Considering that the US Government no longer considers things like waterboarding and sleep depravation to be torture, I take little comfort in Holder's statements.
And solitary confinement is still fine, apparently. If people were waterboarded again, would anyone be punished? Maybe the private contractor doing it would be fined a portion of their annual profits. Maybe someone might step down -- down right into a private industry position or speaking tour. Seemingly every year since 2007 up to 2012, more and more people were pardoned for torturing. What's different in 2013?
Untrue, the US executed the Japanese who tortured US servicemen with water boarding in WWII. Just make sure you're certain what side you're on before doing it, and you'll be fine. http://en.m.wikipedia.org/wiki/Waterboarding
What's different is that prior to 2009, the Bush administration considered such 'enhanced interrogation' methods to be legal, and instructed intelligence agents accordingly. People have been pardoned for activities that they were assured were legal and ordered to carry out - a sticky moral situation to be sure, but courts decide issues of law rather than morality.
Since the change in 2009, nobody can say they thought things like waterboarding were legal, and if some field agent were to carry it out s/he would have no defense available in law.
I don't want to turn this intoa Republican/Democrat political issue, but to pretend the two administrations are the same on this issue is just not credible and does not make for a constructive discussion. You can find plenty to criticize about the incumbent administration without needing to invent more.
They might be banned, but allegations of further incidents of torture connected with US operations in Afghanistan (among other places) are still popping up regularly. When combined with Gitmo activities like force feeding (defined as torture by some authorities) and well, Gitmo existing at all, the US is maintaing a fairly poor record when human rights are concerned. Making a law doesn't change anything if you don't change behaviour by enforcing laws.
I don't know what the sharp partisan divide refers to as I'm not American, but to say things are all ok now is very clearly incorrect.
I agree with you about the poor record, and think it's deplorable that Guantanmo remains in operation as it does. I hope when the war in Afghanistan is declared over next year that this stain on US human rights will finally be addressed.
I just wanted to address the specific allegation above, which was turning the discussion from differing opinions into total inaccuracy.
And I've added to the confusion by making a new comment rather than directly replying (like I thought I was) to your above comment at top of thread. The app I use on my phone is very easy to do this with: news:yc 1.5.2. I had misconstrued your views as defending current events rather then correcting a specific comment. Thanks for the reply.
It would be really nice to know how they legally interpret "torture" and "kill" since so many other common English words often mean completely different things to the U.S. Government.
Don't they realize how weird it is for them to have to be spelling it out like this? There's a bigger problem when it's just assumed by everyone the government is going to do this...
Well, that's what makes it so weird, honestly. By making the statement, they're in a way admitting that yes, that's what they're known for, otherwise it wouldn't have to be clarified.
You'd think that if they could keep Prism under wraps for so long, that they'd have resources to cover up the torturing stuff!
Many countries refuse to extradite people if they face the death penalty or other extreme punishments. Given that the US has the death penalty at the federal level, an assurance that Snowden won't potentially die for the leaking is a plausibly necessary gesture.
* 18 USC 641 - Theft of government property
* 18 USC 793(d) - Unauthorized communication of national defense information
* 18 USC 798(a)(3) - Willful communication of classified communications intelligence information to an unauthorized person
None carry the death penalty. All carry a prison sentence of "not more than ten years."
> Of course, we're talking about a government that is in this predicament precisely because they just ignore the law when convenient.
No. The NSA surveillance is, at least putatively, permitted by the current laws in the US. You can argue about the appropriateness of the laws, even their constitutionality, but the NSA (and larger federal government) is almost certainly not ignoring the law in this case.
Show me where any of this has been ruled unconstitutional.
I'm not making a claim about morality, nor about the ultimate acceptability of the NSA's surveillance program, nor the laws and,and court decisina that permit it - I'm saying that it is legal (in that it is allowed by law) and that laws are assumed to be constitutional unless a court rules otherwise.
If the people rise up and the military moves in behind (with popular support) to make the actual arrest, is that still a coup? Certainly it seems there's more to this than a classic ousting... consider that people on both sides are blaming the U.S. for their troubles, as per the normal.
Either way, they've blocked F-16 deliveries now, so it's not as if the U.S. is acting as if things are all hunky-dory.
The state department _officially_ stated they will not look into if it was a coup or not. They are not looking into it because if it turns out it was ( which it was ) then they theoretically have to obey the law on whom they can give money to.
Think about that. It would be like them saying we are not investigating if someone tortured snowden because then we might need to admit to torturing him
There are no cases directly on point, and they are arguing by analogy to existing cases where it was held retrieving small amounts of phone data about one or two individuals did not violate a reasonable expectation of privacy, and thus, not a search
This is not the same as "what they are doing is permitted by the current laws of the united states".
The thing is, he's an academic (prior to his current job, his job at the DOJ CCIP division was being an expert in those notices you see when you access government computer systems). He likes to think in academic terms about whether things should matter. For example, he also believed the "mosaic theory" was a bunch of bullshit and would be struck down by every level right up until the supreme court fully endorsed it (see, e.g, http://www.volokh.com/2010/08/06/d-c-circuit-introduces-mosa... and other posts)
So while i certainly trust his view of "the state of the caselaw as it currently exists", i take his view of "what a court is likely to decide" with a huge grain of salt. On that front, IMHO, he's been wrong more than he's been right.
For example, when he says "If obtaining pen register information on one user is not a search, the obtaining that pen register information for 100 or 10,000 or 1,000,000 or more users is still not a search. Katz tells us that the Fourth Amendment protects “people, not places,” and it’s not clear how surveillance that is not a search when provides information about one person can become a search when it provides information about many."
This tells you everything you need to know. It is a typical ivory tower viewpoint.
He doesn't see how a judge is going to decide that there is some line that has been crossed when you do something to a million people instead of 1. As the saying goes, "bad facts make bad law". If everything was doctrinal and academic, bad facts wouldn't matter.
FWIW: The FISA authorization is completely and totally irrelevant in this case. Entirely. The fact that the FISA court said "sure, whatever" does not make something legal, only authorized, because they are not ruling on a constitutional challenge, only the validity of a search warrant. These are not the same, no matter how much the government wants it to be.
This is the same as a valid search warrant that later turns out to have been facially invalid; It is not a legal search warrant that has "gone bad". It is illegal. It was authorized, but illegal.
So while i certainly trust his view of "the state of the caselaw as it currently exists", i take his view of "what a court is likely to decide" with a huge grain of salt. On that front, IMHO, he's been wrong more than he's been right.
As a minor defense of Kerr, I think he does do some good descriptive/realist analysis of how courts are likely to actually decide as well, as in his "equilibrium-adjustment theory of the 4th amendment": http://www.harvardlawreview.org/media/pdf/vol125_kerr.pdf
I think there's a good argument that equilibrium-adjustment could actually explain courts' desire to make the rare/pervasive distinction here that Kerr elsewhere claims doctrinally shouldn't work.
Responding to myself, in case anyone runs across this. Kerr briefly acknowledges this point in his article against the mosaic theory:
The mosaic approach is animated by legitimate concerns: it aims to maintain the balance of Fourth Amendment protection as technology changes, a method I have elsewhere called "equilibrium-adjustment." But it aims to achieve this reasonable goal in a peculiar way. By rejecting the building block of the sequential approach, the mosaic theory would be very difficult to administer coherently. Even if courts could develop answers to the many questions the theory raises, doing so would take many years—by which time the technologies regulated by the theory would become obsolete. The mosaic theory would also deter enactment of statutory privacy regulations and force judges to consider questions that they are poorly equipped to answer. If courts must broaden Fourth Amendment rules in response to new technologies, the better approach is to rule that certain steps are always searches. The model should be the Supreme Court's famous decision in Katz v. United States, not the concurring opinions in Jones.
Are there plausible charges that would carry the death penalty in a superseding indictment? Assuming you happen to know off hand, of course, don't want you wasting time to look it up.
not that i can think of.
They want to keep this low profile, i'm sure they'd rather file 1000 charges they believe can keep him in prison forever than generate more press about it by filing for treason or whatever.
If it was anything else, a prosecutor trying to make their bones would do that on principle.
Unfortunately, there is basically no trust left in the US Government. They've used it all up. Why would Snowden believe proven-to-be pathological liars?
The US Government will put you in solitary confinement for years and waterboard you and it's not considered 'torture.'
If the general attorney has to step up to the podium and assure an American public that a whistleblower won't be killed or tortured you've got a country in dire straits.
Especially since it seems that not all Americans believe him.
His statement said nothing about using "enhanced interrogation methods" against Snowden.
By their own legal definition, the US government "tortures" no one. Water boarding, sensory deprivation, psychological torture, stress positions and starvation are not considered torture by the administration.
> Water boarding, sensory deprivation, psychological torture, stress positions and starvation are not considered torture by the administration.
Really? That's news to me. Can you point me to the AG memo or E.O. clarifying that waterboarding and stress positions are now again not considered torture?
c'mon, it is minutiae details. Human body and mind allow for so much ways to make live less pleasant and more painful, and without hematoma ... While we discuss here specifics of previous version, i'm sure the professionals have already took their certifications tests in "enhanced interrogation techniques v2.0"
The fact that nobody was prosecuted for performing and authorizing torture sends very clear message.
It's not just "details". Distortion and misleading details are attributes I'd always pinned on 'the others', but I won't accept it from here just because we both disagree with torture.
>Distortion and misleading details ...but I won't accept it
well, then you are lost even without starting as distortion and misleading details are unavoidable in the environment where prevalent force uses lies and secrecy as the main mode of operation, i.e. like CIA destroying video tapes as a response to Congress' request for the tapes. Though the fact that they destroyed the tapes describes the content of the tapes very precisely. Use your mind, Luke, as it is the only thing that can resist Force.
Holder pretty much has to say this (because seriously, what is he going to say? "Go ahead and give him asylum, we'd just torture and execute him if we got him back."), but it's abundantly clear what the US Govt thinks of Snowden and his Constitutional rights (which, mind you, supersede any other part of the USC) [1][2].
This is an administration that has killed US citizens without due process, tortured prisoners, and deeply extended the grasp of the police state. We're supposed to trust that they'll just be nice guys and do the right and legal thing now?
Because there is a cap on what punishments are allowed, whether the jury likes it or not?
All Holder has to do is prevent his US Attorney from issuing charges where death penalty is an option and that part is dealt with. Torture is also not permissible anyways so it's kind of redundant having to mention it. If the police do torture Snowden at least one of the many judged in the district+appellant review chain will throw the case out completely and he's a free man (for example, see Ellsberg who had his charges thrown out for much much less than torture).
Or more realistically, someone from the justice department will write a memo saying that whatever torture he underwent wasn't torture. Or they'd secretly torture him overseas, like they've done many times in the past, and Holder's statement would still be technically true.
Unfortunately for that argument, treason carries a very specific, Constitutionally-set, definition. It is the only crime with such a definition, and Snowden is not likely to ever be convicted of it for that reason.
>Wyden then asked Director Clapper, "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" He responded, "No, sir." Wyden asked "It does not?" and Clapper said "Not wittingly. There are cases where they could inadvertantly perhaps collect, but not wittingly."
>On July 1, 2013, Clapper issued an apology, saying that "My response was clearly erroneous – for which I apologize."
What else was Clapper supposed to say to Wyden's question? If he answered truthfully, he'd illegally reveal classified information. If he said that he could not answer without revealing classified information, he'd effectively reveal classified information. Wyden knew all this and asked the question anyway, most likely to try to get Clapper to reveal classified information.
You're saying he was justified in lying. I disagree, but let's leave that aside.
He could have said "I lied, but I had to for national security reasons. I don't apologize. The question was inappropriate and Wyden should apologize for asking."
He could have said "I lied, and I shouldn't have. I apologize." (A resignation would be nice.)
But he's quoted as saying "My response was clearly erroneous – for which I apologize."
To me, this sounds like "I thought I was telling the truth but later learned that my statements were incorrect. I apologize."
Which is itself either 1) an admission of incompetence or 2) an additional lie. #2 is much more likely.
Do you see why I called this "apology" contemptible?
Even if we believed him, it doesn't matter. Sending him to prison forever is still unacceptable. Ask me again when you're ready to give him a full pardon.
71 comments
[ 2.6 ms ] story [ 144 ms ] threadThe historical revisionism in this thread is nonsensical, I think you all know perfectly well that there's a sharp partisan divide on this issue.
And solitary confinement is still fine, apparently. If people were waterboarded again, would anyone be punished? Maybe the private contractor doing it would be fined a portion of their annual profits. Maybe someone might step down -- down right into a private industry position or speaking tour. Seemingly every year since 2007 up to 2012, more and more people were pardoned for torturing. What's different in 2013?
Yes -- the whistleblower who said people were being waterboarded.
Since the change in 2009, nobody can say they thought things like waterboarding were legal, and if some field agent were to carry it out s/he would have no defense available in law.
I don't want to turn this intoa Republican/Democrat political issue, but to pretend the two administrations are the same on this issue is just not credible and does not make for a constructive discussion. You can find plenty to criticize about the incumbent administration without needing to invent more.
http://rt.com/news/torture-body-afghanistan-base-611/
http://www.wired.com/dangerroom/2013/05/torture-afghanistan/
http://touch.latimes.com/#section/-1/article/p2p-76653747/
I just wanted to address the specific allegation above, which was turning the discussion from differing opinions into total inaccuracy.
You'd think that if they could keep Prism under wraps for so long, that they'd have resources to cover up the torturing stuff!
[1] http://apps.washingtonpost.com/g/documents/world/us-vs-edwar...
[EDIT formatting]
No. The NSA surveillance is, at least putatively, permitted by the current laws in the US. You can argue about the appropriateness of the laws, even their constitutionality, but the NSA (and larger federal government) is almost certainly not ignoring the law in this case.
Show me where any of this has been ruled unconstitutional.
I'm not making a claim about morality, nor about the ultimate acceptability of the NSA's surveillance program, nor the laws and,and court decisina that permit it - I'm saying that it is legal (in that it is allowed by law) and that laws are assumed to be constitutional unless a court rules otherwise.
http://www.nytimes.com/2010/04/01/us/01nsa.html?_r=0
http://www.motherjones.com/politics/2013/06/justice-departme...
Either way, they've blocked F-16 deliveries now, so it's not as if the U.S. is acting as if things are all hunky-dory.
Think about that. It would be like them saying we are not investigating if someone tortured snowden because then we might need to admit to torturing him
There are no cases directly on point, and they are arguing by analogy to existing cases where it was held retrieving small amounts of phone data about one or two individuals did not violate a reasonable expectation of privacy, and thus, not a search
This is not the same as "what they are doing is permitted by the current laws of the united states".
I'm aware folks like Orin Kerr think this doesn't make a doctrinal difference: http://www.volokh.com/2013/07/17/metadata-the-nsa-and-the-fo...
The thing is, he's an academic (prior to his current job, his job at the DOJ CCIP division was being an expert in those notices you see when you access government computer systems). He likes to think in academic terms about whether things should matter. For example, he also believed the "mosaic theory" was a bunch of bullshit and would be struck down by every level right up until the supreme court fully endorsed it (see, e.g, http://www.volokh.com/2010/08/06/d-c-circuit-introduces-mosa... and other posts)
So while i certainly trust his view of "the state of the caselaw as it currently exists", i take his view of "what a court is likely to decide" with a huge grain of salt. On that front, IMHO, he's been wrong more than he's been right.
For example, when he says "If obtaining pen register information on one user is not a search, the obtaining that pen register information for 100 or 10,000 or 1,000,000 or more users is still not a search. Katz tells us that the Fourth Amendment protects “people, not places,” and it’s not clear how surveillance that is not a search when provides information about one person can become a search when it provides information about many."
This tells you everything you need to know. It is a typical ivory tower viewpoint. He doesn't see how a judge is going to decide that there is some line that has been crossed when you do something to a million people instead of 1. As the saying goes, "bad facts make bad law". If everything was doctrinal and academic, bad facts wouldn't matter.
FWIW: The FISA authorization is completely and totally irrelevant in this case. Entirely. The fact that the FISA court said "sure, whatever" does not make something legal, only authorized, because they are not ruling on a constitutional challenge, only the validity of a search warrant. These are not the same, no matter how much the government wants it to be.
This is the same as a valid search warrant that later turns out to have been facially invalid; It is not a legal search warrant that has "gone bad". It is illegal. It was authorized, but illegal.
As a minor defense of Kerr, I think he does do some good descriptive/realist analysis of how courts are likely to actually decide as well, as in his "equilibrium-adjustment theory of the 4th amendment": http://www.harvardlawreview.org/media/pdf/vol125_kerr.pdf
I think there's a good argument that equilibrium-adjustment could actually explain courts' desire to make the rare/pervasive distinction here that Kerr elsewhere claims doctrinally shouldn't work.
The mosaic approach is animated by legitimate concerns: it aims to maintain the balance of Fourth Amendment protection as technology changes, a method I have elsewhere called "equilibrium-adjustment." But it aims to achieve this reasonable goal in a peculiar way. By rejecting the building block of the sequential approach, the mosaic theory would be very difficult to administer coherently. Even if courts could develop answers to the many questions the theory raises, doing so would take many years—by which time the technologies regulated by the theory would become obsolete. The mosaic theory would also deter enactment of statutory privacy regulations and force judges to consider questions that they are poorly equipped to answer. If courts must broaden Fourth Amendment rules in response to new technologies, the better approach is to rule that certain steps are always searches. The model should be the Supreme Court's famous decision in Katz v. United States, not the concurring opinions in Jones.
(admittedly, i only know CA/MD rules about this, and I know Fed Crim Procedure allows them, but i didn't look at when)
If it was anything else, a prosecutor trying to make their bones would do that on principle.
The US Government will put you in solitary confinement for years and waterboard you and it's not considered 'torture.'
[1]: https://petitions.whitehouse.gov/petition/pardon-edward-snow...
Especially since it seems that not all Americans believe him.
By their own legal definition, the US government "tortures" no one. Water boarding, sensory deprivation, psychological torture, stress positions and starvation are not considered torture by the administration.
Really? That's news to me. Can you point me to the AG memo or E.O. clarifying that waterboarding and stress positions are now again not considered torture?
The fact that nobody was prosecuted for performing and authorizing torture sends very clear message.
It's not just "details". Distortion and misleading details are attributes I'd always pinned on 'the others', but I won't accept it from here just because we both disagree with torture.
well, then you are lost even without starting as distortion and misleading details are unavoidable in the environment where prevalent force uses lies and secrecy as the main mode of operation, i.e. like CIA destroying video tapes as a response to Congress' request for the tapes. Though the fact that they destroyed the tapes describes the content of the tapes very precisely. Use your mind, Luke, as it is the only thing that can resist Force.
On January 22, 2009 President Obama signed an executive order requiring the CIA to use only the 19 interrogation methods outlined in the United States Army Field Manual on interrogations. http://www.whitehouse.gov/the_press_office/EnsuringLawfulInt...
This is an administration that has killed US citizens without due process, tortured prisoners, and deeply extended the grasp of the police state. We're supposed to trust that they'll just be nice guys and do the right and legal thing now?
[1] http://www.tubechop.com/watch/1318893
[2] http://www.techdirt.com/articles/20130714/00393923792/white-...
How can Holder know what the punishment will be on top of what the jury will decide?
All Holder has to do is prevent his US Attorney from issuing charges where death penalty is an option and that part is dealt with. Torture is also not permissible anyways so it's kind of redundant having to mention it. If the police do torture Snowden at least one of the many judged in the district+appellant review chain will throw the case out completely and he's a free man (for example, see Ellsberg who had his charges thrown out for much much less than torture).
Is treason not a crime punishable by death in the United States?
According to this link, it is: http://en.wikipedia.org/wiki/Treason#United_States
Link to actual letter: http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/26_07_13_attorney...
Edit: fixed typo
>On July 1, 2013, Clapper issued an apology, saying that "My response was clearly erroneous – for which I apologize."
He could have said "I lied, but I had to for national security reasons. I don't apologize. The question was inappropriate and Wyden should apologize for asking."
He could have said "I lied, and I shouldn't have. I apologize." (A resignation would be nice.)
But he's quoted as saying "My response was clearly erroneous – for which I apologize."
To me, this sounds like "I thought I was telling the truth but later learned that my statements were incorrect. I apologize."
Which is itself either 1) an admission of incompetence or 2) an additional lie. #2 is much more likely.
Do you see why I called this "apology" contemptible?