewise my infants tortured me. Whereas weeks of getting only 3 hours of sleep at a time is a different scenario.

[Deep13]

7. I guess we should let a jury decide. nt

[sandnsea]

12. Well, now waterboarding is defined as torture

No need to let a jury decide if it's "severe" or "extreme", etc. It's been made clear because Obama specifally banned waterboarding. I prefer a jury NOT decide that.

[Deep13]

28. If the cases are prosecuted, the jury will decide...

...if conduct X is prohibited by statute. Anyway, I was responding to a previous poster and my remark should be read in that context.

[Occam Bandage]

19. I think we should, rather, use the power of the Executive branch to clarify the situation

without the risk of a court case. Oh, no, wait, that's what Obama did and you're complaining because you don't fully understand the situation.

[Deep13]

27. Those are judgment call questions are for juries to decide.

And yet again I am forced to note that disagreement does not equal ignorance. It is possible, you know, that one can understand and still disagree. The law is clear. Torture is a crime. Bush etc. tortured or conspired to do so, ergo they are criminals. In America, Congress makes the law, the executive enforces them and the judiciary does the kind of clarification you are talking about.

Legally, they arre questions of fact. Juries decide questions of fact such as reasonableness, justification and mental state. In normal conversation they are questions of opinion, but the law considers them factual issues for the jury.

And what risk is there in a court case? The possibility of no justice versus the absolute certainty of no justice?

[Occam Bandage]

30. No, they are not. They are why we have an Executive Branch.

To be clear, the DOJ's job isn't to write the law or interpret it, but rather to provide working interpretations in the absence of specific court decisions. It is possible someone with standing might want to challenge those interpretations, at which point there would be a court case, though it would not be decided by a jury but rather by a Federal judge or by the Supreme Court. That would not be a bad thing, but to claim that such interpretations are "for juries to decide" is to claim that the exact interpretation of every single word in every single law in every single situation in which that law might be applied ought be left for a separate trial, with the government not ever bothering to analyze past cases. That not a reasonable position coming from honest disagreement; that's an absurd position founded in ignorance of civics.

"The law is clear. Torture is a crime."

Not one person in the Bush administration would disagree. The question is, rather, whether waterboarding is torture, which is a matter of interpretation. The Obama administration has declared that it is. You're attempting to twist that into a negative to beat the "OMG PROSECUTE NOW" dead horse. The AG is non-political. The AG should be non-political. Political pressure ought not have anything to do with how the AG determines past violations of the law ought be dealt with.

[Deep13]

36. "Political pressure ought not have anything to do with how the AG determines past violations"

Precisely. My impression (and I am not sitting in on cabinate meetings, obviously) is that POTUS is preventing Holder from proceeding. Lately, however, I'm hearing Holder does have the leeway to investigate those who formulated the policy even if the torturers themselves have been taken off the hook.

The executive only has the power to make interpretive decisions (regulations) if Congress specifically delegates that authority to the executive. This statute contains no such authority. Consequently, whether or not some act fits the statutory definition of torture is a jury question. It may be uncomfortable to think that 12 random strangers have that much latitude, but it is no different than many other criminal laws.

[Occam Bandage]

41. "My impression is that POTUS is preventing Holder from proceeding."

Based on what? That is the literal, exact opposite of what Obama has said in public. On what evidence do you believe Obama is applying internal pressure that is the precise opposite of his public position?

Personally, I think the lack of public action is probably founded more in the fact that Holder is still sorting through the thousands and thousands of pages of evidence, legal opinions, and chain-of-command orders related to torture, in order to decide whether a prosecutor would have a sound case or not.

Oh, and way to confuse "legal analysis" with "Federal regulation." I'm sure that's just another "honest disagreement" that is not founded in your stunning ignorance of civics and law, though.

[flyarm]

57. this may answer the question for you whether waterboarding is torture..

http://www.dailykos.com/story/2009/4/24/724238/-HHS-Defines-Waterboarding-as-Torture

snip;
So check this out... in the description of this grant, lies this paragraph:

The psychosocial and health consequences of violence and traumatic stress have emerged as one of the major public health problems of our time. Torture constitutes one of the most extreme forms of trauma, with the potential for long-term psychological and physical suffering. The authorizing legislation uses the definition of torture given in 18 U.S.C. 2340(1) and specifies that the definition includes the use of rape and other forms of sexual violence by a person acting under the color of law upon another person under his custody or physical control. Section 2340(1) states that torture is:

". . . 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."

Found the reference to 18 U.S.C. 2340(1) and immediately looked it up and found this:

Cases in which courts have found torture suggest the nature of the extreme conduct that falls within the statutory definition. See, e.g., Hilao v. Estate of Marcos, 103 F.3d 789, 790-91, 795 (9th Cir. 1996) (concluding that a course of conduct that included, among other things, severe beatings of plaintiff, repeated threats of death and electric shock, sleep deprivation, extended shackling to a cot (at times with a towel over his nose and mouth and water poured down his nostrils), seven months of confinement in a "suffocatingly hot" and cramped cell, and eight years of solitary or near-solitary confinement, constituted torture);

So to recap, both the US Department of Justice and the Department of Health & Human Services define water boarding as torture.

[tekisui]

2. He re-banned it. The booshies made it 'legal', remember.

[Deep13]

8. Sure I remember. They had no legal authority to do it.

Ergo, it was never legal since that law has been on the books.

[Supersedeas]

73. that what the powdered faces on television keep saying...."Catapults!!"

[seaglass]

3. I hadn't thought about it in that way but you are absolutely correct.

I also appreciate everyone who keeps this on the front burner (even Andrew Sullivan :-)). I think it will certainly be a headlining story again on all networks when the pics are released.

[Adelante]

4. Executive Order of 1/22/09 re lawful interrogations

THE WHITE HOUSE

Office of the Press Secretary

For Immediate Release January 22, 2009

EXECUTIVE ORDER

ENSURING LAWFUL INTERROGATIONS

By the authority vested in me by the Constitution and the laws of the United States of America, in order to improve the effectiveness of human intelligence gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the Geneva Conventions, and to take care that the laws of the United States are faithfully executed, I hereby order as follows:

Section 1. Revocation. Executive Order 13440 of July 20, 2007, is revoked. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order. Heads of departments and agencies shall take all necessary steps to ensure that all directives, orders, and regulations of their respective departments or agencies are consistent with this order. Upon request, the Attorney General shall provide guidance about which directives, orders, and regulations are inconsistent with this order.

Sec. 2. Definitions. As used in this order:

(a) “Army Field Manual 2 22.3″ means FM 2-22.3, Human Intelligence Collector Operations, issued by the Department of the Army on September 6, 2006.

(b) “Army Field Manual 34-52″ means FM 34-52, Intelligence Interrogation, issued by the Department of the Army on May 8, 1987.

(c) “Common Article 3″ means Article 3 of each of the Geneva Conventions.

(d) “Convention Against Torture” means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 85, S. Treaty Doc. No. 100 20 (1988).

(e) “Geneva Conventions” means:

(i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949 (6 UST 3114);

(ii) the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949 (6 UST 3217);

(iii) the Convention Relative to the Treatment of Prisoners of War, August 12, 1949 (6 UST 3316); and

(iv) the Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949 (6 UST 3516).

(f) “Treated humanely,” “violence to life and person,” “murder of all kinds,” “mutilation,” “cruel treatment,” “torture,” “outrages upon personal dignity,” and “humiliating and degrading treatment” refer to, and have the same meaning as, those same terms in Common Article 3.

(g) The terms “detention facilities” and “detention facility” in section 4(a) of this order do not refer to facilities used only to hold people on a short-term, transitory basis.

Sec. 3. Standards and Practices for Interrogation of Individuals in the Custody or Control of the United States in Armed Conflicts.

(a) Common Article 3 Standards as a Minimum Baseline. Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340 2340A, section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment), whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States.

(b) Interrogation Techniques and Interrogation-Related Treatment. Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2 22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes. Where processes required by the Manual, such as a requirement of approval by specified Department of Defense officials, are inapposite to a department or an agency other than the Department of Defense, such a department or agency shall use processes that are substantially equivalent to the processes the Manual prescribes for the Department of Defense. Nothing in this section shall preclude the Federal Bureau of Investigation, or other Federal law enforcement agencies, from continuing to use authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises.

(c) Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2 22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation — including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2 22.3, and its predecessor document, Army Field Manual 34 52 issued by the Department of Justice between September 11, 2001, and January 20, 2009.

Sec. 4. Prohibition of Certain Detention Facilities, and Red Cross Access to Detained Individuals.

(a) CIA Detention. The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.

(b) International Committee of the Red Cross Access to Detained Individuals. All departments and agencies of the Federal Government shall provide the International Committee of the Red Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States Government, consistent with Department of Defense regulations and policies.

Sec. 5. Special Interagency Task Force on Interrogation and Transfer Policies.

(a) Establishment of Special Interagency Task Force. There shall be established a Special Task Force on Interrogation and Transfer Policies (Special Task Force) to review interrogation and transfer policies.

(b) Membership. The Special Task Force shall consist of the following members, or their designees:

(i) the Attorney General, who shall serve as Chair;

(ii) the Director of National Intelligence, who shall serve as Co-Vice-Chair;

(iii) the Secretary of Defense, who shall serve as Co-Vice-Chair;

(iv) the Secretary of State;

(v) the Secretary of Homeland Security;

(vi) the Director of the Central Intelligence Agency;

(vii) the Chairman of the Joint Chiefs of Staff; and

(viii) other officers or full-time or permanent part time employees of the United States, as determined by the Chair, with the concurrence of the head of the department or agency concerned.

(c) Staff. The Chair may designate officers and employees within the Department of Justice to serve as staff to support the Special Task Force. At the request of the Chair, officers and employees from other departments or agencies may serve on the Special Task Force with the concurrence of the head of the department or agency that employ such individuals. Such staff must be officers or full-time or permanent part-time employees of the United States. The Chair shall designate an officer or employee of the Department of Justice to serve as the Executive Secretary of the Special Task Force.

(d) Operation. The Chair shall convene meetings of the Special Task Force, determine its agenda, and direct its work. The Chair may establish and direct subgroups of the Special Task Force, consisting exclusively of members of the Special Task Force, to deal with particular subjects.

(e) Mission. The mission of the Special Task Force shall be:
(i) to study and evaluate whether the interrogation practices and techniques in Army Field Manual 2 22.3, when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidance for other departments or agencies; and

(ii) to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.

(f) Administration. The Special Task Force shall be established for administrative purposes within the Department of Justice and the Department of Justice shall, to
the extent permitted by law and subject to the availability of appropriations, provide administrative support and funding for the Special Task Force.

(g) Recommendations. The Special Task Force shall provide a report to the President, through the Assistant to the President for National Security Affairs and the Counsel to the President, on the matters set forth in subsection (d) within 180 days of the date of this order, unless the Chair determines that an extension is necessary.

(h) Termination. The Chair shall terminate the Special Task Force upon the completion of its duties.

Sec. 6. Construction with Other Laws. Nothing in this order shall be construed to affect the obligations of officers, employees, and other agents of the United States Government to comply with all pertinent laws and treaties of the United States governing detention and interrogation, including but not limited to: the Fifth and Eighth Amendments to the United States Constitution; the Federal torture statute, 18 U.S.C. 2340 2340A; the War Crimes Act, 18 U.S.C. 2441; the Federal assault statute, 18 U.S.C. 113; the Federal maiming statute, 18 U.S.C. 114; the Federal “stalking” statute, 18 U.S.C. 2261A; articles 93, 124, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. 893, 924, 928, and 934; section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd; section 6(c) of the Military Commissions Act of 2006, Public Law 109 366; the Geneva Conventions; and the Convention Against Torture. Nothing in this order shall be construed to diminish any rights that any individual may have under these or other laws and treaties. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.

BARACK OBAMA

THE WHITE HOUSE,
January 22, 2009.

http://washingtonindependent.com/26836/executive-order-ensuring-lawful-interrogations

[Deep13]

9. Yes and bravo. But Bush never had the power to allow it.

Congress decides what is legal and what is not. The president takes an oath to faithfully execute those laws.

[BelgianMadCow]

10. This was a VERY clear signal

and gave me a lot of hope. Glad to see the entire thing :thumbsup:

[Egnever]

60. Thanks for that

[merh]

6. .

18 USC § 2340. Definitions

As used in this chapter—
(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

18 USC § 2340A. Torture

(a) Offense.— 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.
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) 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.
(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

Close Torture Loopholes in the Army Field Manual
Synopsis

President Obama's three executive orders of January 22, 2009 call for the closing of Guantanamo within one year, the closing of secret CIA 'black sites,' and the limiting of interrogation techniques to those allowed in the Army Field Manual (AFM). Join us to close torture loopholes that remain.
Description

President Obama's three executive orders of January 22, 2009 call for the closing of Guantanamo within one year, the closing of secret CIA 'black sites,' and the limiting of interrogation techniques to those allowed in the Army Field Manual (AFM), eliminating the numerous executive orders and opinions issued during the Bush administration that granted official approval for torture, cruel and inhuman treatment, and abuse. These executive orders certainly represent an extraordinary step forward, but we remain concerned about potentially exploitable loopholes. Please take a moment to ask him to close the loopholes.

While the current Army Field Manual does not allow waterboarding, it does include approved techniques that constitute torture. One glaring problem with the executive order on torture is the implicit approval of the current AFM as it stands. The Army Field Manual is a guidebook for U.S. interrogators, meant to set a standard in accordance with the law. However, it has serious shortcomings - particularly following a Bush-era 2006 revision that attempted to legitimize some of the abuses taking place at Guantanamo and elsewhere.

~snip~

http://ccrjustice.org/get-involved/action/close-torture-loopholes-army-field-manual

[Froward69]

11. Didn't President Obama say

last night that he "ended the practice"? I do not remember him "Banning" it.

[Cha]

13. Thank

you for accuracy.

[Towlie]

15. Yes and no. Maybe he didn't say he "banned it" per se, but the central point is still valid.

Here's the relevant portion of the transcript from http://blogs.wsj.com/washwire/2009/04/30/transcript-of-obamas-100th-day-press-conference/">The Wall Street Journal:

THE PRESIDENT: What I’ve said — and I will repeat — is that waterboarding violates our ideals and our values. I do believe that it is torture. I don’t think that’s just my opinion; that’s the opinion of many who’ve examined the topic. And that’s why I put an end to these practices. I am absolutely convinced it was the right thing to do — not because there might not have been information that was yielded by these various detainees who were subjected to this treatment, but because we could have gotten this information in other ways, in ways that were consistent with our values, in ways that were consistent with who we are.

He may not have said that he "banned torture" but the remainder of the complaint from Deep13 appears valid to me. Our president did appear to base his opposition on "values" or utilitarian considerations while evading the question of legality.

I'll give this thread a recommendation. I think the subject needs a lot more discussion.

[Occam Bandage]

17. No, he didn't really.

First, waterboarding is not explicitly illegal. The question is whether we believe waterboarding amounts to torture, which is a decision that is indeed at least partially made on values, for the question of whether something is "extreme" or whether injury is "substantial" is not a question that is entirely objective.

Moreover, you will see that he is not saying "I oppose waterboarding because it is morally wrong," but rather "I believe it is a good thing to end waterboarding, because waterboarding is morally wrong." Those are different statements, and I absolutely do believe that decisions can be good decisions for reasons other than (and in addition to) pure legality. What is legal and what is right do not always perfectly coincide; Obama is simply saying that in this case they do.

[flyarm]

58. answer to whether waterboarding is illegal..

http://www.dailykos.com/story/2009/4/24/724238/-HHS-Defines-Waterboarding-as-Torture

snip;
So check this out... in the description of this grant, lies this paragraph:

The psychosocial and health consequences of violence and traumatic stress have emerged as one of the major public health problems of our time. Torture constitutes one of the most extreme forms of trauma, with the potential for long-term psychological and physical suffering. The authorizing legislation uses the definition of torture given in 18 U.S.C. 2340(1) and specifies that the definition includes the use of rape and other forms of sexual violence by a person acting under the color of law upon another person under his custody or physical control. Section 2340(1) states that torture is:

". . . 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."

Found the reference to 18 U.S.C. 2340(1) and immediately looked it up and found this:

Cases in which courts have found torture suggest the nature of the extreme conduct that falls within the statutory definition. See, e.g., Hilao v. Estate of Marcos, 103 F.3d 789, 790-91, 795 (9th Cir. 1996) (concluding that a course of conduct that included, among other things, severe beatings of plaintiff, repeated threats of death and electric shock, sleep deprivation, extended shackling to a cot (at times with a towel over his nose and mouth and water poured down his nostrils), seven months of confinement in a "suffocatingly hot" and cramped cell, and eight years of solitary or near-solitary confinement, constituted torture);

So to recap, both the US Department of Justice and the Department of Health & Human Services define water boarding as torture.

[Occam Bandage]

71. You'll note that you said, "the DOJ defines waterboarding as torture."

That is interesting. Do you believe that is important? If you do believe that is important, do you believe it is important that they explicitly believed that waterboarding was not torture until Obama took office?

[Deep13]

29. What's the difference?

Anyway, ending the practice implies that it once was the practice, ergo, a crime was committed.

[Occam Bandage]

32. "What's the difference?"

[Deep13]

38. So you don't know either. nt

[Occam Bandage]

42. Maybe you could look at one of the number of posts I've made in this thread where I explain it. nt

[Occam Bandage]

16. I don't recall him ever saying he "banned" it.

I recall him saying he "ended" it, which is a very different thing.

[Peacetrain]

20. I disagree.. he has been adamant that this will never happen again

"The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again."

[Occam Bandage]

22. That is not the same as claiming to have "banned" it, either.

Rather, it is claiming that he is implementing and will continue to implement oversight precautions and establish legal precedents that will help to ensure that future administrations will not waterboard.

[Peacetrain]

25. I agree with that..

I guess I am at a loss of what the anger is about...he has put in measures so that this never happens again.. He has made that statement very clearly


I am not sure what the upset at Obama is? I am totally missing it.

Maybe I am the clueless one, but if you say water or use h20, its the same thing in my world.

[Old Hank]

69. Right. Axelrod is the one who said Obama banned it

Axelrod (4-20-09): "The president believes strongly that we need to be looking forward," said Axelrod. "If he had not banned these (interrogation techniques) there would be a different case to be made here. But these practices are a thing of the past. What this should not become is a forum for re-litigating these issues apropos to the last administration and some of the policy makers there, because we have too much work to do to become bogged down in that debate. That's the feeling."

http://www.huffingtonpost.com/2009/04/20/axelrod-we-cant-afford-to_n_189241.html

[vaberella]

21. This is FAUX OUTRAGE!!!

I'm starting to see more and more and more that people just want to be outraged for anything when it comes to O. It's not only Repubs after him but there are Dems who want to nitpick and rail about this or that. He NEVER said "banned" but you claim he did which is FALSE. However you're running on it. It was put into practice but the Bush Admin and he said under his watch it's done and it won't happen again. But you want him to stop saying something he never said.

Oy.

[Occam Bandage]

23. I agree. The entire thing is

bashing Obama for the possible implications of something he never actually said.

[merh]

24. Until he sees that the e loopholes in the Army Field Manual are closed

it is not faux outrage, it is a legit concern.
http://ccrjustice.org/get-involved/action/close-torture-loopholes-army-field-manual

And every discussion of Obama's policies or comments that contain negative implications for Obama is not about trying to get Obama. He welcomes criticism and constructive criticism is helpful (and allowed on DU).

[Occam Bandage]

26. That's very nice, but not what the OP is about. nt

[merh]

31. And neither is the post I replied to.

The OP is correct. The legislative branch makes the laws, the executive branch enforces the laws and the judiciary interprets the law. The legislative branch has already banned torture. Obama's executive order reflects that his office will properly enforce the existing laws (that iis, if they close the loopholes which circumvent the existing laws making torture illegal).

[vaberella]

35. I realize that he welcomes criticism.

However, O never said banned, which is already pushing a misleading perspective. Secondly, what he has said is that he ended a practice that was basically in action before he was president. So even if it was legal or illegal (which we know it was and he has said/implied was illegal)...he said his administration won't participate in something that goes against America's rules and laws. He's said this several times. Which just says that the Bush admin enacted illegal methods. So I don't see where the OP is coming from in regards to their, basically, "outrage." As such, I don't see this "concern" as legitimate.

[merh]

39. The only outrage I read in this thread would be your outrage.

The OP posted their feelings regarding Obama's position on torture.

If the word "banned" get's under your skin, move past it to the rest of the OP. Consider the substance and stop getting all wound up (outraged) about the use of the word "banned".

Stop saying it is a mistake or a policy and stop basing your opposition on "values" or utilitarian considerations. Congress banned torture when it enacted 18 USC 2441. Torture is a crime and a president has no discretion in allowing the commission of a crime. Torturing is a criminal act that has banned for quite some time. If you care at all about the rule of law, the only thing to do is to let the AG bring indictments.

The OP is correct, though he/she failed to include the federal statute that makes torture and the ordering of torture illegal, Obama cannot make law, Obama can be sure that his office enforces the laws. That is his job as president.

Of course, the loopholes exist in the Army Field Manual and they must be closed if he wants to do his job properly and ensure that we do not torture.

[vaberella]

47. And...from what I know...

O has moved this into the court of the AG a while back...hence my point. Over and over and over again I see posts after posts to nitpick. Oh already pushed this into AG's court and that he has stopped any of those past practices as an Admin that O, himself, said was illegal. So I do find this sense of indignation but from where. I just see it as outrage. As for my post...sure it can be seen as outrage as well.

[merh]

48. The OP's post is legitimate

It is not Obama's job to ban a damned thing, his job is to see that the laws are enforced, that his agencies (to include the AG) properly enforce the laws equally.

There are loopholes in the Army Field Manual that can be used to continue to violate the laws. Obama's executive order states that the AFM will be followed, does that mean that he knows the loopholes will allow the illegal behavior? If so, he has not only failed to "ban" but he is not properly enforcing either.

The indignation you express keeps threads alive, wonder how quickly the thread would have fallen but for your posts and the posts of others that took issue with the word "banned"?

[vaberella]

50. As I stated.

I don't see O has banned "damn thing." He just stated his admin is not practicing an act he finds illegal. And he has included the AG and stated in a press conference that the AG will be looking over the case.

As for the AFM case I'm not aware of that. And I'd like to say maybe you should bring that up to O himself. The AFM loopholes you've mentioned has not been mentioned by O...and I would have assumed that the Geneva Convention and our own laws would have nullified the loopholes in AFM.

As for a thread dropping...was that a duty of mine? I don't get your point on the last statement.

[merh]

52. And as I said, get past the word "banned" which annoys you so

and you will read that the OP's post is legitimate and the faux outrage your own.

I've signed the petition as found here
http://ccrjustice.org/get-involved/action/close-torture-loopholes-army-field-manual

and I have sent letters

At least I am informed and not full of faux outrage.

[Deep13]

33. Banned vs. ended is an academic distinction.

Apparently, you don't think it is possible to have voted for Obama and to agree with 90% of what he is doing, but to disagree on this one issue. If so, you are no different than the talking heads on Fox.

Yes, Bush and his minions did it. They committed Federal criminal offenses. The issue here is whether or not the United States will but its money where its platitudes are. Disregarding the offenses our previous govt. committed makes us less of a nation of law and more of a nation of men. It gives the executive the power to nullify a lawful act of Congress. I understand Obama has many pressing problems on his desk. As much as I applaud most of what he does, we cannot allow abuses by a chief executive to go unpunished. That is the difference between a Constitutional president and a dictator. Rule of law means prosecuting those who break the law. Now, I'm hearing that the AG has been given latitude in prosecuting those who directed the CIA to break the law. I hope that is true, because there really is no reasonable case to be made for ignoring what Bush did.

As a liberal and a progressive, rule of law is the most fundamental issue there is. Without it and an equality before the law, we are no different than a fuedal or dictatorial society where the rich officials can do what they want while the ordinary person is oppressed.

[Occam Bandage]

37. No, it is not, and it is not remotely.

A "ban" is a declaration that previously-legal behavior is now considered illegal. You rightly claimed that Obama did not ban torture, since torture was already illegal. However, that isn't what Obama said. He said he ended waterboarding, which he did. America waterboarded before Obama. It no longer does. It's the difference between saying "Mayor X banned police discrimination in his city" and "Mayor X instituted oversight and regulatory policies that ended racial profiling in his city." One is a declaration of a shift in legality; the other is a declaration of a shift in practice.

Attacking Obama for saying he "banned" torture because it was already illegal would be a reasonable if petty game of semantics, but since that isn't what he said at all, your OP is attacking him for doing something he quite literally has not done.

[Deep13]

40. Attacking him?

I guess I should turn myself in for this act of aggression. Wait a minute! I didn't attack anyone. I merely said that I disagree with something that the president did who I helped electe and to whose campaign committee I gave money. Huh.

[Occam Bandage]

43. "I merely said that I disagree with something that the president did"

which he did not actually do, but other than that, great.

[vaberella]

45. You presume a lot about me.

I don't see how important this is. Why? Because he has said and has defined the actions of the Bush Admin as wrong and by his opinion, I determined (and I could be wrong), that their actions were illegal. He has said his admin will not do such things, finds them illegal, and says they will never happen again.

I don't see where O has ever "disregarded the offenses our previous govt." As a matter of fact, he actually stated very clearly that what they did was illegal and against America's rule of law. So your statements are weak from what I can see to support the OPs post.

He has also said that his AG will be working on this issue and is debating on releasing more classified memos and not the ones Cheney requested. So I'm trying to see what you're saying. You're pushing an idea that O is pushing everything aside and forgiving those liars which is NOT true.

[ClarkUSA]

44. What is the exact quote that you are torturing into a strawman argument against Pres. Obama?

[vaberella]

46. See post#15...there's a direct quote there of Pres.O's speech.

[Name removed]

49. Deleted message

Message removed by moderator. Click here to review the message board rules.

[ClarkUSA]

68. So the OP is misstating the case. I thought so. Thanks.

What a surprise. Not.

[HiFructosePronSyrup]

51. In what way do you consider this bullshit to be constructive criticism?

[DevonRex]

53. This OP is based on an inaccuracy and therefore is just really STUPID

intentional flame-bait.

[guruoo]

54. Flamebait. n/t

[crimsonblue]

55. Don't forget the UN Convention Against Torture

It has much more definitive wording and expressing states there is no external justification for torture(i.e. Happened during War, to protect National Security, etc).

[AtomicKitten]

56. He didn't. He discontinued the policy of his predecessor because it was already banned long ago.

n/t

[stillcool]

59. So if the Bush Administration...

produced legal findings for the sole purpose of creating a legal basis to torture, why shouldn't the next Administration issue legal finding that declares the previous ones null?

[Prophet 451]

61. Because the previous ones DIDN'T declare a legal basis

Essentially, the opinions issued were complete horseshit based on the Nixon Defence that were written purely to provide a figleaf of legal cover. Writing opinions which provide a cover for what are clearly crimes is called perverting justice. Lawyers get disbarred for this stuff and the US prosecuted German judges who declared teh Nuremburg laws to be legal.

[stillcool]

64. the whole purpose...

was to provide a finding that provided a legal basis for the interrogation techniques the United States Government was instructing it's military to use. Why else write them? As a matter of law, do you just ignore it, and say it isn't so? Or do you have to have some kind of legal documentation that reverses it?

[Prophet 451]

65. You can ignore it

As a basic rule, when an opinion presents a view that is completely opposite to well-established legal precedent and jurisprudence, that opinion can be safely ignored.

[stillcool]

66. Can you keep using it?

[Prophet 451]

67. Depends

You can try and you might even get away with it for a while but the second someone calls you on it, you might as well be singing "I am the lollipop man" for all the legal cover it would give you.

[Prophet 451]

62. Agreed

"Banned" presumes a previous legality which torture hasn't had in decades.

Still, if he lets the AG go forward with prosecutions, I'll give him a pass on sloppy choice of language.

[OwnedByFerrets]

63. Very good point!!

[Occam Bandage]

70. Except for the fact that Obama never claimed to have banned it, yes!

[mmonk]

72. Its not up to Presidents to decide which laws are to be obeyed

by declaration or who is or is not to be held accountable.