Freedom Line Blog

We explained last week how the Feinstein “Torture Report” constituted governmental malpractice for a variety of reasons, including its failure to interview any of the relevant former CIA directors, deputy directors or officials who had briefed them on the enhanced interrogation techniques, and in its preposterous and counterfactual denial of the interrogations’ fruitfulness.  Largely overlooked in current debate, however, is how too many people carelessly assume that the approved interrogation techniques constituted “torture” or failed to meet the applicable legal standards.

Enter former U.S. Attorney General and District Judge Michael Mukasey.

In a searing must-read commentary this week in The Wall Street Journal, Mukasey explains that the interrogations followed the law:

It is stunning to hear those now criticizing the program issue the solemn reminder that ‘we are a nation of laws’ – while devoting little attention to what was actually in those laws.  Odder still, among the critics those who wrote the laws seem to devote the least attention to them…  Laws are a technical business in which both terminology and chronology play a part.  So if the law that criminalizes torture defines it in a certain way, that definition – and no more – is what it is, punditry and cocktail-party figures of speech notwithstanding.”

Mukasey proceeds to state that the applicable law requires an intent to cause “severe physical mental pain or suffering,” how the techniques used did not violate that rule as determined by courts or the law’s text, how we apply those same techniques to our own troops during military training, how Senator Feinstein herself was briefed on the techniques and how she unsuccessfully attempted to change the law to make those techniques illegal.  If they violated existing law, then she obviously wouldn’t have needed to propose that change.

He then illustrates how, if the interrogation techniques in question constituted “torture,” then it wouldn’t be the case that so many have voluntarily subjected themselves to them in the intervening years:

If she is looking for a ‘common meaning’ of torture, how about something like a procedure to which no rational person would submit voluntarily?  More journalists have tried the experience of being waterboarded than terrorists were subjected to it.  That wouldn’t be the case if, for example, we were talking about needles under fingernails.”

Finally, he wisely notes that while Senator John McCain (R – Arizona) is often lauded as a particular authority on what constitutes “torture” due to his own experience as a prisoner of war, “Others with credentials similar to Sen. McCain’s, including Medal of Honor recipients and fellow Vietnam prisoners of war Leo Thorsness and Bud Day, believe in the efficacy and morality of waterboarding.”  It’s an excellent piece that re-centers the ongoing debate upon the actual legal standards, as opposed to sloppy and easy shorthand employed by people like Senator Feinstein and many in the mainstream media.

The Associated Press reported a remarkable story this week:  The five American Muslims arrested in Pakistan, accused of plotting terrorist attacks, have accused the FBI of torturing them.  The accusation was written on tissue paper and tossed to reporters.  It plaintively read:  “Since our arrest, the U.S. FBI and Pakistani police have tortured us.  They are trying to set us up.  We are innocent.  They are trying to keep up away from public, media and families and lawyers.  Help us.”

A U.S. Embassy spokesman said the accusations aren’t true.  Well, he would, wouldn’t he?

Still, with regard to U.S. torture of terrorist suspects, an allegation laid has been an allegation played, at least against the previous administration.

Where are the Congressional calls for investigation of this one?  If nothing else,  just consider the absolute outrage of giving alleged terrorist suspects nothing more than “tissue paper” to complain with.

Jon Stewart has been getting laughs at the expense of conservatives (many justifiably), then booking conservative straw men that he could easily knock down for years. Yet Stewart met his match on Monday’s edition of The Daily Show, when he interviewed former Bush Administration DOJ official John Yoo (author of the infamous “torture memos”).

If Stewart hadn’t been the one ginned up for a fight, it would’ve been appropriate to invoke the mercy rule. But it was hard to feel sorry for the smug, self-righteous (Stewart’s least appealing style) host when Yoo gently and subtly exposed his complete lack of even a basic understanding of the issues at play.

On the following night’s show, Stewart even had to cop to how badly he got owned.  See the full interview here, here and here.