I served on a death penalty jury here in Virginia and the question of punishment came down to whether the convicted killer tortured his victim, in this case "mental torture." There was a great discussion on whether the killers actions constituted torture or were simply the usual stress associated with being killed.

When asked for instructions the judge simply told us to apply our understanding of what torture is and provided no guidance. So I guess torture CAN mean different things to different people at different times. That is probably why there are multiple legal memos covering what is and isn't torture.

Let me give an example. If I put someone in the middle of a field on a sunny, mid-spring day, with nothing around for miles is that torture? Now what if that person is an agoraphobic?

I don't disagree that torture may be context-specific. It might be torture, as you note, to play off someone's fears.

But we have to look at the bottom line. The memos (I presume), amount to the conclusion that water-boarding is not torture.

I don't care what their reasoning is. If their conclusion is that a classic example of torture (ask torquemada) isn't torture, it's wrong.

We should indeed look at fine distinctions, but we shouldn't let them distract us from the overall conclusion.

The upshot of this whole continuing mess appears to be that the Bush Administration is going to do whatever it darn well wants, regardless of the Constitution or any other laws.
The only way to put an end to it seems increasingly to be the impeachment of Bush, Cheney and anyone else involved.
If I understand the Constitution correctly, an impeachment by the House must be tried by the Senate, even if 49 Republicans don't like the idea. They can always resolutely vote Not Guilty, but if sufficient evidence for conviction is publicly presented, they will face judgment at the next election.
The only thing standing in the way at this point is the lack of cojones on the part of House Democrats; if they don't show some responsibility to the American public, no loyal citizen should consider voting for them again.

The Congress has given us a definition of torture for purposes of the federal statute prohibiting it: "an act committed by a person acting under 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." 18 U.S.C. Sec. 2340. It goes on to define "severe mental pain or suffering" as: "the prolonged mental harm caused by or resulting from: (A) the intentional infliction or threatened infliction of severe physical pain and 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 of application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality." Id.

The answer to Constitutionalist's question is going to be fact-bound. If I were to bring a torture prosecution against someone who, while acting under color of law, deliberately placed my victim in some situation calculated to drive the victim crazy, I'd need to be convinced that the mental suffering was genuine and severe, and I'd probably need a few experts, maybe including the victim's treating physician. I'd also need to be convinced that driving him crazy (for lack of a better phrase) was part of the specific intent behind the torturer's actions. It could be torture, then, if the torturer knows he is inflicting severe mental distress and if the distress he inflicts is indeed severe. I would count prolonged exposure to white noise (a favorite technique of our allies in the UK during the Troubles) as torture. Prolonged exposure to passages from books by Ann Coulter, or Bill O'Reilly, or Bernard Goldberg, or prolonged exposure to an image of Ann Coulter (with her mouth open and adam's apple showing) might seem like torture to some people, but I don't think I'd ask the U.S. Attorney to approve seeking an indictment in that case.

It's hard to imagine that waterboarding does not inflict severe physical pain. Thus it's easy to see why the recently fired DOJ official who tried waterboarding thought it was torture. Also if you look at Section 2340(2)(B) and (C), waterboarding is most certainly a procedure "calculated to disrupt profoundly the senses," and it may also be a "threat of imminent death." So any "prolonged" mental harm from those actions would be torture.

That said, Section 2340A (the prohibition on torture) appears to affect only torture committed outside the United States, which is defined as including U.S. territories and "possessions."

Section 2340B provides that state and local civil and criminal laws are not pre-empted. I'm no expert on torture, but this tells me that Virginia could bring an aggravated battery prosecution against a CIA officer who waterboards a suspect at Langley (not that anything like that would ever happen at Langley). I'm also not clear on whether the secret camps in Eastern Europe qualify as "possessions" of the United States, and if they do, then the act hasn't happened outside the United States, but it happened in no state jurisdiction. Not clear to me who would prosecute or how.

Likely the victim would have a good Bivens action (civil suit alleging rights violation by federal officer under color of law) against the torturer, but where would venue lie? And would a U.S. court have jurisdiction over a Bivens action based on torture that occurred overseas? The criminal torture statute provides for jurisdiction if the torturer is a U.S. national or is present in the United States, but I'm not sure of the basis for civil jurisdiction.

Help! I'm sure I'm missing something.

There are a myriad of practical and legal consequences related to the Administration's position on torture. I would suggest that any discussion of the issues involved needs to be predicated on one practical and two legal/philsophical reasons.

Practically, as outlined by the Judge Advocates who testified before Congress, what is the real military/intelligence value of information obtained under these circumstances? Once an adversary realizes that it may be compromised by an "intelligence" leak, they will alter tactics and "truth" in this context is unreliable.

The second and third reasons relate to who (whom?) the rules apply. As a general rule, unlawful combatants have historically been entitled to little if any protection. If you fight an irregular or low intensity conflict (LIC in the jargon) it might be reasonable to have as a clear standard that you have no rights. Precepts of international law generally require that a justification for behavior by a member state have a least some acceptance by the rest of the world. An example was the pre-emtive strike by Israel on the nuke reactor in Iraq several decades ago. The same rational was utlized to justify the present involvement in the Global War on Terror. Prior to the Isralie attack, general rules of international law pretty clearly forbid pre-emptive attacks. What the present Administration lacks in its conclusion on the appropriatness of its conduct is transparancy on the decision and implications of the conduct.

What most people don't understand is that the rules regarding torture are not written for our adversaries or the subjects of interrogation, but are written for us. We must not justify behavior based on subjective or emotional circumstances, absent a clear and compelling reason to do so.

That justification doesn't need to be in a secret memo.

How about this: ITS WAR S T U P I D!
thats to all you safe bureaucrats and desk mouths Trotskies!

Mental torture can be subjective, of course.
Physical torture, much less so.
While an open field may be mental anguish for an agoraphobic, who isn't tortured by water boarding?....Aquaman?
Can we try to keep our eye on the ball here? We're not talking about an irrational fear, you really can't breath water and you'll die if you try. It doesn't have anything to do with people suffering from phobias or irrational fears.

On an issue such as waterboarding there is no ambiguity. For over 100 years we have treated those who have used these methods against U.S. forces as torturers (in the aftermath of WWII for example), and going back to the turn of the century we also applied the same standard in prosecuting a U.S. soldier who used this method against insurgents in the Philippines.

The legal and moral arguments here are clear enough.

The pragmatic arguments also suggest that methods such as waterboarding undercut strategic objectives. Nations who have resorted to forms of torture such as waterboarding -- including the Nazis and Japanese during WWII, and the French in 1950s Algeria lost in part because fear and intimidation tactics tend to harden the opposition and increase its base of support rather than marginalizing it -- especially in cases where a foreign occupation is involved.

It is a sad statement that some Americans feel that principles, law, and justice should give way to expedience on this issue. It is an even sadder statement that some Americans -- including those in the Senate and the Executive -- would embrace means which are more likely to endanger the security of Americans abroad and at home by condoning torture and offering rationalizations for tactics such as waterboarding. These actions make absolutely no sense.

中国的政府太腐败--十年毒品害人。
家里的食物中含有大量的毒品。茶瓶底有许多白色粉末，米袋里有许多黑种子等。吃过饭后，头感到疼痛。放毒品的人用毒品害人的目的是让我和家人无声无息地从地球上消失。因为他们要报复我家。 中国的政府太腐败--十年毒品害人。

一九九八年四月三十日，江苏省盐都县郭猛镇护西村四组蒋瑞志被电力捕鱼周桂平捣残左眼。我妻被害有糖尿病、癫痫病、脑梗塞。我奶奶挂水后，不能走，后说帕金森病，骨瘦如柴死。我长时间眼睛挣不开，走路要跌伤。我女儿月经不来，不让上高中。老二左胸口痛，老二丈人癌症死。姑奶奶吐血看几天死。二怀子妻癌转移死，大怀子癌症。蒋满江妻儿癌症死。我奶奶的兄弟癌症死。证人哥哥房子烧了，侄女小宝掉水缸死。我干姐姐家小宝落水死。我妻嫂跌伤一骨未接，家中三人精神病，一人看后，有阳痿。蒋瑞虎感冒看后，乙肝病发。一人感冒打药死，二人睡觉死。蒋华妻出车祸，妹妹红斑狼疮。蒋亚妻精神病。我丈人跌伤腿骨裂，走路走不动，我妻哥哥双腿站不起来。蒋瑞虎感冒看后，乙肝病发。老姨奶奶脑梗塞，三姨奶奶女儿跌伤。老二出车祸，两手腕骨碎腿断赔千元。粮棉被偷，三亩偷掉二亩。父亲不知被杨三打的什么针死。老二办不到建房执照。蒋迎中癌症，蒋竹四糖尿病。郭乃国开两刀。葛和平外公和外婆死，老太出车祸死。 中国的政府太腐败--十年毒品害人

中国的政府太腐败--十年毒品害人。

中国的政府太腐败--十年毒品害人。
家里的食物中含有大量的毒品。茶瓶底有许多白色粉末，米袋里有许多黑种子等。吃过饭后，头感到疼痛。放毒品的人用毒品害人的目的是让我和家人无声无息地从地球上消失。因为他们要报复我家。 中国的政府太腐败--十年毒品害人。

一九九八年四月三十日，江苏省盐都县郭猛镇护西村四组蒋瑞志被电力捕鱼周桂平捣残左眼。我妻被害有糖尿病、癫痫病、脑梗塞。我奶奶挂水后，不能走，后说帕金森病，骨瘦如柴死。我长时间眼睛挣不开，走路要跌伤。我女儿月经不来，不让上高中。老二左胸口痛，老二丈人癌症死。姑奶奶吐血看几天死。二怀子妻癌转移死，大怀子癌症。蒋满江妻儿癌症死。我奶奶的兄弟癌症死。证人哥哥房子烧了，侄女小宝掉水缸死。我干姐姐家小宝落水死。我妻嫂跌伤一骨未接，家中三人精神病，一人看后，有阳痿。蒋瑞虎感冒看后，乙肝病发。一人感冒打药死，二人睡觉死。蒋华妻出车祸，妹妹红斑狼疮。蒋亚妻精神病。我丈人跌伤腿骨裂，走路走不动，我妻哥哥双腿站不起来。蒋瑞虎感冒看后，乙肝病发。老姨奶奶脑梗塞，三姨奶奶女儿跌伤。老二出车祸，两手腕骨碎腿断赔千元。粮棉被偷，三亩偷掉二亩。父亲不知被杨三打的什么针死。老二办不到建房执照。蒋迎中癌症，蒋竹四糖尿病。郭乃国开两刀。葛和平外公和外婆死，老太出车祸死。 中国的政府太腐败--十年毒品害人

中国的政府太腐败--十年毒品害人。

War on terror...war on torture; its all in a name. What if our executive branch suddenly decided to declare a preemptive strike on torture in Iran? What would this do for our moral standing in the world? Our goal could be freedom from torture worldwide. We could still spend hundreds of billions with accompanying no-bid contracts for 'defense' contractors who promise the eventual world-wide end to torture. The fat cats could continue to get fatter. You could search passengers for items which could be used for torture e.g. water bottles, finger nail clippers, flat soled shoes, boom boxes, etc.. There could be a 'defense' department NTA (No Torture Allowed) branch to protect us from our fear of torture (oops I almost wrote terror). We could appear to take the high ground and still manage to maintain our recent standing at the bottom of the moral barrel.

Excuse me, Constitutionalist? The "usual stress associated with being killed"? I bet if *you* were the one being killed, it wouldn't exactly feel like "usual stress."

no JP2...what's sad is that folks like myself cannot fdind folks like you, track you down..and hold you accountable. it's terribly easy to hide behind legalisms and fine abstractions...whenyou do not have to make the decision...when you do not incur the consequences...when you do not even have the statistics......

I have been waterboarded. it isn't pleasant. it also, like all else in the intelligence gathering process, occurs under controlled curcumstances. you don't have any idea what is really going on in the field. it's all grand principle - backed, as lweays, by a police state that ultimately enforces these rules.

well...guess what....much like the fine Catholics in Mass and elsewhere in NE who were dutifully sending funds for decade on end to "peaceful" organizations like Sin Fein/IRA...others of us will find ways to get what needs to be done accomplished - if folks like you pass a point where you have put us all at risk. don't imagine for moment that there isn't some threshhold where folks like you won't be held accountable if the process breaks down.

fine moral distnoictions in a soceity that blithely condones 50 million abortions is...to it mildly...stretching credulity. you better wise up and understand that the real objective is not binary...it's make this a controlled process...with extreme ends undertaken under the most extreme xircumstances.

and cut the *rap about moral equivalency between ourselves an Al Queda. It isn't so and you know it.

The large middle digit to all of you who sit behind a desk, unengaged, pretending to some sort of moral superiority. it's a self delusional, self reassuring fraud. you want to make sure it's all "above board"...then volunteer your own rear quarters, get your kids to volunteer...and make sure with puritanical certitude that it is "moral" and "legal" because you are the ones actually on the pointy end. otherwise......stick it.......

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