Psychologists and torture

[AlmightyTDawg]

Keep it in military trials and you have something. Captured by the military, tried by the military. We cannot afford to let them into the civilian judicial system. Trying to try a detainee for 4-5 years will only muddle things to obscurity. Keep the trials simple, quick(6 months at the most) and either let them go or carry out the sentance. And if the country that the detainee is from doesn't want them or is likely to torture them, let the detainee go in a liberal's house. Let that person watch them if they care so much.

That's an O'Reilly-esque false attack and you should know it. The extent to which people care isn't because they've formed some sort of deep, intimate bond with any particular person. As far as we know, everyone of them could be a bloodthirsty psychotic; that's irrelevant to this discussion.

What people do care about is the manner in which we conduct our affairs. Why do you think career military officers were writing amici in support of Hamdan? However rightly or wrongly, the American zeitgeist prides itself on a certain sort of moral high ground; we could "win" by committing atrocities but then we have become what we despise. Now, the neocons think that's easily countered by pointing to the most vile of the vile and saying "my gawd, you want to protect him?" But it's an ad hominem; it's a crap argument.

Our justice system is not set up around protecting the worst - but things like Miranda rights and Fourth Amendment exclusionary rule and such will have that effect in individual cases. It's about preventing false positives in general and encouraging proper behavior from the investigators (who are in a position to fabricate evidence as they see fit).

The issue with the military trials comes down to the rules of the game. We call our procedural, evidentiary, and substantive law standards "fair play" in the civil context, but when those things are curiously missing in military trials, it begs the question whether it's truly fair. Some of those don't answer themselves, for example pretty smart people accepted hearsay evidence at the ICTY in ways we wouldn't do here. But, they also didn't have access to the mother of all charges, "conspiracy," that we wrote into the MCA (notably after Thomas got the horrid worse of the argument with Stevens as to whether the charge was even valid under int'l law in the Hamdan opinion). Then you have Congress stripping jurisdiction from reviewing courts to look at any but the most basic standards. Then you have the Supreme Court theoretically out of the loop (but I think Kennedy has been pretty clear if they test that, they're gonna get cremed and it's 5-4 for now).

It might feel empowering for people to say "they don't deserve it because they're bad," but second-grader logic aside, you can only justify the structure by prejudging the defendants. And considering the circumstances in which some of these guys are picked up (e.g. "tip" from village 1 about guy in village 2; discounting that these two clans/families/villages/whatever have been feuding for years), we've got a lot of risk for false positives here.

Personally, I haven't felt like we've had the moral high ground since the Administration decided it found a loophole in Geneva that treated these guys under the Common Article III floor. Similarly for Hamas/Fatah, one of our many logical inconsistencies is that you can't be about "preserving freedom and democracy" if you basically invalidate another country's elections whenever you don't like the result.

[Mulu]

At least we regret our collateral damage.

Bullshit. We don't even *count* our collateral damage. Other folks have to count up the civilian dead. The US govt has a *policy* of not counting how many civilians we kill.

They were not willing to give up their radical leanings though.

Oh, I see, only people who pursue legitimate avenues *and* are liked by us get to advance their goals. Gotcha. Realize that whatever the rationale, cutting off legitimate methods of goal seeking leads them to use illegitimate methods. In that respect, we effectively sponsor terrorism, or at least encourage it.

And if the country that the detainee is from doesn't want them or is likely to torture them, let the detainee go in a liberal's house.

Oh no, it was conservatives that really wanted them in the first place, so it's conservatives that have to house them.

[Zakharra]

They were not willing to give up their radical leanings though.

Oh, I see, only people who pursue legitimate avenues *and* are liked by us get to advance their goals. Gotcha. Realize that whatever the rationale, cutting off legitimate methods of goal seeking leads them to use illegitimate methods. In that respect, we effectively sponsor terrorism, or at least encourage it.

No. You misunderstood me. I have no problem if they give up the radical/hatred aspect. I can care less what kind of government they set up as long as it's one their neighbors and citizens can live with. Wether it's a type of democracy, socialist government or some communist varient, as long as they are not spouting out about wiping out a neighbor for 'God', or some other asinine idea, let them make the government.
They can hate our guts, but as long as they don't act forcefully on that, leave them be.

And if the country that the detainee is from doesn't want them or is likely to torture them, let the detainee go in a liberal's house.

Oh no, it was conservatives that really wanted them in the first place, so it's conservatives that have to house them.

?? Who is bleeding for them to be released? Mainly liberals. Let them take care of any we let go. The right wing conservatives want to either 1, keep them in prison forever, or 2, shoot them. I want them tried, in a military court, since they were caught/apprehended on the battlefield by the military (yeah I know the Afghans caught some too and handed them to us) and either sentanced or let go, depending what the court decided. They do not need to be put thru the civilian courts. That would tie things up too much.

Now if they are to be released, there comes up a problem. Some countries don't want them back, or will torture them if they return. What do we do then?

[Zakharra]

Keep it in military trials and you have something. Captured by the military, tried by the military. We cannot afford to let them into the civilian judicial system. Trying to try a detainee for 4-5 years will only muddle things to obscurity. Keep the trials simple, quick(6 months at the most) and either let them go or carry out the sentance. And if the country that the detainee is from doesn't want them or is likely to torture them, let the detainee go in a liberal's house. Let that person watch them if they care so much.

That's an O'Reilly-esque false attack and you should know it. The extent to which people care isn't because they've formed some sort of deep, intimate bond with any particular person. As far as we know, everyone of them could be a bloodthirsty psychotic; that's irrelevant to this discussion.

What people do care about is the manner in which we conduct our affairs. Why do you think career military officers were writing amici in support of Hamdan? However rightly or wrongly, the American zeitgeist prides itself on a certain sort of moral high ground; we could "win" by committing atrocities but then we have become what we despise. Now, the neocons think that's easily countered by pointing to the most vile of the vile and saying "my gawd, you want to protect him?" But it's an ad hominem; it's a crap argument.

1Our justice system is not set up around protecting the worst - but things like Miranda rights and Fourth Amendment exclusionary rule and such will have that effect in individual cases. It's about preventing false positives in general and encouraging proper behavior from the investigators (who are in a position to fabricate evidence as they see fit).

2The issue with the military trials comes down to the rules of the game. We call our procedural, evidentiary, and substantive law standards "fair play" in the civil context, but when those things are curiously missing in military trials, it begs the question whether it's truly fair. Some of those don't answer themselves, for example pretty smart people accepted hearsay evidence at the ICTY in ways we wouldn't do here. But, they also didn't have access to the mother of all charges, "conspiracy," that we wrote into the MCA (notably after Thomas got the horrid worse of the argument with Stevens as to whether the charge was even valid under int'l law in the Hamdan opinion). Then you have Congress stripping jurisdiction from reviewing courts to look at any but the most basic standards. Then you have the Supreme Court theoretically out of the loop (but I think Kennedy has been pretty clear if they test that, they're gonna get cremed and it's 5-4 for now).

3It might feel empowering for people to say "they don't deserve it because they're bad," but second-grader logic aside, you can only justify the structure by prejudging the defendants. And considering the circumstances in which some of these guys are picked up (e.g. "tip" from village 1 about guy in village 2; discounting that these two clans/families/villages/whatever have been feuding for years), we've got a lot of risk for false positives here.

4Personally, I haven't felt like we've had the moral high ground since the Administration decided it found a loophole in Geneva that treated these guys under the Common Article III floor. Similarly for Hamas/Fatah, one of our many logical inconsistencies is that you can't be about "preserving freedom and democracy" if you basically invalidate another country's elections whenever you don't like the result.

1: Miranda and the 4Th amendment does not apply to military tribunals. Miranda specifically. As far as I know. I'm not a military lawer, so I could very well be wrong about that.

2: Military trials run under a different set of rules. The UCMJ, not the US Constitution.

3: In a properly run military trial, that will come out. There is the same potential for false positives in a civilian trial, more so, than in a military one.

4: Uumm.. you know that the US is not signatory to every article of the Geneva convention?

[Mulu]

They can hate our guts, but as long as they don't act forcefully on that, leave them be.

So, then, that would mean leave everyone alone except Al Qaida?

?? Who is bleeding for them to be released? Mainly liberals.

Who removed them from their homes in the first place? Conservatives.

Now if they are to be released, there comes up a problem. Some countries don't want them back, or will torture them if they return. What do we do then?

Maybe those right-wing policy makers should have thought of that in the first place, which is why I say let the conservatives provide room and board to these now country-less individuals in their own houses. You break it, you own it.

[NickD]

as long as they are not spouting out about wiping out a neighbor for 'God', or some other asinine idea, let them make the government.

You mean like America?

Kill them all and let God sort them out, anyone?

[AlmightyTDawg]

1: Miranda and the 4Th amendment does not apply to military tribunals. Miranda specifically. As far as I know. I'm not a military lawer, so I could very well be wrong about that.

Of course not. My point was justice systems are built structurally around certain ideals despite the fact that guilty go free, sometimes incredibly guilty ones. No system can perfectly discern without false positives/negatives, so we build heuristics that emphasize a target. The fact that the "worst" can go free is irrelevant to that discussion.

2: Military trials run under a different set of rules. The UCMJ, not the US Constitution.

However, the tribunals authorized here are specifically function under 10 USC 948a, which while "based" on the UCMJ are specifically not bound by construction of its terms. You might also note that they did away with certain things under the UCMJ, notably among other things the prohibition on self-incrimination.

3: In a properly run military trial, that will come out. There is the same potential for false positives in a civilian trial, more so, than in a military one.

I'm gonna get some popcorn while you sit back and justify that one. If you'd like me to recommend a good hornbook on evidence, let me know. Maybe you might want to define "properly run" first. Oh, and make sure you tell me about the part where people under torture are unlikely to self-incriminate. Oh yeah, and where some of the "classified" non-confrontable evidence is from the same crew that told us there were WMDs in Iraq. Good luck with that one mate.

4: Uumm.. you know that the US is not signatory to every article of the Geneva convention?

Of course I know that; I wrote about it in detail in one of the previous threads. As I pointed out then, it put us in some terribly illustrious company I might add - we are, in that respect, practically kissing cousins with the Axis of Evil. Not that that means anything, of course. However, that notwithstanding, our lack of ratification of certain protocols or what not doesn't change the basic Common Article III issue, which is that we have argued there's a loophole in which a certain class (conveniently the one we're fighting) could conceptually be treated like non-persons. It's basically anathema to the philosophy of the conventions, it's behavior straight out of the "Axis of Evil" playbook. So no, I'm not terribly impressed by the ramifications of the stance being taken.

[Zakharra]

They can hate our guts, but as long as they don't act forcefully on that, leave them be.

So, then, that would mean leave everyone alone except Al Qaida?

If they agreed to give up their radical ways, yes.

?? Who is bleeding for them to be released? Mainly liberals.

Who removed them from their homes in the first place? Conservatives.

Liberals voted for the war too. They cannot be let off the hook for that.

Now if they are to be released, there comes up a problem. Some countries don't want them back, or will torture them if they return. What do we do then?

Maybe those right-wing policy makers should have thought of that in the first place, which is why I say let the conservatives provide room and board to these now country-less individuals in their own houses. You break it, you own it.

They already have room and board. In prison. It's the liberals that want them to be let out and oppose any rendition.

[Zakharra]

as long as they are not spouting out about wiping out a neighbor for 'God', or some other asinine idea, let them make the government.

You mean like America?

Kill them all and let God sort them out, anyone?

No. Only a few people say that.

[Zakharra]

1: Miranda and the 4Th amendment does not apply to military tribunals. Miranda specifically. As far as I know. I'm not a military lawer, so I could very well be wrong about that.

Of course not. My point was justice systems are built structurally around certain ideals despite the fact that guilty go free, sometimes incredibly guilty ones. No system can perfectly discern without false positives/negatives, so we build heuristics that emphasize a target. The fact that the "worst" can go free is irrelevant to that discussion.

How is it irrelevant?

2: Military trials run under a different set of rules. The UCMJ, not the US Constitution.

However, the tribunals authorized here are specifically function under 10 USC 948a, which while "based" on the UCMJ are specifically not bound by construction of its terms. You might also note that they did away with certain things under the UCMJ, notably among other things the prohibition on self-incrimination.

I haven't been in the Navy for 11 years now, so I'm not current with any changes to the UCMJ. As I said, I'm not a military lawyer so my facts/knowledge could be wrong. Do you mean that a defendant can self incriminate themselves or can't?

3: In a properly run military trial, that will come out. There is the same potential for false positives in a civilian trial, more so, than in a military one.

I'm gonna get some popcorn while you sit back and justify that one. If you'd like me to recommend a good hornbook on evidence, let me know. Maybe you might want to define "properly run" first. Oh, and make sure you tell me about the part where people under torture are unlikely to self-incriminate. Oh yeah, and where some of the "classified" non-confrontable evidence is from the same crew that told us there were WMDs in Iraq. Good luck with that one mate.

I mean les of the drama and delaying/obfuscation tactics that can happen in a civilian trial. Having evidence thrown out because it wasn't properly gathered when the defendant's 'rights' were ignored when he wasn't Mirandized. Things like that. Trials that do not drag on for years. Evidence should be put forth in simple and straightforward terms. Of course I know that it probably doesn't happen that way. Humans have a way of screwing many things up.

4: Uumm.. you know that the US is not signatory to every article of the Geneva convention?

Of course I know that; I wrote about it in detail in one of the previous threads. As I pointed out then, it put us in some terribly illustrious company I might add - we are, in that respect, practically kissing cousins with the Axis of Evil. Not that that means anything, of course. However, that notwithstanding, our lack of ratification of certain protocols or what not doesn't change the basic Common Article III issue, which is that we have argued there's a loophole in which a certain class (conveniently the one we're fighting) could conceptually be treated like non-persons. It's basically anathema to the philosophy of the conventions, it's behavior straight out of the "Axis of Evil" playbook. So no, I'm not terribly impressed by the ramifications of the stance being taken.

And your point is...? It's a treaty that we read one way. Others read another. It supports both ways of being read. You want to clear it up? Define the terms clearer and have Congress ratify the newer version.

[AlmightyTDawg]

How is it irrelevant?

In the same way that a politician, when advocating a plan that will harm more people on balance than it solves, will bring one of the rare few that the plan helps, and point to that as evidence of its goodness. It's an emotional argument, not a logical one, and it has an equally plausible emotional argument on the other side. Since no policy prevents individual errors/dramas/etc. the reliance upon them as an argument form is self-gratification only.

I haven't been in the Navy for 11 years now, so I'm not current with any changes to the UCMJ. As I said, I'm not a military lawyer so my facts/knowledge could be wrong. Do you mean that a defendant can self incriminate themselves or can't?

831 ARTICLE 31. COMPULSORY SELF-INCRIMINATION PROHIBITED

(a) No person subject to this chapter may compel any person to incriminate himself or to answer any questions the answer to which may tend to incriminate him.

(b) No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

(c) No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence in not material to the issue and may tend to degrade him.

(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.

That protection is absent in the MCA tribunals. Granted, we haven't "tortured" them, so the quality of the self-incrimination is still good, right?

I mean les of the drama and delaying/obfuscation tactics that can happen in a civilian trial. Having evidence thrown out because it wasn't properly gathered when the defendant's 'rights' were ignored when he wasn't Mirandized. Things like that. Trials that do not drag on for years. Evidence should be put forth in simple and straightforward terms. Of course I know that it probably doesn't happen that way. Humans have a way of screwing many things up.

These are false negatives (or, in the case of "delays" just inconvenient), not false positives (except in very rare instances, though it is possible for D's exculpatory evidence to get excluded, it's generally for reliability issues). We make that tradeoff to ensure that an overzealous executive (at any level of gov't) can't, with the most demure and sweet of intentions of course, railroad us on the basis of their gut.

And your point is...? It's a treaty that we read one way. Others read another. It supports both ways of being read. You want to clear it up? Define the terms clearer and have Congress ratify the newer version.

No, it does not "support" the way the Administration has read it. It merely does not in painfully explicit language rule it out. But of course, to say that, you have to be deliberately obtuse about the background and holism of what was produced in the Geneva Conventions.

But, following the lead of Thomas who cited "conspiracy" out of the Nuremberg Charter (ignoring 1. that it was not an all-encompassing charge but was just limited to aggressive war which was arguably a specific intent conspiracy to being with and 2. played no role in sentencing while being wildly disapproved of by our allies and about 80% of the world), convenient ignorance of history allows one to hold all sorts of beliefs. For example, McCarthyism might sound like a real valuable investigative methodology until you, say, pick up a history book.

Look, no one cares if Khalid had been shot "resisting arrest." We all understand due process on the battlefield. The fact remains that if you detain them (for intelligence) there's a price to pay in terms of basic protections and dignity. What you're seeing here is an argument teasingly offered to try to have the cake and eat it too. And they too know they're going to get cremed, but like so many legal battles, merely dragging it out and doing what you want in the interim makes it worthwhile.

[Mulu]

Of course, it isn't worthwhile. Iraq and this nonsensical war on terrorism, and to a lesser extent the detention issues it has created, is only accelerating our decline.

With the black hole of Iraq sucking all Bush administration efforts into its vortex, much of the globe has, it appears, been quietly released to enhance its power at the expense of the sole superpower, now sliding down that slippery slope.

I think the only advantage remaining in legal delay is CYA.

[AlmightyTDawg]

Well yeah, there clearly isn't a ledger line of say delaying a costly regulation. But at the same time they'll probably end up stalling out the "prosecute or release" decision until the next administration, and make it a lose-lose for them too. Some of those "release" decisions I think are going to come back and bite them, and it's probably best to separate it timewise from the initial outrage and from their other gaffes to deaden the thud when it comes crashing down. It worked for Clinton, at least. Plus the pushback of a couple of military judges recently is the sort of flak I figure we can expect more of as this moves forward.

Worse comes to worse, you can keep hoping one of the older liberal bloc on the Court kicks off, and you might be able to win by default. But that's just me spitballing. I would've guessed that initially they thought they could get away with it riding the AUMF blank check; now it's just about damage control.