There’s an interesting footnote (the second) in Justice Alito’s concurrence to Justice Scalia’s opinion in BROWN v. ENTERTAINMENT MERCHANTS ASSN. (No. 08-1448) 556 F. 3d 950, affirmed. (2011) overturning California’s ban on selling or renting violent video games to minors:  

…Under the California law, a game that meets the threshold requirement set out in text also qualifies as “violent” if it “[e]nables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.” §1746(d)(1)(B). In the Court of Appeals, California conceded that this alternative definition is unconstitutional, 556 F. 3d 950, 954, n. 5 (CA9 2009), and therefore only the requirements set out in text are now before us….

Why should our video games be any different than our society?

Poll finds lack of support for ‘torture’ investigations

updated 3:16 p.m. EDT, Wed May 6, 2009

“…Roughly one in five Americans believe those techniques were torture but nonetheless approve of the decision to use those procedures against suspected terrorists,” CNN Polling Director Keating Holland said. “That goes a long way toward explaining why a majority don’t want to see former Bush officials investigated…”

Washington Post-ABC News Poll

This Washington Post-ABC News poll was conducted by telephone April 21-24, 2009, among a random national sample of 1,072 adults using both conventional and cellular phones…The results from the full survey have a margin of sampling error of plus or minus three percentage points…

…30. Obama has said that under his administration the United States will not use torture as part of the U.S. campaign against terrorism, no matter what the circumstance. Do you support this position not to use torture, or do you think there are cases in which the United States should consider torture against terrorism suspects?

4/24/09

Support not using torture – 49%

There are cases to consider torture – 48%

No opinion – 2%

1/16/09

Support not using torture – 58%

There are cases to consider torture – 40%

No opinion – 2%

Do you think the undecideds work in the video game industry?

Previously: A Small Clique Of Legal Extremists… (February 24, 2008)

CIA Man Retracts Claim on Waterboarding

A study in “enhanced reporting techniques.”

BY JEFF STEIN | JANUARY 26, 2010

Well, it’s official now: John Kiriakou, the former CIA operative who affirmed claims that waterboarding quickly unloosed the tongues of hard-core terrorists, says he didn’t know what he was talking about….

Of course, the media that hyped the original story will run a retraction in five, four, three…

Meanwhile:

Remarks by the President in State of the Union Address January 27, 2010

…We’ve prohibited torture…

What about prosecuting it?

Previously:

“We’re all in Room 101 now.”

A Larger Clique Of Legal Extremists…

A Small Clique Of Legal Extremists…

From a comment at Balloon Juice:

We’re all in Room 101 now.

Harper’s Magazine:

The Guantánamo “Suicides”: A Camp Delta sergeant blows the whistle

By Scott Horton

….”The truth is what matters,” he said. “They practiced every form of torture on my son and on many others as well. What was the result? What facts did they find? They found nothing. They learned nothing. They accomplished nothing.”

Previously:

A Larger Clique Of Legal Extremists…

A Small Clique Of Legal Extremists…

Today I received the December issue of the International Musician, the official publication of the American Federation of Musicians of the United States and Canada. You know, the musicians’ union. There was news item on the use of music to torture detainees:

Musicians File a FOIA Request for “Torture Songs”

A group of prominent musicians and singers, including many AFM members, filed a Freedom of Information Act (FOIA) request seeking the declassification of all records related to the use of music in interrogation. The artists also voiced a formal protest against the use of music in torture and requested the names of all songs that were blasted at prisoners for hours, sometimes days, as punishment or means of coercion beginning in 2002….

In October the Washington Post ran an article on the subject:

Torture songs spur a protest most vocal

Musicians call for release of records on Guantanamo detainee treatment

By Joe Heim

Washington Post Staff Writer

Thursday, October 22, 2009

….Tom Morello, formerly of the band Rage Against the Machine, also expressed outrage.

“The fact that music I helped create was used in crimes against humanity sickens me,” Morello said in a statement. “We need to end torture and close Guantanamo now….”

….”Sound at a certain level creates sensory overload and breaks down subjectivity and can [bring about] a regression to infantile behavior,” said Suzanne G. Cusick, a music professor at New York University who has studied, lectured about and written extensively on the use of music as torture in the current wars. “Its effectiveness depends on the constancy of the sound, not the qualities of the music.”

Played at a certain volume, she said, “it simply prevents people from thinking….”

Apparently once the group which filed the request finds out what music was used they’ll explore their legal options.

It’d certainly be ironic if a civil suit for non-payment of performance rights brought accountability to the torture regime.

….Who Are Determined To Throw Their Country Into A Stinking Mire.

The Obama Administration Department of Justice (not dubya’s, but Obama’s) is arguing before the Ninth Circuit Court of Appeals to dismiss a case against John Yoo who, as reported by Johnathan Turley,…

…is being sued by Jose Padilla, who was effectively blocked in contesting his abusive confinement and mistreatment as part of this criminal case and in a habeas action. The Bush Administration brought new charges to moot a case before the Supreme Court could rule. The Court previously sent his case back on a technicality.

It is important to note that the Administration did not have to file this brief since it had withdrawn as counsel and paid for Yoo’s private counsel. It has decided that it wants to establish the law claimed by the Bush Administration protecting Justice officials who support alleged war crimes. They are effectively doubling down by withdrawing as counsel and then reappearing as a non-party amicus….

From February 24, 2008: A Small Clique Of Legal Extremists…

….The Universal Declaration of Human Rights was presented after World War II. Its provisions made their way into the International Covenant on Civil and Political Rights, and as such, were ratified as norms of international law by the majority of civilized states in the world.

International Covenant on Civil and Political Rights

– in force September 8, 1992

Article 4. 1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Article 7. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

Article 16. Everyone shall have the right to recognition everywhere as a person before the law.

[emphasis added]….

You know, it ain’t rocket surgery to figure this out.

Johnathan Turley continues:

….The Obama Administration has gutted the hard-fought victories in Nuremberg where lawyers and judges were often guilty of war crimes in their legal advice and opinions. The third of the twelve trials for war crimes involved 16 German jurists and lawyers. Nine had been officials of the Reich Ministry of Justice, the others were prosecutors and judges of the Special Courts and People’s Courts of Nazi Germany. It would have been a larger group but two lawyers committed suicide before trial: Adolf Georg Thierack, former minister of justice, and Carl Westphal, a ministerial counsellor….

….If successful in this case, the Obama Administration will succeed in returning the world to the rules leading to the war crimes at Nuremberg. Quite a legacy for the world’s newest Nobel Peace Prize winner.

Go. Read the whole thing.

To say I am disgusted would be an understatement of epic proportions.

Seems Kit Bond, in his best huffing and puffing style, has thrown a noisy little tantrum and resigned from the Senate Intelligence Committee panel charged with reviewing CIA Interrogation policies. He claims that the appointment of a federal prosecutor by Attorney General Eric Holder might bias the hearings and lead to a general unwillingness on the part of CIA officers to be forthcoming about their possible, past misdeeds:

“Had Mr. Holder honored the pledge made by the President to look forward, not backwards, we would still be active participants in the Committee’s review,” the ranking Republican on the intelligence panel, Sen. Christopher S. Bond of Missouri, said in a statement. “What current or former CIA employee would be willing to gamble his freedom by answering the Committee’s questions? Indeed, forcing these terror fighters to make this choice is neither fair nor just.”

Bond’s resignation doesn’t seem to bother panel chair, Dianne Feinstein, who has indicated that the panel will complete its task with or without bipartisan contributions. Perhaps one reason for her equanimity might be relief that she won’t have to deal with the overt bias that Bond himself displays when he speaks about the temerity of the DOJ in investigating individuals whom he salutes as “terror fighters.”  

Bond might just be worried, good Republican soldier that he is, that when faced with hard evidence about what the CIA actually did, he could find himself in a very hard place. He himself might be forced to condemn his beloved terror fighters.  Can’t somebody please explain to the senator that there is a word for governments that allow secret intelligence agencies to run amok, and that word is “dictatorship”?  

Aiding Torture: Health Professionals’ Ethics and Human Rights Violations Demonstrated in the May 2004 CIA Inspector General’s Report

This 6-page white paper, published August 31, 2009, after the new release of the May 2004 CIA Inspector General’s report, shows that the extent to which American doctors and psychologists violated human rights and betrayed the ethical standards of their professions by designing, implementing, and legitimizing a worldwide torture program is worse than previously known.

A team of PHR doctors authored the white paper, which details how the CIA relied on medical expertise to rationalize and carry out abusive and unlawful interrogations. It also refers to aggregate collection of data on detainees’ reaction to interrogation methods. Physicians for Human Rights is concerned that this data collection and analysis may amount to human experimentation and calls for more investigation on this point. If confirmed, the development of a research protocol to assess and refine the use of the waterboard or other techniques would likely constitute a new, previously unknown category of ethical violations committed by CIA physicians and psychologists.

Those actions are illegal:

A Small Clique Of Legal Extremists…

…and a violation of professional ethical standards. The PHR white paper [pdf]:

Aiding Torture: Health Professionals’ Ethics and Human Rights Violations Revealed in the May 2004 CIA Inspector General’s Report

From the report:

…In essence, the lawyers were asked if the techniques constituted torture and they replied to the CIA that they only did so if the CIA Office of Medical Services (OMS) informed them that the techniques reached the defined standard of pain. The OMS health professionals obligingly passed on through CIA channels their opinion that the pain was not in fact severe

In an egregious example of this circular process, one OLC memo concludes that waterboarding is not torture because “however frightening the experience may be, OMS personnel have informed us that the waterboard technique is not physically painful.” Scores of similar references to OMS medical judgments about pain and the safeguarding effects of medical monitoring appear throughout the memos. Although OMS did express some concern about some techniques, those objections were limited. Without the cooperation of health professionals in making these assessments, the OLC memos could not have reached the conclusions they did and could not have so easily justified torture…

What are we all now?

Now I understand the previous eight years. The previous administration watched too much television.

Ah yes, the “Dick Cheney Doesn’t Want To Visit The Hague On A Really Extended Trip Act”:

FOR IMMEDIATE RELEASE

June 8, 2009

…Lieberman, Graham Pledge to Fight to Adopt Detainee Photo Amendment

WASHINGTON, DC — Senators Joe Lieberman (ID-CT) and Lindsey Graham (R-SC) today issued the following statement on the Detainee Photographic Records Protection Act amendment to the Supplemental Appropriations bill:

“We strongly believe that the first responsibilities of government are the nation’s security and the protection of those brave Americans who go into harm’s way to defend it.

“The President has said that the release of the photos of detainees in US custody would ‘put our troops and civilians serving our nation abroad in greater danger.’ We agree with the Commander in Chief.

“We will employ all the legislative means available to us including opposing the supplemental war spending bill and attaching this amendment, which was unanimously adopted by the Senate, to every piece of legislation the Senate considers, to be sure the President has the authority he needs not to release these photos and any others that would jeopardize the safety and security of our troops.

“The release of the photos will serve as propaganda and recruiting tool for terrorists who seek to attack American citizens at home and abroad. We should strive to have as open a government as possible, but the behavior depicted in the photos has been prohibited and is being investigated. The photos do not depict anything that is not already known. Transparency, and in this case needless transparency, should not be paid for with the lives of American citizens, let alone the lives of our men and women in uniform fighting on our behalf in Iraq, Afghanistan and elsewhere.

“Let it clearly be understood that without this legislation the photos in question are likely to be released. Such a release would be tantamount to a death sentence to some who are serving our nation in the most dangerous and difficult spots like Iraq and Afghanistan. It is this certain knowledge of these consequences of having the photos released that will cause us to vote against the supplemental and continue our push to turn our important amendment into law.”

-30-

[emphasis added]

Rough translation – Joe will hold his breath until he turns blue red if he doesn’t get his way. Filibuster! All in response to a court ruling:

Leading Rights Groups Call On Obama To Release Prisoner Abuse Photos (6/1/2009)

ACLU Calls On Court To Adhere To Mandate Requiring Release Of Abuse Photos

FOR IMMEDIATE RELEASE…

“…The disclosure of these photographs serves as a further reminder that abuse of prisoners in U.S.-administered detention centers was systemic,” said Jameel Jaffer, Director of the ACLU National Security Project. “Some of the abuse occurred because senior civilian and military officials created a culture of impunity in which abuse was tolerated, and some of the abuse was expressly authorized. It’s imperative that senior officials who condoned or authorized abuse now be held accountable for their actions.”

Also today, the ACLU asked a federal appeals court to uphold its earlier ruling that the government must release the photos. On May 28, the government filed a motion asking the court to recall its mandate ordering their release, and today the ACLU filed its opposition to that motion.

“The public has an undeniable right to see these photos. As disturbing as they may be, it is critical that the American people know the full truth about the abuse that occurred in their name. The government’s decision to suppress the photos is fundamentally inconsistent with President Obama’s own promise of transparency and accountability,” said Amrit Singh, staff attorney with the ACLU. “The government has failed to show any good cause for the court to recall its mandate that the photos be released, and we are confident the court will uphold its original order.”

In September 2008, the U.S. Court of Appeals for the Second Circuit ordered the government to turn over the photos in response to an ACLU Freedom of Information Act (FOIA) lawsuit. The Obama administration originally indicated that it would not appeal that decision and would release the photos, but abruptly reversed its commitment to do so shortly before the agreed-upon deadline…

The letter from the American Civil Liberties Union (and other groups) to President Obama:

June 1, 2009

President Barack Obama

The White House

1600 Pennsylvania Ave NW

Washington, DC 20500

Dear President Obama:

We write to express our profound disappointment with your decision on May 13 to block the release of photographs depicting abuse of detainees by U.S. personnel overseas. We urge you to reconsider that misguided decision and to renew your commitment to our nation’s most fundamental principles.

On your first full day in office, you eloquently proclaimed your administration’s commitment to the principle of open government. You said: “A democracy requires accountability, and accountability requires transparency.” That is exactly right. The hallmark of an open society is that we do not conceal information that reflects poorly on us – we expose it to the light of day, so that wrongdoers can be held accountable and future abuses prevented.

These photographs will no doubt be disturbing, as they should be. And we understand your concern about reaction to them overseas. But suppressing information to prevent public anger is inconsistent with democratic principles. The Pentagon should release the photos while reaffirming to the world that the U.S. repudiates such barbaric behavior and is committed to dismantling the culture that allowed it to occur. In the end, full disclosure of the crimes committed by our government will make us all safer.

The last eight years have demonstrated all too painfully that excessive secrecy creates a fertile environment for grave abuses. Those abuses have tarnished our nation’s reputation and damaged its security. We will restore our standing as a leader on human rights not by hiding images of our failures, but by demonstrating that those failures will not go unpunished.

As you yourself have stated, “the Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.” Suppressing photographs of abuse places your administration on the wrong side of the law, and the wrong side of history. We hope you will reconsider your decision.

Sincerely,

Alliance for Justice

American Civil Liberties Union

Amnesty International

Bill of Rights Defense Committee

Center for Constitutional Rights

Center for Human Rights and Global Justice, NYU School of Law

Center for the Study of Human Rights in the Americas

Citizens for Responsibility and Ethics in Washington (CREW)

CREDO Mobile

Electronic Frontier Foundation

Feminists for Free Expression

Government Accountability Project

Human Rights Watch

International Center for Transitional Justice (ICTJ)

Jewish Alliance for Law and Social Action (JALSA)

Leitner Center for International Law and Justice at Fordham Law School

National Security Archive

OMB Watch

OpenTheGovernment.org

PEN American Center

Physicians for Human Rights

Progressive Librarians Guild (PLG)

Reporters Without Borders

The Reporters Committee for Freedom of the Press

United Methodist Church, General Board of Church and Society

Veterans for Common Sense

Veterans For Peace

cc: Gregory Craig, White House Counsel
Robert Gates, Secretary of Defense

Eric Holder, Attorney General