November 06, 2007

A "Who's Who" of Ignorance in the Intelligence Community

Larry Johnson has done us a wonderful favor by compiling a list of intelligence operatives that don't understand how the legislative and judicial systems in this country work:

Brent Cavan
Intelligence Analyst, Directorate of Intelligence, CIA

Ray Close
Directorate of Operations, CIA for 26 years—22 of them overseas; former Chief of Station, Saudi Arabia

Ed Costello
Counter-espionage, FBI

Michael Dennehy
Supervisory Special Agent for 32 years, FBI; U.S. Marine Corps for three years

Rosemary Dew
Supervisory Special Agent, Counterterrorism, FBI

Philip Giraldi
Operations officer and counter-terrorist specialist, Directorate of Operations, CIA

Michael Grimaldi
Intelligence Analyst, Directorate of Intelligence, CIA; Federal law enforcement officer

Mel Goodman
Division Chief, Directorate of Intelligence, CIA; Professor, National Defense University; Senior Fellow, Center for International Policy

Larry Johnson
Intelligence analysis and operations officer, CIA; Deputy Director, Office of Counter Terrorism, Department of State

Richard Kovar
Executive Assistant to the Deputy Director for Intelligence, CIA: Editor, Studies In Intelligence

Charlotte Lang
Supervisory Special Agent, FBI

W. Patrick Lang
U.S. Army Colonel, Special Forces, Vietnam; Professor, U.S. Military Academy, West Point; Defense Intelligence Officer for Middle East, Defense Intelligence Agency (DIA); founding director, Defense HUMINT Service

Lynne Larkin
Operations Officer, Directorate of Operations, CIA; counterintelligence; coordination among intelligence and crime prevention agencies; CIA policy coordination staff ensuring adherence to law in operations

Steve Lee
Intelligence Analyst for terrorism, Directorate of Intelligence, CIA

Jon S. Lipsky
Supervisory Special Agent, FBI

David MacMichael
Senior Estimates Officer, National Intelligence Council, CIA; History professor; Veteran, U.S. Marines (Korea)

Tom Maertens
Foreign Service Officer and Intelligence Analyst, Department of State; Deputy Coordinator for Counter-terrorism, Department of State; National Security Council (NSC) Director for Non-Proliferation

James Marcinkowski
Operations Officer, Directorate of Operations, CIA by way of U.S. Navy

Mary McCarthy
National Intelligence Officer for Warning; Senior Director for Intelligence Programs, National Security Council

Ray McGovern
Intelligence Analyst, Directorate of Intelligence, CIA; morning briefer, The President’s Daily Brief; chair of National Intelligence Estimates; Co-founder, Veteran Intelligence Professionals for Sanity (VIPS)

Sam Provance
U.S. Army Intelligence Analyst, Germany and Iraq (Abu Ghraib); Whistleblower

Coleen Rowley
Special Agent and attorney, FBI; Whistleblower on the negligence that facilitated the attacks of 9/11.

Joseph Wilson
Foreign Service Officer, U.S. Ambassador and Director of Africa, National Security Council.

Valerie Plame Wilson
Operations Officer, Directorate of Operations

Some of the names you know well, such as Joe Wilson and Valerie Plame. Some are minor luminaries such as Johnson and Rowley, a famed FBI whistleblower who later sat ditchside with Cindy Sheehan and ran for Congress as a Democrat. The rest my be outstanding in their field, but are not household names.

They signed on to a letter confronting Senators Specter and Leahy over the nomination of Judge Michael Mukasey to be the next Attorney General, because these intelligence operatives did not like Mukasey's refusal to comment on the legality of waterboarding.

They do not seem to grasp the basic fact that the Attorney General has no dictatorial powers, and does not make laws.

I have a further newsflash for Mr. Johnson and the rest of his ill-informed posse: waterboarding is not illegal.

The United States Congress (both houses Democrat-led) has not passed a law outlawing the waterboarding of terror suspects. Despite any personal feelings Mukasey may have that waterboarding is torture (and indeed, I think most of us agree it is), it would be irresponsible for a candidate for Attorney General to declare this or any other action illegal that Congress has not made illegal.

If Johnson, et al do not think the practice of waterboarding is justifiable even in extreme circumstances to save thousands of American lives, then that is their issue to take to their fellow Democrats in Congress, but it is not an issue on which Mukasey should comment, at least not until he has clear legal authority to act upon it.

Posted by Confederate Yankee at November 6, 2007 09:11 AM


Excellent Job on this one, as usual! What a sad, sad statement on the status of affairs at the CIA. They claim to be protecting our way of life and they don't even grasp the simplest of observations as it pertains to the legislative branch of said life.

Seeing Valerie Plame's name on there is just an added bonus. Bugs always said it best, "What a Maroon!"


Posted by: Marc the Infidel at November 6, 2007 11:10 AM

I'm not sure I agree with the idea that waterboarding is torture. I've always been of the opinion that torture involves some form of physiological damage or infliction: thumb-screws, branding, flaying, scourging, the pulling out of nails or breaking of fingers, racking etc.

Sleep deprivation after long enough periods leads to physiological harm, food deprivation, water deprivation, even light deprivation. Even pain in large amounts leads to actual physiological changes within the body. It is the element of systematic and deliberate infliction of damage that makes it torture, rather than an unpleasant experience. Whether or not there is such a thing as mental torture without some physiological element or result, I cannot say, but none spring readily to mind. Most mental traumas of sufficient degree also cause or are accompanied by physiological effects. As such I would argue that all torture results in some from of physiological harm.

Wearing panties on your head, being sniffed at by dogs etc etc is not torture. Being exposed to a ham sandwich is not torture. Likewise, from what I understand of waterboarding, it lasts minutes, involves the stimulation of an autonomic reaction from the body; the fear of drowning, but no harm, lasting or otherwise, is dealt. I would class the infliction of blows, which is another of the six sanctioned methods, as closer to torture than waterboarding.

All of the above is open to debate, of course. But debate involves rational refutation of specific points through evidence.

Posted by: Elydo at November 6, 2007 11:45 AM

Well, if Mukasey doesn't have the authority to declare waterboarding illegal or legal -- then why didn't he just come right out and tell the senators that he didn't? (Maybe he actually did but I sure didn't hear about it from our MSM).

Instead we were treated to day after day of Democrat whineing.

I've got my own 9-11 'troofer' conspiracy theory: it's now obvious why 9-11 was allowed to happen and Bin Laden has been allowed to go free. People of the calibre of Larry Johnson and those that signed the letter are in charge at high levels of the CIA and FBI.

Posted by: Fritz Katz at November 6, 2007 11:50 AM

Larry Johnson has always been many sandwiches short of a picnic and his blog attracts similar readers judging from the commenters. After all, how much talent does is take to be a train spotter at the Department of State after you've been bounced from the CIA?

Posted by: daleyrocks at November 6, 2007 12:02 PM

Why do you suppose the liberals wanted so badly for Mukasey to declare waterboarding illegal? Could it be that once he does, impeachment proceeding against the President wouldn't be out of the question? Just think, the Attorney General declaring waterboarding illegal. The president is accused of allowing waterboarding. That, my friend, is all the left needs to scream impeachment.

Posted by: Andy B at November 6, 2007 12:10 PM

Wait I know of some locations where skateboarding is illegal. Isnt that the same thing? Maybe all those bozos on that list are confused! How in the world can some practice be illegal if there is no law on the books stating as much? Anti-interrogation technique rants on a blog called "no-quarter" how ironic is that?

Posted by: Dave J at November 6, 2007 12:48 PM

Wow. Eight times as many people are listed here than we have waterboarded.

Posted by: BohicaTwentyTwo at November 6, 2007 01:15 PM

Isn't waterboarding still part of the curriculum at SERE school?

Training can't be torture, can it? :)

For that matter, I understand some twerps decided to demonstrate waterboarding outside of congress yesterday or today. Can something you volunteer to do (outside of S&M stuff I suppose) be torture?

Posted by: SGT Jeff (USAR) at November 6, 2007 01:26 PM

First this was all political pandering for votes down the line.


Since there is no law against the practice, if the AG were to imitate and activist judge and agree to a non law prohibition then it should properly be struck down by the Supreme Court.

Also the promise by the AG would only survive as long as his term in office and would have to be improperly redone again.

The AG enforces laws not creates them out of whole cloth.

Even if a law were passed, it is then still incumbent on the AG and the President to determine if it is a constitutional law and if deemed not to appeal it to the Supreme Court.

What the Judiciary Committee was doing was in effect a violation of the separation of powers and should not stand.

They have been allowed to frame the debate without much of a challenge and it will rely on the voters to effect a change if possible.

Posted by: Lurker of sorts at November 6, 2007 01:49 PM

A quick look through a very small sampling on Google demonstrates that more than a few of these characters who signed this letter are rather notorious "nutjobs." For example, the Larry Johnson paper trail starts in July 2001--two months before September 11--when he wrote in the New York Times that the terrorist threat was "declining," and that Americans, despite being "bedeviled by fantasies about terrorism," have "little to fear" from such attacks. An interesting window into the mindset of the CIA, or at least a portion thereof, pre-September 11, but hardly a qualification to be considered an "expert" on the subject.

McGovern's past is filled with anti-Semitic rants and conspiracy theories. While testifying before a Congressional Committee in June, 2005, the session took an awkward turn, according to a Washington Post story, when witness Ray McGovern, a former intelligence analyst, declared that the United States went to war in Iraq for oil, Israel and military bases craved by administration "neocons" so "the United States and Israel could dominate that part of the world." He said that Israel should not be considered an ally and that Bush was doing the bidding of Israeli Prime Minister Ariel Sharon.

Posted by: Andy at November 6, 2007 02:01 PM

On NPR's "To the Point," Columbia Law School Professor Scott Horton just said that there is no question that waterboarding is illegal and that we have given the death penalty to enemies in the past who were found guilty of waterboarding.

And if we, as reasonable people, agree that waterboarding is torture (simple test: Would we consider it torture if the enemy were doing it to our guys?) then Bush is guilty of lying, if not worse, when he says that we don't torture.

Posted by: David Crisp at November 6, 2007 03:58 PM

David, you might want to find someone else to quote rather than Scott Horton. Right, wrong, or indifferent, this terrorist lawyer and left-wing Harper's blogger (gee, how did you miss thse details in his bio?) is hardly apolitical, and has some rather "Beauchampian" qualities that will re-engage my attention once The New Republic saga is finally over.

Posted by: Confederate Yankee at November 6, 2007 04:22 PM

I also find it difficult to call waterboarding torture when we have used it to train our own people in how to deal with being captured and what not.

Why is that - in an instructive question... a nation like ours, if we were using waterboarding as something approaching a representation of what it can be like to be captured somewhere, then it was clearly not considered "torture". You'd stand a better chance of getting away with torturing a terrorist suspect than you would your own people. It just wouldn't happen ---- unless they felt the technique was safe enough.....

Posted by: usinkorea at November 6, 2007 05:10 PM

Isn't waterboarding still part of the curriculum at SERE school?

Torture in my mind is something we'd be unwilling to do to our own people in training.

We gas them, waterboard them, subject them to extreme temperatures, cold water dousing, loud noise, sleep deprivation etc.

Posted by: Purple Avenger at November 6, 2007 05:24 PM

[Posted by David Crisp at November 6, 2007 03:58 PM]

What terrible logic and argument, David, especially your first part. And who's the first "we" in the second paragraph? Please explain?

Oh and while you are at it, could you might want to add some insight into this very odd fact, i.e., that considering no one has ever pointed to a law that specifically outlaws waterboarding in addition to considering how long this discussion of whether it is or is not torture has lasted, the points Scott Horton is purported to have said on NPR appears on shakey ground.

Posted by: Dusty at November 6, 2007 05:32 PM

Don't like Horton? But if we agree that waterboarding is torture, then we have to agree that it is illegal -- no matter what Horton's politics or "Beauchampian" qualities may be.

If torture is illegal, then it is unnecessary to pass laws specifically outlawing every torture technique. We just have to define torture -- and waterboarding fits usual definitions.

Dusty, the "we" refers to Confederate Yankee and I. We seem to agree that waterboarding looks like, smells like and sounds like torture. It probably feels like torture, too, but I hope I never have to find out.

Posted by: David Crisp at November 6, 2007 06:05 PM

In the alternative, if you don't like Horton, here are a hundred other law professors for you:

Posted by: David Crisp at November 6, 2007 06:15 PM
We gas them, waterboard them, subject them to extreme temperatures, cold water dousing, loud noise, sleep deprivation etc.

I've been gassed by Uncle Sam for the purpose of educating me. Given the option, I'd rather be waterboarded. I was pretty suer that I was going to barf up a lung or two and that my eyeballs were going to melt right out of my head.

Should I be suing somebody?

Posted by: Pablo at November 6, 2007 06:36 PM

[Posted by David Crisp at November 6, 2007 06:05 PM]

Well, if it just you and CY, then from your earlier comment, the last half of "And if we, as reasonable people, agree that waterboarding is torture (simple test: Would we consider it torture if the enemy were doing it to our guys?) then Bush is guilty of lying, if not worse, when he says that we don't torture", doesn't follow.

Even if you two agree it only means it is your common opinion that it is torture. That doesn't even remotely mean that Bush's or Administration lawyers' opinion, if different, is the same thing as a lie. It works for the community based reality the lefties inhabit but it's not factually true and it's nothing more than sloppy thinking.

Posted by: Dusty at November 6, 2007 06:56 PM

Mr. Crisp, if waterboarding is indeed illegal, then rather than post the opinions of law professors, please post the exact statute which makes it illegal.

If you cannot provide a specific statute, then it is not illegal. "That which is not forbidden is permitted," in other words.

Posted by: C-C-G at November 6, 2007 07:51 PM

Tellingly, that list of "law professors" for which Mr. Crisp has provided a Link is known as "Legal Scholars in Favor of Civil Rights for Terrorists."

At least we know what their priorities are.

Posted by: Glenn at November 6, 2007 08:06 PM

The United States is a signatory of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Under the US Constitution, treaties ratified by the Senate have the force of law.

Here's in the text of the convention regarding those punishments and treatments which are prohibited:

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

US law also expressly makes torture illegal pursuant to 18 USC 2340A (link:

For purposes of that law, torture is defined as follows :

“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

As stated, "any act which causes severe pain or suffering, physical or mental" satisfies the legal definition of torture under the UN convention, and a virtually identical provision of US criminal law.

Based on the "research" by then Bush Department of Justice official Daniel Levin, who had himself waterboarded (link: ), he was able to determine that based on his experience waterboarding satisfied the definition of torture. Indeed, he documented his experience and his legal conclusion in a memo filed with the Justice Department. For his trouble he was forced out of the DOJ when Alberto Gonzales became the Attorney General.

Now, one can twist and turn all you like as to whether, but it seems clear to me that waterboarding fits the definition of torture under the UN Convention and 18 USC 2340A, and since the US is a party to the UN convention, the prohibitions against torture contained therein have the force of law in the United States. For Mukasey or anyone else to claim that he cannot say whether waterboarding is illegal is simply an exercise in prevarication or rank ignorance of the state of the law.

Indeed, in 1947 Yukio Asano, a Japanese officer, was charged with a war crime for waterboarding a US civilian during the war (links: [one link to war crimes files removed because this website labeled the UC Berkely War Crimes Studies Center website, which includes documentation summarizing the case of Yukio Asano, a "questionable" site] and

So, in 1947 American prosecutors considered waterboarding a war crime. The UN Convention Against Torture prohibits any act that causes suffering, physical or mental (as does a US criminal law), and a former Bush Asst. US Attorney determined that waterboarding caused sufficient mental suffering to constitute torture (indeed, I imagine it may well cause physical injury as well if applied long enough, or if applied to persons who are ill or suffering from pre-existing medical conditions).

Maybe you can justify in your own mind that waterboarding is not illegal under US law, but I'd take my chances before a US court that waterboarding would be held to be illegal, and I'm willing to bet Mukasey knows this would be the likely result of any trial of the issue, also.

Posted by: Steven D at November 6, 2007 08:13 PM

Steven, did you know that Congress has at least twice had the opportunity to specifically forbid waterboarding by name? The Detainee Act of 2005 and the Military Commissions Act of 2006 were perfect vehicles for such a ban.

And before you point out that those were Republican Congresses, let me also remind you that the Democrats have had control of Congress for eleven months and not even proposed a bill specifically banning waterboarding as far as I know.

One wonders why, if it is such a huge issue with these Senators, why they have not closed a possible legal loophole?

Posted by: C-C-G at November 6, 2007 08:59 PM

Re Steven D's, Scott Horton and other pseudo lawyers...,8599,1680943,00.html Here's a Link to a story in TIME magazine that makes it very clear that the Democrats in Congress clearly do not accept that current law makes waterboarding illegal. Here's a key excerpt:

"Even though the party failed to block Mukasey over his refusal to state definitively that waterboarding is illegal, some Democrats believe they can win a straight vote to criminalize the harsh interrogation technique. Others fear that a renewed fight over torture would end not just in another defeat, but in an implicit congressional stamp of approval for the very practice they want to outlaw."

Posted by: Glenn at November 6, 2007 09:26 PM

The question of whether waterboarding as usually described fits the definition of torture, since it does not cause physical harm, has generally revolved around whether waterboarding and other extreme coercive techniques fit the definition of "severe mental pain or suffering," in that it is questionable whether they cause "the prolonged mental harm" requisite for any of the subsequent clauses in the definition to apply. In fact, there is no evidence that waterboarding causes prolonged mental harm compared to other techniques which have not traditionally been classed as torture.

As to the supposed cause for the dismissal of Daniel Levin: "For his trouble he was forced out of the DOJ when Alberto Gonzales became the Attorney General," there's no evidence whatsoever that this was the reason. In fact, the fact that apparently NO instances of waterboarding were approved or conducted since 2003 (before Gonzales became AG), would tend to make one believe that there were other more important disagreements that led to Levin's removal. That is, while waterboarding has become a cause celebre for the Left (and, yes, I'm counting Andrew Sullivan in the Left), it has apparently never been an important tool in the Bush Administration's arsenal of counter-terrorism techniques.

Posted by: notropis at November 6, 2007 09:58 PM

The following definition, arguably, would include jailing someone:

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

But then you add this sentence:

It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Well, that allows thumbscrews and iron maidens, provided the laws of a country make them a lawful sanction.

Do people realize how flexible these generalized descriptions are?


Posted by: Wince and Nod at November 6, 2007 10:14 PM

Wince and Nod, those generalized descriptions could also include watching more than about 5 minutes of C-SPAN. -lol-

Torture indeed!

Posted by: C-C-G at November 6, 2007 10:43 PM
And if we, as reasonable people, agree that water boarding is torture (simple test: Would we consider it torture if the enemy were doing it to our guys?)
Why use that test? There have been two cases of lefties with agendas volunteering to be water boarded, one just today, to show just how inhumane and painful and injurious it is.

Got that? They volunteered...

Posted by: bains at November 6, 2007 11:05 PM

I am coming around to the conclusion that waterboarding probably ought to be considered torture. When we waterboard our guys, we don't do it the extent that we do on terrorists, I believe. However, as others have noted, the definitions are fuzzy enough and waterboarding is benign enough (compared with, say, applying red-hot irons to the body) that honest men can disagree. Ergo, claiming that Bush is "lying" by saying that we do not torture is rubbish.

Posted by: Grey Fox at November 6, 2007 11:32 PM

Even if, for the sake of the discussion, we state that waterboarding is torture, that does not ipso facto make it immoral.

There is a valid moral case to be made for taking one life in order to save others... this is one of the moral and legal tests for the use of deadly force by law enforcement personnel, I believe. Since torture is less severe than killing someone--unless the torturer goes too far, of course--I believe the same test can be applied to torture.

Therefore, morally, torture appears to be permissible in order to save lives.

The context of this argument now needs to be considered. We are at war with an ideology that thinks nothing of flying planes filled with innocent people into buildings full of equally innocent people. Therefore, interrogating these people in order to learn details of future attacks or the location of others of their ideology could be considered to be an effort to save lives.

While I do not believe it is right to grab any Johnny off the street of, say, Cincinnati; or any Abdul off the street of Baghdad, and torture him, if the person is caught in the act of terrorism, or there is a preponderance of credible evidence that the person is involved, and if there are no other means available to obtain the information needed, I believe torture would be morally permissible.

By the way, I speak as a Christian, lay preacher, and soon-to-be (hopefully) theology student. Therefore, only the most rabid anti-Christian could consider me to be a person of low moral standards. Of course, that won't stop some here from throwing mud at me or twisting my words, but that's okay, I can take it, and it will turn to glory in Heaven, so have at me.

Posted by: C-C-G at November 7, 2007 12:13 AM

Unfortunately, CCG, what you're doing is assuming that torture leads to the obtaining of information, and that isn't strictly true in most cases. Even IF waterboarding is torture, which I posted my thoughts about right at the beginning of this, it's a pretty tame form of torture. The fact that Department of Justice officials, journalists etc are volunteering for it, enduring it, surviving it and seemingly leading perfectly standard qualities of live subsequently, no PTSD which you might expect to arise from severe mental trauma or lasting injuries from physical trauma, means it's pretty low down on the list of "Nasty things to do to people"

Given this, you can separate the people undergoing these acts into two groups: those who will break under limited applications, and those who won't. As has been mentioned, most of these activities are done to US soldiers in training, particularly special forces, in order to prepare them for potentially being tortured. These hopefully lessens their chances of breaking in the short term, and, depending on what techniques are applied, at all.

Now, given enough time, and severe enough applications, anyone will eventually break. The only other alternative, aside from rescue or release, is dying during the torture process, which any competent torturer will not allow to happen. The only variables are how long, and what needs to be done to you. Some would break quickly, with little application of methods of torture, other would resist for long periods of time despite varying methods being applied. The key point is that when they break, they break because they want the process to stop.

As such, torture cannot be regarded as a reliable form of information gathering. There's generally no way of knowing if the information accurate, if it's only partially accurate and the suspect hasn't fully broken yet or if he's just saying anything in order to get it all to cease. And generally, the worse the forms of applied torture, the less you can rely on whether the information obtained was given reliably or not.

Thus, torture goes from being a practical method of obtaining useful information to an unreliable form of obtaining information that then needs to be subsequently confirmed through other methods. And, as I say, the worse the torture, generally the less likely you are to know WHY the information was provided. There are scenarios where torture is a viable option, but they're less prevalent than most people think. Thus the general limitations on sanctioned interrogation techniques. Whether they can be described as torture is debatable, but regardless, they are necessarily constrained due to both practical and moral reasons. And to my mind, the moral argument is superfluous due to the practical one; if there is no practical need to apply torture to someone then there is no need to, any moral aspect is therefore academic, and situationally irrelevant.

And I reckon we can all agree that torture for any purpose OTHER than trying to obtain information leading to the aversion of casualties is reprehensible?

Posted by: Elydo at November 7, 2007 02:50 AM

To Glenn and Wince:

Glenn first.

I may only be a "pseudo-lawyer" but this is the first time I've heard of the a rule of statutory construction which provides that a court, in applying the law in a case before it, should look to what a legislative body didn't enact after the fact to interpret a law that it had previously enacted. Although courts will look to the legislative history of a statute where there is a need to determine how it applies to a specific set of facts, this is the first time that I've ever seen it suggested that a court should look to non-action by a legislative body to interpret a law already on the books. Quite a novel approach to statutory interpretation, but I wonder if you've really considered it fully.

As just one example, let me refer you to garden variety state laws prohibiting murder. If you look at any of them I believe you'll find that they do not specifically list the methods the use of which would be considered murder. That is, like the US torture law at 18 USC 2340A, and the War Crimes Act of 1996, 18 USC 2441, most states define murder broadly, not limiting it by weapon or other method used by the alleged murderer to cause the victim's death. Here's a typical murder statute from Alabama which should prove illustrative:

§ 13A-6-2. Murder.

(a) A person commits the crime of murder if he or she does any of the following:

(1) With intent to cause the death of another person, he or she causes the death of that person or of another person.

(2) Under circumstances manifesting extreme indifference to human life, he or she recklessly engages in conduct which creates a grave risk of death to a person other than himself or herself, and thereby causes the death of another person.

(3) He or she commits or attempts to commit arson in the first degree, burglary in the first or second degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree, sodomy in the first degree, any other felony clearly dangerous to human life and, in the course of and in furtherance of the crime that he or she is committing or attempting to commit, or in immediate flight therefrom, he or she, or another participant if there be any, causes the death of any person.

(4) He or she commits the crime of arson and a qualified governmental or volunteer firefighter or other public safety officer dies while performing his or her duty resulting from the arson.

Very non-specific (except for the felony murder provisions in subparagraphs (3) and (4) which are a special case). Thus a person can be tried for murder if they use a gun, a knife, poison, or even if they abandon a wounded individual to his or her death, so long as they had the requisite intent to cause that person's death or acted knowing that his or her death was likely to result as part of their failure to act. Under your theory, because the Alabama legislature did not enumerate all of the specific circumstances which might constitute murder, a Court could consider that "legislative non-action" in determining whether a murder charge is valid. This is, of course, rank nonsense.

Statutes, and particularly criminal statutes, are written broadly by legislatures because they don't want to limit what constitutes a particular crime by failing to list all the possible ways that crime could be committed. To the extent a Court believes a statute is ambiguous it can rely upon the legislative history of the law as it was being considered, but no court I know of has ever said that the failure of a legislative body to enact a more specific statute after passage of the original law is evidence that a particular set of facts is not covered by the statute or law. Instead they will look to the language of the statute first, then to the legislative history, if any, and then to the decisions of other courts when construing the same law, or similar laws.

There are numerous legal precedents for holding that waterboarding is torture. Both Japanese and Nazi officials were convicted of war crimes after WWII for using the technique to torture individuals. It has long been considered torture by current and former military lawyers as this letter to the Senate Judiciary Committee by 4 retired Judge Advocates makes clear:

November 2, 2007

The Honorable Patrick J. Leahy, Chairman United States Senate Washington, DC 20510

Dear Chairman Leahy,

In the course of the Senate Judiciary Committee’s consideration of President Bush’s nominee for the post of Attorney General, there has been much discussion, but little clarity, about the legality of “waterboarding” under United States and international law. We write because this issue above all demands clarity: Waterboarding is inhumane, it is torture, and it is illegal.

In 2006 the Senate Judiciary Committee held hearings on the authority to prosecute terrorists under the war crimes provisions of Title 18 of the U.S. Code. In connection with those hearings the sitting Judge Advocates General of the military services were asked to submit written responses to a series of questions regarding “the use of a wet towel and dripping water to induce the misperception of drowning (i.e., waterboarding) . . .” Major General Scott Black, U.S. Army Judge Advocate General, Major General Jack Rives, U.S. Air Force Judge Advocate General, Rear Admiral Bruce MacDonald, U.S. Navy Judge Advocate General, and Brigadier Gen. Kevin Sandkuhler, Staff Judge Advocate to the Commandant of the U.S. Marine Corps, unanimously and unambiguously agreed that such conduct is inhumane and illegal and would constitute a violation of international law, to include Common Article 3 of the 1949 Geneva Conventions.

We agree with our active duty colleagues. This is a critically important issue - but it is not, and never has been, a complex issue, and even to suggest otherwise does a terrible disservice to this nation. All U.S. Government agencies and personnel, and not just America’s military forces, must abide by both the spirit and letter of the controlling provisions of international law. Cruelty and torture - no less than wanton killing - is neither justified nor legal in any circumstance. It is essential to be clear, specific and unambiguous about this fact - as in fact we have been throughout America’s history, at least until the last few years. Abu Ghraib and other notorious examples of detainee abuse have been the product, at least in part, of a self-serving and destructive disregard for the well- established legal principles applicable to this issue. This must end.

The Rule of Law is fundamental to our existence as a civilized nation. The Rule of Law is not a goal which we merely aspire to achieve; it is the floor below which we must not sink. For the Rule of Law to function effectively, however, it must provide actual rules that can be followed. In this instance, the relevant rule - the law - has long been clear: Waterboarding detainees amounts to illegal torture in all circumstances. To suggest otherwise - or even to give credence to such a suggestion - represents both an affront to the law and to the core values of our nation.

We respectfully urge you to consider these principles in connection with the nomination of Judge Mukasey.


Rear Admiral Donald J. Guter, United States Navy (Ret.) Judge Advocate General of the Navy, 2000-02

Rear Admiral John D. Hutson, United States Navy (Ret.) Judge Advocate General of the Navy, 1997-2000

Major General John L. Fugh, United States Army (Ret.) Judge Advocate General of the Army, 1991-93

Brigadier General David M. Brahms, United States Marine Corps (Ret.) Staff Judge Advocate to the Commandant, 1985-88

Perhaps Glenn, you legal credentials permit you to understand the issue better than these current and former military lawyers, but you'll pardon me if I accept their opinions as better authorities on the issue of whether waterboarding is illegal than I do your analysis.


As for Wince's comment that the reservation for actions taken in furtherance of lawful sanctions makes the laws prohibiting torture meaningless, the language regarding legal sanctions is meant to refer to specific sanctions authorized by the UN or by Congress, such as the sanctions against Iraq which were put in place after the first Gulf War. Many human rights groups felt those sanctions amounted to collective punishment of the Iraqi people which could violate the UN convention which is why when the US became a signatory it specifically made this one exception to its acceptance of its terms. Since the Iraq sanctions were authorized by the UN, participation by US officials in enforcing those sanctions did not violate the UN Convention against Torture, et al.

To my knowledge, neither the UN nor Congress has ever expressly authorized the "enhanced interrogation techniques" of which President Bush and his officials makes such frequent mention. I'm sure he would have liked to have had Congress, when it was controlled by the Republicans, pass a law to make legal the torture techniques his administration authorized to be used against terror suspects (since that would have gotten him off the hook regarding future prosecution for authorizing torture), but even the Republican majority apparently was not willing to go that far.

Posted by: Steven D at November 7, 2007 07:28 AM

This debate has been very shallow and deceptive at best on both sides in my opinion.

On the one side we have guys like Sullivan acting as if the US is running torture farms all over the world where people routinely have their fingernails ripped off. This caterwauling has become something of a conventional wisdom due to the Abu Ghraib scandal and the fallout from that. In fact if what has been published recently is to be believed it has been used only extremely rarely.

Moreover, being interviewed by a female isn't torture. Nor is being shown a ham sandwich, nor flushing a Quran. Nor are a whole list of other things that have been so described. Coercive? Yes. Torture? No.

(This is part of why Beauchamp matters, but I digress.)

On the other side we have folks arguing - some in this thread - that the plain language of the UN Convention Against Torture isn't US law. It is. It is a treaty negotiated, signed and ratified under the US constitution by the POTUS and the US Senate.

Or arguing that because the US uses various methods in training that proves it isn't torture when applied in wholly different circumstances. There is a rather clear difference between volunteering to be waterboarded as part of qualifying for a rank or unit and being under the complete control of a hostile power or person and having it inflicted involuntarily. In training you know you'll live. If you are a captive of Ahab the head-chopper you have no such assurance.


Since the US is committed to a definition of torture by treaty and law, what the debate really should center around is whether waterboarding inflicts "severe" pain. There's no doubt or serious argument that it is physically and mentally painful to some degree - but is it severe? IMO it is. The fear of death is as severe as mental pain gets. Someone being waterboarded by a hostile would have good reason to fear death. That's why it 'works', to whatever extent it does.

Or more fundamentally, should we be involved in any mistreatment whatsoever? Shouldn't the US at least as a basic policy be against anything that represents mistreatment of people in our custody?

So IMO the US shouldn't be involved with it, and we should have no problem with the fundamental principle that we are different from the head-choppers in that we do not abuse our prisoners.


That said, if I were still serving, and if I were confronted with a guy that had planted a bomb at a school or something, and it seemed that inflicting pain would get information necessary to save lives, I would immediately begin all manner of 'persuasion' necessary, and I'd go far beyond waterboarding if necessary (Isn't that odd? Thus the moral muddle.). I would count on my command to fade the heat and have my back and if what I did was right and saved lives I'd count on my CinC to pardon me.

But that scenario is a very remote possibility and the debate shouldn't center around that rare instance. The point is what the United States stands for fundamentally. We are not the head-choppers. We are better than they are, we represent the alternative to the 'feed them feet first into the plastic shredder' types.

Our policy has to be that we do not mistreat our prisoners in any way. If they have to do it then we can deal with that in the justice system as necessary.

Posted by: DaveW at November 7, 2007 07:44 AM

DaveW, "Since the US is committed to a definition of torture by treaty and law, what the debate really should center around is whether waterboarding inflicts "severe" pain. There's no doubt or serious argument that it is physically and mentally painful to some degree - but is it severe? IMO it is. The fear of death is as severe as mental pain gets."

But from my understanding, the effect of waterboarding is to make the suspect experience the autonomic reaction that he is about to drown. No RISK of drowning is present. His life is not in danger from that specific act, and outside of the act being performed that should be obvious. Whether it is or not is much more difficult to debate of course. But my point is that the fear of death is a subconscious and autonomic response lasting only as long as the actual affliction of the technique. That's quite different from making someone believe they are about to be murdered.

Posted by: Elydo at November 7, 2007 08:09 AM

Stephen D,

Based on the "research" by then Bush Department of Justice official Daniel Levin, who had himself waterboarded (link: ), he was able to determine that based on his experience waterboarding satisfied the definition of torture.

No, that's not quite what he said. He said that it "could be illegal torture unless performed in a highly limited way and with close supervision." Which is to say that can be done without it being torture.

For his trouble he was forced out of the DOJ when Alberto Gonzales became the Attorney General.

And you find it nefarious that an Acting Assistant Attorney General gets replaced when a new AG takes over? Why, of course. Bu$hco!

As stated, "any act which causes severe pain or suffering, physical or mental" satisfies the legal definition of torture under the UN convention, and a virtually identical provision of US criminal law.

You seem to be under the misunderstanding that pain and fear are one and the same. They are not.

Indeed, in 1947 Yukio Asano, a Japanese officer, was charged with a war crime for waterboarding a US civilian during the war...

Asano was charged with a laundry list of offenses, one of which was not waterboarding, but water torture. The list also included beatings and burning with cigarettes, all of which are illegal under the Geneva Conventions, especially given that they were done to uniformed POW's. Read the testimony.

Posted by: Pablo at November 7, 2007 08:10 AM

Dave W,

Our policy has to be that we do not mistreat our prisoners in any way. If they have to do it then we can deal with that in the justice system as necessary.

Suppose Hillary gets elected and the new AG thinks it would be a peachy idea to prosecute the guys who waterboarded KSM. Are you OK with locking them up for what they did?

Posted by: Pablo at November 7, 2007 08:14 AM

I wonder if there is any evidence of Bushhitler being behind the latest trend in interrogation techniques, cookie torture.

Evil, yet surprisingly delicious.

Posted by: Confederate Yankee at November 7, 2007 08:33 AM

Elydo, the same argument can be made about the use of deadly force to save someone's life. Do we know, for certain, that the same potential victim won't lose his life due to violence at a later time? No, we don't.

We cannot see the future, and we should not be asinine enough to try to make laws that assume we can. Does waterboarding have the potential of saving lives? Yes, in certain circumstances. I leave the decision about whether or not it is likely to do so in the circumstances that prevail at a given time to those involved at the time.

Posted by: C-C-G at November 7, 2007 09:35 AM

I can't believe so many people think that causing such excruciating pain isn't torture. Is there any question that waterboarding, when done properly, doesn't cause excruciating pain? That is why it is used. Calling it "simulated drowning" is an awful nice way to describe strapping somebody down and pouring water down their nose. That's gotta hurt.

I remember recently where Iran captured some British soldiers because they supposedly strayed into their waters. If they captured U.S. soldiers, would it be okay for them to waterboard our soldiers to obtain confessions? Or would that be torture?

Posted by: DR at November 7, 2007 10:54 AM

Sgt Jeff you are an idiot if you can not perceive the difference in a training exercise and real torture. In the SERE school people know that they are not going to drown and they know that all mock executions are in fact mock executions. They also know that threats of having their wives and children tortured in foreign countries are in fact just threats.
Torture is only good for obtaining confessions. In the past it has proven to be very effective at making witches confess, and also at forcing witches to divulge their plans for future witchcraft and in identifying other witches including the most difficult to find "sleeper" witches.

Posted by: John Ryan at November 7, 2007 01:21 PM

I'm curious and freely admit my ignorance...
Does "the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment" denote the specific individuals that are covered under its jurisdiction?

The reason I ask this question is, after having read some of the Geneva Conventions - specifically the one covering those who may or may not be granted POW status (sorry, don't remember the citation and I'm too lazy to re-look and also too lazy to read up on the 'torture GC' :) - does this cover only POW's or any/all detainees?

If the GC's only cover POW's wrt torture and not 'unlawful combatants' then the entire debate over GC definition is moot. US law, however, would remain open and still be problematic.

Now for my diatribe:

If the specific individual is an ‘unlawful combatant’ then all avenues are open for the apprehending entity under their law up to and including summary execution (if 'lawful'). Put yourself in a Nazi POW camp or as an AQ captive. The GC covering POW’s does allow for the execution of those POW’s engaged in escape attempts. As for AQ I only expect death at their hands in one form or another if I would happen to be their captive. The Nazi example deals with an officially recognized military and all subsequent GC requirements on POW's. The AQ example deals with an unofficial, non-state group engaged in militaristic activities that fail to meet GC requirements on POW's.

If, as has been discussed, any coercive technique ‘could be’ classified as torture in general, then why does the US even bother to capture purported terrorists? Why don’t we simply execute them after asking for Name, Rank, and Serial Number? The answer to this will inevitably be “because we are better than them”. My simple response to that answer is BAH! Good or evil is in the eye of the beholder. Perspective, gentlefolk, is what is described by that statement. In some cases it is necessary to be WORSE than the other guy. This is most often true in war. In order to win a war at least ONE of this short list of must be done:
1)Kill all of the enemy – not practical in general (See WWII Pacific Islands campaigns & 1+ Billion potential Islamic terrorists in the world plus sundry other groups).

2)Destroy the will of your enemy to fight – very practical (Hiroshima & Nagasaki, Vietnam)

3)Destroy the ability of your enemy to fight – not practical in the current geo-political climate

The question is how to destroy the will of the enemy. Hugs are the equivalent of ammo for some Americans; however, I am not above utilizing torture – in ALL its purported forms – to preserve my country and countrymen…as long as ‘the rule of law’ is returned with at least the same amount liberty, if not more, in the end.

Posted by: Mark at November 7, 2007 03:57 PM

Can you imagine being such a wuss like John Ryan? Thinking something that doesn't even cause any pain or permanent damage is torture is amusing. Terrorist lovers like John believe if you yell at a terrorist that's torture. Would I mind if our soldiers were "waterboarded? Of course not, sure beats the hell out of the know......getting beheaded.

Posted by: Capitalist Infidel at November 7, 2007 06:39 PM

What are you going to do now that the children across America and probably the world are using waterboarding as a game to find out who is tough, and unlike the phonies on the left they don't use a mask under the towel. It was effectively used three time in the WOT and now that it's out that it harms no one it won't be used again. Even the wimpy limp wristed terrorists will be able to tough it out as well as a 10 year old, won't they?

Posted by: Scrapiron at November 7, 2007 07:28 PM

Scrapiron - I suppose it's time to bring back the Rack along with the Spanish Inquisition... no one will expect it...

Posted by: Mark at November 7, 2007 07:47 PM

DR, I am caused excruciating pain if forced to watch our elected representatives bloviate on C-SPAN... and I speak of elected officials of both parties.

Shall we then ban C-SPAN?

Posted by: C-C-G at November 7, 2007 07:48 PM

Valerie Plame Wilson
Operations Officer, Directorate of Operations

That's odd. Wonder why it doesn't say CIA like all the rest?

Posted by: Guitar Hero at November 7, 2007 08:40 PM


A treaty doesn't over rule the Constitution. The Constitution forbides cruel and unusual treatment. The Geneva Convention specifies the summary exectuion of illegal combatants.

Care to tell me that torture is worse than summary execution. I can't wait to start beheading these people, just to make sure we stay within the limits of acceptable behavior that terrorists and the lawyers who support them apparently deem acceptable.

Posted by: Thomas Jackson at November 8, 2007 01:36 AM

Actually, waterboard is torture. Our survival training schools coach our personnel with high possibility of enemy capture (pilots, aircrew, commando services) on how to deal with waterboarding because various enemies who we would prosecute (in saner times) as war criminals have used it on our POWs, if we ever got our hands on the North Koreans or North Vietnamese who did it. John McCain said as much. The fact that Congress hasn't specifically said in writing "Waterboarding is torture" doesn't change that. We signed treaties outlawing torture. Treaties we sign carry the force of law unless they specifically over ruled by the Supreme Court. We have laws against murder, just like our treaty law forbids torture. If I murder you by hitting you over the head with a lead pipe, I can't claim innocence by saying "The law doesn't specifically outlaw lead piping someone." You are dead, I killed you, I am a murderer. If you waterboard, you have tortured someone, just like the North Vietnames or the Spanish Inquisition, and you have broken the laws incorporated into our treaty obligations. No need for Congress to spell out each torture method in detail for a separate law to cover each act. Murder is murder and torture is torture, we should be better than Communist scum. We used to be before George W. Bush.

Posted by: Moseleycat at November 8, 2007 10:13 AM

Moseley, just saying it is doesn't necessarily say it's so. I can stand outside at 5 pm and declare what I see in the sky a "sunrise," that doesn't change the fact that it is really a sunset.

Your BDS is also showing, at the end of your diatribe. You really should try to keep that under wraps, you know.

Posted by: C-C-G at November 8, 2007 07:54 PM