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06 September 2009

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confusedponderer

There is a concept in Germany called 'Sicherheitsverwahrung' (literally 'safety custody', or continued preventative detention of still dangerous convicts), usually used for sexual predators and the like. They are sentenced for the crime they have committed to jail time, and when the prognosis at the time of their release shows that they are still dangerous they are kept in custody for some period, after which then another prognosis is made, etc.

It isn't unproblematic legally, and it doesn't work all the time. The main drawback would be that it shifts the burden to the psychologist making the danger prognosis - heaven help the psychologist if a released criminal then again commits a crime. But it is a better approach than trying to avoid the legal process altogether.

par4

I don't see how we can't let them go whether their dedicated fighters or not.Our courts have let many criminals go right back to their communities because of technicalities.That is a price we have to pay if we are to continue to be a nation of laws.

jr786

Some of these hearings have been decided in favor of the prisoners, but the Justice and Defense departments are still holding prisoners whom they were ordered to release by the federal courts.

So much for the rule of law. That's how America ends then, I suppose. How disgraceful.


Nightsticker

Colonel Lang,
"many of the C.I.A. operatives complained about what they were being ordered to do"
Just for the record -there are only 2 types of orders in the US, military orders and court orders. Neither apply in the case of CIA bureaucrats telling their subordinates what to do.
To make the point more clear - the local Postmaster can not order my mailman to torture or kill anyone.If he were to do so it would be clear to everyone that he and the Postmaster were guilty of several crimes [murder,conspiracy, etc].The fact that high level political officials encouraged or concurred would not matter. They too would be charged.There is no difference between the CIA and the USPS in the laws relating to torture and murder.There is no "I was ordered to do it" type defense.In fact the law specifically denies that defense for torture.
It is helpful to see the people involved as they are-mostly lower mid level civil servants [think GS 10-13]who lost their personal and professional compass . Some slightly higher level functionary asked them to do something that all of them knew was despicable and illegal.They made a conscious personal decision to participate.It didn't have to be this way.
In contrast,the FBI personnel in identical circumstances refused to participate,did their best to stop it and reported it up through the chain of command.

Nightsticker
USMC 1965-1972
FBI 1972-1996

Patrick Lang

Nightsticker

I have had several former US Marines tell me that there is no choice in the military but to obey orders.

Maybe that is true for the marines, but, in the Army an illegal order is not to be obeyed. In fact, to obey an illegal order is to be an equally chargeable perpetrator.

Might one be charged with disobediance? Possibly. The outcome would be interesting.

I have some personal experience of this. pl

Nightsticker

Colonel Lang,

There are several sections of the UCMJ which assert the obligation of a Service member to obey orders.In every case the order is defined as "lawful order". I am not aware of anyone ever being found guilty for disobeying an unlawful order.
I have been there too.
As a Lt in the Force Reconnaissance Company in 1967 I refused an order over the radio from a LtCol[artillery type] to direct a fire mission on a hamlet. I explained that could see several children playing near a well in the center of the hamlet.He insisted, citing the confirmed presence of armed NVA in violation of the TET truce.I refused emphatically. He later attempted to pursue the matter. He did not accuse me with violating his orders but rather with disrepect for the words I spoke to him. I was informally cautioned by my CO to be more polite when I ignored orders like that.

Nightsticker
USMC 1965-1972
FBI 1972-1996

J

Colonel,

Being charged for 'disobedience' would be a badge of honor, compared to being charged as a party to an illegal order. Nuremberg outcomes shows that.

turcopolier

Well done, brother. I told an infantry Bn. CO in the 1st Cav Div. that I would charge him if he did not stop kicking an NVA officer out of a Huey at 20 ft. Pat
Sent wirelessly via BlackBerry from T-Mobile.

Arun

"...And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor."

Honor - is that concept in decline? (let alone sacred honor).

robt willmann

Since "everybody knows" that torture techniques do not result in much valid information, and do not produce it reliably, (meaning time after time), why then has this push for torture taken place?

Recently I sat on a balcony drinking whiskey during a hot Texas summer night with an acquaintance, a former Navy SEAL who had been hell on wheels in Vietnam, was awarded the Silver Star, and spent quite a bit of time there. Later, he ran afoul of the same government for which he had risked his life many times in extremely difficult mission and combat situations. Our conversation drifted to the current wars, and I remarked that the Bush jr. administration fouled up by trying to write legal justifications for its so-called interrogation policies. It should have written nothing, and if during battle action in the field some rough stuff happened in a perceived immediate need for information, the situation would have worked itself out.

However, the Bush jr. people were not interested in immediate conditions on the battlefield. They were interested in the context of people taken into custody, and went ahead and produced the laughable memos trying to justify torture that would get a failing grade from a mail order law school. And now the Obama administration is continuing the "rendition" program, which sends people to foreign countries to be tortured, notwithstanding the pathetic lies of Leon Panetta, Alberto Gonzales, and others that "assurances" are received that no torture will take place. The rendition fraud is immediately obvious, since it would be much cheaper to fly these alleged "genius" interrogators to the U.S. or to the jails and have them question the suspects, let students watch it through one-way glass, and videotape the sessions, so we can learn from these "brilliant" agents as they, through their placement and content of questions, get the detainees to sing more than Maria Callas and Beverly Sills combined.

Yet, Bush jr., Dick Cheney, and all the rest insisted on the torture program and the memos trying to justify it.

Why? Why do something so obviously counterproductive? Why do a program that is not very effective?

They are either people (1) of low intelligence and no wisdom, with advisers of no experience, or (2) whose goal is to legalize torture by the federal government.

I wish it was the first option, but I am afraid it is the second one. Perhaps it is both.

These are the same people who successfully promoted the ideas, which have no constitutional authority, that the federal government (1) can place its agents in locally owned airports to search passengers, (2) can ask the passengers to answer questions about themselves, (3) can insist that the local airports adopt a "security plan" that only the federal government can approve, (4) can determine which persons can have a "badge" to go onto your local municipal airports and to privately leased hangars and spaces at these non-federal airports, (5) can (try to) demand that you show a government identification card before you can board an in-country flight, (6) can create a "no-fly list" and claim to be able to determine who can and cannot fly on a privately owned airline in this country, (7) can get a court order allowing the seizure of personal information and property without supporting it with an affidavit made under penalty of perjury, and conduct secret searches and seizures, via the AntiPatriot Act, and on and on.

The goal since September 2001 has been, and still is, to make legal that which previously was illegal, against the social norms of this country and our culture, and repugnant to the belief systems of the individual citizens.

Legalizing torture is an essential element of an autocratic government. People who work for the government have to become comfortable with abusing citizens, and public attitudes have to be changed to accept torture.

My grandfather raised cattle, and had a cattle prod that he very rarely used on the large, powerful animals he dealt with.

Yet, in a few short years, local police departments in cities large and small have been persuaded to use electric tasers regularly on people in situations in which there is no immediate danger to the officer's life. The taser devices are used as tools of sadism and torture and are wholly unnecessary. But they are starting to create an atmosphere in local police departments that torture with an electric shock device is acceptable.

There was an old saying in the Texas Rangers, the original State law enforcement and now a section of it: "One riot, one Ranger".

Not so today. In 28 years around the criminal justice system, I have seen the street savvy police officer replaced by steroid afflicted Swat teams, other "tactical" units who performed strip searches of patrons in nightclub raids, silly black uniforms, and the use of electric torture devices not by assaultive criminals, but by those clothed with the name "law enforcement".

The Obama administration is not going to prosecute those who authorized and provided phony legal justification for torture.

But you have the power to stop it locally.

Politely and firmly approach your local mayor, city council members, police chief, and sheriff, and insist that they do three things: (1) immediately stop using tasers and send them back to the manufacturer or grind them up, and if they cry that they can't handle a suspect without one, hire an elderly Japanese man with appropriate training in judo to show them how, (2) redesign the law enforcement uniforms in lighter colors with unique features, and no more black or dark navy blue uniforms with military style pants, and (3) if a federal person asks for help doing a "preemptive raid" or wants you to sign a nondisclosure agreement in exchange for "information" or "assistance", tell them "no dice".

You have the power. And it really is that easy.

LeaNder

The main drawback would be that it shifts the burden to the psychologist making the danger prognosis - heaven help the psychologist if a released criminal then again commits a crime.

I met female arsonist on a vast 19 century psychiatric forensic institution, which among others houses people subject to Sicherheitsverwahrung, up to high security wards with huge fences around the building. The women that attacked the German politician Oskar LaFontaine was behind them. The arsonist worked on "work therapy" in one of the huge buildings which houses on an art project on the terrain as secretary. All I noticed was that she was deeply enamored in power in many ways to level I hadn't experienced till then.

I'll never forget the night on my own in a huge old empty building after she finally told me her story, another version of which I heard before. Maybe there is no way to handle the fact that one your fires killed 8 people? But I didn't have the impression that after a series of the most diverse psychological treatments for many, many years she could handle her guilt without prevarications.

Although I too have to admit that the main techniques employed in this institutions (as in many others I learned by now) to get more space to move freely are deeply troubling, as she admitted. She wasn't stupid. They seem to function solely from a point of view of control. You have to report others that break rules, the more you do, the more freedom you get for yourself.

Since I am obsessed by my countries past, I find this technique intrinsically sick. She acknowledged it, but also wanted to get out after her life sentence (16 years) so of course she conformed with it. The many therapies surely thought her what people wanted to hear?

She left a free women, shortly after I met her. She showed me some of her applications for work, in which she managed to not write a single word about her security detention for more than 16 years altogether. The job as secretary somehow did the trick.

toto

Ali Soufan is a vocal opponent of "enhanced interrogation techniques" (i.e. torture). He doesn't just say that torture doesn't work, he says that the use of torture was authorised based on false or even deliberately distorted evidence (e.g. people who supposedly "talked" under torture, had actually talked before the use of torture and stopped talking after that). Has anyone on the Dark Side produced a reply to these claims?

John Minnerath

The attempt to explain a need for and attempt to make legal, torture by the US government, is part of a long and growing trend.
That is the lack of concern for individual civil rights by public “servants” both high and low.
My Dad told me many years ago that he felt his duty as an officer in the US Army was to protect the citizens of the US who couldn’t defend themselves.
And part of that meant defending the Constitution and protecting the civil rights of citizens guaranteed by it.
Years later, long after he had retired, he felt the same way, but he was very disturbed by what he saw as a slow and steady eroding away of civil rights by misguided politicians.
Politicians who in their own minds thought they were protecting the country, but failed to understand that they were destroying the rule of law that made this country.

CK

You can only seduce someone who thinks you are desireable, you can only trick those consistently dumber than yourself.
The torturers are the product of the american public educational system, it is probably not the winning bet to believe that they are smarter than their captives.

turcopolier

So tru
Sent wirelessly via BlackBerry from T-Mobile.

Arun

The Dark Side would say Ali Soufan is discredited by his name.

Howard C. Berkowitz

Interesting how it's been boasted that KSM lectured to audiences. Odd, but doesn't that sound like a classic case of the "pride and ego up" noncoercive interrogation technique?

Cato

I just finished reading George Anastaplo's Commentary on the Constitution of 1787. In it, he sets forth the cogent, and historically correct, argument that it is the Congress, not the Executive, that has primary responsibility for defining the actions that will secure the general welfare and the blessings of liberty to the citizens. Under this framework, Nancy Pelosi does not travel to the White House to gingerly inquire of the Pres. (or perhaps more accurately, the VP), as to how he has decided to handle the detainees at Gitmo. Nor, constitutionally, should she turn a deaf ear as soon as the content turns ugly. Had she, or anyone else from the Congress wished (or had the appropriate U.S. Attorney, or even the Attorney General, wished), they could have publicly gone to Cheney, et al. (one would hope with the press in tow) and said, "The United States Code currently forbids certain defined acts of torture. The maximum penalty, under federal law, includes death. There is also a provision for a penalty of up to life imprisonment for conspiracy to violate the Act. Be advised that the Act includes territory, such as Gitmo, that we control as a factual matter. I now hand you a Congressional subpoena (or in the case of of a US Attorney or Atty. Gen., the equivalent). You will report to the Senate (or to the Grand Jury), to testify under oath, as to the specific conduct you have authorized, or conspired to authorize, purportedly under color of law. Do you have any questions?"

Sure the Att.Gen. gets sacked under this scenario, but that's part of his job, as it were. Jaworski stepped up.

Why did nothing of the sort happen? The answer stretches far beyond Alberto & Co.

As a political matter, we entrusted the torture decision to Congress in the first instance. That is a body answerable to us. What we should have realized from the beginning, however, is that that body has little interest in digging too deeply. There's simply little political profit in digging into the merits of torture where there is no likelihood of immediate, widespread support for the kind of actions that would have stopped it. And so it wasn't stopped.

Or as Joseph de Maistre put it, every people has the government it deserves. Unfortunately, Pogo got it right, "we have met the enemy, and he is us."

Whatever was happening on the Dark Side, we were not hearing specifics about it. Despite sporadic, unclear reports of the harsh treatment of a limited number of Al Qaeda detainees, we perceived ourselves as safe, and concluded that that state of affairs may have been partly the result of whatever it was that "they" were doing. That proved to be a robust, and winning, political combination all around. The real "don't ask, don't tell."

I only truly understood the Bagram mess after seeing a documentary film years after the fact. Totally grotesque; totally unnecessary, wide-spread criminal conduct. But that's the sort of thing I should have seen, or been made aware of, in near real time. Congress has great responsibility, and let us down. But the Press was kind of AWOL, too.

Waterboarding, specifically, also presents a unique case. It doesn't fit immediately and neatly under the rubric of torture, as vicious an act as it is.

First, because it's hard to imagine (kudos here to Christopher Hitchens for having the curiosity and guts to bring a video of it to life). Second, because--as it is imagined in the public consciousness--the subject who is being drowned appears whole after the procedure. No marks, no missing limbs. Sure, it's a horrifying experience, but it differs visually from burns and beatings, i.e., things that people associate with the image of torture.

By contrast, if combatants had been placed on the rack, or had their fingernails pulled, etc., and that fact had been properly reported, there would have been a groundswell of political opposition, demanding an immediate cessation of the practice. But there wasn't--because waterboarding seems different.

And that's the problem. Waterboarding doesn't move people to act when it's performed on allegedly high-ranking Al Qaeda suspects. As a nation, it's fair to say that the procedure survived as long as it did because a large portion of the electorate implicitly approved of it.

I almost died by drowning thirty years ago. It's surely a terrifying experience, beyond all description. But it's not an especially painful one. In a pinch, a frightened and pliable John Yoo perhaps can be understood to have reached for a conclusion that both pleased his boss and avoided an even broader decision that might have endorsed that guy with the pliers. In other words, though the argument is seldom made, think of the restraint, as well as the abuse, that a practice like waterboarding signifies. Not a popular position, but one that needs to be considered in the difficult world of drawing such lines.

I'm hardly contending that Yoo is a savior, or even a competent lawyer, but none of these people acted alone. The Congress, the Executive, the Press, and much of the military and intelligence community abdicated their constitutional duties, abetted, of course, by us: A frightened people act in predictable ways, not least in systematically ducking responsibility.

The moral issue of torture has always been ours; will always be ours. While I'm not expecting any Alberto Gonzalez chair in jurisprudence and ethics any time soon, neither am I expecting a Nancy Pelosi chair in constitutional law or a Peter Jennings chair at the Columbia School of Journalism, though if past is prologue, we'll see them all.

turcopolier

Cato

I completely agree. Pl

Bill Wade, NH

http://pubrecord.org/nation/4936/wilkerson-ive-conclusion-cheney/

It's very heartening to know that many American service men and women did not drink the kool-aid and would not violate the Geneva Conventions by torturing people.

In the lengthy article I referenced above, Col Lawrence Wilkerson has reached the conclusion that Cheney is literally insane.

Cold War Zoomie

While washing the dishes (I'm an "enlightened, modern man" [trans: henpecked!]) last night I wondered:

As a people, do we deserve the Constitution our Founders gave us?

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