Wednesday, November 23, 2005
18 USC 2340. DefinitionsWhile that certainly helps in legally defining "torture", it does seem to leave open the question of what constitutes "severe physical pain or suffering." This was one of the key motivations that prompted the Administration to ask its lawyers to research torture and draft the now infamous "Torture Memo." If one is sincerely interested in understanding the legal definitions and ramifications of torture rather than just having a paper political punching bag this memo can actually be quite helpful. I wrote on this before (June 10, 2004), but will, in the interest of clarification, go over two key points in the memo.
As used in this chapter -;
- "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;
- "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from -;
- the intentional infliction or threatened infliction of severe physical pain or suffering;
- 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;
- the threat of imminent death; or
- 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; and
- "United States" includes all areas under the jurisdiction of the United States including any of the places described in sections 5 and 7 of this title and section 46501 (2) of title 49.
First, the memo addresses that 18 USC 2340 requires "specific intent" in order to constitute torture. Likewise, while Article 1 of the Geneva Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment prohibits "... any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ..." the United States' ratification of this convention in 1994 included the reservation and understanding that "... in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering ..." This distinction of "specific intent" has real importance in determining if an act is or is not torture, since there is a legal difference between specific intent and general intent. If an individual performs acts with reasonable knowledge that they will inflict "severe physical or mental pain or suffering" and thereby violate the statute it demonstrates specific intent and, therefore, is torture. However, if an individual performs acts that he sincerely and reasonably does not believe will inflict "severe physical or mental pain or suffering" but such results do happen it demonstrates only general intent and, while they may still be subject to other criminal statues (e.g. assault, battery, homicide, etc.), it does not constitute torture. For example, if you beat a man and break his legs it is torture (such acts will obviously produce severe and permanent physical pain), however, if you are yelling at and stressing a subject and they have a heart attack and die it is not torture (there was no specific intent to kill).
To complete our definition, however, we must achieve an understanding as to what "severe physical or mental pain or suffering" really means. As noted in the memo, by applying the adjective severe to physical suffering the law seems to contradict the position expressed by Cathy Young that "any interrogation techniques that rely on physical suffering are torture," since there is certainly a difference between "any" suffering and "severe" suffering. Since the law, however, declines to define "severe physical suffering" we must look to other sources in order to determine the basis for this difference. In defining "severe," various dictionaries include terms such as:
- causing great discomfort, damage, or distress
- very dangerous or harmful; grave or grievous
- extremely difficult to perform or endure
- very great; intense
- causing great discomfort by being extreme
The law, however, is much clearer when it comes to defining "severe mental suffering." One immediately sees that in order to be considered such the damage done must be "prolonged," or in other words continuing over time. While persistent conditions such as PTSD, clinical depression and other neuroses and psychoses may certainly be evidence of torture it is clear that the temporary mental stress associated with interrogation or even humiliation does not meet this standard. Additionally, the prolonged condition must have resulted from a limited number of specific acts. If, for example, a subject goes "stir crazy" and develops a mental disorder from confinement or intense interrogation that does not include the prohibited acts it cannot legally be considered torture.
Some may say "but that's just legalese and looking for a loophole," but, as Americans, we pride ourselves on being a nation of law, an impartial law that in theory treats all citizens equally. As such it seems to me that any discussion of legal and criminal matters must start with a clear understanding of what the law actually is and not what any random person feels the law should be. Since our interrogators in the GWOT have always been subject to this law I think the McCain Amendment was largely political preening. After all, if this statute is not sufficient then change it or clarify it.
NOTE: I have intentionally not touched on the third point of the memo, that the Constitutional separation of powers may create circumstances whereby specific conduct that would otherwise be criminal would actually not be unlawful. While this is an important Constitutional issue that has largely been ignored in the political bluster it does not have bearing on the definition and understanding of what actually constitutes torture.
Update: Thanks prof, I invite all visitors to stay a while and look about.
Friday, November 18, 2005
In general I am uncomfortable with declarations of what we did and didn't know, as that can often be more contentious than constructive. I would rather speak of what we thought we knew and what we now know and examine where these are not at variance. Barring the most outlandish moonbat conspiracy fantasy wherein the President alone is privy to some super-secret data revealing that everyone else in the world was wrong, the major items of critical information we believed prior to invasion can be summarized as:
- Iraq possessed secret stock piles of chemical weapons, including the ability to produce more
- Iraq possessed secret stock piles of biological weapons or the ability to produce them on short notice
- Iraq possessed a secret nuclear weapons development program
- Iraq had neither chemical nor biological weapons ready to be used during major combat operations even though handling equipment has been discovered at some depots
- No major stockpiles of chemical or biological weapons have been recovered
- While facilities capable of producing chemical and biological agents have been discovered, there is no proof that these facilities had been used in that capacity
- Materials that would be useful in biological and nuclear weapons programs were discovered hidden at the homes of important scientists alledgedly involved in these efforts
- Iraq had plans to reconstitute all WMD programs (including nuclear weapons development) once UN restrictions and inspections had been lifted
One thing we have learned from post-invasion analysis of documentary evidence is that it seems Saddam may have been just as wrong about Iraq's WMD capabilities as we were. There are indications that he was routinely told what he wanted to hear, often out of a well justified fear for one's life. If this is the case then it is clear that in this particular circumstance the most sure way to have improved the accuracy of our intelligence would have been to have had HUMINT (human intelligence) inside the Iraqi armed forces to report exactly what the situtation was at the unit level. The combination of the severe degradation of the CIA's HUMINT structure throughout the '70s, '80s and '90s coupled with the very closed Iraqi society make this a virtual impossibility. While additional information might have been available with improved satellite or communications intercept capabilities I don't think we have any meaningful way to evaluate if this is the case, and I don't necessarilly believe this possibility bears meaningfully on the apparent failures. This is because the greatest failure of pre-invasion intelligence was also seen as a failure of pre-9/11 intelligence that hasn't been much remarked upon: over confidence.
In both cases our intelligence structure failed to accurately assess what we did not know about the situation and to accurately appraise the confidence with which to ascribe to the intelligence. Basically, our failures were not so much in the data as in the metadata. We live with uncertainty every day in our private lives and so, too, does the national intelligence structure live with uncertainty. Understanding the known unknowns and anticipating the unknown unknowns (to borrow from Sec. Rumsfeld's lexicon) is essential in providing the most accurate evaluation possible, and this is no easy measure. Despite all the Monday morning quarterbacking of how obvious X is now, one must remember that the intelligence business is like putting together a 1,000,000 piece jigsaw puzzle, except that the pieces come from 10,000 different puzzles, some of them have the picture part torn off and pieces may be added or removed from the box at random. Out of all this the analyst is expected to put together enough of the one picture needed to answer the question. It is vital to understand what is unknown or may be unknown to evaluate just how likely it is that the picture you're putting together is both the right one and put together correctly.
So, while the politicians in DC are not actually asking these the questions they are, in a round-about way, asking a legitimate question, albeit in an illegitimate manner: had we accurately known the degree to which our pre-invasion intelligence was flawed would it have been sound to still have conducted the invasion? I say this is being asked in an illegitimate manner largely because they are framing the question with the assumption that at least one party (the President) did know the extent to which the intelligence was flawed, an accusation that not only has no evidence to support it but, rather, is being made in the face of much contradictory information. The discussion is furthermore delegitimized by the false impression that the supposed faulty reasoning that led to the invasion somehow obviates any value in or obligation to following through in Iraq. The real applicability of this discussion is instead in trying to frame a conscientious thought process whereby our policy makers may, in the future, make meaningful decisions in the face of known inaccurate and incomplete intelligence.
As to the political matters alluded to earlier, I have always held it to be one of the most despicable acts possible to misuse one's knowledge or intelligence to mislead and misinform those who have less of either. For example, while I can respect the consistency of Rep. Kucinich's anti-war position, I have nothing but disdain for him when he rolls out such standard talking points as the fabled "changing justifications for the war." I wish I were in the same room so I could ask him if he really believes that the assumed presence of WMD was the sole reason for the Iraqi invasion, because if so he apparently didn't even read the Authorization for Use of Military Force Against Iraq Resolution of 2002 that he voted against, since it clearly outlines multiple reasons apart from WMD.
I have no objection to asking critical questions or even making sound criticism. I do, however, most stridently object to trying to pass impassioned cries of outrage based upon false pretext as legitimate discussion. Maybe it's just easier for some to make up a reality out of whole cloth then to constructively engage issue from the ground of truth.
Wednesday, November 16, 2005
A National Intelligence Estimate is a big deal. In order for an NIE to be published all national intelligence agencies have to agree that the information included is, to the best of their knowledge, accurate and supportable. This means the CIA, DIA, NSA, NIMA, INR and whatever other random sets of phonemes happen to be in the mix for that iteration get together and say "this is right." By definition, then, what comes out in an NIE is often the most conservative estimate. When I had extremely peripheral contact with an NIE concerning DPRK in the mid '90s this was well known, as State Dept INR and NSA, especially, differed greatly in their estimates of both capabilities and intent. I have no reason to doubt that the discussions concerning Iraqi WMDs was equally contentious during creation of the related NIE.
The Presidential Daily Briefing (PDB), as I understand it, is a document of contemporaneous information and analysis from the various national intelligence agencies compiled by the CIA for use in briefing the President. As such, there is no wide-ranging consensus required. While this admittedly opens the door to inaccuracies or slanted data, a daily briefing is worthless if it takes three or four weeks of negotiation in order to produce it.
So, that the PDB reflected the more aggressive positions generally help by the CIA is no surprise. Unfortunately, it is also no surprise that those who wallow in the mud of blatant partisanship would try to exploit the general lack of understanding concerning the Intelligence business and its products to try and push its "gotcha" politics.
Tuesday, November 15, 2005
Jordan's King Abdullah II has vowed that the perpetrators of Wednesday's suicide bombings will be brought to justice.Not to be dismissive of a terrible event, but it would seem to me that "the perpetrators" may be just a bit beyond King Abdullah's jurisdiction. The King went on to express his solidarity in purpose with other victims of terrorists:
"Jordan is now part of many countries that have suffered from the senseless violence of suicide bombers, whether it's in European countries or in Arab and Muslim countries."Or even, dare I say it, Israel?
Thursday, November 03, 2005
Those Muslim rioters in Paris, angry about being unemployed or whatever their excuse, need to be crushed...While my natural instinct is to say "you go, girl," something I read at Instapundit from Aussie SF writer Joel Shepherd gives me cause to pause and think deeper:
[I]t's not an intefada.(sic)I seem to remember some very smart people once saying:
There's just no damn jobs. ... [T]here's people there who want the French dream ... but they just don't see it when they look around, and they resent the fact enormously. They can't change schools to get a better education because the government says you have to go to the school where you live, and they live where they do because of the zoning laws... which I'm no expert about, but I do know that the government owns 30 percent of all housing in France, and poor immigrants basically live where they're told. The government tries to give them everything and does it extremely badly, there's no upward mobility, and it doesn't breed a happy community. Religion exacerbates the feeling of exclusion, I'm sure, but the rioting seems mostly driven by economics and bad social policy.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new GovernmentNow, I see no evidence of a shadow government being formed (a defining part of a classic revolution), but neither was there any such body at the time of the Boston Tea Party. But I have also seen nothing, other than in the punditocracy, explicitly connecting the riots to Islam. We need to not let the predominant religious makeup of the rioters drive us to conclusions as to why they are rioting. Just because a group who takes up arms is mostly Muslim, it does not automatically make their action a part of the Islamist movement. Separating the motive from the actor is in my eyes an essential thought process for any who sincerely believe the GWOT is not a war on Islam, but rather a war on a radical and violent Islamist movement.
I'm no anarchist, and neither do I believe in the LA riot "throw a bone to the rabble to quiet them down" mindset, as that just rewards illegal behavior. But I do think it is a legitimate question to ask at what point and to what degree can mob violence serve as legitimate revolutionary action against an oppressive state? How much different is what we are seeing in Paris to the quickly crushed protests in Côte d'Ivoire almost exactly a year ago, except that the troops haven't (yet) been called in to spray the crowd with automatic weapon fire. Can or will the unrest currently evidenced coalesce into a focused takedown of the French government in favor of one more respective of individual (economic) liberties? This may be the question we should be asking, rather than automatically pushing for the crushing hand of the State to maintain the status quo.
Wednesday, November 02, 2005
When I was away from the blog for a couple of months I noticed that I was still getting around 25 hits per week. I wondered "are there really that many bored folks that have nothing better to do than to keep checking back on my silly site? Why don't they just subscribe to the RSS feed and wait until I update?" Well, while I was occasionally getting a new visitor from some of the folks I've been linked from, it still didn't make sense.
Well, when I looked a bit closer at individual hits I noticed most shared an interesting similarity: a visit duration of zero seconds. Now, does it make sense for all these folks to be opening my blog just to jump out after loading? No, it doesn't. What does make sense, though, is to conjecture that my blog is being automatically pre-loading and cached. Many browsers, programs and ISPs do this as a way to "accelerate" page loads. The way it works is that while you are reading a web page and your browser is idle, in the background it visits to the various links on the page being read and retrieves the files needed, especially graphics, so that it's ready to give you that quick load sensation just in case you decide to go there. In other words, the majority of the "hits" I receive do not represent a person reading my musings but rather a machine just pulling the data and putting it on the shelf, where more often than not it just sits until the man behind the curtain wanders off to another room, leaving my bits to gather digital dust.
Bottom line: hit counters are nice bling-bling, but often don't mean what they seem to say.
Update: Thanks to my man Bubblehead for reminding me to RTFM. "Duration" is defined as time between two page loads on the same site, so someone who follows a link to the site but doesn't poke around registers "0:00" duration regardless of how much they actually read. I still believe, though, that there is a certain amount of 'bot traffic and pre-loading that cannot be accurately determined.
Tuesday, November 01, 2005
It's been beat into the ground sufficiently for me to take as given that any honest party to the discussion will agree that neither Valerie Wilson's maiden name (Plame) nor her relationship with Joe Wilson (wife) was classified information. Where confusion starts to enter into the picture is if her contemporaneous employment status with the CIA was classified. A July 15, 2005 article in The Washington Times quotes Fred Rustmann, a self-acknowledged former covert agent and supervisor of Ms. Plame, as saying she had been employed at CIA headquarters in Langely for more than five years and that "she made no bones about the fact that she was an agency employee and her husband was a diplomat." Given that she got up every day, drove to the CIA headquarters and, presumably, received paystubs and W2s all openly acknowledged her employer I believe it would be a difficult thing to argue that her working for the CIA in 2003 was classified. So, assuming I am correct concerning the unclassified nature of her contemporaneous employment status, would "Scooter" Libby's telling anyone "you know, Joe Wilson's wife, Valerie Plame, works at the CIA and got him that gig" constitute "outing" her as a covert operative? I don't think so.
So who, specifically, was the first to say outside of official channels that she had previously been employed in a covert status? Many say it was Robert Novak, who in a July 14, 2003 article said the following:
Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction. Two senior administration officials told me Wilson's wife suggested sending him to Niger to investigate the Italian report.It's interesting to me that while Novak clearly attributes the information that Wilson was sent based upon his wife's suggestion, the connection between the two "senior administration officials" and Ms. Plame's status as "an Agency operative on weapons of mass destruction" is not explicitly, or even implicitly, made. Also, does it necessarily follow that Mr. Novak, who consistently uses present tense, by his statement means that she was also previously a covert operative? While one might assume based upon the word "operative" that she was working in a classified capacity, for reasons I provided before I don't think that characterization would be accurate for her employment status at the time the article was written. In fact, in an October 1, 2003 follow up that emphasized the "common knowledge" aspect of Ms. Plame's employer, Mr. Novak expresses regret at having used the word "operative" in retrospect. The only thing in the two sentences that gives me pause was the specificity with which he identifies her area of expertise.
The first linking of Valerie Plame and "undercover" seems to be the July 22, 2003 Newsday article by Timothy M. Phelps and Knut Royce (I couldn't find the piece on Newsday's site, but the link appears to be a complete copy of the original article). It contains the following information:
Intelligence officials confirmed to Newsday yesterday that Valerie Plame ... works at the agency on weapons of mass destruction issues in an undercover capacity...So, if I have the chain of events right, "senior administration officials" (including Mr. Libby) tell Mr. Novak "the CIA sent Joe Wilson to Niger because his wife, who works there, asked them to." Mr. Novak pairs this with other information he has that Wilson's wife was Valerie Plame and she worked for the CIA on WMD programs, publishing on July 14. Within about a week we have a CIA official confirming the supposedly classified status of Ms. Plame's employment and Joe Wilson and another CIA agent making dire predictions as the consequence if the administration officials outed a covert agent. I think you can see where I'm going with this.
"If what the two senior administration officials said is true," Wilson said, "they will have compromised an entire career of networks, relationships and operations." What's more, it would mean that "this White House has taken an asset out of the" weapons of mass destruction fight, "not to mention putting at risk any contacts she might have had where the services are hostile."
Anyone who ever worked with "special" (i.e. nuclear) weapons in the Navy is well familiar with the standard reply to any questions concerning their location:
I can neither confirm nor deny the presence of nuclear weapons onboard this vessel, I can only say this vessel is capable of carrying such weapons.This was often the source of much pleasure and private jokes, as you stood on the deck of your SSBN with sixteen closed missile hatches, a vessel whose mission relied upon the assurance it was indeed carrying such weapons, and tried to relay the standard reply with your best poker face.
When the movie "Hunt for Red October" came out several Norfolk area theaters reserved the first showing for submarine crews and the SUBLANT PAO provided specific guidance on replying to press inquiries. It was a good time, but the best show was on the evening news watching the reporter receive basically the same answer from sailor after sailor:
Q: How accurate was the movie?The point being, if Novak got it right or wrong, any CIA official that was truly concerned about protecting the status of an agent and preserving any potential deniability concerning her previous operations could simply have said "we don't discuss the employment status of individuals." Joe Wilson, if he was honestly concerned with his wife's safety, could have refused the trip or simply kept his mouth shut. Instead we have CIA officials falling out of the woodwork to ironically tell us how much damage is done by outing a covert operative, led by Joe Wilson in ascribing to "senior administration officials" statements that Mr. Novak not only didn't say they made but specifically denied in his later follow up.
A: The movie was a work of fiction based upon a work of fiction. The Navy does not discuss submarine operations so I cannot provide an analysis of the relative accuracy of the film.
Simply put, if Valerie Plame was, indeed, employed in a covert status on July 14, 2003 the CIA was negligent in both having her work out of its headquarters in Langley and in tacitly permitting the "common knowledge" of her employ without either seeking the source of this knowledge or attempting to shore up the cover story. If, however, she was operating in a defacto open status at the time then we have CIA officials intentionally misrepresenting the situation in order to slime a sitting administration. Neither of these possibilities speaks well of the organization.