9th Circuit Rules John Yoo has Immunity in Torture Suits

The 9th Circuit Court of Appeals has reversed a district court ruling that the lawsuit filed by former detainee Jose Padilla can proceed against Bush Administration official John Yoo, who authored the infamous torture memos.

The memos authorized CIA interrogators to use waterboarding, keep detainees naked, hold them in painful standing positions and keep them in the cold for long periods of time. Other techniques included depriving them of solid food and slapping them. Sleep deprivation, prolonged shackling and threats to a detainee’s family were also used.


In finding John Yoo has immunity, the Court wrote:

“There was at that time considerable debate, both in and out of government, over the definition of torture as applied to specific interrogation techniques...“In light of that debate...we cannot say that any reasonable official in 2001-03 would have known that the specific interrogation techniques allegedly employed against Padilla, however appalling, necessarily amounted to torture.”

The opinion is here.

The Court also ruled that detainees held in military custody don't have the same rights as prison inmates.

As to torture, the Court says:

although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla’s alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.

As Marcy at Empty Wheel points out, Jay Bybee, co-author of some torture memos, is now a 9th Circuit Judge.

It's also interesting to me that Yoo's attorney in the case is Miguel Estrada, who Bush nominated for the D.C. Circuit Court of Appeals in 2003, and whose nomination caused a firestorm and filibuster based on his ideology. Normally I caution against inferring a lawyer shares a client's ideology based only on his or her agreeing to take the case, but with Estrada, it's pretty unmistakable he and Yoo have a lot in common. Estrada finally withdrew his name from consideration. Estrada is a partner in firm that represented George W. Bush in the Supreme Court during his 2000 post-election battle with George Bush. He was on Rudy Giuliani's judicial advisory committee when Rudy contemplated running for President and promised conservative judges.

For anyone who has forgotten what was encompassed in the torture memos, see here. Here's Time Magazine: Jay Bybee, the Man Behind Waterboarding.

The ACLU has some of the torture memos authored by John Yoo here.

Here are the Judiciary Committee's documents including the Office of Professional Responsibility Reports. OPR initially found Yoo and Bybee committed professional misconduct. Its final report found the same. But here's the Memo from the Associate Deputy Attorney General, David Margulis refusing to adopt the OPR's findings.

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    Hmm, waterboarding was torture... (5.00 / 3) (#1)
    by Dadler on Wed May 02, 2012 at 10:16:12 PM EST
    ...when Japanese soldiers were prosecuted AND executed for it after WWII.

    In other words, this decision is unmitigated horsesh*t, and easily proven as such by any middle school student with more than a smattering of brain cells in their pimpled head.

    Beyond a joke, a national disgrace.  As effective an erasing of history as the eastern bloc communists ever did airbrushing disgraced officials out of photos, or disappearing any incident they didn't like.  This court and its ruling belong in a Milan Kundera novel.  

    Can you document (none / 0) (#9)
    by lousy1 on Thu May 03, 2012 at 07:10:19 AM EST
    This assertion?

    "Japanese soldiers were prosecuted AND executed for it after WWII"

    I am not aware of any circumstance where waterboarding by itself was sufficient evidence to cause convistion capital offense.

    Indeed I doubt that Japanese interrogations would stop with waterboarding. The historical record shows a ubiquitous acceptance of more brutal methods of torture.


    Here, Einstein (5.00 / 2) (#33)
    by Dadler on Thu May 03, 2012 at 11:24:57 AM EST
    And really, my fellow free American... (5.00 / 2) (#34)
    by Dadler on Thu May 03, 2012 at 11:30:10 AM EST
    ...it just ain't that hard to do a little bit of your own free American homework.  

    Thanks. In the article (none / 0) (#47)
    by lousy1 on Thu May 03, 2012 at 02:52:45 PM EST
    I do not see any evidence of Japaneses solders being executed for water-boarding. You might notice is the point that I am contending.

    I do see undocumented statements that several Japanese were convicted after conducting something similar to the US practice. The article neglects to mention what other atrocities were committed ( for instance  A number of the Doolittle raiders were tortured to death or summarily executed.)

    I also note that the article fails to mention that water-boarding was codified in the army field manual while he served as a reserve JAG. Did he advise the troops in his purview to disregard the manual? Perhaps when he retired he wrote the AG to present his complaints?

    In any case the traditional difference between military treatment of POWs and civilian treatment of suspects is lawful and reasonable. The author can not conflate illegal treatment of a civilian with unlawful treatment of a POW



    Further (none / 0) (#11)
    by Abdul Abulbul Amir on Thu May 03, 2012 at 07:42:14 AM EST

    The term "water boarding" has been applied to similar but different practices.  Was the water boarding done by the Japanese the same or merely similar?



    Waterboarding is waterboarding. (5.00 / 2) (#40)
    by Donald from Hawaii on Thu May 03, 2012 at 01:35:12 PM EST
    And for the record, Abdul, your painfully obvious -- but, alas, ultimately fruitless -- quest for a political distinction without a practical difference, is hereby duly noted.



    It's simulated drowing (none / 0) (#14)
    by Yman on Thu May 03, 2012 at 08:43:48 AM EST
    Descriptions of water boarding as it is apparently currently applied differ very little from
    the techniques applied by the Japanese. One investigator describes water-boarding as a technique
    "...in which a prisoner is stripped, shackled and submerged in water until he begins to lose
    consciousness..." Another source says "...a prisoner is strapped down, forcibly pushed under
    water and made to believe he might drown."  The similarity is startling, given the opprobrium
    occasioned by its application to American military personnel.

    ... not a sponge bath.

    However the statement is unsupported (none / 0) (#19)
    by lousy1 on Thu May 03, 2012 at 10:12:39 AM EST
    and a frequent meme by both McCain and the left.

    My research finds the following.
    "The names of the Japanese men executed for waterboarding among other things are
    General Kenji Doihara
    Baron Kōki Hirota
    General Seishirō Itagaki
    General Heitarō Kimura
    General Iwane Matsui
    General Akira Muto
    General Hideki Tōjō"

    The conclusion that men were executed for waterboarding is not supported.
    Undoubtedly men have been executed for larceny under 100 dollars among other things.


    Water torture... (5.00 / 1) (#29)
    by Dadler on Thu May 03, 2012 at 11:07:53 AM EST
    ...was first on the list of their crimes.  You live in a fantasy world or rationalizations.  Enjoy, it's a free country.

    As noted below ... (5.00 / 2) (#32)
    by Yman on Thu May 03, 2012 at 11:21:12 AM EST
    ... waterboarding was one of the first offenses listed.  More importantly, waterboarding was/is universally judged to be "torture".  The Japanese may have been punished for other crimes as well, but waterboarding is torture - a war crime punishable by death.  These Japanese soldiers weren't being punished for "larceny under $100".

    War Crimes Tribunal (none / 0) (#41)
    by lousy1 on Thu May 03, 2012 at 01:36:51 PM EST
    The International Military Tribunal for the Far East (IMTFE), also known as the Tokyo Trials, the Tokyo War Crimes Tribunal, or simply the Tribunal tried the above defendants on the following counts

    1 As leaders, organisers, instigators, or accomplices in the formulation or execution of a common plan or conspiracy to wage wars of aggression, and war or wars in violation of international law.
    27 Waging unprovoked war against China.
    29 Waging aggressive war against the United States.
    31 Waging aggressive war against the British Commonwealth.
    32 Waging aggressive war against the Netherlands.
    33 Waging aggressive war against France (Indochina).
    35,36 Waging aggressive war against the USSR.
    54 Ordered, authorised, and permitted inhumane treatment of Prisoners of War (POWs) and others.
    55 Deliberately and recklessly disregarded their duty to take adequate steps to prevent atrocities.

    Doihara was found guilty of Counts 1, 27, 29, 31, 32, 35, 36, and 54 and was sentenced to death.

    I didn't bother to research the others, But the tribunal only charged these particular counts.

    The following Military defendants were tried and convicted ( not all to death)

    General Seishirō Itagaki, war minister
    General Sadao Araki, war minister
    Field Marshal Shunroku Hata, war minister
    Admiral Shigetarō Shimada, naval minister
    General Kenryō Satō, chief of the Military Affairs Bureau
    General Kuniaki Koiso, prime minister (1944-1945), governor-general of Korea
    Admiral Takazumi Oka, chief of the Bureau of Naval Affairs
    General Hiroshi Ōshima, ambassador to Germany
    Admiral Nagano Osami, navy minister, Chief of the Imperial Japanese Navy General Staff (April 1941 to February 1944)
    General Jirō Minami, war minister, commander of the Kwantung Army, governor-general of Korea
    General Kenji Doihara, Chief of the intelligence service in Manchukuo, later Air Force commander
    General Heitarō Kimura, commander of the Burma Expeditionary Force
    General Iwane Matsui, commander of the Shanghai Expeditionary Force and Central China Area Army (1937)
    General Akira Mutō, commander of the Philippines Expeditionary Force
    Colonel Kingorō Hashimoto, founder of Sakurakai
    General Yoshijirō Umezu, war minister
    General Teiichi Suzuki, president of the Cabinet Planning Board

    We do better if we separate facts from emotions



    What's your point? (5.00 / 1) (#55)
    by Yman on Thu May 03, 2012 at 04:07:31 PM EST
    That there's no specific count for "waterboarding"?

    'Cause that's pretty funny.


    I guess (none / 0) (#60)
    by lousy1 on Thu May 03, 2012 at 04:38:22 PM EST
    As fair as I can see only the un-sourced article you rely on says that water-boarding had anything to do with the specific executions it mentions.

    Researching the actual trial tends to cast a lot of doubt on that papers assertions. Do you have any source material or reference data to support these claims?

    Indeed some of the executed men were not charged with mistreatment of allied POWs


    And the question is, so what? (5.00 / 1) (#63)
    by Anne on Thu May 03, 2012 at 05:39:26 PM EST
    Let's say, for the sake of argument, that you are right.  You're not, but let's just say you are -that no one was executed for the specific crime of waterboarding.

    So f**king what?

    Are we going to base our policy and salve our collective conscience on what was or wasn't done at some other time in some other place, or are we going to decide, as a nation, that we will not, do not, subject anyone - whether suspected terrorist or not - to inhumane treatment.

    Are we going to get bogged down in the minutiae of what is and is not inhumane, deluding ourselves that "this much" sleep deprivation, "that many" stress positions, "this many minutes" of waterboarding, "this many" periods of forced nudity are okay?  Or are we going to try to live up to the reputation we want to have, as a beacon of democracy?

    I am so, so sick of people like you, who actually see a purpose and justification for torture.  Only you don't call it torture; you get out your Roget's Thesaurus and try to find some benign synonym you think will allow you to package it as a good thing.  And you always bring your ticking time bomb along if all else fails.

    Talk is cheap; we all know you would fold like a cheap lawn chair if subjected to even 10% of what we subjected detainees to, so you might want to peddle this nonsense on some right-wing, authoritarian blog; it's not selling here.


    Read count 54 again, lousy1. (5.00 / 2) (#66)
    by Donald from Hawaii on Thu May 03, 2012 at 08:00:10 PM EST
    "54 Ordered, authorised, and permitted inhumane treatment of Prisoners of War (POWs) and others."

    Now, what do you think the Allies meant by using the term "inhumane treatment" means in this particular context? Wouldn't logic tell you that this term is inclusive of the use of torture -- and by extension, waterboarding?

    Don't be so literal, and hide behind right-wing word games. This issue of whether or not waterboarding is torture was actually decided by the courts long ago, both here and abroad.


    Gee (none / 0) (#73)
    by lousy1 on Thu May 03, 2012 at 10:19:31 PM EST
    I was only pointing out a wide spread factual error. I don't think I opined on the contemporary waterboard issue.

    Of course one of the 12 articles could possibly include waterboarding.

    History shows that most senior Japanese commanders ordered their troops to commit  egregious violations of article 54 including bayonet drills on civilians, rape and  murder. Do you really think waterboarding was an important issue?

    Why is this so hard?


    Not a factual error (5.00 / 1) (#77)
    by sj on Fri May 04, 2012 at 08:55:19 AM EST
    and you know it.  When

    a) waterboarding (and any of its variations) is declared torture, AND
    b) some Japanese commanders engaged in it, AND
    c) were executed for war crimes INCLUDING torture

    it isn't conflation to state that they were executed for it.  Among other war crimes.  The fact that additional egregious behaviors of varying levels of inhumanity were also committed doesn't change that.

    I can't believe how many people continue to try to mitigate the practice.  In my view, those who do so should be deeply ashamed.  It increases the inhumanity of the act by increasing the inhumanity of our society.

    Why is this so hard?


    differ very little (none / 0) (#26)
    by Abdul Abulbul Amir on Thu May 03, 2012 at 10:50:48 AM EST

    This is an acknowledgement that they are not the same.  Whether the difference is small, medium, or large is an opinion of the speaker that we have no way of evaluating.  Differences that some consider minor, others may consider major.

    Get a humane clue (5.00 / 2) (#30)
    by Dadler on Thu May 03, 2012 at 11:10:09 AM EST
    Go get yourself waterboarded then talk.  At least Christopher Hitches, who I DON'T respect for shilling for the Iraq war, had the nads to put his ass on the line and get waterboarded.  And it took him seconds to understand how TORTUROUS is was.

    If one needs to be waterboarded to have an opinion (none / 0) (#49)
    by lousy1 on Thu May 03, 2012 at 03:26:54 PM EST
    this thread would be rather bare.

    The speaker is an expert ... (5.00 / 2) (#31)
    by Yman on Thu May 03, 2012 at 11:17:18 AM EST
    ... on military law and this issue.  If you think there are material differences such that would make the most recent waterboarding permissable, let's see what they are ...

    ... and any evidence.


    The speaker is an expert on this issue (none / 0) (#50)
    by lousy1 on Thu May 03, 2012 at 03:31:03 PM EST
    How do you know that? I see a junior reserve officer. Do you have more info?

    Google ... (none / 0) (#56)
    by Yman on Thu May 03, 2012 at 04:09:37 PM EST
    But Evan Wallach (none / 0) (#68)
    by lousy1 on Thu May 03, 2012 at 08:23:56 PM EST
    Is a partisan advocate - certainly not a historian.

    He needs to back up his acertaions with facts. The fact in dispute is that Japanese POWs were executed for waterbording.

    I think most WWII historians would find this claim absurd.

    Again, please show me a supporting case.



    Who said he was a historian? (none / 0) (#70)
    by Yman on Thu May 03, 2012 at 08:38:55 PM EST
    He's an expert in this field:

    Evan Jonathan Wallach (born 1949) is an American lawyer and judge of the United States Court of Appeals for the Federal Circuit. A former judge of the United States Court of International Trade, he is one of the nation's foremost experts on war crimes and the law of war.

    Wallach also served in the United States Army Judge Advocate General's Corps in the International Affairs Division of the Office of TJAG at The Pentagon during the Gulf War, where he assisted in advising on the law of war and investigating war crimes allegedly committed by Iraqi leaders

    As an adjunct law professor Wallach specialises in the law of war. From 1989 - 1995 he served as Judge Advocate General in the Nevada Army National Guard, with the rank of major. His responsibilities included giving annual lectures to Military Police regarding their legal obligations on treatment of prisoners. During the Gulf War he served at the Pentagon in the International Affairs Division of the Office of The Judge Advocate of the Army, where he assisted in advising on the law of war and investigating war crimes allegedly committed by Iraqi leaders.

    Since 1997 he has been adjunct professor in Law of War at both New York Law School and Brooklyn Law School. Since 2001 he has been a visiting professor in Law of War at the University of Münster.

    The fact in dispute is that Japanese POWs were executed for waterbording.  I think most WWII historians would find this claim absurd.

    That's great that you think that ... so what?  I think most WWII historians would find your claim absurd.  Problem solved.

    BTW - The Japanese who were convicted of war crimes weren't charged with "waterboarding" as an offense.  They were charged, as you noted, with broader offenses based on the fact that they tortured prisoners, including waterboarding.  Their sentences did not spell out a separate offense for each act.

    Again, please show me a supporting case.

    Sorry  already have.  Let's see a list of WWII historians who find this fact "absurd".


    odd, (5.00 / 1) (#4)
    by cpinva on Wed May 02, 2012 at 11:21:49 PM EST
    US law enforcement personnel have been prosecuted and imprisoned, for using waterboarding, in the recent past. the only person who seems to have had any questions about this being a form of torture would be john yoo, and now three members of the 9th circuit. the fear is strong in them.

    given the roberts' court, pushing this further may well result in the US being the only civilized country in the world judicially sustaining torture as accepted standard practice. of course, there is that whole "geneva conventions" thing, which might be a tad difficult for even roberts & scalia to get around.

    CPA (none / 0) (#20)
    by lousy1 on Thu May 03, 2012 at 10:18:08 AM EST
    Could you direct me to your source reference?

    US law enforcement personnel have been prosecuted and imprisoned for slapping prisoners. That does not suggest that slapping a prisoner is always a crime.


    US Military personnel (5.00 / 1) (#22)
    by me only on Thu May 03, 2012 at 10:24:05 AM EST
    court-martialed for waterboarding

    Texas sheriff prosecuted ... (5.00 / 1) (#35)
    by Yman on Thu May 03, 2012 at 11:34:38 AM EST
    ... and sentenced to 4 years for waterboarding.

    Cases of waterboarding have occurred on U.S. soil, as well. In 1983, Texas Sheriff James Parker was charged, along with three of his deputies, for handcuffing prisoners to chairs, placing towels over their faces, and pouring water on the cloth until they gave what the officers considered to be confessions. The sheriff and his deputies were all convicted and sentenced to four years in prison.

    You sure are anxious (none / 0) (#25)
    by sj on Thu May 03, 2012 at 10:38:06 AM EST
    to find a way to excuse this abomination.  Are you sure that's side you want to be on?

    As for me (none / 0) (#48)
    by lousy1 on Thu May 03, 2012 at 03:25:27 PM EST
    I am anxious to dispelled any myths on either side of the issue. Don't we agree in the value of that exercise?

    Evan Wallach does not strike me as an unbiased news source and his assertions need to be vetted by more than another opinion blurb.


    Of course he doesn't (5.00 / 2) (#57)
    by Yman on Thu May 03, 2012 at 04:10:36 PM EST
    ... because he doesn't reach the same conclusions as you.

    What is this "we"? (5.00 / 2) (#62)
    by sj on Thu May 03, 2012 at 04:52:06 PM EST
    Do you have a mouse in your pocket?
    I am anxious to dispelled any myths.  Don't we agree in the value of that exercise?
    The evidence here is that you are anxious to dispel inconvenient facts in order to create myths.  There is no value in that exercise even if you do agree with yourself.  Or your mouse.

    Again.. (none / 0) (#69)
    by lousy1 on Thu May 03, 2012 at 08:28:25 PM EST
    Please direct me to an account of a Japanese POW being executed for Water-boarding.

    Why is it so hard for people to admit they have been hoaxed?

    It is not even the salient point of the water-boarding argument.


    wev (5.00 / 1) (#71)
    by sj on Thu May 03, 2012 at 09:58:28 PM EST
    If this is the nit you are choosing to pick no one can stop you.  Or help you.

    The cabal lives on (5.00 / 2) (#8)
    by ruffian on Thu May 03, 2012 at 07:05:37 AM EST
    This is so disgusting. So essentially Bybee can now act as an agent on the inside, explaining to anyone who will listen how "unclear" the rules were back then.

    Correction - way beyond disgusting.

    While Simultaneously Forgetting... (5.00 / 3) (#12)
    by ScottW714 on Thu May 03, 2012 at 08:34:12 AM EST
    ...to mention that they were the ones aiding it making it unclear.

    I find it so infuriating that the people who should be accountable for torturing human beings are the only ones who thought this matter was gray.

    And I find it 1000 times more infuriating that the democrats are so scared of offending republicans, they couldn't bring themselves to lock up criminals.


    Scott makes a key point (5.00 / 6) (#24)
    by Peter G on Thu May 03, 2012 at 10:35:01 AM EST
    It is a regular strategy of the new right-wingers to create their own "controversies" to destabilize the debate about matters that are or should be accepted fact.  Thus, a previously non-existent "controversy" about what is covered by the universal ban on torture is created, to justify and immunize the perpetration of torture.  The same strategy is used to justify inaction on climate change, or to justify teaching creationism in schools -- manufacturing a "debate" where there is none, and then taking advantage of this "uncertainly" and "controversy" to justify the intellectually unjustifiable.

    Which is then met, on the Dem side, by (5.00 / 3) (#27)
    by Anne on Thu May 03, 2012 at 10:52:03 AM EST
    a desire to "work together," or find "consensus," or a "bipartisan" position all can agree on, which works like a charm to move the overall policy well to the right of where it used to be.

    But, as we've seen over and over, this doesn't satisfy the right wing; they just hunker down and work on moving it even more to the right.

    How is it even possible that these people - Democrats - seem incapable of seeing this pattern?  Maybe the bigger question is, do we think they would do anything about it - change the strategy - if they did?


    You may recall (none / 0) (#15)
    by Abdul Abulbul Amir on Thu May 03, 2012 at 08:50:04 AM EST

    You may recall that the memo to clarify the rules was widely denounced as the "torture memo."  If there is going to be clarity such a document had to exist.  For example, without such a document how is one to know when some sleep deprivation crosses the line into so much deprivation as to be classed as torture.



    To "clarify" - heh (5.00 / 1) (#16)
    by Yman on Thu May 03, 2012 at 09:09:12 AM EST
    You may recall, the purpose of these memoranda was to draw a definition of torture that was much narrower than previous definitions and those under international law.  They were written to provide legal cover.

    There's a reason the OPR wanted Yoo referred for disciplinary action for his role in writing these memoranda.  There's also a reason the new head of the OLC rescinded the memoranda, calling them "deeply flawed" and "sloppily reasoned.


    You make an interesting assertion (none / 0) (#28)
    by Abdul Abulbul Amir on Thu May 03, 2012 at 10:59:46 AM EST

    Would you care to point out those "previous definitions and those under international law" that clearly define when loss of sleep becomes sleep deprivation torture?



    Find it yourself (5.00 / 2) (#36)
    by Yman on Thu May 03, 2012 at 11:38:57 AM EST
    ... since that wasn't my assertion.  The sleep deprivation was your example, used to support your broader claim that the torture memos were drafted to "clarify the rules" about these interrogation techniques, and the discussion was about waterboarding.

    But I'd want to change the subject, too ... if I were making your argument.


    Can't find (none / 0) (#72)
    by Abdul Abulbul Amir on Thu May 03, 2012 at 10:19:24 PM EST

    what does not exist/

    Exactly (none / 0) (#75)
    by Yman on Fri May 04, 2012 at 07:56:58 AM EST
    Which is why you were trying to reframe the issue.

    You made the unsupported claim (none / 0) (#79)
    by Abdul Abulbul Amir on Fri May 04, 2012 at 10:14:41 AM EST

    That clear international standards existed.  In fact there appear to be none that meet that criteria.  The fact that you can cite none makes your claim no more credible than a rumor.

    Clear international standards re: ... (none / 0) (#80)
    by Yman on Fri May 04, 2012 at 10:26:52 AM EST
    ... waterboarding, the subject of the thread.  You were the one trying to reframe the subject to sleep deprivation.

    Of course, the reason is transparent ...

    See UN Report of the Committee against Torture


    Geneva Convention... (5.00 / 3) (#18)
    by ScottW714 on Thu May 03, 2012 at 09:41:37 AM EST
    ...not enough ?  

    They created the gray area they are hiding behind, the rest of the world knew torture was illegal and they knew what it was without some idiot guide created by lackeys.


    Jeez, WHAT is your problem, Abdul? (5.00 / 1) (#43)
    by Donald from Hawaii on Thu May 03, 2012 at 02:23:24 PM EST
    I'm going to put on my armchair psychoanalyst's coat here and take an educated guess, and offer that you suffer from an innate inability to look at issues outside the political realm.

    I fully realize that your conscious self probably find this hard to believe, but there really and truly are SOME issues that should be addressed as an urgent matter of our collective humanity, rather than as debated as a mere instrument of our national policy.

    The physical and psychological torture of another human being, which includes the practice of waterboarding, is one of them. To do otherwise would be to not stand fast upon timeless human principle, but rather, to be seduced by the immediate and practical expediency of a given political moment. But further, I think that deep down inside yourself, your own subconscious fully realizes that.

    Don't be so morally bankrupt, that you would consciously seek to defend a horrific practice that's been universally defined as torture in international law for the better part of three-quarters of a century -- most certainly since the war crimes tribunals held in Nuremburg and Tokyo following the Second World War.

    As I noted in an earlier comment above, you are merely attempting to draw for yourself a distinction about torture without any practical difference.

    Thus, I believe that if you are truly honest with yourself, you'll realize that your ego is actually debating your superego, and that you're allowing others here to assume the role of your own conscience, which seems to be resisting your politically-motivated insistence that waterboarding is somehow an acceptable practice for interrogation of suspects and detainees.

    Surely, the subsequent vigorous resistance that you are encountering should tell you something about the repellant nature of your suggestion.



    Litmus Test (5.00 / 1) (#51)
    by ScottW714 on Thu May 03, 2012 at 03:35:47 PM EST
    To me this is a no brainer, can the activity be done on our own soldiers.

    No need figure out how many pulled out finger nails or how much water can be used to simulate drowning or whatever non-sense the right can think of to cloud the issue.

    And if by some odd chance, a question lingers about a specific procedure, let it be done to the one who makes the decision.  Hang Bush from the rafters on TV and let him explain to the country how it's not torture.

    But Donald what really gets me hot, is the idiots still championing for it even though they know it didn't work.  I got it before, it might work, and while I didn't agree, I understood the logic.  I don't get the logic now, unless the purpose it to inflict pain for pain's sake.  Which is what I suspect, but being the cowards they are, they could never reveal their true motives.


    Well, we ARE talking about people ... (none / 0) (#65)
    by Donald from Hawaii on Thu May 03, 2012 at 07:50:30 PM EST
    ... who, for all their condescending "Masters of the Universe" pretentions concerning sound policy development, are apparently stunted in an emotional adolescent state of being.

    There were, quite obviously, no truly deep thinkers participating here when this insane policy about torture was at the proposal stage, and no real adults were in the room when it was subsequently adopted. Their innate immaturity tended to underscore their own remarkably cartoonish outlook on both the world as it is, and the way people actually behave, think and feel.


    Bybee was not on this panel (none / 0) (#23)
    by Peter G on Thu May 03, 2012 at 10:29:54 AM EST
    and clearly would be recused from participating in any aspect of the case against Yoo.  The authoring Ninth Circuit judge was Raymond C. Fisher (a Clinton appointee and former Brennan clerk), joined by Circuit Judge N. Randy Smith, a GWB appointee and District Judge Rebecca R. Pallmeyer, of Northern Illinois, also a Clinton nominee.

    I realize that, but if he is a 9th Curcuit judge (none / 0) (#38)
    by ruffian on Thu May 03, 2012 at 01:02:38 PM EST
    surely he has a chance to shape other circuit members' outlooks and ideas during all of his interactions with them. He does not have to sit on this particular panel to have had an influence on how they see things.

    It's not an assumption that I would ... (none / 0) (#46)
    by Donald from Hawaii on Thu May 03, 2012 at 02:34:30 PM EST
    ... necessarily make, that a federal appellate court judge would engage in an ex parte discussion with his colleagues on the 9th Circuit Court of Appeals with due regard to a legal challenge to a contentious matter of public policy -- a matter in which said appellate court judge had earlier played a key role in both crafting and adopting, while serving in his prior capacity of attorney in the U.S. Dept. of Justice.

    But given the noxious current level of politicization of our courts, it wouldn't surprise me in the slightest were you to be proved correct.


    I must not be saying it clearly (none / 0) (#52)
    by ruffian on Thu May 03, 2012 at 03:49:36 PM EST
    I don't even mean in connection with any particular case. Maybe I don't understand that there may be ethical rules that limit what judges can talk about with one another even when they are discussing life experience and law in general. It seems to me that if I was working with or interacting with Bybee on a regular basis, the topic of his opinions as to the legality of torture would come up. Is he prohibited from talking about it to any of his colleagues, ever?

    No, I understood what you were saying. (none / 0) (#64)
    by Donald from Hawaii on Thu May 03, 2012 at 07:37:27 PM EST
    I guess what I'm saying  is that Judge Bybee has a conflict of interest here, and any ex parte discussion with colleagues concerning a desired outcome for this particular case would be highly unethical, if not illegal.

    I also said that given these politically charged times with their accompanying lax ethical standards, you may well be correct in your assumption that Bybee might be talking with colleagues about the Estrada-Yoo case, the ethical propriety of doing so be damned.



    No one in the Bush administration, (none / 0) (#2)
    by Angel on Wed May 02, 2012 at 10:40:09 PM EST
    including Bush and Cheney, will ever be held accountable for their crimes.  

    Waterboarding Vs Assassination (1.00 / 0) (#13)
    by star on Thu May 03, 2012 at 08:36:05 AM EST
    If Bush Cheney needs to be prosecuted for water boarding terrorists, when will the call for prosecuting Obama for killing terrorists at point blank(Bin Laden) or bombing American citizen(Alawaki and his teenage son) from the skies happen? These terrorists never had a day in court. No charges were filed in any court of law against Al Awaki or his son as far as I know.It was pure shoot them dead since they are making inflammatory statements over the net. AlAwaki has never been indited or convicted of any crime as far I know.

    Not by the Democrats (none / 0) (#5)
    by Andreas on Thu May 03, 2012 at 12:35:15 AM EST
    They will never be held accountable for their crimes by the Democrats but they will be held accountable by a workers government led by the Socialist Equality Party.

    This is an injustice. (none / 0) (#3)
    by desertswine on Wed May 02, 2012 at 10:56:24 PM EST

    It Could Have Been Worse (none / 0) (#6)
    by john horse on Thu May 03, 2012 at 01:43:31 AM EST
    Jose Padilla could have been tortured in a country that doesn't believe in justice and human rights (sarcasm alert).  I hope John Yoo writes a book and makes a lot of money off of this (another sarcasm alert).

    Yes (none / 0) (#7)
    by bmaz on Thu May 03, 2012 at 02:09:41 AM EST
    Yoo's attorney, Miguel Estrada, also represented Yoo earlier, in an official comment/rebuttal letter to the OPR of DOJ, as did Bybee's attorney, Maureen Mahoney, both of which were used as craven fodder by David Margolis to squelch the OPR recommendations and block even that accountability.  All of which also factored into the replacement of Marshall Jarrett as head of OPR by Mary Patrice Brown. And so it goes...

    From a quick perusal of the decision (none / 0) (#10)
    by lousy1 on Thu May 03, 2012 at 07:38:31 AM EST
    ... it appears that sloppy and inconsistent work by OPR was the main reason for the court decision. It appears they were willing to ignore precedent.

    Do we want to deny Yoo his rights under the law?Should we engage in a witch hunt because we disagree with his legal analysis?

    I think he should have (5.00 / 1) (#17)
    by sj on Thu May 03, 2012 at 09:36:14 AM EST
    exactly the same rights that he thought was appropriate based on his memos.  That wouldn't be "witch hunt".  He approved it, after all.  

    And anyway, a witch hunt would include "dunking"


    How could you ... (5.00 / 2) (#21)
    by Yman on Thu May 03, 2012 at 10:20:13 AM EST
    ... possibly reach that conclusion based on "a quick perusal" of their decision?  The decision doesn't even mention the OPR.  Moreover, the court specifically stated they weren't addressing the misconduct issues investigated by the OPR.

    These allegations have been the subject of an internal Department of Justice investigation of Yoo's compliance with professional standards and are not at issue here.

    Should we engage in such fairy tales/baseless speculation simply because we agree with his legal analysis?


    A few years back when we were (none / 0) (#37)
    by jimakaPPJ on Thu May 03, 2012 at 12:54:20 PM EST
    having this argument I asked someone here what they considered torture.

    The answer was, "Anything that a person doesn't want done to them."

    At that point I realized that the issue is not whether we should use all resources to protect ourselves, but merely an extension of the proportional response "rule" which is perfectly sensible in law enforcement... You don't want to hang someone for stealing a loaf of bread.

    But national defense is not law enforcement and proportional response has been practiced in Korea, Vietnam, Desert Storm and on into Iraq 2 and Afghanistan. I note with sadness we have killed around two hundred thousand or so US military, driven ourselves into bankruptcy while accomplishing very little.

    So, should law enforcement use waterbording? No.

    Should the CIA use it if necessary? Yes. (I'll leave out the obvious "under proper control, etc.)

    Straw man alert (none / 0) (#39)
    by sj on Thu May 03, 2012 at 01:34:36 PM EST
    I don't know who that "someone" was referred to here
    The answer was, "Anything that a person doesn't want done to them."
    Because most people tend to refer you to the Geneva Conventions.  Not that it seems to do any good.  You still keep posting stuff like this.

    Actually the comment was (none / 0) (#44)
    by jimakaPPJ on Thu May 03, 2012 at 02:25:04 PM EST
    by one of the then regulars.

    Jeralyn doesn't like for us to quote each other so I'll leave his name out. And to be exact:

    Fri Dec 07, 2007 at 11:33:31 PM EST
    Anything you would not want me to do to you is torture.

    It was in response to my "Define torture."

    So strawman? In what respect. It perfectly defines some people's definition and, as I noted, made me recognize that the argument was driven not by military needs, or tactics, as some have claimed, but by the difference between a law enforcement mind set versus a national defense mind set.

    Proportional response makes sense for law enforcement but not national defense.

    Some people claim the moral high ground that all torture is evil. Of course it is. But to me a greater evil would be for me to not take all necessary actions to protect and defend my loved ones and fellow citizens. Is there a slippery slope involved? Indeed there is. But life is full of slippery slopes. It is our task to do the necessary things and not slide down the slope.

    Should we have a Geneva Convention? Of course, and if you look at it you will find that the CIA's actions didn't violate it.

    And we have had this discussion before. Maybe just not with you involved.


    supporters of the WOT (none / 0) (#54)
    by jondee on Thu May 03, 2012 at 03:57:22 PM EST
    most notably Hitches, but also at least one your wingnut-radio heroes, underwent waterboarding and said that it was most definately torture..

    If you want the rest of the world to believe Jimmy's greatest-bestest-most-wonderfulest-country fantasy about the U.S, don't torture people. Especially in an age of instantaneous communication..


    jondee, if you haven't yet figured out that (none / 0) (#58)
    by jimakaPPJ on Thu May 03, 2012 at 04:31:04 PM EST
    I don't care what X conservative or Y liberal thinks thinks let me tell you. I don't.

    And if you think that the "rest of the world" will cut us any slack because we are the nicest of the nice then you are naive to the max.

    The world respects one thing. Power and stability. Obama has tossed away both.


    Still a straw man (none / 0) (#61)
    by sj on Thu May 03, 2012 at 04:41:37 PM EST
    You're using the words of ONE, unidentified commenter to justify the use of torture.  Apparently on the grounds that torture is undefined (which, incidentally, I doubt is what said anonymous commenter intended).  As for this:
    Should we have a Geneva Convention? Of course, and if you look at it you will find that the CIA's actions didn't violate it.
    I honestly can't tell if you are being dishonest with yourself or think we don't know how to read.

    Read it again. (none / 0) (#78)
    by jimakaPPJ on Fri May 04, 2012 at 09:48:30 AM EST
    I merely noted how one mind set,

    Anything you would not want me to do to you is torture

    clarifies the differences between people who, as I do, don't "like" water boarding but recognize that sometimes things that we don't like must be done and people who claim that water boarding is torture and therefor it is immoral and can never be done.

    Again as I noted, the writer's position defines a total opposition to a variety of actions and war has to be part of that. But since some people think war is okay if fought under rules, etc, then what follows is the proportional response syndrome we have followed since 1950 to our great disadvantage and harm.

    Again as I noted, what works for law enforcement is no way to fight a war. And the WOT is a war. An asymmetrical war fought in our midst.

    As for the GC, KSM et al were not members of the military.

    As for "morals" my position is that I have a moral obligation to do what is necessary to protect those who cannot protect themselves. In Biblical terms that means I am my brother's keeper.

    To me, "justify" means that I am trying to persuade someone or seek approval. I am doing neither. Just stating my position. My right. You disagree. Fine. Your right.

    In the meantime the issue mostly dropped out of sight with the election of Obama. And his what some consider extrajudicial use of drones and killing of American citizens has been mostly ignored from a moral or GC viewpoint.

    I disagree with him re water boarding and agree re "droning."

    Of course if Bush had done that there wouldn't have been enough bandwidth in the world to handle the cries over his actions.

    Politics. Nasty and always around.


    .."what must be done.." (5.00 / 1) (#81)
    by jondee on Fri May 04, 2012 at 02:44:57 PM EST
    Must be spun.

    Again, your imaginary black and white scenario of agendas dictating whether people consider it torture or not collapses under the weight of evidence provided by those - WOT supporters - who have undergone the experience.

    And that bit about "my brothers keeper" is beyond laughable..

    Where in the Bible does it say that only thy fellow American-conservative-WOT supporting etc men and women are your "brothers"? What about what all your clusterbombs, waterboarding etc etc do to the souls of all those caught in the crossfire of "regime change"..


    And what about those killed (none / 0) (#82)
    by jimakaPPJ on Sun May 06, 2012 at 10:54:45 AM EST
    by our bombs during WWII?

    Some people claim the moral high ground that all torture is evil. Of course it is. But to me a greater evil would be for me to not take all necessary actions to protect and defend my loved ones and fellow citizens. Is there a slippery slope involved? Indeed there is. But life is full of slippery slopes. It is our task to do the necessary things and not slide down the slope.

    You claim that I see things in black and white yet I have clearly defined a world full of grays.

    Isn't the question:

    Will the world be a better place due to the actions of those who want to change it by whatever means - war, revolution, cultural pressure - than it will be if they do not succeed? And if the answer is it will be a worse place...

    Isn't the final question:

    What actions I am willing to take to keep that from happening?


    Why is there no link ? (none / 0) (#74)
    by Andreas on Thu May 03, 2012 at 11:11:22 PM EST

    Faked quote? (none / 0) (#42)
    by Andreas on Thu May 03, 2012 at 02:05:11 PM EST
    The quote "Anything that a person doesn't want done to them" likely is faked.

    If it is faked I suggest to delete the comment (and the writer of the comment).


    I keep records, dear Andreas. (none / 0) (#45)
    by jimakaPPJ on Thu May 03, 2012 at 02:26:19 PM EST
    But not of you.