Eugene Volokh hits the Eject Button

by Kieran Healy on June 13, 2004

Eugene Volokh says he’s not going to comment about the torture memo, which has already been discussed in detail by a number of well-known law bloggers. Eugene says he doesn’t want to talk about it partly because it’s outside his main areas of legal expertise, but mostly because he finds the topic

not just difficult but also sickening. Torture is disgusting. … Does the need to save people’s lives justify torturing suspects? How many lives? Would it take hundreds of thousands (as in the hidden nuclear bomb scenario)? Thousands? Dozens? A couple? I don’t know the answers, and while I have no doubt about the importance of the questions, I don’t enjoy thinking about them. The whole topic is sad and horrible, whatever the right answer is. … It’s not a rational reaction; it’s a visceral one. I’m not proud of my squeamishness, but there it is. I know that just because something is sickening doesn’t mean we shouldn’t do it. Sometimes people need to do disgusting things to avoid greater harms. … But if I had a choice in how to invest my scarce time, I’d rather not invest it here.

I was surprised to read this, for two reasons.

First, Eugene is well known for his willingness to consider pretty much anything with a cheerful open mind and a bunch of snappy hypos. Remember the big discussion about the legality of consensual incest from around the time of the Great Rick Santorum debate? I still get two or three hits a week on my blog for that search term because I wrote a short post about it, and I don’t think those people are looking for legal information. Similarly, he’s been happy to engage in extremely detailed arguments with nutbar theorists about the supposed equivalence of Income Tax Payers and Slaves. In the past this has led me to wonder whether there was anything his sanguine and judicious personality would find beyond the pale. Now I know.

The other reason for my surprise, though, was that I remembered Eugene has blogged about torture in the past—two years ago he had a couple of posts about it, here and in more detail here. Back then, the idea of the U.S. government authorizing the torture of suspects was just a matter of hypothetical speculation and he went at it with characteristic thoroughness but rather less enthusiasm than usual. Saying his thoughts were “_very tentative_” he ran down through the potential benefits of torturing suspects and tried to balance them against the many “good arguments against the use of torture, even in extraordinary circumstances.” His conclusion was that “that torture can indeed be effective, if properly done, in some circumstances” but that his reasoning left him “Sad, unsatisfied, and afraid.”

I’m afraid of the government acquiring the power to torture even the worst of the worst, since historically such powers have often been broadened and abused. At the same time, I’m obviously afraid of the terrorists—and more broadly I’m afraid that we might need to be tough, to the point of brutality, in order to save our lives and the lives of our compatriots. I have no answer, though I hope that some of these observations may help others to arrive at one.

I think that Eugene’s post from 2002 shows, in outline, what the torture memo might have looked like had it been written by government lawyers who were genuinely concerned with the question at hand rather than with writing a brief on how the President could circumvent the law. Although it doesn’t examine the constitutionality of torture and the limits of executive authority to authorize it in a time of war, it honestly explores the utilitarian calculus of torture without indulging what Mark Kleiman has called “the human capacity for courage in the face of pain felt by strangers.”

It’s a lot easier to speculate about the pros and cons of torture in the abstract than when it’s clear to all that your government has actually been torturing people to no great purpose and its legal staff has been looking for ways to rationalize its actions. While “ticking bomb cases” are all very well for uncovering your own moral intuitions about torture, they have essentially nothing to say about the institutionalization of torture within the machinery of the state.

At the end of the day, Eugene doesn’t have to write about anything he doesn’t want to. He doesn’t have to take the trouble to publicly explain his decisions, either. And although he says he’s “not proud of [his] squeamishness” I think there is no shame in being viscerally repelled by the prospect of state-sponsored torture, even when—hypothetically—there might be utilitarian benefits to be gained from it. But I can’t help feeling disappointed that we’re not going to hear from him—probably the most prominent and smartest right-leaning lawyer with a weblog—on this, a case where we have an actual effort to legally justify torture by the U.S. state in real circumstances. The right blogosphere has been a bit quiet about this issue in general, though again I acknowledge that people are free to choose their own topics, especially when it comes to blogs run as hobbies.[1] It’s just that some commentary from the lawyers at the Volokh Conspiracy would probably have been more worthwhile than what we’ve heard from some other prominent right-leaning law bloggers, who have have restricted themselves—on the topic of the Abu Ghraib torture[2] —to the argument that Saddam Hussein, the Palestinians and the French torture people too.

fn1. Harley and most recently Tacitus are honorable exceptions. So is Andrew Sullivan, to be fair to him, though between the Texas Gop platform at home and torture abroad, I’m wondering what it’ll take to make him finally leave the Republican party. I’m not holding my breath.

fn2. Reynolds has been on vacation since the torture memo was published, and has blogged about a few things but not that.

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{ 96 comments }

1

Hal 06.13.04 at 3:26 am

“All that is necessary for the forces of evil to win in the world is for enough good men to do nothing.”

Their silence is rather deafening.

2

chun the unavoidable 06.13.04 at 3:43 am

I think it’s clear that torture–particularly by the Egyptian government (wholeheartedly endorsed by the American government)–is to blame for the Islamist terrorists.

Now this doesn’t necessarily mean that torturing them now will worsen the problem, though it might seem that way. I’d pay good money to see a suspected Islamofacist tortured, and I suspect that it’d generate substantial ad revenue on television. The government, by selling this entertainment, could reduce the uncomfortable tax burden this war on terrorism has caused us.

At a certain point, one of them will acquire mental control similar to that of the protagonist of a suspiciously allegorical novel about an oppressed far-future desert folk, and that’ll be that.

3

asg 06.13.04 at 3:45 am

I don’t know precisely when the torture memo became public, but I was under the impression that it was about a week ago. If that is indeed the case, it is more than a tad disingenuous of Kieran to imply that Instapundit’s response to the torture memo comprised the three posts linked, since none of them are dated after May 21.

4

chun the unavoidable 06.13.04 at 3:51 am

I’ve asked this before, and I hope I’ll get an answer this time: who is “instapundit,” and why does anyone care what he/she thinks?

5

Hal 06.13.04 at 4:07 am

I assume this is another rhetorical question, Chun. In any event, he is an evil mentat, addicted to his sapho juice. As to why people pay attention to him, there’s a rather good explanation here.

There are some things a clever wit and nasty repartee won’t get rid of. . .

6

Kieran Healy 06.13.04 at 4:09 am

ASG — I’ve edited the post to make it clearer what the Instapundit posts refer to and when they were published.

7

chun the unavoidable 06.13.04 at 4:17 am

Can anyone guess the Homer Simpson joke I would make if I were the typically hormonal and immature member of the blogosphere right now? Hint: It’d be in reference to hal’s post of 4:07 am.

8

liberal japonicus 06.13.04 at 4:26 am

I think it is even more damning than that. IIRC Eugene Volokh is the one who has spent much time and blog-ink on slippery slope reasoning. If there was a perfect example of how problematic slippery slope reasoning would be, and a perfect example of the real world implications, it would be this subject. Less an eject button and more like a ‘sauve qui peut’…

The one point in his favor is that he hasn’t buried himself in an orgy of Reagan hagiography to avoid dealing with it, though getting that crazy crew from the Right Coast to guest blog was practically the same.

9

Hal 06.13.04 at 4:27 am

“Do I know what rhetorical means?”

10

tib 06.13.04 at 4:41 am

hal,

I suspect you are looking in the wrong place for ‘good men’. Volokh may be an exception, but it is hard to find people on the right, or in the Republican party, willing to stand up and speak out. I don’t think they take politics seriously enough to know that what they say has an impact on the world, and that they are responsible for the results of their words. They are like college communists who didn’t think through the implications of what they espoused, and refused to acknowledge the costs, in human lives and freedom, of their ideas.

There are good men in the United States, they are the ones speaking out clearly and forcefully against what we have done in Iraq.

11

Hal 06.13.04 at 5:08 am

Tib, I believe Diogenes already did an exaustive search for honest men and came up lacking. Perhaps the same can be said for good men on the right/pro-war side. I cannot bring myself to believe they all have completely lost their moral compass – to accept that is rather depressing, to say the least.

12

asg 06.13.04 at 5:14 am

Kieran — your willingness to go back and fix the implication does you much credit.

13

q 06.13.04 at 5:22 am

Don’t you think it would be interesting to hear what Lynndie England thinks of torture. (I wonder if she reads this blog!)

I believe Lynndie is pregnant. I wonder how she’ll explain the photos to her children…
-“Well, I was in a foreign country and they all looked like dirty animals to me!”…?
-“Mu-um, What’s the difference between a person and a dirty animal?”

14

Rob 06.13.04 at 5:40 am

Well apparently torturing animals is a signal of a disturbed mind. Torturing humans is a patriotic service.

15

Hal 06.13.04 at 5:41 am

Yea, one would think that the FBI profilers would start to see a pattern here. . .

16

T. V. 06.13.04 at 6:00 am

In the current political climate, a conservative repeatedly glossing his anti-torture ethical qualms with lines like “I’m ashamed of my squeamishness” constitutes de facto support of torture. It acknowledges the rightwing construction that only those with protofascist ruthlessness have any standing to speak in political matters, especially in war, and then recuses itself with self-abnegation as lacking that quality and therefore having no standing to speak. This leaves those who have no ethical qualms to fill the gap, their superior authority certified.

Moral sensitivity isn’t a virtue when it positions itself as the symbiotic masochism that actively lends its permission for political sadism to run unchecked.

17

SomeCallMeTim 06.13.04 at 6:15 am

Out of curiousity, what blogs comprise the reasonable right? Who would you expect to address the terror memo in some fashion other than “Terror, terror, evil Iraqis”? I would think the reasonable right includes Volokh, Drezner, Kling (exclusively economics), Marginal Revolutions (mostly economics), Jane Galt, and Postrel (though most of her stuff seems to be of the “now it comes in yellow!” variety). I can’t think of anyone else – is there anyone else? Have any of them addressed the terror memo? (Actual question, not snark).

I think Phil Carter counts as a war supporter, and right of center, and he’s addressed it. As I understand it, Jim Henley is to the right, but he’s always been against the war, etc.

It would be quite remarkable to find that there was actually something that the Administration could do that could shock them into silence.

18

Zizka 06.13.04 at 6:25 am

I am astonished by the silence of a lot of libertarian types about a lot of things. What a bunch of frauds! If I’m not mistaken, the inexplicably-respected Jane Galt recently signed on to the Bush team (tacitly, by her use of the word “we” in a political context).

Volokh’s shame over his squeamishness (i.e., decency) is rather sickeningly characteristic of our times. In law, philosophy, PR, political consultancy, and advertising, “rationality” is regarded as the willingness to argue for or against any position whatsoever.

I read somewhere (Hannah Arendt??) that most of the anti-Nazi resisters (and shelterers of Jews) were naive, simple-minded people who had a gut feeling that something was wrong. Whereas Eichmann had a Kantian explanation for what he did.

19

Hal 06.13.04 at 6:40 am

Drezner was recently called out on the blogosphere floor by Matt Stoller for this silence and Drezner’s response was rather limp and flacid. Given Tacitus’ response to that whole affair, I think the predicted opinion is to shoot the messenger because of the way they say it, rather than reply to the substance.

20

q 06.13.04 at 7:14 am

OK so we know that Donald Rumsfeld, Mr Defence, classified as secret (until 2013) a report that says it is OK for Commander-in-Chief to torture opponents and that some blogger wants to shove his head in the sand. Both the blogger and Rumsfeld may be being honest. If you don’t like it: (1) don’t read the blogger (2) don’t re-elect Rumsfeld.

21

chun the unavoidable 06.13.04 at 7:17 am

Is torture in defense of free-markets or especially nanotechnology a vice?

The owlish, deep Virginia Postrel posted something the other day about how she was worried that a “non-lethal” mechanism the military is developing that can very rapidly heat water in the body (signaling the nerves that they’re on fire) could be used as a torture device (it’s designed to not damage as long as you move out the way quickly–so it could be applied briefly and repeatedly–causing agony without any physical signs of damage). I’m not sure if she was waiting for it to come out in yellow.

So that’s about the extent of the worries on this issue from the radical statist* reactionary “libertarians,” which shouldn’t surprise anyone overly. As I alluded to earlier, torture has become routinized and thoroughly libidinized, and if Fox were to air a reality-tv show in which contestants have to come up with ways to torture information out of a suspected “Islamofascist,” it’d be much more popular than American Idol.

*Simply means the hierarchical concentration of power and its worship–“corporatist” just confuses the issue.

22

pepi 06.13.04 at 8:15 am

“I know that just because something is sickening doesn’t mean we shouldn’t do it. Sometimes people need to do disgusting things to avoid greater harms.”

Huh, how about, if that something sickening and disgusting also happens to be illegal?

And this is a lawyer? wtf do numbers of hypothetically saved have to do with torture? saved by what exactly, electrodes on genitals and rape? the implication of a direct link between torture and self-defense, torture and information gathering, torture and anti-terrorism, is revolting as well as absurd. The torture cases unearthed so far have nothing to do with the purely abstract ticking-bomb scenario either.

Where does this assumption that there might be cases when it’s justified (and useful!) come from? Too many action movies?

23

pepi 06.13.04 at 8:43 am

zizka – “Volokh’s shame over his squeamishness (i.e., decency) is rather sickeningly characteristic of our times.”

I got the very same feeling. It’s also like saying, ‘what do I know about this, I’m not dealing with suspected terrorists first-hand, so I cannot judge’.

And hey, what do I know about this myself, I’m not a lawyer, so I cannot judge a lawyer’s opinion! I didn’t write the constitution or Geneva convention, so, how can I have an opinion on that. I’m not even a politician, so I cannot judge the policy of any government. I’m not a CIA agent, so how can I possibly say they’d be wrong to use torture?

My objections to it would be purely visceral, emotional, not crystal-clear logic.

Laws? well, yeah, laws are not really visceral or emotional stuff, but they’re a matter of interpretation, like the memo says. Especially in these trying times of new challenges to our totally non-fascist freedom by the evil Islamofascists.

All I know is that sometimes you need to do horrible things to avoid even more horrible things. Terrorism is worse than torture. We have to choose the lesser evil when necessary. I won’t go into when it might be necessary and why, not because I’m defending that concept, mind you! just because it’s too sick for me to contemplate. Honest.

24

q 06.13.04 at 8:51 am

Pepi – re:legality … I think the point in the memo was that the Commander-in-Chief has the right to torture people because he is protecting the interests of the USA, and hence it argues, it is legal to torture people and thus a simple constitutional matter.

25

bad Jim 06.13.04 at 9:47 am

Oh, come on, everybody. What part of “extremism in the defense of liberty is no vice” do you object to?

(“You’re from the Sixties”, he said, wielding a flit gun.)

26

pepi 06.13.04 at 11:06 am

q: er, yes, I know, but even that argument is not exactly shining with clarity and coherence, so, if a lawyer were to address the memo, I would imagine it would still be pretty much an issue of (il)legality of torture, and not just powers of the executive to override any laws… The two aspects are linked together, after all.

Even those lawyers who drafted the memo seem to be arguing that the things the Commander in Chief can authorise must not be overtly unlawful – that’s why they spend pages quibbling on the definition of torture, specific intent, “good faith”, necessity defense, self-defence etc…

Then there’s that brilliant stuff about how you’re excused if you were only following orders “unless the accused knew the orders to be unlawful, or a person of ordinary sense of understanding would have know the orders to be unlawful”.

Since we’re at the stage when the definition of _torture_ is challenged and rendered useless, I can only imagine what happens to vague terms such as “reasonable” and “ordinary sense”…

27

pepi 06.13.04 at 11:08 am

… and “unlawful”.

28

q 06.13.04 at 12:13 pm

Pepi – The memo says that in the current state of war the Commander in Chief is justified to authorising torture, which is therefore legal and reasonable.

The blogger does not want to discuss it because it involves unpleasant things – so that is his business. The next time the blogger wants to talk about something that is unpleasant you may ask him where the distinction lies in unpleasantness between the unpleasantness that he wants to talk about and the unpleasantness that he does not to avoid the charge of HYPOCRISY. It may be the case that the blogger has a general policy of not talking about unpleasant things.

Neither the blogger nor Rumsfeld have a similar worldview to your view. Your view appears to be that torture is wrong in all cases. But as your view is the “nice view”, you will not find the blogger or Rumsfeld wanting to stand up and declare their position “nasty view”.

These people have a view which you would probably consider fascist. Let it be. Fascists have a right to be FASCIST, though little cause for them to complain when the same philosophy comes back to haunt them.

The maintenance of some basic human rights is denied by these two agents. When some Americans get tortured in the future, one would expect the blogger and Rumsfeld to be outraged only because they are “our boys”, and not because the torturers have broken some human rights.

Unconstitutionally secret debate?…: From an political and administrative point of view, the memo appears to be trying to define actions permissable under the constitution, which is an argument which may need to be a public one. Debates over the use of PUBLIC money are often required to be in public.

29

RD 06.13.04 at 12:56 pm

It appears that Eugene Volokh feels obligated to do exactly what the administration did. Find out all the legal aspects of the issue. And that’s exactly what the legal team provided. I would imagine that when you are asked to provide a detailed, precise legal opinion for the president, that’s exactly what you do. Mr. Volokh can now read the same information the president has, isn’t this a great country, and act upon it in an informed manner. I know I trust our current brave, but wise administration to use this information with a great moral sense. And Mr. Volokh is free to do the same.

30

abb1 06.13.04 at 1:08 pm

Just the fact that merits of torture are being seriously discussed indicates that the American society is plunging into barbarism.

31

RD 06.13.04 at 1:29 pm

Actually abb1, ‘ol pal. I don’t think I’ve read anywhere where torture as been considered or administered anywhere. Except maybe in California or Pennsylvania. And isn’t it ironic that the only agency taking any real heat for failure is the CIA, because they were unable to do the “spook” thing well enough. Ain’t we something!

32

q 06.13.04 at 1:39 pm

rd-
Have you read the memo?
Isn’t the current administration, White House and Pentagon taking the heat at the moment?
Why did they produce a report of torture if they are not intending torturing people?

33

pepi 06.13.04 at 1:40 pm

q: eh, ok, I get your point, but you know, I’m not depriving anyone of their right to be a fascist by just commenting on it ;)

And no I don’t literally think it’s a fascist thing. Just hypocrite, yeah. And revolting.

Your view appears to be that torture is wrong in all cases. But as your view is the “nice view”

To the “squeamish”, yes, I guess they’d see it like that, but, it’s not, it’s just the literal legal view, according to the Conventions, no matter how they get butchered by Rumsfeld or the memo lawyer posse. I don’t care if there were thousands of American lawyers arguing for the “nasty” view, it’d still remain illegal. And even if their view was publicly announced and inscribed in capitals in a new Patriot Act signed by the President with a televised ceremony presided by the Reverend Moon, it STILL wouldn’t change the contents of the Conventions and declaration of human rights and all international laws defining torture as unconditionally illegal – for the entire rest of the world that signed up to those treaties without “interpreting” them. And since I happen to live in the rest of the world… it wouldn’t change the definition for me.

Unless of course I hypothetically were arrested as an alien terrorist suspect by American officials. In which case I would totally collaborate and humbly bow down to the top democracy in the world. Down on my knees while the broomstick does its precious intelligence-gathering work. You never know what terrible secrets I could be hiding in those dark recesses, but I’m sure they’d find out. I’d gladly sacrifice my ass if it was necessary to save New York.

(Sorry if that was a little too visceral.)

The maintenance of some basic human rights is denied by these two agents. When some Americans get tortured in the future, one would expect the blogger and Rumsfeld to be outraged only because they are “our boys”, and not because the torturers have broken some human rights.

Yeah, I imagine so. I remember very well how those conventions were called on and considered very valid and constitutional when those US soldiers were taken prisoners by Saddam’s army last year in Iraq. That would have been… _after_ the March 2003 memo, isn’t that funny now.

34

pepi 06.13.04 at 1:54 pm

“I know I trust our current brave, but wise administration to use this information with a great moral sense. “

That _was_ ironic, wasn’t it?

35

RD 06.13.04 at 2:16 pm

No, pepi, just inconsistent with your views.

36

jdw 06.13.04 at 3:57 pm

You know, this whole torture memo thing is really only of interest to leftish blogs and the Washington Post. I don’t know why it’s surprising that righty blogs aren’t covering it. Most _newspapers_ just ran one AP article the day after the story broke.

And rd — I say this to all the nuts, but since you’ve given up on the Constitution, maybe pause to consider whether you might be (and if so, why) essentially a fascist. I think it’s important to establish exactly how far you’d be willing to go: censorship? Outlawing political parties? Killing all Democrats, or just the ACLU, or what?

37

pepi 06.13.04 at 4:08 pm

rd: ah, it’s all a matter of views, I forgot.

38

Justin 06.13.04 at 5:49 pm

jdw, that’s no fair. Rd only supports what has already happened to the people he has associated himself. His ideas (nor ours, I suppose, but it’s more clear his) are not actually part of a well thought out worldview but an organizational attachent; the ideas he has in support are neccesarily both hypocritical and an assertion that they are not. This is all basic stuff covered by Thurman Arnold in “Folklore of Capitalism.”

Thus, rd will only go as far as the administration has gone. And if the administration goes farther, then THAT is as far as rd will go. Rd will be willing to kill millions of people (so long as he does not associate with these people), but ONLY so long as the people he associates himself with first goes and kills millions of people.

One does not have to look far back in history to realize the sheer obvious nature of this.

39

Zizka 06.13.04 at 5:53 pm

There’s a second factor. The 9/11 attack was not an unprecedented murderous attack on civilians. There were several technically and organizationally unique aspects to 9/11, but the murderousness was normal-range.

The reason that 9/11 is thought to be a world-historical event is that it was an attack on the militarily most powerful nation in the history of the world. It was an attack on someone who was able to retaliate.

At some point the Bosnians, the Salvadorans, the Guatamalans, the Ruandans, the Timorese, and many other have had to learn to forget about murderous episodes which were absolutely much worse, and proportionate to population enormously worse. But these are powerless peoples.

Even the French, the Germans, the Poles, et. al. — larger, more prosperous nations — have had to learn to go on with their lives.

Where does the belief come from that this particular attack is so uniquely horrible that it justifies forgetting about a century or more of attempts to reduce the inhumanity of warfare? As far as I know, it comes from America’s historical impunity. We’ve really been very favored and don’t know how to deal with this.

The secrecy of the adversaries adds to the urgency, but now that we’re focussing on them they have become much less mysterious. (It should be noted, though, that apparently very little effort is apparently being made to trace the international money transfers, usually tracable back to Saudi Arabia, which keep the effort going. There was an article awhile back saying that the Americans working in this area are still mostly concentrating on Cuba.
http://philosophy.thereitis.org/displayarticle248.html ;

Foreign Assets Control<>

“Of the 120 employees at the Office of Foreign Assets Control, Senator Baucus said, 21 are dedicated to enforcing the Cuba embargo and only 4 to tracking the finances of Osama bin Laden and Saddam Hussein”

I think that the worst interpretation of what’s happening is the best. The Bush plan is to fight an endless war against a nebulous enemy, and to use the war as a pretext to ram through a lot of programs which are often unrelated to the war, together with an enormously increased police and surveillance powers and much less oversight or Constitutional limitation on the executive.

Libertrarians who fail to realize this pornographic and entirely withoput redeeming social value, are absolutely worthless for any human purpose and should be mercifully put to sleep. Remember, we’re talking about people who are thrown into a rage by the very idea of the unconstitutional Smithsonian Institute and the unconstitutional National Acadamy of the Arts.

40

Zizka 06.13.04 at 5:55 pm

“Libertarians who fail to realize this are pornographic and entirely without redeeming social value, absolutely worthless for any human purpose, and they should be mercifully put to sleep. Remember, we’re talking about people who are thrown into a rage by the very idea of the unconstitutional Smithsonian Institute and the unconstitutional National Acadamy of the Arts.”

Sometimes dark forces insert editing lapses into my more inspired productions.

41

bull 06.13.04 at 6:11 pm

The silence of conservative blogs isn’t evidence that conservatives find the torture memo acceptable. If they supported the memo they’d come out and say so. A more likely explanation is that they’re horrified by the utter depravity of the memo, and don’t want to come out and say that the Attorney General, Secretary of Defense and President appear to be depraved. They’re probably all casting about desperately for some explanation. When they do start to comment on the memo, they’ll probably twist themselves into all sorts of logical contortions to say that the memo didn’t say what it said, that it has been misinterpreted, or that it wasn’t acted upon. Sadly, however, the memo said what it said and apparently was relied upon. Take it from a conservative, that’s tough – what am I supposed to do now? Vote for John Kerry? I hate John Kerry. That voice, that voice, God how I hate that voice!

42

RD 06.13.04 at 6:17 pm

“I say this to all the nuts”

That is people who don’t share my incredibly clear, absolutely right view of the world.

“since you’ve given up on the Constitution”

An argument I can’t support from anything I’ve read here, but saying it gives me a hard on!

“you might be … essentially a fascist”

I’m rolling now, hear me roar!!

“exactly how far you’d be willing to go: censorship?”

I know this doesn’t tie in to anything being said here so far, but this is how my associate professor taught me to argue when I have no point!

“Outlawing political parties?”

No wait, this is my argument. I get confused sometimes.

“Killing all Democrats, or just the ACLU, or what?”

Frankly, I’m exhausted. Was it good for you?

43

Jaybird 06.13.04 at 6:18 pm

An answer to the “who is “instapundit,” and why does anyone care what he/she thinks?” question.

Starting around election 2000, I discovered the joys of opinion websites. I couldn’t get enough of them. TheNation.com, NationalReview.com, and and the like all had wonderful arguments about the election and policy and I could not get enough. From there I discovered Spectator.org (right before they totally went down the crapper) and TNR and sites like AndrewSullivan.com (and it was his links to various places that included Instapundit and that got me there the first time).

I visited once in a while but it was no biggie until 9/11. I had to go to work that afternoon and none of the news sites there could handle the load. I was stuck with the net but there wasn’t any news. So I went to instapundit and he updated regularly and linked to people with good insights and when CNN.com and Foxnews.com were down for the forseeable future, Instapundit provided me with something like a link to what was going on when I couldn’t get info anywhere else.

I’ve still got a debt of gratitude towards him for the service he provided on that day.

But, anymore, I just use him as a link page. He gets me to most of the sites I like to read (including this one).

44

pepi 06.13.04 at 7:18 pm

rd – “since you’ve given up on the Constitution”
-An argument I can’t support from anything I’ve read here

Here.

45

fling93 06.13.04 at 8:35 pm

bull: Take it from a conservative, that’s tough – what am I supposed to do now? Vote for John Kerry? I hate John Kerry.

Why not oppose the two-party plurality electoral system? That’s the only thing keeping McCain (or whomever you’d prefer) from running against both Bush and Kerry.

46

Lance Boyle 06.13.04 at 8:37 pm

It all happens at once, sort of. The climate shifts and the oil runs low and the mood-regulating drugs-of-choice in the halls of power have this unnoticed but cumulative side effect that creates an exponential nuance-drift of irrationality in affect and intent.
The descent into madness of a barely conscious group mind.
And all the kids in classrooms broken up into small-groups, debating fiercely within the context laid down by the now-invisible teacher.
The rules are only that you never question the rules.
Cowards will insist that their despicable moves were justified by a threat to their existence. That’s what all this is right? Threats? Threat management? They’re not torturing these unfortunates for excitement and fun. Maybe revenge though. Mostly it’s to win, to accomplish, to become, to guarantee, to control.
Morality was a gloss that expedited economic function. It was within a larger context that was economic, and amoral. We were taught the opposite. It’s really hard to let go of the idea that the economy operates within a moral context. But it’s biological. We bring morality to an already underway debate that’s life and death in its import. The debate is Darwinian survival. The tricky part is the guys who are now running things need moral structure to maintain their power bases, but the communal access to detailed info means their immorality and amorality gets too much light. So the hypocrisy weakens the scam.
Bull has a lot of it pinned:
“…that’s tough – what am I supposed to do now?”
And that unanswered question keeps a lot of people churning the froth of tangential debate.
You’re supposed to vote for Kerry. According to the same invisible guides that brought you here.
Time and Newsweek both ran identical photos of Reagan on the covers of their commemorative issues, with a slight gamma/histogram difference. Time and Newsweek wanted you to support George Bush. Now they want you to support John Kerry.

47

abb1 06.13.04 at 8:40 pm

Aside from the obvious barbarism of all this, there is another little problem.

I noticed that “rd” — unlike some other correspndents here (perhaps less trusting in our fearless leaders) — posted his/her real email address. Now, nothing is easier than spoofing someone’s email address. So, it’s not at all impossible that some nut might use rd’s email as a return address in some “ticking bomb” prank. If the prank looks real enough, then rd would probably be visited by some G-men. Then, if rd fits a profile, s/he may be in for some serious unconventional interrogation: hey, they have to do it – it’s the famous “ticking bomb” scenario. Howboutthat?

48

Dr. Weevil 06.13.04 at 9:11 pm

t.v., zizka, and pepi all seem to be assuming that Volokh is apologizing for being too squeamish to support torturing Iraqi prisoners. As t.v. put it, “In the current political climate, a conservative repeatedly glossing his anti-torture ethical qualms with lines like ‘I’m ashamed of my squeamishness’ constitutes de facto support of torture.”

Reading Volokh in context, it appears to me that that is a gross misrepresentation, and that Volokh is apologizing for being too squeamish to write about torture, which is not at all the same thing. It is not that he would like to support torture but is held back by “anti-torture ethical qualms” but that he would like to examine the question thoroughly and dispassionately and is held back by revulsion from the entire subject.

49

bob mcmanus 06.13.04 at 10:17 pm

Like the cat or fool, I am just a lowly and little-respected commenter who may insult the noble with a commoner’s profound understanding of the whimsical and abitrary nature of power, and a commoner’s acceptance rather than the noble’s responsibility. And so:

Were Al Gore President, Eugene Volokh would be much less squeamish.

50

jdw 06.13.04 at 10:21 pm

_“I say this to all the nuts”_

_That is people who don’t share my incredibly clear, absolutely right view of the world._

Hey, I’m pretty easygoing till you get to the apologies for torturing innocents.

_“since you’ve given up on the Constitution”_

_An argument I can’t support from anything I’ve read here, but saying it gives me a hard on!_

What? Have we excised the “cruel an unusual punishment” thing already? Wouldn’t surprise me.

You say: it’s ok to torture people. Implicitly, you’re ok with torturing innocents, because that’s largely what we’re doing. So where do you draw the line? Would you have a problem if the administration had sought legal advice on how to carry out genocide, or suspend elections?

You’ll say yes, but probably if someone had asked you about torture two years ago you would’ve said that it was ridiculous lefty paranoia. Yet here we are.

So sorry, rd, but I’m kinda thinking you’re a moral nullity. Doesn’t mean you can’t have good taste in music or books or anything, and we could probably be friends. But maybe it would be better if you disqualified yourself from voting until you develop some sort of moral sense.

51

Frank Wilhoit 06.13.04 at 11:49 pm

Prof. Volokh ought to be proud of his squeamishness. After all, it goes by other names: pragmatism is one, decency is another. Pick your synonym.

Now: who on the Right will step up and proclaim their pride in their sadism? And how seriously can they expect to be taken until they do?

52

RD 06.14.04 at 12:26 am

“You say: it’s ok to torture people. Implicitly, you’re ok with torturing innocents, because that’s largely what we’re doing”

I said nothing of the kind, implicit, “largely” or otherwise.

“Would you have a problem if the administration had sought legal advice on how to carry out genocide, or suspend elections?”

I’ll bet it’s already been sought. And is totally irrelevant to this discussion. You’re sprouting argument premises like they were zits. Is this a fillibuster?

“about torture two years ago you would’ve said that it was ridiculous lefty paranoia.”

We have been discussing this, probably for years, and certainly since GITMO. And a little paranoia ain’t never hurt nobody. The “torture” here is the time and effort being spent on a media circus with the sole purpose of electing their candidate. I still believe it’s a view thing.

53

Liberty and Power 06.14.04 at 12:42 am

Some of you have been asking if there are any “reasonable” libertarian voices on Iraq. Well….check out < a href="http://hnn.us/blogs/4.html">Liberty and Power at the History News Network. We have repeatedly and consistently condemned the abuses of power associated with this war (not to mention the war itself!).

54

bob mcmanus 06.14.04 at 12:50 am

“Would you have a problem if the administration had sought legal advice on how to carry out genocide, or suspend elections?” jdw

“I’ll bet it’s already been sought.” …rd

interesting, eh.

55

jdw 06.14.04 at 1:48 am

rd-

I can’t help disapproving of your politics, which are vicious and sociopathic. But you smarmy-twit demeanour is really starting to win me over.

56

Walt Pohl 06.14.04 at 2:08 am

I know there’s no point, but here goes: rd, since all of the legal advice given by those lawyers is completely wrong, they should at the very least be fired for being shitty lawyers.

As a person, I’m basically anti-paranoid. I generally expect today to be like yesterday, and tomorrow to be like today. If someone had told me two years ago that the White House would order Iraqis tortured, I _would_ have dismissed it as lefty paranoia. But now, if a lefty paranoid says “they’re going to cancel the elections”, I have to seriously consider the possibility that they’re right. I would say that the actual chances that they would cancel the election are below 50%, but they _are_ above zero, and that’s too high.

57

julia 06.14.04 at 2:11 am

Where does the belief come from that this particular attack is so uniquely horrible that it justifies forgetting about a century or more of attempts to reduce the inhumanity of warfare?

And do any of the people who hold it realize that, considering our own past history of diplomatic and financial involvement with really ugly people, legitimizing it makes us one of the fattest targets on earth?

58

q 06.14.04 at 2:46 am

rd-
Have you read the memo?
Isn’t the current administration, White House and Pentagon taking the heat at the moment?
Why did they produce a report of torture if they are not intending torturing people?

59

RD 06.14.04 at 2:52 am

“I can’t help disapproving of your politics, which are vicious and sociopathic. But you smarmy-twit demeanour is really starting to win me over.”

Therein lies the point. There is nothing that I’ve written anywhere in our healthy little exchange today that would lead anyone to conclude any of my thoughts “vicious” or “sociopathic”. Irreverent would be the only charge I couldn’t deny. That’s the deal with these “let’s get whipped into a frenzy arguements”. You’re implications build on themselves into this incoherent circle of accusations and phantom enemies. I pretty much have only been commenting
the nature of the argument itself. We left Volokh behind hours ago. And other than getting you to assume things that I’m far from resembling, I don’t think we accomplished much. I’ll accept the smarmy part. But for the twit snit, I don’t think the forest reveals it’s trees.

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Peter Murphy 06.14.04 at 6:30 am

Another conservative/libertarian site against torture (although they also accept views from the left side of the spectrum) is Antiwar.com. The hate the neocons as much as anyone – sometimes because of their Bolshie origin, but more because they like the old-skool idea of the USA as a “republic, not an empire”. Old-fashioned of them and me, perhaps, but it is an idea I have a lot of time for.

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q 06.14.04 at 6:40 am

rd-
Could you explain your reasoning behind your belief that the administration is trustworthy, brave and wise? Do you believe all administrations have these characteristics?
How do these beliefs fit in with
-the resignation of Tenet
-Richard Clarke saying Bush did a terrible job
-the outing of the CIA spy Valerie Plame
-the Chalabi / WMD fiasco
-the involvement of Halliburton
-the oscillation between unilateralism and the UN/NATO
-and the administration of Iraq including Abu Graib?
Why would Rumsfeld want to classify a document which was straight-forward legal advice?

62

Sebastian Holsclaw 06.14.04 at 6:47 am

I know I don’t actually count as an important conservative blogger, but I am a conservative blogger who has written about the topic. And all of my conservative co-bloggers (and liberal ones too) have written about it on ObsidianWings which also has an important non-conservative voice on the topic, Kathrine R.

I also note that abb1 in classic leftist style seems to be openly inciting acts of violence against those with whom he disagrees.

63

q 06.14.04 at 6:57 am

seb-
I think abb1 is making a point about rights by being ironic.
Could you describe what “classic leftist style” is? I don’t think you meant that “”classic leftist style” means being ironic.

64

pepi 06.14.04 at 7:17 am

Dr Weevil: t.v., zizka, and pepi all seem to be assuming that Volokh is apologizing for being too squeamish to support torturing Iraqi prisoners.

Volokh: Does the need to save people’s lives justify torturing suspects? How many lives?… I don’t know the answers… while I have no doubt about the importance of the questions… (…) I know that just because something is sickening doesn’t mean we shouldn’t do it. Sometimes people need to do disgusting things to avoid greater harms.

So which is it? He is taking those “lesser evil” questions – as appear in teh memo itself – as important and serious and legitimate ones. He is sharing the assumption that torture can be said to be justified to avoid a “greater harm” – which is exactly the argument of the memo.

So is he only “too squeamish to write about torture”, or, too squeamish to write about the *torture memos*? Isn’t it the very same result in the end? He is using the word “squeamishness” to explain why he is not willing to enter into a discussion on those documents and what they contain and entail from a legal aspect. Yet, he has made a couple of his assumptions on that issue very clear.

He or anyone else on the planet has every right to do that, as well as ignore the issue completely. Others have an equal right to judge that attitude. Simple as that.

65

pepi 06.14.04 at 7:26 am

rd: We have been discussing this, probably for years, and certainly since GITMO. And a little paranoia ain’t never hurt nobody. The “torture” here is the time and effort being spent on a media circus with the sole purpose of electing their candidate. I still believe it’s a view thing.

Try again, this time after reading the memo, ie. what you’re supposed to be talking about. Normally you talk about something, you know, after learning what it is. If you don’t read it, no wonder you think it’s all paranoia. Though, if you consider elections “torture”, you may need a lot more background reading than that…

66

pepi 06.14.04 at 7:50 am

Sebastian, I read your post on your blog, you seem to be as outraged by this as anyone here, so I have to ask: what then? This policy was drafted in secret and Congress can’t do a thing about it. What happens now? what should happen? why isn’t it happening?

I’m not sure I get why in the end you still ask “how do you know that the Constitutional argument put forth in this memo is wrong?” when you said “no normal reading for the Constitution allows for that interpretation”. It’s an interesting question, though. Let’s posit the argument was “right” in terms of the Constitution and the powers of the President. Shouldn’t it follow that the US has never been a democracy?

I mean, however you look at it, there is no option to ignore the matter as the Bush administration is doing. If the “legal” arguments in the memo are completely wrong, as you acknowledge too, then the administration and Pentagon and Justice department and all who wrote, commissioned, reviewed those documents and put them into practice need to be made accountable for such a gross violation. If on the other hand the arguments were proven to be right, then it has to be made clear that the US is a non-representative monarchy where the executive has absolute power to override any criminal laws and constitutions, and it must withdraw its membership from all international laws, conventions and treaties this memo is declaring inapplicable or completely subordinate to the sole authority of the President.

Or am I being _too_ literal?

67

RD 06.14.04 at 10:46 am

I’ll do my best Crash Davis impersonation. We’ll do them one or two at a time. You can look at like dissecting a conservative frog. Maybe we can set a comment record…

“Do you believe all administrations have these characteristics?”

Yes. You’ve got to believe in something. The system is flawed, that’s what makes it unique. But the participants, for all their quirks are good Americans trying to make the best decisions the can for such a diverse collection of constituents.

Stay tuned.

68

RD 06.14.04 at 10:49 am

Tenet’s a good soldier who did some wonderful things with a huge bureaucracy through a time where we were more concerned about protecting ourselves from the CIA than allowing it to do it’s business. The timing of his departure was all politics, but good politics. (To not accept “politics” is to wish for a world devoid of humans)

69

RD 06.14.04 at 10:53 am

“Richard Clarke saying Bush did a terrible job”

This is a bit too revealing of you, q. Clarkes views reek of sulking snobbishness. And he’s been proven wrong too much to have credibility.

70

pepi 06.14.04 at 11:44 am

rd – “You’ve got to believe in something. The system is flawed, that’s what makes it unique. But the participants, for all their quirks are good Americans trying to make the best decisions the can for such a diverse collection of constituents.”

Awww. Your patriotism is so touching. Quirks, indeed! You’re so right. Everybody’s whining about stupid irrelevant things that do not detract from the glory and beauty of the grand scheme of things. After all, what’s granting totalitarian powers to a President other than a quirk? He won’t turn into Pinochet just because we are giving him the full right to do so. He’s not a Chilean US-sponsored thug after all, he’s a good American. He will always be using his absolute powers wisely and for the common good. Torture and contempt of Congress and Constitution are nothing serious, just an all too human flaw that contributes to make the American system so worthy of exporting. So customer-friendly too. Millions of people are buying it already!

71

RD 06.14.04 at 12:07 pm

“-the outing of the CIA spy Valerie Plame”

No clue. Let’s argue this one later.

“-the Chalabi / WMD fiasco”

Fiasco? Chalabi we’ll call “untidy”. Using and being used by such characters serve purposes. Would I rather we lived in a world where these situations didn’t exist? Sure. Will I? Probably not. Lose sleep? Nope.

WMD’s? Stay tuned, impatient young activist type person. They’re there.

72

RD 06.14.04 at 12:19 pm

More for you, q.

“-the involvement of Halliburton”

The way I understand it, there are only about three companies in the universe with the resourses capable of dealing with such intricate global challenges. Given they were already contracted for such matters with the Clinton administration, it only made sense to continue the relationship. Simply a prudent business decision.

“-the oscillation between unilateralism and the UN/NATO”

We’re not oscillating. We just keep giving them opportunities to join in wherever they can. Just good international manners.

” -and the administration of Iraq including Abu Graib?”

I don’t like what happened at Abu Graib. Very poor performance by the commander of the prison. Some of the soldiers on duty shouldn’t have been there. The military needs better back ground checking. And I think the intelligence officers played the situation like a banjo. But I’m also not happy with how the main stream press played the situation. They missed the earlier reports but jumped on the “art” and drug our country through the mud. No one is right here. Besides, it gives you an argument, and I hate that. Life’s hard enough without tossing an easy one to the gallery.

73

RD 06.14.04 at 12:31 pm

Last shot for q

“Why would Rumsfeld want to classify a document which was straight-forward legal advice?”

I have no idea. One delemna is that if we had the money spent on copying documents for everyone that wants one, there would be no hunger anywhere and all health care would be free. Cheap shot, I know.

As much as we want full and open disclosure in our “free” society, many tough, uncomfortable questions have to be asked that require bold, extensive, uncomfortable answers. You’ve seen how people respond with a camera on them. It’s not real and it’s not always honest. And by honest I mean, strong, meaningful answers.

I don’t know the answers to your questions, and have no doubt that mistakes are made and wrong is done. q, the group you associate yourself with, whatever it’s intentions, are also necessary. Will people tend to make more “right” decisions with both of us in the world. I think so. You’ve got to believe in something.

Respond more if you want. I’m sure ol Crooked Timber here as had enough of me. I’ll back off unless you take something completely wrong from what I intended. g’day.

74

RD 06.14.04 at 12:35 pm

And pepi, ol buddy. Keep honking! Not everything’s as right as I hope it can be and not everything’s as wrong as you want to believe. Vote, write letters to the editor, blog away, participate and see your neurologist twice a year. Be cool!

75

Keith M Ellis 06.14.04 at 1:07 pm

This is par for the course for Volokh. I generally have a lot of respect for him; but aside from gay marriage, he almost invariably finds a convenient reason like this one to avoid blogging about politically infelicitous subjects that everyone else is blogging about. I’d like to think he doesn’t do this consciously. I wonder if he’s mistaking his squeamishness at confronting his own intellectual inconsistency for the squeamishness at confronting the rationalization of brutality. Or is it the same thing? Might be. All the more reason for him to look away, look away.

76

pepi 06.14.04 at 2:17 pm

Keith: well another one of the Volohk site writers seem to be doing more than looking away – more like squaring the circle, by arguing the petition against Yoo is “an attack on academic freedom”, no less!, because Prof Yoo wrote a ‘defensible’ argument, his critics have all the right to critcise (how generous!) but they cannot hold him responsible for what he actually said in advice to the administration on what to do about torture (ie. use it with impunity). Marvellous sense of priorities isn’t it? The anti-democratic people are the protesters, not the torture advocates.

77

q 06.14.04 at 4:03 pm

_“Do you believe all administrations have these characteristics?” Yes. You’ve got to believe in something. The system is flawed, that’s what makes it unique. But the participants, for all their quirks are good Americans trying to make the best decisions the can for such a diverse collection of constituents._

rd-
Even if you believe all the administrations have these characteristics (trustworthy, brave and wise), it seems unlikely they will all score the same. What CRITERIA do you use to rate whether one administration is better than the other?

(btw you have not yet answered the questions about the memo.)

78

Sniffy McNickles 06.14.04 at 4:14 pm

bull: Take it from a conservative, that’s tough – what am I supposed to do now? Vote for John Kerry? I hate John Kerry.

Well, I suppose you have to weigh whatever factors about JK makes you hate him against the harm you percieve in supporting torturers.

I’m not a JK fan, either, but I know who I have to support.

79

RD 06.14.04 at 4:56 pm

q. “What CRITERIA do you use to rate whether one administration is better than the other?”

By height.

q. “rd-
Have you read the memo?
Isn’t the current administration, White House and Pentagon taking the heat at the moment?
Why did they produce a report of torture if they are not intending torturing people?”

Read?, as in word for word. No. Attention deficit syndrome. I figured out the concept early on. (Probably a compensation from attention deficit syndrom) Yes, they are taking heat. Flip answer – because they know I would be disappointed in them. Real answer, not all Americans agree that we would rather accept large losses of American lives on American soil rather than mistreat one captured terrorist. And you may rightfully dispair about where we draw the line. Great moral debate, quite worthy of this country’s attention at all levels of humanity. So what is torture? Taking a sobriety test? Sleep deprevation? Forced grotesque behavior? Physical harm? Where do you start? About a thorough, no holds barred legal brief covering every option. Does that mean that just because an arguement can be made that through twists and turns of legal precedent nothing is “legally” prohibitive? Of course not. What goes on in between is well worth the debate and could have far ranging impact on the future of our country.

80

bellatrys 06.14.04 at 5:04 pm

Huh, how about, if that something sickening and disgusting also happens to be illegal?

–pepi, it’s simple: you just change the laws!

81

random commenter 06.14.04 at 5:12 pm

Usually we get some smart, thoughtful commentary and debate on CT. Not this time, sadly. Worked my way through all 80-something comments, and most of it was wasted space.

The sophomore-level tripe from rd was a real time-waster. Thought he might actually provide some insight on the way the right views the torture controversy. Instead, the conversation only ended up in “Nyah Nyah, I know you are but what am I” type school yard crap.

Go play in your sandbox, rd, and quit wasting bandwith with your drivel. Trivializing the state-sanctioned torture of people under our own government’s oversight is not funny, nor is your rendering of the subject.

TWIT.

82

q 06.14.04 at 5:15 pm

_Question: “What CRITERIA do you use to rate whether one administration is better than the other?”_
_Answer: By height._

rd-
What do you mean? Can you provide a more specific and detailed answer to the question, or are you opting out of answering the question by trying to be funny?

83

agm 06.15.04 at 12:41 am

Hmmm, interesting how people are now required to blog about whatever the current topic is, no matter how comfortable they are about doing so, how firm (or soft) their views, or any of a number of different reasons they might have for not saying something. It is really poor treatment talk about Volokh as if he (tacitly) approves of torture unless at least one person here has proof of it, which no one here has so far presented evidence of. All we have is a lot of arguing over Volokh’s decision not to post about the torture memos; can any one here say that he has not talked with people, or written letters to his representatives, or spoken out on campus, or even decided upon a position on, either for or against, the argument in the memos?

One’s blog entries are NOT communal property, even if IA commenters tended to feel otherwise about the comment threads, because the blogger is expressing him/herself. Whatever he feels about the memos, he doesn’t owe anyone an apology for choosing not to comment on them in his blog.

84

bob mcmanus 06.15.04 at 1:51 am

agm:nice defense. Point taken

85

Kieran Healy 06.15.04 at 2:01 am

Hmmm, interesting how people are now required to blog about whatever the current topic is, no matter how comfortable they are about doing so, how firm (or soft) their views, or any of a number of different reasons they might have for not saying something. … Whatever he feels about the memos, he doesn’t owe anyone an apology for choosing not to comment on them in his blog.

I guess we’re at that point in the thread where the content of the original post has been forgotten. A reminder:

At the end of the day, Eugene doesn’t have to write about anything he doesn’t want to. He doesn’t have to take the trouble to publicly explain his decisions, either. But I can’t help feeling disappointed that we’re not going to hear from him … The right blogosphere has been a bit quiet about this issue in general, though again I acknowledge that people are free to choose their own topics, especially when it comes to blogs run as hobbies.

86

jdw 06.15.04 at 3:04 am

Their silence is rather deafening.

87

Zizka 06.15.04 at 3:46 am

A pleasant afternoon listening to rd talking to himself.

Any very stupid person will find it extremely gratifying to control the agenda of a lot of smart but excessively polite people. The ignorant slut must be absolutely giddy with delight by now.

88

agm 06.15.04 at 5:16 am

Mr. Healy, touche =). I also would like to know Volokh’s opinions on the matter, but alas it is not to be. At least I now feel in good company to be “thinking Kieran’s thoughts after him” (pardon the paraphrase).

89

pepi 06.15.04 at 8:31 am

agm: that’s all very well and of course anyone can write about anything, or not. And anyone has a right to comment on that, too. No one is forcing anybody, right?

You forget thought that this not just someone avoiding the topic altogether. He is not going to go into detailed discussion, but he is nonetheless writing about it. The quote at the top, the whole post, are about torture, and the memos.

And I don’t think it’s that wild to comment on the view that “sometimes people need to do disgusting things to avoid greater harms”, or on a question assuming there is a possible choice between “torture” and “saving lives” – just because the author says he’s really to squeamish to argue about it, doesn’t mean he hasn’t given a couple of clear indicators he’s thinking in terms of “lesser evil” choices, therefore, not really dismissing torture altogether.

It’s not even hypothetical scenarios anymore, since the memos have been published already and they do contain those very assumptions.

Now I couldn’t care less what Volokh writes about or not, I don’t read his website. But it’s interesting his reaction seems so widespread. Indifference, or unwillingness to delve into it. It’s not because the topic is so horrible, it’s because it calls into question everything about political power and decisions and the nature of this democracy we’re supposed to be exporting and the moral authority that’s been invoked to do so. And especially for anyone who supported the entire Bush anti-terrorism policy and the Iraq “strategy”, it requires either too much self-criticism, OR the honesty to acknowledge they’re inded sharing those same “lesser evil” mentality to justify even torture – and that’s what the squeamishness is about.

90

Jon H 06.15.04 at 1:03 pm

The way I see it, torture should remain illegal.

Should circumstances come up where torture is considered the only way to prevent [bad thing] from happening, then let the justifiability be dealt with in trial and sentencing of the torturer.

If torturing someone leads to information that halts the nuking of New York, I’m sure that would be taken into account, resulting in a reduced or suspended sentence, or even acquittal.

It’s a way of flipping the usual hypothetical situations on their head. It’s usually “is torture justified to save a life? 10 lives? 1 million?”

Instead, consider: “Would you spend life in prison for torture if it saved 1 life? 10 lives? 1 million?”

Seems to me if the threat is so bad as to justify the one, then it should justify the other as well.

On the other hand, if 100 randomly selected Muslims were also tortured, and those people had no information, the torturers should not be treated lightly.

That should be incentive to not torture unless you’re damn sure the person has the information needed.

91

RD 06.15.04 at 5:31 pm

“Any very stupid person will find it extremely gratifying to control the agenda of a lot of smart but excessively polite people. The ignorant slut must be absolutely giddy with delight by now.”

Dear polite person, I may be an ignorant slut, but I haven’t been real giddy lately.

I accept the validity of the debate as to what extent Americans might accept pursuading violent prisoners to provide potential lifesaving information. Should they be granted the same rights as an American citizen accused of malfeasance, or is the another level reserved for those who would murder innocent women and children. What is acceptable – q.? pepi? I can see why Volokh hasn’t come out of the closet yet. What does John Kerry propose? Is it as simple as the Golden Rule? Can these terrorists be negotiated with? Are we wrong about the threat? Is it uncomfortable that as a nation, we portend to abhor such behavior, yet so many Americans willingly exhibit the same behavior in prisons at home and abroad. Go ahead and elect your candidate, life will go on. But if you’re going to debate this issue, do it honestly. This can’t be just about Volokh or Bush. These issue were prevelant in the previous administration. Remember, this country has hundreds of thousands of twits like me. Give us good choices and you might accomplish something.

92

Thorley Winston 06.15.04 at 11:11 pm

Zizka wrote:

Libertarians who fail to realize this are pornographic and entirely without redeeming social value, absolutely worthless for any human purpose, and they should be mercifully put to sleep. Remember, we’re talking about people who are thrown into a rage by the very idea of the unconstitutional Smithsonian Institute and the unconstitutional National Acadamy of the Arts.

And who would these individuals be exactly?

93

Thorley Winston 06.15.04 at 11:13 pm

Dr. Weevil wrote:

Reading Volokh in context, it appears to me that that is a gross misrepresentation, and that Volokh is apologizing for being too squeamish to write about torture, which is not at all the same thing. It is not that he would like to support torture but is held back by “anti-torture ethical qualms” but that he would like to examine the question thoroughly and dispassionately and is held back by revulsion from the entire subject.

Quite correct which is no doubt why those who wanted to do a “why aren’t conservative bloggers talking about this” theme decided to take his comments out of context in order to get a version that fit more closely with the story they were trying to create.

94

q 06.16.04 at 4:07 am

_Question: “What CRITERIA do you use to rate whether one administration is better than the other?”_
_Answer: By height._

rd-
What do you mean? Can you provide a more specific and detailed answer to the question, or are you opting out of answering the question by trying to be funny?

95

RD 06.16.04 at 7:11 pm

Great comeback from “Caddyshack”. I couldn’t resist. Sometimes I just crack myself up.

96

Anon 06.16.04 at 9:39 pm

I was curious about Instapundit.

This is what he had to say about torture:

“STEVE STURM says that I’m wrong to oppose torture, and compares me to Mike Dukakis.

UPDATE: At least he didn’t subject me to an animated cartoon caricature, as this long, and actually rather thoughtful post (with many disturbing photos) does to Alan Dershowitz.”

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