It falls into a category of war crimes that is expressly forbidden by The Geneva Convention, and therefore by the US Constitution. The precedent is iron-clad. We sentenced people for the crime of waterboarding. One can hardly ask if it is legal and be taken seriously.


Come now Ted, I know you're busy, but I would still like to see if you can answer these questions.




Again, you're asking a question with an absolute certainty. That question is completely invalid for that reason. Allow me to extrapolate;

"If you knew that shooting your boss to death would save your family, would you?"

"If the only way to stop a nuclear attack on the US were to rip a puppy's head off and drink it's blood, would you?"

Of course the answer to those is 'yes' because they do not leave room for uncertainty. There is no certainty that torture will prevent such horrors that diligent investigation cannot.

Let me repeat that as it seems not to have sunk in yet;

"There is no certainty that torture will prevent such horrors that diligent investigation (and/or lawful interrogation) cannot."

I know that investigation works with exactly as much, if not more, certainty than you can tell me that torture works. That is a simple, logical fact.


Now it appears that I must ask these questions again. If for some reason you feel that you are not able to answer them, please say so. That way, I won't be wasting anyone's time.

I'll just ask these three;


To my knowledge, nowhere in the Geneva Convention does it state that failure to abide by it's standards is grounds for inhumane treatment. Apparently I must be mistaken, so if you could please cite the pertinent excerpt that allows for torture should a captured combatant be suspected or even guilty of violations, I would very much appreciate it. Thank you.
________________________________________________________________________________

___________________________________________________

I can be sure of this because we have brought many people to justice and foiled many plots with good intelligence and investigation. Frankly, I would be shocked if you weren't aware of this.

Do you think that we've always used torture to stop bad people from doing bad things?

________________________________________________________________________________

___________________________________________________

This is a serious question;

I cannot be so afraid that I would compromise our principles. Why is it that you are?

It is serious because it is apparent that either fear or anger is allowing you to dismiss any moral obligation to treat others humanely. I'd like to know which.



Again, if you feel you are not capable of answering these, please say so. I think you'll find that I will answer any question you put to me... because I'm not afraid of questions or terrorists.

Thank You.

I will admit that it has been shown (purely by accident) that a law was passed outlawing the use of this technique in another thread. By the way, I am interested in reading this part of the Geneva Conventions that you mention. Can you provide a link for me? I wouldn't know where to look, and I assume since you are bringing it up, you do, so it would help me learn about it if you could do that. Thanks.

Now your little dig about taking someone seriously, you seem to be on the same side as those that only pick apart someone's use of words, and not actual facts. Let's leave those comments for the PMs that get sent and then blocked.

In light of current events, I'd like to retract my statement about McCain. Boggles my mind how someone can so blatantly reverse an opinion they once held so strongly.

Now we can get somewhere.



Very good so what could one person against the torture who was on the committee do??

Let's start there what could one person do??

IMHO, one person could and should do what is morally right. But, in the overheated atmosphere of the committee, that would get a person imprisoned (or worse) for treason. I think Jane Harman did all she could do short of going public and risking her job and her freedom.

That would be Article Three of the Third Convention;



http://en.wikipedia.org/wiki/Third_Geneva_Convention

No matter how one looks at it, waterboarding is a violation of the Geneva Conventions. There are no exceptions for 'unlawful enemy combatants'.

Again; we ourselves have prosecuted soldiers for utilizing this technique. We can hardly set a precedent that confirms it's illegality and then question that illegality.

When I said it's hard to take someone seriously if they ask if waterboarding is legal, that was not a dig at all, it was a logical response. There is simply no room to argue that it is in any way legal or Constitutional. I could not take someone seriously if they suggested that arson was legal either.

Shall we pay reparations to the families of those we incarcerated for their use of waterboarding? Obviously if you do not believe it was illegal, they should not have been punished.

Is it your position that waterboarding is legal? If so, perhaps a thorough and rational case for it would have me taking that position seriously... but I seriously doubt one can be made.

Good point DaffyGirl I should be more specific... else my question may be sidestepped.

ScubaTim, Ted, or whoever.....Within the confine of acting legally and within the system, what could one person on the overseeing "committee" do to stop CIA procedures, tactics and policies regarding waterboarding??

Gived me a little credit. I taught government for three years. I know how the committee system works.

The present legislation, which McCain voted against and Bush threatens to veto, obviously went through the appropriate committees before passing both houses.

This is precisely why it is a gray area and not black and white. Did you notice that the only people waterboarded were the folks who would know of major operations in progress because they were the people involved in planning them. This is why Hayden said they got over 25% of their actionable intel from these 3 people.

Not guesses, not say anything to make it stop – real intel that disrupted real operations in progress. We may never get all the details on these but as we enter an era of widespread availability of WMD we have to assume (they have sadi as much) that AQ will use them without remorse as soon as they can with the objective of killing large numbers of Americans and doing maximum damage to our economy.

So lets rephrase – if you hold a top enemy planner who refuses to talk and the chance is say 20% his info could stop major operations that will kill lots of Americans – what do you do.?

As I said I hate the idea of torture but the issue is not black and white.



Because I remember watching the pictures of 3,000 people die in one day and don’t want to do that again.

Nice that you are not “so afraid” – I wish I could say the same. The next attack could be 100,000 or more.


Your kidding? And you still can’t figure out how Nancy or the republicans on that committee could have stopped the waterboarding if they wanted to? You MUST be joking.

Show me where I said this. My statement is and remains that four members out of 535 does not equate to congressional approval - a direct rebuttal to your assertion that it does. That's really about all I've said on this thread and I stick by it.

Perhaps you are confusing what I've said with what saomeone else wrote. Happy hunting.

And MY position was that the purpose of this “oversight” committee is to look at the classified methods and if they had as issue that was serious to bring it to a larger group that could have stopped it short. All I posted talked about the ability to do this.

This is not about repubs and dems since they were both there – but about the fact that if it is torture then clearly this group did not follow through and stop it from being used.

Its use against POWs under the Geneva accords is, as I understand it, illegal. Its use against unlawful enemy combatants is not so clear. I do not think there is any law that would prohibit its use on such persons.

That said, most of what I have read is that "torture" usually does not produce good results. Is it worth besmirching our national reputation to use an ineffective means of interrogation? I would let the experts tell us if the means is effective; if it is not, I sure would not use it.

What amazes me is I always thought the use of drugs had made physical infliction of pain or fear unnecessary. I guess I read too many spy novels.

My biggest problem with these techniques is that it be made quite clear they may never be used on US citizens, even those who choose to join al Qaeda. Such individuals should be tried and punished like any other US citizen. Now, if they are found guilty of treason, perhaps they should be shot, but the trial needs to be a regular, US civilian trial, if citizenship is to mean anything.

And yet we had all the intelligence and investigative resources we needed to prevent 9/11.

Again, there is no situation preventable by torture that could not also be prevented with good investigative work and/or humane interrogation.


That means that the choice to use torture is the choice to abandon American principles.

You are afraid of what 'could' happen. Using that justification, one can make the case for martial law complete with curfews. After all, if you knew that imposing martial law would prevent a nuclear attack, wouldn't you be for martial law?



Not so.

The Fourth convention makes it clear that no matter what the 'status' of a combatant, they are afforded the protections of the Conventions. From the commentary;
"Article 51.3 of the Commentary: IV Geneva Convention also covers this interpretation: "Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.".[3] In the words of the International Committee of the Red Cross, or ICRC "If civilians directly engage in hostilities, they are considered "unlawful" or "unprivileged" combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action. Both lawful and unlawful combatants may be interned in wartime, may be interrogated and may be prosecuted for war crimes. Both are entitled to humane treatment in the hands of the enemy." [4]



Agreed.

To abandon our principles is to do great damage to America.

But that's not what you wrote, Ted.

Do you remember writing this?


A committee is part of Congress, not Congress.

I don’t know how old you are but what you say above is patently untrue. Read the 9/11 Commission report.
Did you listen to the testimony of the CIA and FBI heads after 9/11 as they were dragged over the coals? Apparewntly not.

They both said that they were asked to “prevent terrorist attack” and then refused the money to hire the men needed to do the job. The CIA field agents (spies) were butchered all through the 90s and wioll not recover for another 10 years.

The we passed laws restricting the flow of information between CIA and FBI.

"In August 2001, mere weeks before the greatest mass murder of civilians in U.S. history, the Justice Department squelched two prescient efforts to avert the attacks. In Minneapolis, FBI agents frantically sought permission to search the possessions of one Zacarias Moussaoui, a bumbling, suspicious flight student and a colleague of Islamic fundamentalists. In New York, another FBI agent no less frantically sought clearance to throw his squad into an 11th-hour search for Khalid Almihdar, an al-Qaida operative at large in the country.
Justice Department bureaucrats refused both requests on absurd grounds. In the case of the New York agent, for example, they argued that because he was a criminal investigator, not an intelligence investigator, his participation in the manhunt for Almihdar could violate Almihdar’s rights: the al-Qaida agent was wanted not as an ordinary felon but as a terrorist."
And today House Democrats failed again to pass the law authorizing the tapping of terrorists abroad.

http://www.city-journal.org/html/12_4_why_the_fbi.html



You bet – but of course you know so would any city, state, or government agency today and of course they have the right to. Sould we instead let the nuke go off? Are you joking?.


My miss use of words. I meant that if it was thought to be illegal the bi partisan oversight committee would have brought it to the attention of the House and it would have been stopped before it started.

Excuse my error please.

So your argument is that we had the resources, but the Bush administration and the AG's office blew it?

It's a little sad to have to fall back on the defense, "They were incompetent.". It kind of tells me that what I said was correct; we certainly had the resources, but they were very poorly managed.

And yes, I've read the report, and it leaves a wonderful silhouette of incompetence where it dances around placing blame.


Maybe instead of torture, we should re-institute competence in government.



As for this, there is nothing obstructing the government from tapping terrorists either domestically or abroad. There hasn't been since FISA was established.

Unfortunately, too many people are buying the lie that warrants restrict surveillance of terrorists. Seems to me this would be worthy of another thread. Perhaps I'll start it.

As for this;



I assume that means you're in favor of martial law? That would likely mean we'd have to turn in our guns.

If you knew that terrorists were about to get ahold of a vast quantity of guns with which to kill Americans, and that disarming the populace would prevent thousands of deaths from terrorist plots, you'd support that too?

Did you not understand the point here?

Once again, this is not a committee. These are individuals that the President chooses to tell in compliance with the National Security Act. By law they are not allowed to bring it to the attention of the House. As far as determining legality, they can't seek the advice of counsel, they can't take notes.

I am glad to see that we are actually moving forward with this, thanks droop. Very good and valid question. What she did was what she felt to be the best course of action. Unfortunately the rest of the group didn't seem to agree either on a moral basis, or a political one. I do not know for certain if there was anything else she could or should have done, but the one question I have as it pertains to this very situation is whether or not there is a secret court that sees the cases concerning the intelligence community. Is there such a court that can issue warrants for wire tapping? Is there such a court that someone in her position could have gone to with classified material, brought it to the attention of the judicial system, without presenting it to the whole world? If so, I think that might have been the right step to take. If not, we have an entirely different problem to address.


I have never said that it was legal, I have only questioned if it was specifically outlawed. If there is a gray area that some would classify the practice as abusive and some would not, then that issue needs to be addressed. If there was a solid understanding in the judicial world that waterboarding was illegal, then our government let us down in 2002 by not stopping the CIA from continuing it's practice. I am not a lawyer, or an interrogator. I don't deal with these 'enemy combatants'. I have not walked a mile in the shoes of those involved, so without any written law that specifically outlaws the practice of waterboarding, I can't make an informed decision of why it should be legal, but that doesn't mean that my opinion of the matter should make a defining position on it's legality.


So what you are saying is that when a committee is briefed on an issue, that is where the legislative process begins? If there were actions that needed to be made, the committee is the vehicle that gets the process started?


BoF, here is where I think the communication process has broken down over the past few days. You are asserting that these four individuals did not, and could not "approve" of the CIA's actions. Ted and I are asserting that by their apparent lack of action, approval of the committee was implied. Given the fact that they did not demand that the technique be stopped, and in fact some reportedly demanded that the interrogators push harder shows that those that represent Congress on matters such as this approved of the technique being used by not stopping it.

I did not and have not said what I've highlighted.

I have said that a four member panel is not the equivalent of Congress. Ted finally saw this, apparently you haven't.



This is government 101 stuff. Perhaps you could ask less sophomoric questions. The legislative process is tedious. Just because a bill get reported to by "committee" to the floor of Congress does not men it becomes law. You might consider a move from the simplistic to the prfound.

Edited for cosmedic changes, 2/15/08, 2:22 p.m. CST

So explain to us, then, what the purpose of the briefings were, and the purpose of the "Gang of Four" is? Obviously there is a purpose, but if it isn't oversight, what is it? I contest that they aren't oversight and that they don't have the ability to take action. You disagree. Explain to us, then entspeak what this group of people that aren't a committee is, and what their purpose is.

Well first, regarding a court


So Congress has to create a Court where this specific Jurisdiction is defined. A cour where anyone, a congress person, a committee can devulge secret information of any and it is most important that it is of ANY nature in order to garnish a ruling on the legality of any procedure, method, circumstance.

I can not find where Congress has made such a court. So unless you can, we must assume that there is no such court, correct??

Given i have posted a member of the overseeing group has stated that she could not talk to anyone outside the four who were breifed, until PROVEN otherwise we must assume she could not do so, legally.

Let's move on to another point of yours I want to address.

"Unfortunately the rest of the group didn't seem to agree either on a moral basis, or a political one."

We do not know whether any of the rest of the group agreed or disagreed. We know one or two asked if measures were hard enough. There were four in this group, 2 Republicans and 2 Democrats. Due to the secrecy we only know what has been released. We know that at least one, not only one, at least one person wrote an formal objection.

Let us assume that there was only one letter of formal objection, does this translate to only one person was against the procedures used by the CIA?? Only if you have a very short circuit in logic. I mean you wouldn't say passengers that did nothing while a measly 5 people with boxcutters hijacked planes ind crashed them into the towers, approved of it, would you?? Of course not. Silence does not equal approval, approval equals approval.

Because there is also the very real possibility that some chose not to act in futility. Meaning, they understood that other than covering there own tails, the letter would do nothing. We have proof of that, do we not?? Do we not know for a fact that a formal letter of objection was then classified and was for all intents and purposes, ignored? Yes we do.

Which brings us to the next question. you say
"I do not know for certain if there was anything else she could or should have done"

If you don't know, and you have a person on the committee saying " i couldn't talk to anyone besides the four people", shouldn't you assume or at least lean to side of logic that says nothing could be done??

Because the logic of "something must/could be done" is a line of faith, not good reasoning. If you want to hold the 4 people accountable for not doing something, you must show what exactly they could do... individually. Because you can't punish any individually if they could not do anything individually.

In terms of what they can do as a committee, let's assume they were split. Two people out aof a four person group is not a majority either, and when you have 2 republicans and 2 democrats on an issue like this... you invite a 2-2 split. Which , even if we went by you flawed assumption that the "comittee" could do something, would not be enough to expose what the CIA is planning.



Legislative process can only begin if Congress can talk or write about something. They can not write or talk about something that is classified without breaking the law. they can not fully articulate o fellow members of Congress if they are handcuffed by secrecy.



And this is where people like myself questions your reasoning. A lack of action does not imply approval. One persons action is not enough to do anything... we have seen that... futility is a reason for inaction. fear is a reason for inaction, apathy is a reason for inaction, and yes, approval is a reason for inaction.

To only see approval as the ONLY reason for inaction, is so myopic that it stands against good logic and reasoning

You have a long list of well thought out points, but before we go into all of the 'let's assume' points, let us establish one thing first. Is there a process by which the judicial system oversees the intelligence community without making public our nation's secrets? I am really short on time, so I will have to do a search later, but I would have to believe that there is since all of the opposition to the Patriot Act points out that warrents would be needed to wiretap, and those warrents would be obtained in secrecy. To be continued....

Numerous people have said we will never have the resources to stop every attack. The gutting of the CIA spies in the 90s has put us way back and we have not recovered.

Also remember that one of the main sources of intel is the info gleaned from the interrogation of captives. And the “rough” interrogation of high value targets was 25% of that and disrupted numerous “plots”. So the issues is not just “competence” in government – its resources (men) and techniques. If we force a rule that you will never ever use rough techniques we will face a loss of info that could cost us many lives.




You miss the issue. First FISA warrants take time (paperwork) and are not good in fast changing operations.

But what I was referring to is the ability to tap the phones of terrorists abroad. The law need to NOT require a warrant to do this just because the call (electrons) happen to pass through a US server. And we cannot allow the Telecom companies to be sued for aiding the dam government – how stupid id that.



No clue on your point. Of course I am not in favor of “martial law” and your analogy to guns is ludicrous – are they going to go from house to house and steal them? . What I am saying is that if you knew that to save a 100,000 people you had to institute “martial law” in a city for a week you would do it – wouldn’t you?




The people brought in were part of the oversight authority. They could have prevented the use of the technique – I have posted enough to cover this – try reading it.

.


BUT the 4 member “panel” had the duty, responsibility and means to bring this to the Congress or the parts of it that could have stopped it if it was felt to be illegal. So when they did nothing to stop these techniques they witnessed being used they were instituted.

I do not know where you got your quote, but here is Art 5 of Geneva IV (http://www.unhchr.ch/html/menu3/b/92.htm ):

Article V

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.


The only applicable text, really, is "treated with humanity". Waterboarding a person who is not a "protected person" to prevent a chemical attack on NYC does not seem to violate this rule, at least not to me. There are things we could do that might violate this rather nebulous text, but I do not think cold, or lack of sleep, or waterboarding would rise to that level. The WWII Japanese and Germans, and the Soviets/Russians--and our Muslim friends--are very good about understanding such procedures, however.

Also, unless a nation is a signatory to the Conv, their citizens are not protected by it. I wonder what nationality some freelancing al Qaeda operative thinks he is? Also, the Conv really does not seem to address what to do with hostile foreign nationals operating in the territory of a Party to the conflict.

You are doing it again. You have a question, you don't know the answer, so you assume there is a court that you think should exist. Scubatim, I, you, no one can not prove a negative. I can not show you that something that does not exist... does not exist... you saw how well that worked for Saddam right??

I need you to be fair enough to at the very least withold any assumption until you can show it exist.

FISA, the Foreign Intelligence Surveillance Act, is what i think you are talking about. This act created the Courts and the Jurisdiction that deals with the gaining of secret wire taps. The patriot act expands on this erosion of our constitutional beliefs. However, both FISA and USA PATRIOT Act clearly create or define the courts and the Jurisdiction of those courts and what they can handle.

It should not be hard to find the creation of the court you are looking for if it exists, it should be in the same act that created the committees you would think.


Ted


Your continual repitition does not make it true. Exactly what is the procedure that a person on the four member panel was to use to stop the techniques. How could they legally bring what they thought to be injustice to the light of the public??

The court you are referring to is the FISA court, but this isn't a FISA issue. FISA deals with surveillance and surveillance only, so this court would not have jurisdiction over issues related to interrogation.



I don't know what the purpose of the Gang of Four is. If the President only chose to disclose information to four of the eight individuals listed in the relevant section of the National Security Act of 1947, then he has broken the law. The law specifically states that disclosure must be to - at least - the eight individuals commonly known as the "Gang of Eight". He may choose to disclose to more people, but, according to the law the "Eight" is the minimum.

And here I thought you were going to have a civil and intelligent debate.

No, there you go again. Going off the deep end. I said that I didn't know something. I said that I was going to research when I had more time. I said that we should establish facts before going over your list of 'let's assume' points. You want me to withhold assumptions, but you made an entire post based on assumptions. What level of hypocrisy are you portraying? Your bolded section of my post is an opinion. I found the answer to that opinion, but until you can be civil, I will leave you alone. I didn't create an expanded list of assumptions as you did. I have not asked you to prove that something didn't exist, and with your continuous aggravating tone, I refuse to discuss this with you. I did do some research and found some answers that you would be interested in hearing, but since you want to jump off the deep end and make it seem that I am demanding that you prove anything, which I did not, and you want to make me out to be demanding that something exists, you can go on about your business. I think my post was extremely civil, but you have no civility whatsoever. Good day.

What are you taking about? The President? The four, as part of the oversight mechanism of the House, was brough in by the CIA to view new proposed interrogation methods. The President was not there. They then had the duty, if they thought it was “torture” to b4ring it to the attention of others and begin the process of at least review.

Entspeak

.

I wanted to share some info on this not sure if you posted it yet

Gang of Eight



Case closed!! Ther is no committee as Entspeak has said numerous times. Bush simply took the law that allowed for the Gang of eight, changed it to the Gang of four. And just like the Gang of eight they are "forbidden to disseminate knowledge of the program to other members of congress".

Man I love debates you learn so much more to be depressed about if you take a minute to consider the implications

And where is this documented? Show me the Bush order saying this? And are you saying that they had no other avenues to report this?

Because it would CLEARY violate this:

The President shall ensure that the intelligence committees are
kept fully and currently informed of the intelligence activities of the
United States, including any significant anticipated intelligence
activity as required by this subchapter.
(2) As used in this subchapter, the term ``intelligence committees''
means the Select Committee on Intelligence of the Senate and the
Permanent Select Committee on Intelligence of the House of
Representatives.

Procedures for reporting information

The President and the intelligence committees shall each establish
such procedures as may be necessary to carry out the provisions of this
subchapter.

Procedures to protect from unauthorized disclosure

The House of Representatives and the Senate shall each establish, by
rule or resolution of such House, procedures to protect from
unauthorized disclosure all classified information, and all information
relating to intelligence sources and methods, that is furnished to the
intelligence committees or to Members of Congress under this subchapter.
intelligence committees shall promptly call to the attention of its
respective House, or to any appropriate committee or committees of its
respective House, any matter relating to intelligence activities
requiring the attention of such House or such committee or committees.

Construction of authority conferred

Nothing in this Act shall be construed as authority to withhold
information from the intelligence committees on the grounds that
providing the information to the intelligence committees would
constitute the unauthorized disclosure of classified information or
information relating to intelligence sources and methods.
(f) ``Intelligence activities'' defined
As used in this section, the term ``intelligence activities''
includes covert actions as defined in section 413b(e) of this title.

(July 26, 1947, ch. 343, title V, Sec. 501, as added Aug. 14, 1991, Pub.
L. 102-88, title VI, Sec. 602(a)(2), 105 Stat. 441.)


http://jya.com/50usc413.htm

How about the portion of the law that you failed to include in your post. I've posted the entire act in a previous post. In your post, you've only quoted a portion of that act - the portion titled General Congressional Oversight Provisions. You have not included the section related to Covert Actions. I will quote the relevant portion yet again...

From 50 U.S.C. 413b© - Presidential Approval and Reporting of Covert Actions


This refers specifically to the group of individuals commonly known as "The Gang of Eight". This has all been posted before in this thread.

So now show me that the 4 or any part of that group tried to go to the Gang of 8 with objections. Knowing of course that this would have stopped waterboarding (or any of the other techniques show to the 4) from even being used.

With all due respect Ted, you have gone from being argumentative to being incoherent. This doesn't make any sense.

Wow.

I think you should take a look at the positions that the 4 held, Ted. Then you should take a look at the positions mentioned in the law that make up the Gang of Eight. Does anything pop out at you that might highlight the absurdity of your request?

1.) Is waterboarding really legal?
Per the Geneva Convention, no, it isn't. However, it should be noted that changing a prisoner's breakfast rations from his preferred steak and eggs to unsalted gruel, with the offer of steak and eggs if he should provide desired info, is also "torture." The upshot is that there is a huge amount of elasticity in the definition of "torture" when it does not involve actual physical harm. Anything that the prisoner finds to be "unpleasant" can be considered a violation of the GC.

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind

Another important consideration is that certain individuals, including the three identified by the CIA, are not covered by the provisions of the Geneva Convention..

Finally, whether or not waterboarding is "torture" as defined by US law is an open question, hence the DoJ's position. It is clearly a violation of the Army's policy as outlined in the FM cited by DTOM, but whether or not similar policies apply to other branches AND agencies, whether or not such policies can be overruled when not explicitly supported by underlying law, what level of command authority is necessary to overrule such policies, etc, are are also open questions.

2.) Can it be defined as torture? Yup. It would be easy as pie for the Congress to eliminate any ambiguity in this matter, just pass a law that does nothing more nor less than specifically define waterboarding as torture and forbid it. That they have failed to do so after how long of whining about it reveals their true colors. They do not object to waterboarding as torture, they simply find the controversy useful for torturing the current Administration.

3.) How should the U.S. proceed from here?
Clearly articulate that, as they operate beyond the pale of the Geneva Convetions, the lives of terrorists are forfeit. When captured, they will be dealt with in whatever fashion best suits American interests, which may include torture or interrogation, lifelong incarceration, or a trip to Disneyland. Signatories to the Geneva Convention who abide (on the whole, isolated violations when not a matter of policy or course not withstanding) will be accorded the full rights and privileges pursuant to the Conventions.

Why should we do this? You'll find the answer in game theory.

My error but you and Bof love to duck the real issue. There is nothing in the law, what the President did, said or any one did or said that could have stopped those who witnessed the “waterboarding” from stopping it if they thought it was “torture”. Apparently not only did they not think so but asked – “is that all we can do”.

You figure it out.

So, informing them that they couldn't discuss it with anyone, couldn't take notes, couldn't consult counsel... that to do so would be a violation of the law... that wouldn't prevent someone from saying something? When questioned regarding the legality, the Justice Department said it was legal and wouldn't provide any support for how they came to that conclusion. And, need I remind you that I am not letting those who did nothing in 2002 off the hook. If they did nothing they should be held accountable. I've not said anything different. So, I don't know what you're arguing about. My only issue is your claim that Congress failed and your implication that the Administration played the innocent here. Why investigate? Because torture is illegal, that's why... and if the heads of some Democrats roll because of it, I don't care... it's their own fault. The only person who did something was Harman... and I'm willing to bet this played a role in why she has been bumped sideways since.

And, you have one account of possibly one or two people asking "is that all we can do". We know that there are people out there that wish we would do more in terms of enhanced interrogation techniques - some people think we should just kill them all and let God sort them out. Some of those people post on this website. But, you have no evidence regarding who said "is that all we can do." It is intellectually dishonest to lump Congress into a they of one or two.

You keep babbling this but what you don’t seem to get entspeak is that these people are part of the House OVERSIGHT committee and that telling them they could “see” something