Keith Olbermann, Daniel Levin and Waterboarding By: Mark W Adams

Wednesday: 52 Iraqis Killed, 38 Wounded

Cross Posted at E. Pluribus Unum and KOS-posted too.

It would seem that Radar online is less than impressed with Keith Olbermann's Special Comment Tuesday where he minced no words in accusing President Bush of being a criminal who condoned torture due to the story of former Acting Deputy Attorney General Dan Levin, who was fired after he subjected himself to waterboarding and declared it to be "torture."

The memo Levin wrote is here.

This thing was in response to a directive from POTUS that superseded Gonzo's ridiculous edict that asserted torture was only something that caused "severe" pain which was limited to "excruciating and agonizing" or equivalent to the same pain felt "serious physical injury, such as organ failure, impairment of bodily function, or even death."

Bush threw out the 2002 definition Gonzo gave us that pretty much allowed anything short of 40 lashes and asked for a new definition, which starts with the International Convention Against Torture (CAT) . . .

"The fact remains, however, that the only relevant definition of 'torture' is the definition contained in [the] CAT. . . .")"
***
The CAT defines "torture" so as to require the intentional infliction of "severe pain or suffering, whether physical or mental."


If it's torture, it's illegal under Federal Criminal Statutes, and specifically the statute in question incorporated the CAT to fulfill our obligations under that treaty. Bush said unambiguously "We do not torture." This memo takes Bush at his word and ignores all that mumbo jumbo about "inherent war powers" as unnecessary in light of his statement.

The statutes in question start here.

That's the "definition" section . . . ["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 ] --my emphasis. Threats are sufficient, including threats to others, like family members ala Higazy which I wrote about here...

Penalties are in the next section, part 2340(a).

Even attempting Torture is a crime punishable for up to 20 years, and can result in the death penalty if the victim dies. This applies to all offenders who are US nationals or anyone if it takes place within the US. Conspiracy to commit torture does not carry the death penalty, but can result in 20yrs, or life imprisonment if the victim dies.

Okay, that's the preliminaries. The statute, the CAT and Part I of the memo. Part II is looking at parsing this sentence into 4 separate ideas...
"specifically intended to inflict severe physical or mental pain or suffering".
1. "severe"
2. "severe physical pain OR suffering"
3. "severe mental pain or suffering"
4. "specifically intended."

I have a feeling the rub will be the last part, so I'm skipping to #4.
The parsing here is whether you intend to commit the act itself that results in the severe pain and suffering, or that you specifically intended the results -- the severe pain and suffering itself.

The courts are inconsistent and ambiguous in the difference, if any, between general intent and specific intent. The idea is whether you intended merely to shoot someone (which may or may not have killed the victim) or did you intend that the victim actually die. Did you intend the act, or the result of the act as well?

Usually this is a distinction without a difference. As a practical matter, when a result is almost certain to occur from an intentional act, the courts allow the inference that the result was intended regardless of the actual desire of the accused -- but this inference can be a question of fact for a jury. Some cases say you need a conscious desire, others only require that the result is reasonably foreseeable.

Interestingly enough, Levin elects not to parse this, holding Bush to his word. (silly boy)

"We do not believe it is useful to try to define the precise meaning of "specific intent" in section 2340. (27) In light of the President's directive that the United States not engage in torture, it would not be appropriate to rely on parsing the specific intent element of the statute to approve as lawful conduct that might otherwise amount to torture."

He notes that if someone had a conscious desire to inflict "severe physical or mental pain and suffering," that would mean they specifically intended to commit torture. BUT, if he acted in good faith, and conducted a reasonable investigation to find out if his actions would result in "severe physical or mental pain and suffering," then he does not meet the specific intent requirement of the statute and any resulting pain and suffering would be unintentional.

There's a lot of gray area between those two scenarios. But that's what juries are for. Also he looks at motive. Torture for a "good reason" still is torture, even for threats to National Security. The last paragraph is looking at a kind of "attempted" torture. The threat is made (even though the perpetrator "really didn't mean it"), and to avoid torture the victim does what the perpetrator demands and isn't touched. That's still criminal under the statute.

I'm reading this and thinking that Higazy should be given his own key to Fort Knox.

Back to the phrase, "specifically intended to inflict severe physical or mental pain or suffering" he takes apart the word "severe" and decides is just an ordinary english word -- goes to the dictionary: extreme, violent or intense, hard to sustain or endure . . . then the Senate Foreign Relations Committee (1984) -- the CAT limits torture as an extreme practice, unusually cruel.

It's a tautology, using comments on "torture" to define "severe" in the definition of torture. But such is legal reasoning,

Torture, being "severe" is more that (get this) ordinary "acts of cruel, inhuman or degrading treatment or punishment."

But this is something carrying the death penalty, not your run of the mill assault. "[T]orture is the gravest form of [cruel, inhuman, or degrading] treatment [or] punishment."

The guy Levin is good, a real lawyer who actually did his homework -- unlike Gonzales who tried to make this distinction by pulling crap out of his ass. The DOJ told the Senate, torture was "barbaric cruelty which lies at the top of the pyramid of human rights misconduct." This of course was when the Reagan administration wanted this to be passed and accepted by as many countries, even the thuggish ones, as possible. Back in the day . . . when the POTUS has a minimal respect for international law.

BECAUSE, while the CAT says one thing, Levin doesn't think that the US statutes "intended to reach only conduct involving 'excruciating and agonizing' pain or suffering."

"Although there is some support for this formulation in the ratification history of the CAT, a proposed express understanding to that effect was "criticized for setting too high a threshold of pain," and was not adopted."

So . . . where's the line? Where is "severe" among . . . "substantial, extreme, intense, excruciating, or agonizing." Here Levin looks at the civil statute (Higazy's friend), the Torture Victims Protection Act (TVPA). It doesn't so much judge degrees of pain and suffering, but looks to WHY the victim was subject to the conduct.

*** for such purposes as obtaining from that individual or a third person information or a confession *** intimidating or coercing***

Again the word "severe" is used and the Courts have decided that term is "crucial." The conduct proscribed by the [CAT] and the TVPA is sufficiently extreme and outrageous to warrant the universal condemnation.

"The more intense, lasting, or heinous the agony, the more likely it is to be torture."

The case law is summarized on the TVPA in cases where torture was NOT found:
1) where the details of a beating weren't sufficiently provided to give the court enough of an idea of their "severity" including their frequency, duration, the parts of the body at which they were aimed, and the weapons used,
2) Death threats alone did NOT constitute torture.

Torture was found to have occurred in a case where the behavior was more unusual and detailed evidence provided that a course of conduct was torture that included:
1) "severe" beatings of plaintiff,
2) repeated threats of death and electric shock,
3) sleep deprivation,
4) extended shackling to a cot (at times with a towel over his nose and mouth and water poured down his nostrils),
5) seven months of confinement in a "suffocatingly hot" and cramped cell,
6) eight years of solitary or near-solitary confinement.

I get the feeling that any single one of these acts might not be considered torture, but together it's a pattern of behavior that is undoubtedly torture and other examples where not a single act, but a course of extreme conduct was found to be torture.

Under this definition, which seems perfectly sound on it's face without more research, one act of waterboarding won't get you life in prison.

(2) The meaning of "severe physical pain or suffering."

Here Levin distinguishes between pain versus suffering, determining that severe suffering CAN OCCUR WITHOUT PAIN. This is a big difference between Gonzo's definition and Levin. Words mean things: "or suffering" is not supposed to be ignored.

Likewise, physical suffering, even if not painful, is different from mental suffering. BUT, Congress, in ratifying the statute and the diplomats writing the CAT talked about pain AND suffering, even though the statute they passed says pain OR suffering. The debate record shows the Senators used the phrases interchangeably without any apparent difference in meaning.

Levin decides that despite this, words still mean things, and the OR is there for a reason . . . BUT . . . "To constitute such torture, "severe physical suffering" would have to be a condition of some extended duration or persistence as well as intensity."

I think this might be where he can say waterboarding, while not painful, if done persistently, for a long time, again and again possibly, can be "severe physical suffering."

(3) The meaning of "severe mental pain or suffering."

Read "severe" here to mean, "prolonged."

"Mental harm" must be caused by acts falling within one of the four listed acts:
1) threatened or actual infliction of severe physical pain or suffering
2) giving the victim drugs
3) death threat
4) the threat to a 3rd person of one of the above.

This is an "exclusive" list. Meaning there are no other acts that can cause mental harm and still be considered the result of torture but the ones listed. Also, actual mental harm must result, and is not merely presumed every time these acts are committed. Literally, no harm, no foul.

And the severe/prolonged "harm" means there is actual damage, an injury to one's mental state that must last for a reasonable period of time. It can't be instantly gotten over, nor must it be permanent damage.

Here's where I digress again. The purpose of putting someone on the waterboard is to induce panic. There are physical manifestations (suffering) of panic as well as the obvious harm to the psyche. That's it's purpose, that's why you do it -- to alter the victim's mental state so they are more compliant.

I don't know, however, if just doing it to someone whose mental state is altered enough to spill the beans, and when it's over and they calm down they're okay after an hour or two would fit the definition of torture. On the other hand, if they'd been kept in solitary, roughed up a few times, subject to extremes of heat and/or cold, kept in "stress positions" and deprived of sleep or food -- and then were put on the waterboard; there's no doubt they are a torture victim and like Padilla, were probably really messed up in the head by the time they saw the light of day.

Now, remember, simple assault of a prisoner is a war crime. Torture is a war crime that can get you the chair.

OKAY. . . that's the English translation of the Justice Department's interpretation of the torture statute. Waterboarding is mentioned as one part of a continuing pattern of abuse that taken together constituted torture. This doesn't mention anything like the story Keith told of Levin being waterboarded himself, or that he says anywhere in the memo that this act -- ALL BY ITSELF is torture. Do it a lot, however, or as part of a scheme to break someone down systematically over time, it's torture.

Does that help?

These guys misstate the memo, and claim that Levin won't discuss the situation further beyond the memo. (So how did ABC get the story about him subjecting himself to waterboarding?)

It's also assault, a felony, last time I looked, and a war crime. It's a war crime merely to humiliate prisoners.



Although there is wiggle room, for Radar online to suggest that waterboarding is "perfectly legal" is as stupid as saying Levin was actually tortured when he voluntarily had himself waterboarded. Even if it's not torture (done once for 10 seconds, with no threats, no other bad treatment -- yeah right) it is always illegal if it's involuntary, it's assault and battery, and if done to an enemy combatant or others protected under Geneva, it's a war crime notwithstanding it not being worthy of the death penalty.

But note, if someone dies, accidentally, while being waterboarded -- Olbermann is absolutely right and that perpetrator will face the death penalty. UNLESS he acted in good faith, and conducted a reasonable investigation to find out if his actions would result in "severe physical or mental pain and suffering,"