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Terror-War Prosecutor: No Easy Answers On Waterboarding
Heading Right ^ | Nov. 14, 2007 | Ed Morrissey

Posted on 11/14/2007 10:04:38 AM PST by jdm

Mary Jo White, the former US Attorney that won convictions against the Blind Sheikh and his gang of radical Islamist terrorists in the first attack on the World Trade Center, writes that new Attorney General Michael Mukasey had it right when he refused to issue a blanket interpretation of waterboarding as illegal. She explains that Congress has not made it that simple, and that the Judiciary Committee unfairly placed the responsibility on the executive branch. White insists that no easy answers exist on interrogative techniques:

The confirmation process rightly shed light on the issues of permissible interrogation methods and the ability, if any, of the president to override treaties and statutes that address what our government lawfully may or may not do to protect us against terrorism. But no one who has seriously studied both the law and the al-Qaeda threat should believe the answers are self-evident. The question on waterboarding is a case in point and not merely an academic or political inquiry.

It is a form of interrogation that reportedly was authorized to be used on Khalid Sheik Mohammed, the suspected mastermind of the 9/11 attacks, in an effort to extract what was believed to be invaluable intelligence regarding grave and imminent future attacks. Did our laws, including the Constitution, make that effort, if it occurred, illegal? Do they now?

After the reports emerged about the aggressive interrogation of Mohammed, Congress had the opportunity twice in the past three years — in enacting the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 — to explicitly condemn waterboarding in all circumstances. But it did not, perhaps in recognition of the complexities of the issue in the context of the al-Qaeda threat.

Although, as a civilized people, our immediate and commendable instinct is to declare waterboarding repugnant and unlawful, that answer is not necessarily correct in all circumstances. The operative legal language (both legislative and judicial) does not explicitly bar waterboarding or any other specific technique of interrogation. Instead, it bars methods that are considered to be “torture,” “cruel, inhuman and degrading treatment” or that “shock the conscience.”

Once again, the basic functions of the three branches show how silly the argument became. The executive branch does not write law, and only cautiously should attempt to interpret it. The executive branch enforces the laws that the legislature creates, and the President signs. White knows this more than most in her previous capacity as US Attorney and prosecutor of terrorists.

In refusing to overstep the constitutional boundaries of his new office, Mukasey showed his fitness to occupy it. Instead of badgering Mukasey into becoming an outsource for legislative action, Congress could simply outlaw the use of waterboarding altogether, as they did with the military. White suspects, as I do, that they don’t want to take responsibility for eliminating a little-used option for time-critical interrogations. If we suffer another attack and discover that a detainee had information that could have prevented it, but didn’t give it to us for lack of interrogatory options, the next 9/11 Commission might start pointing fingers at the people who took that option off of the table.

White understands what happens when ambiguity reigns at the juncture of intelligence, law enforcement, and questions of legality. She herself felt the constraints that the FISA “wall” placed on her office during her efforts to prosecute terrorists, and wrote after 9/11 about how destructive those presumed restraints were to our national security. If Congress wants to maintain ambiguity, then they have to allow those who protect our nation to have the benefit of the doubt in the gray areas. Otherwise, we will fall back again to where our national-security efforts become tentative, defensive, and ineffective. With the present threat arrayed against us, we can ill afford to go back to that posture.

Congress has to decide whether we fight the war on terror, or we fight those who fight the war on terror. We can’t have it both ways — not unless we want to invite another 9/11.


TOPICS: Culture/Society; Editorial; Government; News/Current Events
KEYWORDS: maryjowhite; mukasey; waterboarding

1 posted on 11/14/2007 10:04:39 AM PST by jdm
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To: jdm

a spirited interrogations begins with the goal of obtaining the info, ESP if what is desired decays with every passing day......this technique is not torture for tortures sake; it is not “painful”, it is not deadly, it has no lasting effects, and it does not disfigure or even cause injury.

Just do it.


2 posted on 11/14/2007 10:13:20 AM PST by Vn_survivor_67-68 (CALL CONGRESSCRITTERS TOLL-FREE @ 1-800-965-4701)
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To: Vn_survivor_67-68

I don’t mind saying that Waterboarding shouldn’t be entirely taken off the table, but let’s be honest and say that there are real risks involved.

A) Water down the throat like that can cause what is known as a laryngospasm. Essentially in an effort to save the body, the larynx seizes up, making it so that nothing can come in, even air. You can breathe out, you just can’t breath in. If it is severe enough, intibation (Shoving a tube down the throat to the lungs) is required, or even a Crichothyroidotomy (Cutting a hole into the throat to shove a tube down to the lungs). If that does not happen, the patient will suffocate and die, or at least incur serious brain damage (How do you extract information from something that has turned to mush?)

B) The lungs naturaly cannot absorb and release Oxygen and Carbon Dioxide very quickly in the lungs. In fact, naturally this chemical process would take too long, and the body would never have enough oxygen. So the lungs are lined with a catalyst known as Surfactant to speed up the process. But Surfactant is a liquid, and by getting water into the lungs it can be washed away for some time.

C) Do you know what killed most of the “survivors” of the Tsunami a couple of years back? They got water in their lungs while they were in the water. While Aspirational Pneumonia is not technically an infection, can become infected, which is potentially life threatening. At the very least, the patient will hack and cough up lung butter and will require medications. Depending on the type of Pneumonia, further medical care may be needed, and the risk of mortality can range from minimal to extreme.

D) If the terrorist passes out, as was said above, that is due to lack of oxygen. What happens when the brain lacks oxygen? It dies. Maybe not enough to cause permanent brain damage, but brain tissue will die. If you want the information housed in that brain, why mess with it?

It seems that in some cases, it may be necessary, but there are risks involved that should keep the practice to a minimum.


3 posted on 11/14/2007 10:20:36 AM PST by SoldierMedic (Rowan Walter, 23 Feb 2007 Ramadi)
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To: Vn_survivor_67-68

We should carry on this absurd discussion until “waterboarding” attains mythical status. Captured terrorists will crack under the mere threat of waterboarding.


4 posted on 11/14/2007 10:21:14 AM PST by Dilbert56 (Harry Reid, D-Nev.: "We're going to pick up Senate seats as a result of this war.")
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To: SoldierMedic

yeah yeah, when was the last time you saw water run uphill?

(btw, having been a real military-trained 91C30 for a lot of years, the medbabble doesn’t work with me)


5 posted on 11/14/2007 10:31:01 AM PST by Vn_survivor_67-68 (CALL CONGRESSCRITTERS TOLL-FREE @ 1-800-965-4701)
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To: Vn_survivor_67-68

~snorrfle!~ “Medbabble!”

;o)


6 posted on 11/14/2007 10:35:03 AM PST by Froufrou
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To: Vn_survivor_67-68
I don't know the details, but from what I've read I do not believe waterboarding is "torture." If so, our SERE instructors would be felons.

What happened at the Hanoi Hilton is torture. What Saddam did to prisoners was torture.

7 posted on 11/14/2007 10:35:47 AM PST by colorado tanker (I'm unmoderated - just ask Bill O'Reilly)
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To: Vn_survivor_67-68

I’m not trying to make medical babble, just an honest risk assesment. (BTW, is charlie Resp. Therapist?)

Uphill? In the pictures I have seen, the recipient of the treatment was sitting with the face up, or lying in a supine position. BTW, does one need to be in a particular position to aspirate on a liquid?


8 posted on 11/14/2007 10:37:12 AM PST by SoldierMedic (Rowan Walter, 23 Feb 2007 Ramadi)
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To: SoldierMedic

Look.....this procedure is about as risky as being born or getting a nice gasp of water in a swimming pool or lake like most of us did by age 8 or so. The “”board” part of it is so that if need be, the interviewee can quickly be upended to make use of gravity to clear most or at least enough water from his pipes so that he can begin talking......not to mention that the initial position is approx 15 degrees, supine, feet up.....seriously, give some thought to what the “Board” is actually used for.....

91C school was 40 weeks beyond 91B, with subsequent assignments and responsibilities to match, and roughly 1/3 of initial entrants quickly washed out....it was a pro-pay MOS in my day.....they tried “awarding” the MOS to ordinary LPN’s, they never could cut it. 91C was the MOS that fed the old Army PA school.


9 posted on 11/14/2007 11:00:51 AM PST by Vn_survivor_67-68 (CALL CONGRESSCRITTERS TOLL-FREE @ 1-800-965-4701)
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To: Vn_survivor_67-68

Oh, so Charlies were nurses? It’s a M6 modifier now (68W being medic, 68WM6 being nurse).


10 posted on 11/14/2007 11:13:42 AM PST by SoldierMedic (Rowan Walter, 23 Feb 2007 Ramadi)
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To: SoldierMedic

so Charlies were nurses?

No. Your modern and direct comparisons will never do. We were unique, and with all 6 Clinical Specialist Courses running full speed, the Army was only able to produce about 500 of us each year. This was not an AIT-type school, and no-one ever transited to 91C from 91B by test, TIG or TIS. To the best of my knowledge there was no equivalent in the other services.

1. Ft Gordon USAHSTC (pre-Eisenhower, tours truly)
2. WRAMC
3. Letterman
4. Madigan
5. Fitzsimmons
6. Brooke


11 posted on 11/14/2007 11:38:49 AM PST by Vn_survivor_67-68 (CALL CONGRESSCRITTERS TOLL-FREE @ 1-800-965-4701)
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To: Froufrou

~snorrfle!~

missed it first time around, LOL.......I guess that’s an arabic word one might hear during a Q and A while surfing?


12 posted on 11/14/2007 12:10:23 PM PST by Vn_survivor_67-68 (CALL CONGRESSCRITTERS TOLL-FREE @ 1-800-965-4701)
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