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Post by redskins12820 on Feb 17, 2010 12:24:14 GMT -5
This thread is an example of what happens when lawyers rule the country. Let's talk real life. If we or our allies capture someone who wants to harm us and the possibility exists he/she may have intelligence of value to us, interrogate him/her immediately using whatever means are legally (politically) permissible. The interrogation should be by experts who know the value of the possible intelligence and are trained to do it. Don't ever tell the SOB (or DOB) he/she has the right to remain silent and the right to counsel. The aim is to gather real-time intelligence, not to convict the SOB. I like how your "real life" analysis adheres to what is "legally...permissible." Uh oh, are lawyers invading real life too? ?!!!!!!!!!
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The Stig
Diamond Hoya (over 2500 posts)
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Post by The Stig on Feb 17, 2010 13:23:08 GMT -5
This thread is an example of what happens when lawyers rule the country. Let's talk real life. If we or our allies capture someone who wants to harm us and the possibility exists he/she may have intelligence of value to us, interrogate him/her immediately using whatever means are legally (politically) permissible. The interrogation should be by experts who know the value of the possible intelligence and are trained to do it. Don't ever tell the SOB (or DOB) he/she has the right to remain silent and the right to counsel. The aim is to gather real-time intelligence, not to convict the SOB. So you don't want us to convict Abdulmutallab? Despite having the right to remain silent, all reliable accounts say that Abdulmutallab is cooperating with US authorities and providing us with actionable intelligence. Again, the claim that we can't live by our ideals and still be safe from those who seek to harm us is completely false.
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Post by AustinHoya03 on Feb 17, 2010 13:36:41 GMT -5
I might be wrong on this, but if I recall correctly, Miranda was created as a way to protect the right to counsel. So if you Mirandize, you're also committing to give the person counsel. And if you Mirandize and the suspect says "I don't want to talk without an attorney present," then interrogation must stop. This thread is an example of what happens when lawyers rule the country. Let's talk real life. If we or our allies capture someone who wants to harm us and the possibility exists he/she may have intelligence of value to us, interrogate him/her immediately using whatever means are legally (politically) permissible. The interrogation should be by experts who know the value of the possible intelligence and are trained to do it. Don't ever tell the SOB (or DOB) he/she has the right to remain silent and the right to counsel. The aim is to gather real-time intelligence, not to convict the SOB. I think these two quotes can actually be squared. strummer says once a suspect (or presumably, a terrorist) is read his Miranda warnings and invokes his right to counsel, interrogation "must stop." That's not exactly right. Government agents can certainly continue to interrogate a suspect (or terrorist), but any statements made as a product of custodial interrogation won't be admissible in court. Let's say police officers fail to Mirandize a murder suspect. During interrogation, he tells them where to find the murder weapon, which happens to have his fingerprints all over it. His statements won't be admissible at trial, but the murder weapon will be. Often, the United States is not interested in a terrorist's self-incriminating statements. It is much, much more interested in obtaining information about other terrorists and terrorist operations. In such a scenario, I think we can all agree that reading Miranda warnings would be pointless and often counterproductive. In other words, I don't think anyone seriously disagrees with ed, even the lawyers.
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SSHoya
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Post by SSHoya on Feb 17, 2010 13:58:04 GMT -5
I don't think so. The murder weapon will be excuded from evidence as "fruit of the poisonous tree" if obtained through violation of suspect's Miranda rights:
An extension of the exclusionary rule established in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). This doctrine holds that evidence gathered with the assistance of illegally obtained information must be excluded from trial. Thus, if an illegal interrogation leads to the discovery of physical evidence, both the interrogation and the physical evidence may be excluded, the interrogation because of the exclusionary rule, and the physical evidence because it is the “fruit” of the illegal interrogation. This doctrine is subject to three of important exceptions. The evidence will not be excluded (1) if it was discovered from a source independent of the illegal activity; (2) its discovery was inevitable; or (3) if there is attenuation between the illegal activity and the discovery of the evidence.
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Post by jerseyhoya34 on Feb 17, 2010 15:25:29 GMT -5
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SSHoya
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Post by SSHoya on Feb 17, 2010 15:27:03 GMT -5
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Post by AustinHoya03 on Feb 17, 2010 15:34:30 GMT -5
I don't think so. The murder weapon will be excuded from evidence as "fruit of the poisonous tree" if obtained through violation of suspect's Miranda rights: An extension of the exclusionary rule established in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). This doctrine holds that evidence gathered with the assistance of illegally obtained information must be excluded from trial. Thus, if an illegal interrogation leads to the discovery of physical evidence, both the interrogation and the physical evidence may be excluded, the interrogation because of the exclusionary rule, and the physical evidence because it is the “fruit” of the illegal interrogation. This doctrine is subject to three of important exceptions. The evidence will not be excluded (1) if it was discovered from a source independent of the illegal activity; (2) its discovery was inevitable; or (3) if there is attenuation between the illegal activity and the discovery of the evidence. This really is turning into the "lawyer thread." Apologies to everyone else. "The "fruit of the poisonous tree" doctrine espoused in Wong Sun does not apply to mere violations of the prophylactic requirements in Miranda: while the statement taken in violation of Miranda must be suppressed, other evidence subsequently obtained as a result of that statement (i.e. the "fruits" of the statement) need not be suppressed. Michigan v. Tucker, 417 U.S. 433, 452, 41 L. Ed. 2d 182, 94 S. Ct. 2357 (1974); Oregon v. Elstad, 470 U.S. 298, 314, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985). The rule in Wong Sun requires suppressing the fruits of a defendant's statement only when the statement was obtained through actual coercion. Tucker, 417 U.S. at 448-449; Elstad, 470 U.S. at 314."
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Boz
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Post by Boz on Feb 17, 2010 15:43:59 GMT -5
Thus marking the first time in recorded history that a lawyer has ever apologized.......for anything.
Sheesh. And people say I'M a geek because I like animated shows and sci-fi.
Yeah, we all know who the real geeks are.
;D (but not really)
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Elvado
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Post by Elvado on Feb 17, 2010 16:03:10 GMT -5
The only thing worse than a lawyer's perspective is a law student's perspective.
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EasyEd
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Post by EasyEd on Feb 17, 2010 16:21:59 GMT -5
When Abdulmutallab was apprehended, we knew nothing except he tried to blow up an airliner with over a hundred people aboard. Was he the only terrorist that day trying to blow up an airplane or was he just the first of many? Who trained him and where? What other people were similarly trained and who were they? And many more unknowns.
We needed this information as rapidly as possible to try to thwart any others set to follow immediately. Obtaining this information two or three months later is of little use so I don't care if Abdulmutallab is now talking. It did not help the immediate need.
To obtain that information from the SOB I would have used any method available. If necessary I would have beaten him to a pulp to the extent he would have been begging to be waterboarded. If that was against some law, I'd accept that if it meant saving the lives of tens, hundreds or thousands of Americans.
The sooner you academicians recognize this is war, not some graduate or law school seminar, the sooner we will be able to effectively fight and conquer the terrorists intent on killing Americans.
Oh, and after Abdulmutallab was beaten to a pulp I'd continue beating him, sending him onto his virgins in a state they would reject him.
Oh, and waterboarding is illegal only because President Obama said it was while the previous president said otherwise. That's why I used the term legal (political).
I hope all recognize I have exaggerated a bit, but only a bit, in this response to put my point across that this is war, not some academic exercise.
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Post by jerseyhoya34 on Feb 17, 2010 16:28:16 GMT -5
I guess there's a fundamental question here - did we not get that information at the time Abdulmutallab was arrested? This report suggests that he was highly talkative when he was arrested and subsequently during a formal interrogation - www.msnbc.msn.com/id/35047524/Much of what you ask for was indeed provided, including his al Qaeda affiliation and the Yemen aspect. He also claimed to have acted alone, which is the best information we have right now. With this in mind, I am unclear on what we've missed out on in this interrogation. Maybe we can't know at this point, but I am not sure we can call it an uncategorical failure given what we did learn. If we are to have a discussion, I think it is worthwhile to include some facts within reason. Those are helpful in times of war and peace. They're also useful in non-academic settings. It should be noted as well that the torture as legal thinking came from someone whose title is Professor and was so before the Bush administration.
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Post by atlasfrysmith on Feb 17, 2010 16:40:37 GMT -5
As someone with no legal training but who is fascinated enough by these sorts of threads to do my own research, I have come to the conclusion that HoyaTalk should award online law degrees.
Sample question: A and B are arrested on suspicion of conspiracy to commit acts of terrorism. Before being charged, and without the presence of counsel, A is interrogated. During the interrogation, A makes statements implicating himself and B in the crime at issue. A and B are both charged and tried separately. Citing national security concerns, the government declines to allow A to testify at B's trial. Discuss the admissibility of A's statements in each trial. Sample answer [the author makes no representation that he is more competent than a pcp-crazed chimpanzee]: The 5th and 6th amendment rights to counsel attach at different times. The 6th amendment right to counsel attaches upon the "commencement of adverse judiciary proceedings." Because the interrogation in question occurred before A was charged, the 6th amendment right to counsel had not yet attached and would not be grounds for excluding A's statements in either trial. The 5th amendment right to counsel, however, attaches in the context of "custodial interrogation." A's arrest places him in custody, and we are told he was interrogated. The 5th amendment right to counsel would attach in this circumstance. We are not told if the suspect was properly Mirandized. If so, the 5th amendment right to counsel must be affirmatively and unambiguously asserted; waiver must be knowing, intelligent, and voluntary, but it need not be explicit. So long as government can show a valid waiver by a preponderance of the evidence, A's statement would be admissible in A's trial. If, on the other hand, A were not properly Mirandized, it would not be possible to make a knowing waiver and A's statements could be suppressed in A's trial.
[What I don't know: Can the statement be supressed in B's trial? None of B's rights have been violated per se...]
In B's trial, it must be considered whether A's statements are hearsay. A statement is not hearsay if 1) declarant is unavailable; and 2) the statement is against A's interest, including, for example, a statement that "so far tended to subect the declarant to civil or criminal liability...that a reasonable person would not have made the statement unless believing it to be true." The government's refusal to make A available to testify combined with the self-implicating nature of A's statement suffice to except A's statement from the hearsay rule. A's statement is not excludable as hearsay.
[What I don't know: Is A's statement considered as a whole, or could only parts of it be excluded. I.e., if A says, "I will blow up the plane. B will blow up the plane," is the second sentence not against A's interest and thus still hearsay? What about "B and I will blow up the plane"--would you have to redact it and admit only "-anonymous- and I will blow up the plane?"]
I've left out all the jurisdictional issues here--who knows what happens if these guys are foreigh combatant minors captured with one foot on a US army base and one foot in afghanistan. But the interesting point to me, if any of what i've written is actually correct, is that Mirandizing people doesn't mean you can't interrogate them--in fact it makes it easier, since if they do say anything you can argue that there was a valid waiver, which you could never say if it wasn't knowing. So ask them whatever you want, and if you never want to try them who cares, but if you ever do, you'd better have your valid waiver.
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Boz
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Post by Boz on Feb 17, 2010 16:42:48 GMT -5
Sweet Jesus. I hate you all. I want you all waterboarded.
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Bando
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Post by Bando on Feb 17, 2010 16:58:31 GMT -5
There is so much wrong here I wonder where to begin. I guess we'll start at the top. We needed this information as rapidly as possible to try to thwart any others set to follow immediately. Obtaining this information two or three months later is of little use so I don't care if Abdulmutallab is now talking. It did not help the immediate need. To obtain that information from the SOB I would have used any method available. If necessary I would have beaten him to a pulp to the extent he would have been begging to be waterboarded. If that was against some law, I'd accept that if it meant saving the lives of tens, hundreds or thousands of Americans. First off, torture is always morally wrong and never permitted. I doubt you'll take my reasoning for it, so I can quote a bunch of Catholic Magisterium at you if you wish. Secondly, your logic depends on a number of assumptions that aren't in any way true. You seem to believe that there is a direct causal connection between more force used on a suspect or detainee and the amount of useful information that person gives up. Is that in any way a conclusive truth? Can you provide any factual substantiation for that at all? The fact is, torture will get a person to talk about anything to get the torture to stop. Most interrogation professionals would not agree that torture is a useful tactic. Totalitarian regimes use torture specifically because it produces false confessions used for political purposes. Also, you realize there are costs to intelligence-gathering that come from torture, right? Of course not, you haven't thought it through that much. If the US is known for torturing detainees, do you think that makes it more likely that future detainees will willingly give up information? Even if torture magically gets results (which it doesn't), do you think a reputation for torture will make detainees give up information more quickly? And what about the civilians we rely on for intel? Do you really think they'll readily give information to the thuggish brutes that torture their countrymen willy-nilly? You are beyond naive. By the way, who the heck are you to second guess America's interrogation professionals? I hate to break it to you, but our best interrogators aren't intelligence operators in the CIA, they're professional interrogators in the FBI. Do you suddenly have more expertise than them because you saw a few episodes of 24? Again, you're second-guessing the opinions of law enforcement professionals based off what you've seen in movies. This is ridiculous. Just saying "this is a war" does not make torture right or more effective. Saying something doesn't make it so. I'm glad the professionals in the CIA and FBI don't share your bloodlust. Please never preach to me on morality again. Now you're rewriting history. Torture has been illegal for most of American history. It's been internationally outlawed since the Geneva Conventions. Obama didn't institute new law, he started following established law that the Bush administration broke. This is perhaps the biggest gap in your reasoning: the fact that you think can only fight a war one way. This is, pardon my French, bull. Your opponents are still fighting a war, they're just not doing it in the stupid, counterproductive, ineffective, and monstrous way you prefer. Keep knocking down those strawmen, though.
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Boz
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Post by Boz on Feb 17, 2010 17:03:37 GMT -5
Calling waterboarding torture is opinion, not fact. ****
(even Obama said so)
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The Stig
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Post by The Stig on Feb 17, 2010 17:03:44 GMT -5
When Abdulmutallab was apprehended, we knew nothing except he tried to blow up an airliner with over a hundred people aboard. Was he the only terrorist that day trying to blow up an airplane or was he just the first of many? Who trained him and where? What other people were similarly trained and who were they? And many more unknowns. We needed this information as rapidly as possible to try to thwart any others set to follow immediately. Obtaining this information two or three months later is of little use so I don't care if Abdulmutallab is now talking. It did not help the immediate need. To obtain that information from the SOB I would have used any method available. If necessary I would have beaten him to a pulp to the extent he would have been begging to be waterboarded. If that was against some law, I'd accept that if it meant saving the lives of tens, hundreds or thousands of Americans. The sooner you academicians recognize this is war, not some graduate or law school seminar, the sooner we will be able to effectively fight and conquer the terrorists intent on killing Americans. Oh, and after Abdulmutallab was beaten to a pulp I'd continue beating him, sending him onto his virgins in a state they would reject him. Oh, and waterboarding is illegal only because President Obama said it was while the previous president said otherwise. That's why I used the term legal (political). I hope all recognize I have exaggerated a bit, but only a bit, in this response to put my point across that this is war, not some academic exercise. 1. Most accounts say that Abdulmutallab talked right away. 2. By calling this a war, you turn our enemies into warriors. They're not warriors, they're criminals. 3. Using extreme interrogation methods can be counterproductive. There's a legitimate chance that the person actually carrying out the attack doesn't know much beyond his own attack. By essentially forcing him to say something when he really doesn't have anything to say, you risk the possibility of him making up stuff just to please his interrogators. You then get into the rut of reinforcing bad intelligence, which can lead to a dangerous misallocation of limited security resources. No intel is better than bad intel. 4. Al Qaeda claims they're in a war against us. Since (in their view) it's war, not a classroom seminar, would you say it's okay for Al Qaeda members to beat American soldiers into a pulp to get information on impending airstrikes against Al Qaeda targets? 5. The moral high ground is the biggest advantage we have in this struggle. We will defeat Al Qaeda because our ideals and values are more attractive to the world than theirs. But if we start compromising on our ideals and values for short-term security, we risk our long-term security.
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RusskyHoya
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Post by RusskyHoya on Feb 17, 2010 17:32:41 GMT -5
Calling waterboarding torture is opinion, not fact. **** (even Obama said so) A rather widely and officially held one..."The United States knows quite a bit about waterboarding. The U.S. government -- whether acting alone before domestic courts, commissions and courts-martial or as part of the world community -- has not only condemned the use of water torture but has severely punished those who applied it. After World War II, we convicted several Japanese soldiers for waterboarding American and Allied prisoners of war. At the trial of his captors, then-Lt. Chase J. Nielsen, one of the 1942 Army Air Forces officers who flew in the Doolittle Raid and was captured by the Japanese, testified: "I was given several types of torture. . . . I was given what they call the water cure." He was asked what he felt when the Japanese soldiers poured the water. "Well, I felt more or less like I was drowning," he replied, "just gasping between life and death." Nielsen's experience was not unique. Nor was the prosecution of his captors. After Japan surrendered, the United States organized and participated in the International Military Tribunal for the Far East, generally called the Tokyo War Crimes Trials. Leading members of Japan's military and government elite were charged, among their many other crimes, with torturing Allied military personnel and civilians. The principal proof upon which their torture convictions were based was conduct that we would now call waterboarding. .. As a result of such accounts, a number of Japanese prison-camp officers and guards were convicted of torture that clearly violated the laws of war. They were not the only defendants convicted in such cases. As far back as the U.S. occupation of the Philippines after the 1898 Spanish-American War, U.S. soldiers were court-martialed for using the "water cure" to question Filipino guerrillas. "
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Post by redskins12820 on Feb 17, 2010 18:22:39 GMT -5
The sooner you academicians recognize this is war, not some graduate or law school seminar, the sooner we will be able to effectively fight and conquer the terrorists intent on killing Americans. The sooner you read any military history, the sooner you will realize that war is politics by other means and once you ignore the political restraints of war, you lose.
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rosslynhoya
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Post by rosslynhoya on Feb 17, 2010 18:22:54 GMT -5
1. Most accounts say that Abdulmutallab talked right away. This is the problem. If you recall, Abdulmutallab was questioned on the scene for a famous 50 minute period before he lawyered up. The initial querying was done by local law-enforcement/local FBI and not the White House's high-value interrogation group that was never notified or consulted at the time. Allegedly, according to Brennan and Holder, he provided all he knew then ... and that's how a reasonable person could conclude that we knew then that it was safe to move him into the U.S. criminal justice system. Skip forward five or six weeks (after the White House has come under fire for its initial handling of the Christmas Day bomber) and Brennan claims that Abdulmutallab is talking and cooperating and providing us valuable information, once again proving that "the system worked." This is where you have a conflict - if in late January/early February, Abdulmutallab has information to provide and our nation's senior counterterrorism expert is describing it as valuable, would it not have been better to get to that information when it was freshest, i.e., the evening of December 25, 2009?? What actionable intelligence was lost by the five-to-six week delay after Abdulmutallab was mirandized? (It's a rhetorical question, I don't think anyone but AQAP can answer it). 2. By calling this a war, you turn our enemies into warriors. They're not warriors, they're criminals. 4. Al Qaeda claims they're in a war against us. Since (in their view) it's war, not a classroom seminar, would you say it's okay for Al Qaeda members to beat American soldiers into a pulp to get information on impending airstrikes against Al Qaeda targets? Their view of themselves is largely irrelevent. Our arguments are based on the non-exclusive facts that the enemy is neither a lawful combatant (and therefore deserving of any and all protections accorded to lawful combatants) nor a noncombatant (and therefore deserving of the protections accorded to noncombatants). It is perfectly honest to believe that our treatment of al Qaeda members should be limited only by our notions of human decency and simultaneously believe that lawful combatants (including our own) should be treated in accordance with a higher standard. There's also no indication that any current or future enemy of the United States has any intention of respecting our service members' rights regardless of our treatment of their personnel, so this one-sided issue pretty much exists solely to let right-thinking Americans publicly disparage their political oppenents' lack of patriotism. 5. The moral high ground is the biggest advantage we have in this struggle. We will defeat Al Qaeda because our ideals and values are more attractive to the world than theirs. But if we start compromising on our ideals and values for short-term security, we risk our long-term security. If you think we are in any danger of losing the moral high ground to al Qaeda, their their victory is closer than most of us think. They will beat us by making us lose confidence in our system and finding moral equivalency in everything we do. For example, a hypothetical left-leaning lawyer insists that if we don't mirandize a terrorist caught in flagrante delicto and follow up with a habeus presentment before a local magistrate assisted by a public defender in less than an hour, we are no better than the terrorists. On the other hand, if the same terrorist had tried to blow up a plane landing at Charles de Galle, then he would be detained by French authorities for up to six days without being charged (and at least 72 hours without seeing any lawyer). If caught at Heathrow, he could be detained by UK authorities for 28 days without seeing the light of day. Do those countries lack a moral high ground? Is America a better country for having different, more generous standards than the UK or France? I can't comment on that hypothetical lawyer's motivation, but at a certain point the perception is certainly that his concern has less to do with the terrorist's rights and more to do with a serious loathing of America.
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Boz
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Post by Boz on Feb 17, 2010 18:51:22 GMT -5
Calling waterboarding torture is opinion, not fact. **** (even Obama said so) A rather widely and officially held one..."The United States knows quite a bit about waterboarding. The U.S. government -- whether acting alone before domestic courts, commissions and courts-martial or as part of the world community -- has not only condemned the use of water torture but has severely punished those who applied it. After World War II, we convicted several Japanese soldiers for waterboarding American and Allied prisoners of war. At the trial of his captors, then-Lt. Chase J. Nielsen, one of the 1942 Army Air Forces officers who flew in the Doolittle Raid and was captured by the Japanese, testified: "I was given several types of torture. . . . I was given what they call the water cure." He was asked what he felt when the Japanese soldiers poured the water. "Well, I felt more or less like I was drowning," he replied, "just gasping between life and death." Nielsen's experience was not unique. Nor was the prosecution of his captors. After Japan surrendered, the United States organized and participated in the International Military Tribunal for the Far East, generally called the Tokyo War Crimes Trials. Leading members of Japan's military and government elite were charged, among their many other crimes, with torturing Allied military personnel and civilians. The principal proof upon which their torture convictions were based was conduct that we would now call waterboarding. .. As a result of such accounts, a number of Japanese prison-camp officers and guards were convicted of torture that clearly violated the laws of war. They were not the only defendants convicted in such cases. As far back as the U.S. occupation of the Philippines after the 1898 Spanish-American War, U.S. soldiers were court-martialed for using the "water cure" to question Filipino guerrillas. " Comparing the U.S. method of waterboarding to those Japanese methods of water torture is like comparing a pinprick to impaling someone with a cutlass. Has the interrogation method that the U.S. used been codified as torture by any U.S. statute or court? If not, it remains your opinion. Many may share it, but many don't.
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