Torture, Schmorture

by Henry on April 28, 2009

I used to put Clive Crook in my ‘disagree with him on mostly everything but basically a decent-sounding and reasonable guy’ box, but not any longer. This piece on how (a) we shouldn’t do waterboarding on pragmatic grounds, but (b) it isn’t really torture, is reprehensible.

It is worth noting that the methods in question were adopted from the training US soldiers undergo to resist interrogation. This underlines the fact that using these methods lowers the US to the level of its enemies. But it also suggests that distinctions may be made between waterboarding and, say, breaking on the rack. Unsurprisingly, US soldiers are not subjected to that technique as part of their training. Journalists and YouTube video-makers have undergone waterboarding, the better to pronounce it torture. None that I know of has volunteered to be flayed, or have his fingers crushed. … The drive for prosecutions is a furiously partisan project. The Democratic left is plainly out for revenge more than for justice – and Mr Obama is wavering in the face of their rage. Already, little hope remains of a bipartisan approach to the myriad problems that confront his administration. If the president fails to get a grip on this new controversy, the prospect of any such co-operation will be nil.

First off – if prosecuting torturers makes bipartisanship more difficult, then tough shit for bipartisanship. The prospect for actual bipartisan consensus between people who think that torture is a good thing, and people who think that torture is fundamentally abhorrent is obviously rather limited. Crook’s preferred approach of ‘mistakes were made’ is effective capitulation to the pro-torture side. Obviously, torture shouldn’t be a partisan issue, but that it is tells us an awful lot about the shape that the Republican party is in today. Second, his guff about how no journalists or Youtubers have volunteered to be flayed or have their fingers crushed seems to me to be actively disingenuous. According to the Bradbury memo, Khalid Sheikh Mohammed was waterboarded 183 times in March 2003. If there are any journalists or Youtubers lining up to be waterboarded 183 times in a month, I haven’t heard about it. Which suggests (if I’m wrong, and if Clive Crook really believes that what happened to Mohammed was no great sweat, wasn’t really torture etc) that there is a gap in the torture-porn punditry market that Mr. Crook himself can fill, by himself volunteering to be waterboarded 183 times so as to demonstrate that it isn’t really torture, has no lasting effects &c&c. To fit this in with his doubtlessly busy schedule, I’d be prepared to spot him a few ameliorations – perhaps he could do this over a three month period, not be subjected to stress positions, nasty cramped cells or other forms of abuse. And perhaps he could even live-blog the experience for the Financial Times or the National Journal (or, if he wants to go a bit downmarket, do it for reality TV - I’ve no doubt that there would be an audience).

Update: Clive Crook responds to critics, including me.

Let me reprise some of the main points from my column on torture prosecutions:

(a) Possibly, torture can succeed in extracting vital information.
(b) On balance, however, torture does not make the US safer.
(c) In any event, it is shameful and wrong.
(d) Waterboarding is torture in the ordinary meaning of the word.
(e) Notwithstanding (d), the law is not as clear as it should be on whether waterboarding as practised during the Bush administration is torture under the law.
(f) Congress could and should have outlawed waterboarding explicitly already. It should do so now.
(g) Because of (e), and because the issue is so acutely divisive in the US, prosecutions under the existing law may serve neither the cause of justice nor the public interest.

Most of the non-abusive emails I have received about this rightly concentrate on (e). They say that domestic and international law on this is perfectly clear. They point out that the US has prosecuted foreigners and its own citizens for waterboarding in the past. A few have referred me to this much-cited paper by Evan Wallach, which I was familiar with before writing the column and which is well worth reading. The author also had a column in the Washington Post summarising his argument.

I acknowledge that I am not well qualified to judge this issue. I am not a lawyer, but I have wrestled with the law on it enough to know that it is far from simple and a matter of dispute among lawyers. As now seems to be mandatory on this and other issues, positions are stated with false certainty and with unyielding moral absolutism. It is necessary to read everything sceptically.

The earlier cases do not prove that waterboarding as practised during the Bush administration was illegal, only that waterboarding carried out in certain ways and under certain circumstances has been successfully prosecuted. The designers of the policy knew the law and manoeuvred—absurdly and offensively, perhaps, but they would not be the first lawyers to stoop to that—to stay within it. As for whether, regardless of domestic law, the international Convention Against Torture mandates prosecution, you have to understand the distinction between treaties that become the law of the land in and of themselves, and treaties that the US adopts, and in effect modifies, with a law of its own. The Convention Against Torture is of this second type. Arguably, therefore, relevant parts of the CAT are not enforceable in US courts.

Incidentally, there is further disagreement over whether the US government has discretion not to prosecute, even if it takes the view that a law has been broken. Some constitutional lawyers say it does not. The administration’s promise not to prosecute interrogators implies that it thinks either the law was not broken, or else that it does have discretion not to prosecute.

If prosecutions were brought, could one count on getting convictions? Because of the deliberate imprecision of current law, the defence has a case to make, and a jury, reminded of what was at stake in the aftermath of 9/11, might be inclined to listen to it sympathetically. So one at least needs to ask, what would be gained by prosecuting these crimes and seeing the defendants acquitted? Surely this would undermine rather than affirm a US commitment never to use these methods. And I think the same goes for the suggestion being made that culprits up to and including George W. Bush should be prosecuted and if found guilty pardoned. I admit, when I first read that I thought, “Only in America”. We stand on the principle that torture is a crime and will be prosecuted without fear or favour to the fullest extent of the law (with pardons to follow). How’s that for a clear message? But at least the rule of law has been upheld, you might reply. Well, as I have mentioned, the rule of law will also be upheld, according to one school of thought, if the Attorney General exercises his discretion not to prosecute.

As this leader in the FT notes, what matters most here is not to put George W. Bush and his team in jail, or to try them and then pardon them. It is to guard against such measures being used again. That is a political as much as a legal project—it requires the building of a moral consensus, the changing of many American hearts of minds—and in my view it is best advanced not by prosecutions but by the “look forward” approach Obama first said he wanted to follow.

One last thing. I wanted to draw attention to a blogpost attacking my column by Henry Farrell at Crooked Timber. He says: “This piece on how (a) we shouldn’t do waterboarding on pragmatic grounds but (b) it isn’t really torture, is reprehensible.” This remark is abusive, of course, but that is business as usual. What makes it interesting in a professional scholar and writer on a leading blog is its remarkable incompetence—or, perhaps, its total lack of good faith. I ask you to read the column, or review my summary of it above, and ask yourself how any fair-minded intelligent person could distil my position to those two points.

The name Crooked Timber is I imagine homage of a sort to Kant, who coined the phrase, which is worth thinking about—”Out of the crooked timber of humanity, no straight thing was ever made”—and perhaps also to Isaiah Berlin, the great liberal philosopher, who famously referred to it, and whom I count among my intellectual heroes. Berlin’s hallmarks were open-mindedness, tolerance, civility and loathing of absolutism. Professor Farrell, I’d say you’re flattering yourself just a little.

If, as Crook says here, he did not mean to suggest that waterboarding isn’t torture (and I don’t doubt his word), then I clearly owe him an apology. And here it is. I had taken him to be arguing that waterboarding was opprobrious but not torture in the same sense as crushing of fingers or other methods of torture causing lasting bodily harm, along the lines of the administration memos which made more or less that argument. It would seem that all he was saying was that there was a colourable legal argument to this effect. Obviously, I misread him. I still think that his claim that the desire to prosecute torturers is driven by partisans looking for revenge is manifestly wrong, but that is an entirely separate issue from my basic misreading which he (entirely justifiably) took offence at. My bad, and I’m very sorry for it.

Update 2: see here for a lengthier response.

{ 109 comments }

1

David 04.28.09 at 6:51 pm

I am opposed to torture, as I am opposed to the death penalty, even for Republicans (and their media apologists and enablers).

2

Martin Bento 04.28.09 at 6:52 pm

It seems pretty clear that the rack and finger crushing cause permanent physical damage and that is why they are not part of training. But that does not mean waterboarding is not torture; it means it is not maiming, which is good, as far as it goes, but is not the question at hand. I think few would dispute that electricity applied to the genitals is torture; it’s probably what many of us think of as the ultimate in torture. Evidently, though, the Khmers tried that first and then escalated to waterboarding if it did not work. It took me a moment to figure this out: direct application of pain will generate lots of endorphins, and therefore quickly lose effectiveness. After awhile, you’re getting the guy high more than anything else. The body’s defense mechanism against suffocation, though, is to escalate, rather than suppress, the urgency. It’s the gift that keeps on giving.

3

Bloix 04.28.09 at 6:54 pm

It’s Obama’s fault that Republicans vote against him. Bipartisanship means doing what the right-wing wants. The problems Obama faces confront “the administration,” not the country. Furious, rage, revenge. This is Sadly, No territory, not Crooked Timber material.

4

Righteous Bubba 04.28.09 at 6:57 pm

5

Daniel 04.28.09 at 7:10 pm

I think few would dispute that electricity applied to the genitals is torture; it’s probably what many of us think of as the ultimate in torture.

and journalists have tried it out on themselves and I wouldn’t be surprised to discover that some soldiers experienced it in training. The trouble with being one of these half-clever contrarian types is that you desperately need the extremely rigorous editorial process of the Economist to stop you from just saying something jack-ass stupid (I select the insult carefully; I seem to remember that the cast of “Jackass” tasered themselves in the nuts a few times).

6

andthenyoufall 04.28.09 at 7:23 pm

Bubba, don’t you see – those were a few bad apples.

7

Rich Puchalsky 04.28.09 at 7:58 pm

“‘disagree with him on mostly everything but basically a decent-sounding and reasonable guy’ box”

There is no such box. There is only your desire that there be such a box, so that you can avoid the realization that all U.S. conservatives that have remained conservative through the Bush years are evil. Not evil in a funny ha-ha kind of way — but actually evil. Defending torture, war, and murder evil.

8

David 04.28.09 at 8:02 pm

A bit depressing and makes it harder to carry on some conversations, but I gotta agree with Rich. It’s past time we stopped avoiding even calling a spade a spade and called it the fucking shovel it is.

9

Mike C 04.28.09 at 8:40 pm

The difference between the waterboarding prisoners received and what these journalists are doing is about the same as the difference between being flayed alive and having someone cut you once with a knife. Yeah, it’s not pleasant, but stick a band-aid on it, and in a couple days you won’t even be able to tell anything happened.

10

Danielle Day 04.28.09 at 8:42 pm

Aside from the fact that doing physical harm to obtain information is ignoble, unlawful, and ineffective (see the Army Field Manual), the biggest proponents of physical force are physical cowards. Dick Cheney, for example, took a pass on military service and the concomitant mild physical discomfort associated with basic training. What a sad, unsavory lot.

11

christian h. 04.28.09 at 9:41 pm

There is of course a huge difference between a journalist having a torture technique applied to himself knowing it’s coming and it’s going to stop, and a prisoner over whom the jailer has total power being subjected to it involuntarily.

12

P O'Neill 04.28.09 at 11:22 pm

I think you’re not being 100% fair to Crook. I read the paragraphs around the one you excerpt as him arguing that it’s not clear that waterboarding is illegal under US law, and thus that there are risks in pursuing a legalistic strategy against it.

Paragraph before — Not so fast. Common sense may tell you waterboarding is torture, but the law is less clear-cut. Congress should make waterboarding a crime, for the reasons I have stated, and it has had many chances before and since 9/11 to do so. The fact is, it has chosen not to. Some of those in Congress now calling for prosecutions, including Nancy Pelosi, speaker of the House, were briefed about these methods in the panic-stricken aftermath of 9/11 and offered no objection.

Paragraph before ellipsis– So far as moral and tactical justification goes, this can be set aside. Waterboarding is shameful, and one may leave it at that. To repeat, Mr Obama was right to forswear its use and that of other brutal measures. But the law does not set these points aside. If the lawyers who worked on the memos can show a court that they worked in good faith, under extreme pressure, to design methods that fell short of torture – in its legal, not commonsense, meaning – they would be innocent of knowingly shielding illegality. They have a strong case. What would acquittals mean for US standing in the world? Those calling for prosecutions do not appear to have considered this possibility. They ought to.

13

Barry 04.28.09 at 11:32 pm

P O’Neill, CC is lying. As has been reported in many places, waterboarding was prosecuted by the US in war crimes trials as torture.

What CC is doing is trying to weasel out of ‘torture’, by insisting on each and every technique of torture must be specified in advance. Now, if he ever does that for assault, battery, fraud, murder, etc., I’ll file him under ‘stupid’, but until then it’s just additional dishonesty.

14

Daniel 04.28.09 at 11:40 pm

If the lawyers who worked on the memos can show a court that they worked in good faith, under extreme pressure, to design methods that fell short of torture – in its legal, not commonsense, meaning – they would be innocent of knowingly shielding illegality.

and if my disreputable Uncle Adolf could show a court that in good faith he believed himself to be 15 years old, female and a member of the cheerleading squad, he would have a decent defence against a charge of gross indecency behind the cricket pavilion. In the real world …

15

P O'Neill 04.29.09 at 12:56 am

Not saying I agree with him, just trying to figure out what his argument is.

16

giotto 04.29.09 at 2:09 am

P O’Neill, CC is lying. As has been reported in many places, waterboarding was prosecuted by the US in war crimes trials as torture.

It has also been prosecuted domestically, by the Reagan administration, a bunch not known for its overly ambitious commitment to human rights and the rule of law.

17

anon/portly 04.29.09 at 3:58 am

[Crook’s piece says] (a) we shouldn’t do waterboarding on pragmatic grounds, but (b) it isn’t really torture

I think Crook is saying closer to the opposite. He thinks but waterboarding/torture “might sometimes work,” but is shameful and not justifiable.

His real argument is that waterboarding will fall in a legal gray area, making acquittals likely. He may be wrong about this, but I sure wouldn’t want to bet my life on it, based on the arguments presented here. That waterboarding = torture, I believe, but I don’t see why this fact is fatal for his argument. Nor do I see why being wrong about this is a moral failing.

18

Righteous Bubba 04.29.09 at 4:06 am

His real argument is that waterboarding will fall in a legal gray area, making acquittals likely.

It hasn’t when people have been prosecuted for it before.

19

Anatoly 04.29.09 at 7:10 am

I used to have lingering doubts about whether waterboarding constituted torture. They went away after I read this description.

20

dave 04.29.09 at 7:39 am

banned commenter

21

Michael Turner 04.29.09 at 12:11 pm

It hasn’t when people have been prosecuted for it before.

Yes, but — those people, who were convicted for torturing other people who are described in recent reporting as “not model citizens”, were nevertheless torturing citizens. Intuitively, of course, human rights are human rights, they transcend nationality, they apply to all people. And that’s why I’m personally outraged by waterboarding. Legally, however–well, there wouldn’t be legal “gray areas” in the first place if intuition were some infallible guide to legality.

Such recognitions are abusable, of course. For example, intuitively, it shouldn’t have mattered where a facility like Guantanamo’s enemy combatant detainee center was located. If you violate enemy combatant detainee rights, you’re violating human rights. Period. Legally, however, Guantanamo was chosen as a matter of preferring legal gray areas — it was not thought to be under any national domestic legal jurisdiction recognized by the U.S. (including its own domestic jurisdiction.)

When I came to understand the legal thinking that guided the choice of Guantanamo as a site, I had the sickening realization: things would get very bad. And they did. Abu Ghraib outraged me, but it didn’t surprise me very much.

I also realized that these people were probably smart enough to game out the worst outcomes for any of several options they cobbled up for executive legal guidance on torture issues, and to choose the plan in which the the worst outcome, for any of them personally, would be living down the appearance of having comported themselves incompetently in a legal gray area. (After some grilling before Congress, of course. But a few stiff drinks in a toney club where you can count on some comforting backslaps is the best medicine for that.)

So the best we might hope for is a crisis of conscience from Bybee, Bradbury or Yoo (or some former confidante of theirs). You shouldn’t hold your breath waiting for any such eventuality, though, especially if you’re tied down and water is trickling into your nasal passages at the same time. These aren’t Ollie North drama queens; these are lawyers, they are process people. Of course, I’m in favor investigations, even prosecutions. But the proceedings will be water torture if acquittals are inevitable, and they might actually be inevitable under current law.

That’s not to say I have no problem with Clive Crook’s stance. It’s not new, though. It’s been on display before. I think he sees his moral responsibility as that of being a propagandist for liberalism–and damn the truth, if he thinks truth gets in the way of The Program.

Remember when Crook went after Paul Krugman? Krugman had posted a reasonable-enough analysis suggesting that, if we couldn’t achieve adequate international coordination on economic rescue, protectionism was the second-best strategy. It was obvious that Krugman thought international coordination was better. It’s about equally obvious that, all other things being equal, Krugman is a free-trader. But by even suggesting that protectionism might be the best fallback option in certain predicaments, Krugman became a traitor in Crook’s eyes. It was like, “After all our hard work convincing the public of the simple virtues of free trade, you go and undermine us with your cleverness and complications!” This is how a propagandist thinks.

Similarly, Crook sees prosecuting the torturers as politically too risky for the Obama administration. I have to admit, he could be right. The American public is still pretty divided (and confused) about the legitimacy of torture, and the GOP might slot a nice wedge or two in that division, might land a few solid punches in the fog of moral confusion. From polling conducted less than a week ago, Americans (77%) consider waterboarding torture, but less than a majority (46%) think torture is off-limits, 55% consider “harsh interrogation” justified in the case of terrorism suspects, only a slim majority (51%) favor even investigating the interrogations that have already been done. Pew polling from mid-April shows only 25% of those given a range of options, starting with “often justified” and ending in “never justified”, saying that the use of torture against terrorism suspects is never justified.

If you’re hoping for a popular anti-torture mandate, to really crystallize it in America you might have to settle for some pro forma “forgiveness”, some “Dumbed-Down Truth and Reconciliation Lite”. It might even mean Nancy Pelosi confessing, “I should have spoken out at the time, but I didn’t, and I’m sorry.” Just sayin’.

22

Rich Puchalsky 04.29.09 at 12:45 pm

“Similarly, Crook sees prosecuting the torturers as politically too risky for the Obama administration. I have to admit, he could be right. “

Oh, please. You do realize that this argument makes a mockery of justice, don’t you? What’s next: if a celebrity kills somebody, don’t prosecute because he’s popular? Or perhaps we should just go back to lynch mobs. That way only the really unpopular criminals will get it.

23

JoB 04.29.09 at 12:50 pm

If you add a clause whereby people can pay their way out of a lynch mob it’s perfect! – only the really impopular poor criminals will get it.

24

Michael Turner 04.29.09 at 1:36 pm

You do realize that this argument makes a mockery of justice, don’t you?

Of course I don’t realize that, Rich. I’m far too stupid.

Here’s some more stupidity for you: I agreed with John Rawls that the firebombings of Japanese cities in WW II (culminating in Hiroshima and Nagasaki) were war crimes. However, given that these attacks on civilians were legitimized to the American public for so long, that they were sold as necessary to bring the war to an end, I would oppose prosecuting anyone still living who was complicit in those war crimes, and would settle instead for a simple national admission of wrongdoing and an apology to the Japanese people. This soft-pedaling of genocidal aerial assaults on civilian populations would also be a “mockery of justice” (by whatever deep reasoning you’re employing here, I assume; I find it unfathomable), and could trigger a reversion to mob-rule barbarism in America (again, I only assume, by reasoning of yours so deep I can’t quite follow it). But I’m so incredibly stupid that I believe quite the opposite.

25

Righteous Bubba 04.29.09 at 2:04 pm

Abu Ghraib outraged me, but it didn’t surprise me very much.

People are in jail for that.

26

Rich Puchalsky 04.29.09 at 2:29 pm

Cool, Michael Turner, I don’t think that I’ve ever seen the War on Terrorism justified with respect to WW II so classily. As RB points out, I also admire your counterfactual assertions which no doubt only coincidentally would excuse higher-ups from the same things that soldiers are currently imprisoned for.

Here’s another weird, incomprehensible (by you) statement about justice: mercy isn’t yours to give. That’s why we have trials. You can opine about what you think should be done all you want, but when there is strong evidence that someone has committed a serious crime, they get put on trial. Excusing them for political reasons is pretty much the definition of injustice.

27

JM 04.29.09 at 2:35 pm

So, the author changes the subject to other forms of torture (medieval ones, which involve grievous bodily injury), then creates a sort of secondary strawman:

The drive for prosecutions is a furiously partisan project. The Democratic left is plainly out for revenge more than for justice – and Mr Obama is wavering in the face of their rage.

Changes the subject. Puts words in people’s mouths. This idiot couldn’t argue his way out of a wet paper bag. Even if every single advocate of investigation and trial had the worst of political intentions, that could not mitigate the crimes we already know about. So even if we give dumbass his dumbass argument, it’s still pointless.

Once again, there are no intelligent arguments on the other side. We’ve been seeing a lot of that lately.

28

JM 04.29.09 at 2:39 pm

However, given that these attacks on civilians were legitimized to the American public for so long, that they were sold as necessary to bring the war to an end, I would oppose prosecuting anyone still living who was complicit in those war crimes

… a prosecutor would also probably pass on prosecuting anyone still living who was complicit in those war crimes, since the distribution of wartime production and civilian populations were intertwined in the Empire of Japan in a way that they were not in the European theater of WWII.

It’s in the latter case that you could probably find prosecutable cases. Firebombing Dresden to frighten the Soviets would be hard to justify in a court of law, if you ever managed to take it there. Then again, there are all those genocides no one has apologized for. I’m still waiting for the Mongolians to stop being so glib about all the blood on their hands.

29

JM 04.29.09 at 2:43 pm

Some of those in Congress now calling for prosecutions, including Nancy Pelosi, speaker of the House, were briefed about these methods in the panic-stricken aftermath of 9/11 and offered no objection.

And here the author is repeating the official talking points. The problem with this “argument,” if we have to call it that, is that the briefings were of the official WH line at the time: that what was going on was all perfectly legal, and that the US ‘does not torture.’

I don’t know if Crook is trying to spread the blame around or if he just cuts and pastes from rightwing American sites. Come to think of it, I don’t care.

30

Michael Turner 04.29.09 at 3:30 pm

. . . . your counterfactual assertions which no doubt only coincidentally would excuse higher-ups from the same things that soldiers are currently imprisoned for.

That’s odd, because if anything, I’m much more in favor of pardons or amnesties for the soldiers than for the higher-ups, since the higher-ups obviously bear greater responsibility for creating the conditions (or even passively neglecting conditions, in environments historically conducive to detainee abuse) under which those soldiers committed their crimes. Then again, I’ve already admitted to being incredibly stupid, so please don’t bother telling me how you arrive at this “no doubt” conclusion of yours about what anything I said entails, since I couldn’t follow such deep reasoning no matter how hard I tried.

when there is strong evidence that someone has committed a serious crime, they get put on trial.

Actually, when the evidence is strong, the far more usual route is a plea bargain. It’s when the evidence is weak that you’re likely to get a trial.

Excusing them for political reasons is pretty much the definition of injustice.

I don’t propose excusing anyone. I do propose something more like clemency for those willing to own up to wrongdoing. And the prospect of clemency is more likely to lead to some owning-up. It’s also likely to make those segments of the American public sympathetic to claims for the legitimacy of torture in certain circumstances (large segments, as I’ve pointed out) more amenable to reason on the subject.

No, mercy is not mine to give. But I’m not disposing mercy. I’m only dispensing opinions. Everyone’s entitled to an opinion, even an opinion as incredibly stupid as mine.

JM: The problem with this “argument,” if we have to call it that, is that the briefings were of the official WH line at the time: that what was going on was all perfectly legal, and that the US ‘does not torture.’

My dim brain struggles. Let me make sure of your position here, JM: To us, it is plainly obvious (or very easy to work out) that waterboarding was torture and therefore illegal. But for Nancy Pelosi et al., even with the benefit of considerably greater detail received in briefings, and operating under the onus of representing wise leadership on difficult issues, moreover in the legislative branch and therefore responsible for making law in the first place, and perhaps even more important, ostensibly independent of (actually, with a sacred trust to provide a check on) the Executive branch, well . . . it was somehow different for them. What is obvious to us needn’t have been obvious to them. They could, in good conscience, just shut their brains down, not train their sense of right and wrong on what they were hearing and seeing, and could be thoroughly innocent of any concerns about legality or wrongdoing. And simply because the White House (held by the opposing party, in Pelosi’s case) was saying it was all cool, perfectly legal, there was nothing to worry about?

Is that what you meant?

If so, please tell me you were being sarcastic.

31

Michael Turner 04.29.09 at 3:38 pm

I don’t think that I’ve ever seen the War on Terrorism justified with respect to WW II so classily.

Just wondering: is there anyone else here who actually read what I wrote who thinks that I’m “justifying” the War on Terror, or the use of torture? I think the War on Terror is ridiculous, and I think torture is wrong. And I think waterboarding is torture. Is there anyone else here who read what I wrote and actually doubted I held those positions?

32

Donald Johnson 04.29.09 at 4:19 pm

“Just wondering: is there anyone else here who actually read what I wrote who thinks that I’m “justifying” the War on Terror, or the use of torture? I think the War on Terror is ridiculous, and I think torture is wrong. And I think waterboarding is torture. Is there anyone else here who read what I wrote and actually doubted I held those positions?”

Not me. I think Rich is being a jerk. Though I’m more on his side in wanting prosecutions, even though I have this sick suspicion that you might be right about the outcome.

But no worries. The chances of Bush/Cheney/Rumsfeld being prosecuted are somewhere between slim and none (unless it happens overseas).

Further out on the left, Arthur Silber (I’m too lazy to link) argues that prosecutions will just increase the level of American exceptionalism, and he might be right about that, in the same way that some people think the half-baked investigations of Iran/Contra showed that “the system worked”. Still, I’m of the opinion that anything that David Brooks, David Broder, Tom Friedman and Barack Obama all oppose is probably something worth doing.

33

Righteous Bubba 04.29.09 at 4:35 pm

Just wondering: is there anyone else here who actually read what I wrote who thinks that I’m “justifying” the War on Terror, or the use of torture?

No. But I think the question of what to do has been answered once by the torturers themselves, which is to prosecute.

34

Rich Puchalsky 04.29.09 at 4:44 pm

Sure, I think that you’re justifying it after the fact. What matters is what you advocate, not why you say you’re advocating it. You can think the War on Terror is ridiculous, that waterboarding is torture and is wrong — and if I’m defining deviancy down I guess I’m supposed to congratulate you for that — but if that translates to something like the torturers were just like WW II bomber vets, and that we shouldn’t bring them to trial, then I really don’t see what good those beliefs of yours do.

35

JM 04.29.09 at 5:06 pm

JM: To us, it is plainly obvious (or very easy to work out) that waterboarding was torture and therefore illegal.

In case you hadn’t noticed, it is not “plainly obvious.” Not even close. It is still being debated, publicly. Another example was Sean Hannity’s recent offer to be waterboarded. The position of much of the American right is still that this is not torture. The WH continued to say for years after that the US “does not torture.” So it’s no use manufacturing an anachronism in which the growing conventional wisdom in 2009 that waterboarding IS torture was somehow a part of briefings held in 2002 or 2003 by people who were at pains to show that it WAS NOT. If you can’t tell the difference between representations at one time and another, or between one faction and another, shut up.

It might have occurred to you to consider the parallel experience of opposition leaders who made the mistake of taking the WH’s case for WMD in Iraq seriously, going to far as to quote it. This, too, has been used to spread the blame around for supporting the war in Iraq in an identical form of propaganda, practiced by the same group of people.

If the purpose of the communication is to deceive, it’s hard to use it to spread culpability after the fact.

36

Righteous Bubba 04.29.09 at 5:12 pm

In case you hadn’t noticed, it is not “plainly obvious.” Not even close.

It’s plainly obvious.

37

JM 04.29.09 at 5:15 pm

Yes, RB, it’s plainly obvious to me, and it’s plainly obvious to you, and it may even be plainly obvious to people who are arguing that it isn’t plainly obvious, but I can’t read their minds. So, saying that it’s plainly obvious when it’s still being debated (perhaps in bad faith), doesn’t really tell us anything.

Saying that it’s been torture before and here are some examples tells us a lot. It’s a shame that the example from the Reagan administration is only coming out now, and even then only in the blogsphere. Newt Gingrich’s dis-honest speech on climate change, in which he used a decade-old study of the wrong legislation, even that took two or three days.

[insert famous quote about the Truth trying to get its shoes on here]

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Righteous Bubba 04.29.09 at 5:23 pm

What tells us something is that the government that knew it was torturing prosecuted soldiers for prisoner abuse. If that isn’t a blinking neon “COME GET US” sign I don’t know what is.

39

Righteous Bubba 04.29.09 at 5:24 pm

Punctuation enhanced: What tells us something is that the government – that knew it was torturing – prosecuted soldiers for prisoner abuse.

40

JM 04.29.09 at 5:33 pm

What tells us something is that the government that knew it was torturing prosecuted soldiers for prisoner abuse

Looking at the list of courts-martial, nonjudicial, and administrative punishment for that incident, there is no reference to torture. How neat and clean!

But it all fit neatly with their ‘bad apples’ compartmentalization of culpability after Abu Ghraib, allowing the president to say as late as 2007 that the US “does not torture.”

41

Righteous Bubba 04.29.09 at 5:34 pm

Looking at the list of courts-martial, nonjudicial, and administrative punishment for that incident, there is no reference to torture. How neat and clean!

There is a chutzpah-enhanced reference to the Geneva Conventions.

42

JM 04.29.09 at 5:40 pm

RB, I think that you and I can both applaud this.

IIRC, Spain has extradition arrangements with much/all of Latin America, and of course the same within the EU.

43

Righteous Bubba 04.29.09 at 5:43 pm

Indeed, and thanks.

44

E.T. 04.29.09 at 5:44 pm

People have been paying a little too close attention to waterboarding and forgetting that that wasn’t the only thing done to these detainees. Clive Crook and his ilk may distract people by saying “but it isn’t clear whether waterboarding is torture or not”; however they tend to stay mum or conveniently not mention the use of “walling” (slamming people against walls), exposure to extreme heat and cold, and the myriad of stress positions these guys were subjected to. While they might not be using the rack, they certainly did use specially designed harnesses to throw people against walls. I’d like to see the defense of these techniques and that one detainee from Bagram Air Force Base mentioned in the ICRC report really did suffer from a “spontaneous brain stem compression”.

45

Henri Vieuxtemps 04.29.09 at 5:45 pm

This whole story with the memos, ‘unitary executive’ theory, congress briefings, media creating a controversy where there is none – this all seems to indicate a massive institutional failure. Compare to the possibility that the system will keep reproducing the same results, punishing individuals seems like a minor concern.

46

Jeffrey Lamkin 04.29.09 at 6:06 pm

I love the assertion that, since it MIGHT work, occasionally, we need to entertain the possibility of actually using torture.

Hogwash. For every time it works, there are many fold more wild goose chases we get sent on; it spreads like wildfire until irrational abuse becomes the norm rather than the carefully crafted exception. Finally, and most importantly, it forces us to cede the high ground and lose the battle for hearts and minds, where terrorists are most surely defeated.

Mr. Crook, how about a careful cost benefit analysis of torture. That should fit in nicely with your line of work….

47

james 04.29.09 at 6:06 pm

Michael Turner raising a throny question. Is the standards being applied now, the same as the standards applied then. The standard for Cruel and Unuasal has changed over the last 200 years. The firebombing of Dresden may or may not have been defined as a war crime at the time it was committed(bombing of cities was common proctice during WWII). Sleep deprivation was not considered torture when the US was “arresting” Noriega in Panama. Is this an example of the evolving standards catching up with the previous administration? It is likely that the case law is form the 80’s.

On a side note. Insulting someones religion is a constitutional right in the US. The rest of the world may not currently see it that way. To bad.

48

Katherine 04.29.09 at 6:11 pm

What is entirely missing from any of these discussions is international law. That binds nations. All of them. Including America. Shocking I know.

49

Barry 04.29.09 at 6:25 pm

JM, just because people are willing to lie about something, doesn’t mean that their lies are true.

50

Henry 04.29.09 at 6:27 pm

P O’Neill – I read Crook as saying that it is bad behaviour, but not torture, and certainly not on a par with flaying, finger crushing and other things that have long term adverse consequences. Since the evidence that repeated waterboarding has had long term consequences (creating psychological cripples) is strong to the point of being nearly overwhelming, I think that he is being disingenuous. And as for the claims that the people who want to see prosecutions are motivated by revenge rather than by justice …

I actually think there is a plausible pragmatic case against torture prosecutions, as made by Tyler Cowen, Ezra Klein etc. The opinion survey evidence suggests that a majority of Americans may indeed favor torturing suspected terrorists and it could be that a resolution of whatever legal ambiguities there are would end up going in the wrong direction. But that doesn’t seem to me to be the case that Crook is making here – rather, he is saying that waterboarding is bad because it hurts America’s international reputation and self-image, but that it isn’t so bad that it should be allowed to get in the way of a bit of good, solid, bipartisanship. Crook has promised a reply to critics on his blog (from his use of the word ‘reprehensible’, I suspect, but don’t know, that I am one of the critics who he is responding to). We’ll see what he says.

51

Barry 04.29.09 at 7:19 pm

“…I think that he is being disingenuous. “

When one is being disingenuous in support of torture, one has no valid complaint against being called evil, pure and simple. Henry, you’re letting yourself be confused by two things – first, somebody being cute, slippery and deniable in the support of evil is just as evil as somebody who’s being straightforward in their support of evil. Second, just because you know him and like him doesn’t mean that much. He’s not inviting you over for a session of puppy burning or child molestation, he’s doing the far more common thing of working to support and enable evil policies which will hurt people neither of you know about, in locations neither of you will visit.

52

someguy 04.29.09 at 9:03 pm

Henry,

Through out the article he makes it clear that he considers water boarding a brutal practice, that fits the common sense definition of torture, and it should be outlawed even if it is sometimes narrowly effective at getting results. His fear is that these tactics do not fit the legal definition and that a trial might result in acquittals that further tarnish the US and legitimize such practices.

Could you please explain how that position is reprehensible. If you cannot, could you please apologize?

“So far as moral and tactical justification goes, this can be set aside. Waterboarding is shameful, and one may leave it at that. To repeat, Mr Obama was right to forswear its use and that of other brutal measures. But the law does not set these points aside. If the lawyers who worked on the memos can show a court that they worked in good faith, under extreme pressure, to design methods that fell short of torture – in its legal, not commonsense, meaning – they would be innocent of knowingly shielding illegality. They have a strong case.

What would acquittals mean for US standing in the world? Those calling for prosecutions do not appear to have considered this possibility. They ought to. “

53

Righteous Bubba 04.29.09 at 9:16 pm

Someguy should note that The drive for prosecutions is a furiously partisan project. The Democratic left is plainly out for revenge more than for justice – and Mr Obama is wavering in the face of their rage deserves a hearty “fuck you”.

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someguy 04.29.09 at 9:23 pm

Henry,

‘P O’Neill – I read Crook as saying that it is bad behaviour, but not torture, and certainly not on a par with flaying, finger crushing and other things that have long term adverse consequences. Since the evidence that repeated waterboarding has had long term consequences (creating psychological cripples) is strong to the point of being nearly overwhelming, I think that he is being disingenuous. And as for the claims that the people who want to see prosecutions are motivated by revenge rather than by justice …”

Try reading it again -

Clive says ->

“Not so fast. Common sense may tell you waterboarding is torture, but the law is less clear-cut.”

“So far as moral and tactical justification goes, this can be set aside. Waterboarding is shameful, and one may leave it at that. To repeat, Mr Obama was right to forswear its use and that of other brutal measures. But the law does not set these points aside.”

“The Bush administration’s more honest critics accept that possibility, but argue that it does not justify these brutal methods. They are right. The damage that practices such as waterboarding do to US standing in the world, their power as a recruiting aid for terrorists, and – to my mind, most important of all – the harm they do to the country’s idea of itself as a force for good outweigh any plausible benefits. Methods that shame the nation are both wrong and counter-productive even if they can claim a measure of success in the narrower sense.”

Over and over again he makes the point that waterboarding is wrong and shameful that Obama was right to end such practices.

But do they fit the legal definition of torture as would flaying or having your fingers crushed?

His worry is that answer might not be so clear.

As for ->

“The drive for prosecutions is a furiously partisan project. The Democratic left is plainly out for revenge more than for justice – and Mr Obama is wavering in the face of their rage. “

That was poorly worded but to some degree accurate and besides the point. Just human nature. But what matters isn’t if some tiny part or most of the Democratic left is out for revenge instead of justice but if prosecution would result in justice.

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Righteous Bubba 04.29.09 at 9:34 pm

But do they fit the legal definition of torture as would flaying or having your fingers crushed?

As I read Henry, obviously, as there is damage.

56

Tom Hurka 04.29.09 at 10:30 pm

What someguy and others have said: almost the main point in Crook’s piece is that the legal question about waterboarding is different from the moral question, so waterboarding’s being morally wrong (as Crook agrees it is) doesn’t imply that it’s legally prohibited under current U.S. law. (I guess he doesn’t assume that current U.S. law is morally perfect — how strange!) His conclusion is that in the case of prosecutions, acquittals a) might be legally correct (even if morally abhorrent) and b) would have bad consequences. I’m not in a position to judge his legal claim, but I don’t see any moral defence of waterboarding in his piece — on the contrary, he say the law *should* prohibit waterboarding but only doesn’t because Congress (Nancy Pelosi and co.) wrongly failed to make it do so.

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Hortense 04.29.09 at 10:41 pm

The opinion survey evidence suggests that a majority of Americans may indeed favor torturing suspected terrorists and it could be that a resolution of whatever legal ambiguities there are would end up going in the wrong direction

Here’s the thing about opinion: it changes over time, sometimes rapidly. Just look at the whole gay marriage rights issue. As “the majority of Americans” learn more about this, they may well come to realize that sanctioning torture is diving headlong into the abyss (never mind a mere look-see).

That’s what CT is for. Blog harder!

58

Donald Johnson 04.29.09 at 10:48 pm

I haven’t read Crook’s piece, but presumably we’ll find out for sure if he’s evil or not when he responds to his critics.

59

Rich Puchalsky 04.30.09 at 12:12 am

Gah. The US is signatory to treaties against torture. Treaties have the force of law, in the U.S., at least to some degree (I am not a lawyer). One reason the Bush administration would not just say “We authorize you to torture by doing x,y,z” instead of “We authorize you to do acts x,y,z — which are not torture” is that by so doing, it would be admitting to a crime. You can’t just say that “waterboarding is shameful” and leave it at that. It’s a crime.

Now there are any number of people, including some who profess to oppose torture, who want to excuse this crime for one reason or another. They profess to be worried about the state of America’s political health. Or that Americans, once they confronted with a choice to convict a few torturers or to embrace torture, will embrace torture. I think those people are nearly as bad as the straightforward torture apologists. The torture apologist at least thinks that it’s right. The excuser — assuming that they are sincere — is letting fear deter them from doing what they think is right. A highly nebulous and uncertain fear, too — the fear that Americans, if given a choice, will make the wrong choice.

Let them choose. If the scum win, and approve of torture, at least the rest of the world will be warned that America is firmly in the declining-empire stage, and that other countries are going to have to save civilization.

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Righteous Bubba 04.30.09 at 12:45 am

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Walt 04.30.09 at 1:18 am

This is absurd. Is waterboarding torture? Is “torture” even a crime listed in US statutes? For the purposes of American law, whether or not waterboarding counts as torture is scarcely relevant. Waterboarding is a crime. If you don’t believe me, try waterboarding your neighbor against his will and see how the cops react. The right has all kinds of novel legal theories on why the perpetrators of this crime should not be convicted. We have a place where we judge the validity of novel legal theories. It’s called a “court of law”. If we are going to maintain the rule of law in this country, then the torturers must be put on trial. It is not for Presidents or pundits to decide their innocence.

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Deja Vu 04.30.09 at 2:30 am

“The earlier cases do not prove that waterboarding as practised during the Bush administration was illegal, only that waterboarding carried out in certain ways and under certain circumstances has been successfully prosecuted.”

Mr. Crook says he’s not a lawyer, but he sure sounds like one …

63

Michael Turner 04.30.09 at 3:31 am

JM writes: Yes, RB, it’s plainly obvious to me, and it’s plainly obvious to you, and it may even be plainly obvious to people who are arguing that it isn’t plainly obvious, but I can’t read their minds. So, saying that it’s plainly obvious when it’s still being debated (perhaps in bad faith), doesn’t really tell us anything.

But JM, I prefaced my “plainly obvious” with “To us.” So why did you then go and treat me like I’m some idiot who doesn’t realize that it’s not obvious to other people? (Yes, you did, @ 35.) Moreover, why do it on the same thread where people are upbraiding me for citing poll results showing in quite some detail it’s not obvious to other people?

Oh, wait, I understand: it’s because my opinions are incredibly stupid. So if I actually write something you happen to agree with, you can just skip right past that part–it’s plainly obvious to you that it must be just one long typo, or that some monkeys grabbed my keyboard and accidentally made sense. Sorry, I forget so easily. It goes with the territory of having incredibly stupid opinions, I suppose.

Walt writes: Waterboarding is a crime. If you don’t believe me, try waterboarding your neighbor against his will and see how the cops react.

Yes. Just as locking someone in a cell for most of the day and night, letting him out only to make him do laundry or farm work, for a pittance at best, is a crime. If you don’t believe me, try doing that to your neighbor against his will and see how the cops react.

Oh, wait, sorry: we do put people in cells and make them work for a tiny fraction of minimum wage, when due process of law requires it. Cops are even instrumental to the process. How did I forget this?

So, it might actually be the case that (as a child might say, one who held incredibly stupid opinions like mine) the real problem is that waterboarding–and torture generally–is wrong, and if the law provides for due process in this case (or leaves it a gray area somehow), the problem is also very much with the law, which should be fixed. Of course, it may be obvious to me that waterboarding is torture, and that torture is illegal. However, I am not a lawyer. I’m just someone with naive–nay, incredibly stupid–views.

And that’s hardly the end of my naive views. Besides thinking some things really are just plain wrong, law or no, I believe that one should try to right those wrongs in ways that don’t tend to cause even more wrong. And that among the bad ways of trying to right a wrong, in a democracy, one might count acting vindictively in ways that provoke the electorate to react so as to try to vindicate the original wrong. I believe it’s better instead to act in ways more likely to make the electorate see the moral error of their opinions, even when it’s at the cost of letting the original perpetrators get off relatively lightly.

And there you can see it, finally, the poisonously radioactive, glowingly sinister, terrifying core of my stupidity: I believe that what people in a democracy believe (right or wrong) actually matters, that it should actually be taken into account, with a view toward the improvement of democracy generally. But then, what do you expect of someone with a room-temperature IQ like mine (and I’m not talking degrees Kelvin here)?

Rich: If the scum win, and approve of torture, at least the rest of the world will be warned that America is firmly in the declining-empire stage, and that other countries are going to have to save civilization.

But Rich, if I’m not mistaken about who you mean by “scum” (and “win”), the “scum” already did “win”. The people, their elected representatives in Congress, the erstwhile President and his cabinet, and even (tacitly, for a while) the judiciary, already did approve torture. Starting way back in 2002. But now, it seems, somehow, things are swinging the other direction? Despite this approval being irrevocable? Despite this decline being inevitable?

Did I miss something here? If I did, it would be no surprise. I am, after all, notorious for my incredible stupidity.

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Righteous Bubba 04.30.09 at 3:35 am

So, it might actually be the case that (as a child might say, one who held incredibly stupid opinions like mine) the real problem is that waterboarding—and torture generally—is wrong

Why?

The child is the key here: I own one of these and apparently I can discipline her in various ways if she does bad things.

Will I be arrested if I waterboard her for not picking up her toys? If so, why?

65

Walt 04.30.09 at 3:35 am

I was going to address that argument preemptively, Michael, but I didn’t think anyone would actually be dumb enough to make it. This must be a proud moment for you.

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Rich Puchalsky 04.30.09 at 4:13 am

“And that among the bad ways of trying to right a wrong, in a democracy, one might count acting vindictively in ways that provoke the electorate to react so as to try to vindicate the original wrong.”

Michael and Clive are basically in full agreement here, as best as I can make out. Waterboarding is torture, but don’t spook the voters! They have to be handled very carefully, where “carefully” means “don’t actually bring torturers to trial”. On this theory, people will be willing to say that torture is wrong as long as no people who actually commit torture are ever punished for it. Because of course no laws will ever be solid enough. We have laws against torture now, but Clive argues that because just maybe they aren’t tight enough, we might not get a conviction. It will always be thus. Torture will always be of unsympathetic foreigners, there will always be scum who are in favor of it, there will always be some way in which just possibly they might try a legal defense, and there will always be people like Michael whose supposed disapproval of torture will not prevent them from disapproving any attempt to do anything about it.

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Righteous Bubba 04.30.09 at 4:16 am

Waterboarding is torture, but don’t spook the voters!

I’ll bet there’s an even higher disapproval rate for “letting someone off on a technicality” yet somehow the courthouses aren’t burning down when the law is properly applied.

68

Michael Turner 04.30.09 at 4:20 am

Still unburying myself from under fast-drying troll-snot:

JM writes: It might have occurred to you to consider the parallel experience of opposition leaders who made the mistake of taking the WH’s case for WMD in Iraq seriously, going to far as to quote it. This, too, has been used to spread the blame around for supporting the war in Iraq in an identical form of propaganda, practiced by the same group of people.

Could you please identify this “same group of people” for me? I’ve heard criticisms and excuses along these lines left, right and center. Maybe some of it is disingenuous, but a lot of it is not. Maybe some of it is intended to excuse liars and schemers, but a lot of it is not. There are ways of “spreading the blame around” designed to make the blame-blanket seem vanishingly thin. As far as I’m concerned, it’s the same thick layer of crap no matter how much you spread it.

I was furious when Dem leadership went along with the march to war against Iraq, because I could see their self-serving calculations: on the one hand, the longer they dragged out opposition, the more the Bush administration could question their patriotism. On the other hand, if they went along, either BushCo would be proved wrong (good for the Dems, who could say “We were misled by those dastardly Republicans”), or (however unlikely) WMD would be found post-invasion and they could say they were patriots who didn’t stand in the way of protecting America from terrorists. They took the easy way out.

I would say that the supposed “liberal media” actually faced a very similar moral hazard: they could report without fear or favor, truly investigate, but only at the cost of having their patriotism questioned. Or they could chose to be seen as patriotically supportive, until the debacle they supported went sour, in which case they would have even more to report on — wars and high level political scandals are always very good business for them.

Bizarrely, within what C. Wright Mills would still today call the Power Elite, it fell to mostly to people like (moderate Republican) James Baker and (moderate Democrat?) Gen. Eric Shinseki to sound the alarm about what a stupid idea it would be to invade Iraq. You know, wishy-washy middle-of-the-roaders, who felt it was their patriotic duty to look at things objectively and think about them rationally? I guess that’s not an effort we should expect of people who need to sell advertising space in their newspapers, or who want to get re-elected.

But all this is water under the bridge, as far as I’m concerned. In an ideal world, there would be a war crimes tribunal, and in all likelihood people like Bush, Rumsfeld, Cheney, etc. would go down. (Like most Americans, I think they largely fabricated the WMD/al-Qaeda “links” case for invading Iraq. Unlike most Americans, I think they should be prosecuted for it.) This is the real world, and if, in this real world, a black guy with a weird name can almost come out of nowhere and wrest the Dem nomination from an heir-apparent like Hillary Clinton, succeeding in part by repeating over and over that he opposed the march to war when Hillary fell into line with it, and if this same guy can then go on to win the election against a war-hero senior senator, well . . . I’ll settle for that. Life is short, and that’ll have to be vengeance enough. Then again, I am notoriously stupid.

69

Walt 04.30.09 at 4:26 am

The difference between you and us, Michael, is that while you’re complaining on the sidelines we’re going to bring about that ideal world.

70

Michael Turner 04.30.09 at 4:58 am

Rich Puchalsky, determined to make up my mind for me, writes:

[Clive Crook and Michael Turner agree that the voters] have to be handled very carefully, where “carefully” means “don’t actually bring torturers to trial”.

Actually, I don’t see where I’ve said no torturers would be brought to trial. One thing I might suggest however (if anyone were so stupid as to ask anyone as stupid as I am) would be to hold hearings in which people who actually did the torturing would be offered immunity in exchange for testimony. After all, if what they did was illegal, but they were led by the administration to believe it was legal, they are plausibly victims too, in an important (and possibly legally actionable) sense: they were ordered “under the color of law” to commit acts known to be damaging to the average person’s mental health. They might themselves have a legal case against their bosses. The real perpetrators of concern would still be those who ordered any legal fabrications as convenient, and those who executed the fabrications knowing full well (if one could establish such) that they were engaged in fabrication.

On this theory, people will be willing to say that torture is wrong as long as no people who actually commit torture are ever punished for it.

Well, I hope the above dissuades you from thinking that I take such a simplistic view. That is, if you could follow it. It may be that I’m far too stupid to write anything very clear on this subject.

Because of course no laws will ever be solid enough.

I don’t see why they couldn’t be. (If they aren’t already, and not being a lawyer, I wouldn’t know.)

We have laws against torture now, but Clive argues that because just maybe they aren’t tight enough, we might not get a conviction. It will always be thus.

Not necessarily. I confess I don’t understand the pretzel logic behind “we don’t torture, we never tortured, and we promise we’ll never torture again”. But somebody who does understand it might be able to say whether the pretzel was braided around law, or in defiance of it.

Torture will always be of unsympathetic foreigners

Not necessarily. As I understand it, (unofficial) torture is still pretty common in U.S. prisons, and if clarification of the law has a chilling effect on that phenomenon, I’m all in favor it.

there will always be scum who are in favor of it

For the record: if what you meant was “favor it in certain extreme circumstances, as with uncooperative terrorism suspects,” I think you just called a few members of my family scum. Don’t worry, I’m not taking it personally. After all, by the same measure, you just called most Americans scum.

there will always be some way in which just possibly they might try a legal defense

An excellent argument for co-opting some of them where it would be useful to hack at the real root of the problem, as I sketch above in suggesting immunity for some of those involved.

and there will always be people like Michael whose supposed disapproval of torture will not prevent them from disapproving any attempt to do anything about it.

It should be clear to anyone who is carefully reading what I write here that I don’t disapprove of all attempts to do anything about it. What is this, only the 15th (or is it the 19th) attempt to put words in my mouth, Rich? Have you no shame? Or is it just . . . reading comprehension problems? Oh, wait, no: your IE browser is scrambling my comments with someone else’s over at Free Republic, right?

Wait a sec: My “supposed” disapproval of torture, Rich? You’re accusing me of arguing in bad faith here? Oh. OK. Just wondering now: have you gone and fucked yourself lately? I think you’re overdue. In the post-coital mood, you might be inclined to treat my idiotic opinions a little more charitably.

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Michael Turner 04.30.09 at 5:42 am

The difference between you and us, Michael, is that while you’re complaining on the sidelines we’re going to bring about that ideal world.

You will? Promise? OK, then, I’ll take two of today’s special, hot off the griddle, and a side order of Solidarity with the Proletariat (well-done, please, I’m a little paranoid about salmonella).

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Walt 04.30.09 at 6:29 am

I do promise, but I don’t take orders.

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Michael Turner 04.30.09 at 7:13 am

JM, second-guessing none other than John Rawls (a veteran of the Pacific theater of WW II, by the way), writes:

. . . a prosecutor would also probably pass on prosecuting anyone still living who was complicit in those war crimes, since the distribution of wartime production and civilian populations were intertwined in the Empire of Japan in a way that they were not in the European theater of WWII.

Victim A: dead Japanese toddler, 3rd degree burns over most of her body, whose crime was that she just happened to live in the same neighborhood as a guy running a corner machine shop, where he was pounding out rivets used in kamikaze fighter planes. Or maybe she didn’t live nearby — such fine targeting distinctions were beyond the resolution of bombardier sites. And maybe the guy running the machine shop didn’t have any other way to feed his family at that point.

The tindery wooden-building cores of some 60 Japanese cities were firebombed, and JM says it’s on the reasoning that Japan’s state of industrial development in the 1940s was significantly at craft level, therefore killing civilians indiscriminately was the only way to hit Japan far enough back in its its military/industrial supply chain? Gee, as I remember it, Curtis LeMay said only something like, We have no choice but to keep killing them until they surrender. At least he was an honest mass murderer.

Victim B: waterboarded 9/11 co-conspirator, PTSD symptoms from waterboarding.

Who to prosecute, given a choice between the victimizers of Victim A or Victim B? The waterboarders, of course! Definitely not the WW II bombardiers. No. That one is off limits.

I’m struggling to make sense of such priorities, but I am notoriously stupid. When people bring up the fact that Japanese soldiers were prosecuted for war crimes because they waterboarded Allied POWs, nobody mentions the fact that no American airmen have been prosecuted for roasting Japanese babies alive. Victor’s justice isn’t exactly an impeccable source of fair precedent, so I tend to ignore this particular precedent for prosecuting waterboarders.

74

Martin Wisse 04.30.09 at 8:07 am


If, as Crook says here, he did not mean to suggest that waterboarding isn’t torture (and I don’t doubt his word), then I clearly owe him an apology.

On the risk that you were actually being sarcastic, that Crook says now he didn’t mean to say waterboarding wasn’t torture doesn’t change what he originally said, which was that waterboarding wasn’t torture, or there wouldn’t have been all that business about flayed fingers and stuff. Classic distraction tactic that.

You got him to swallow his words: attack harder.

75

JoB 04.30.09 at 9:01 am

Michael, for the fun of it I was reading some of the ‘dialogue’ here and you really shouldn’t be so upset. From time to time you will get these ad hominem’s from people righteous and moralizing enough to waterboard you with innuendo and bad language. You may feel like suffocating – and consequently feel like you just ‘have’ to lash out – that’s how this goes, we’re only human. Count your blessings; the ganging up on you is rather limited in this specific thread …

I understand that you are (like I) against torture; that you (as I) think waterboarding is torture; that you (as I) would prefer torture to be clearly illegal; that you (as I) don’t know for sure that’s going to stand up in court for Guantanamo waterboarders & that you (as I) would be very happy if the people that didn’t actually waterboard but that did authorize it got the stick first.

I probably have less understanding for some of your family (although I also was a fan of ’24’) in kinda believing some torture might sometimes be unavoidable for the greater good. But I really can see where they’re coming from which is why I do believe here that the actual waterboarders should be prosecuted as well. During the trial it will emerge that it takes some bloody sociopath instinct to be able to do that and that there’s little pity to be felt for those sociopaths selected in there because the bosses knew that they were part of an utterly small minority that can perform such acts (an utterly small minority that unlike the suggestion of ’24’ has no overlap with some other even smaller minority of heroes).

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JoB 04.30.09 at 9:02 am

Ah yes, for completeness, I think your parallel to WWII is a little bit ludicrous.

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Michael Turner 04.30.09 at 10:42 am

Isn’t it funny that Martin Wisse chooses not to quote Clive Crook directly? Crook said

Common sense may tell you waterboarding is torture, but the law is less clear-cut.

In other words, our moral intuitions about waterboarding are correct; and if the law is “less clear-cut” than common sense on this issue, it would be the law that’s at fault, not common sense. Underscoring that he believes the law was at fault is Crook’s very next sentence:

Congress should make waterboarding a crime, for the reasons I have stated . . .

Now, maybe Crook’s wrong in thinking that waterboarding might not be a crime after all, but in any case it’s clear that what Martin Wisse just claimed here,

[Clive Crook] originally said […] that waterboarding wasn’t torture . . .

is simply not true.

After pointing out that torture as a general category of crime might admit of reasonable distinctions in severity, considering that some have volunteered to be waterboarded the better to attest that it’s truly torture, while none have volunteered to be maimed, Crook opens his very next paragraph with “So far as moral and tactical justification goes, this can be set aside.” Call the comparisons of different degrees or kinds of torture a “distraction” if you want, but clearly, when even Crook immediately admits it’s a distraction, it’s awfully hard to make the red-herring charge stick.

Now, I have to say that I think Crook really ought to do a better job with direct quotes himself. For example, try as I might, I can’t find where Obama actually “implied, at least, that the same [policy of immunity] would go for the lawyers and other officials who had designed the earlier policy,” as Crook claims in his column of April 29th. For that matter, I don’t think preventing their prosecutions is within Obama’s power. If it’s not, I’m sure he must know that, and therefore must know better than to even imply any such thing, much less promise it.

Admittedly, Obama’s April 16th statement is a marvel of equivocation, and Rahm Emanuel’s later botching of the position taken in that statement is another sort of marvel. But for all its equivocation, the statement never says that those who framed the legal rationale for torture would be exempt from prosecution. Here’s what it does say:

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.

That’s it. Period. Which is to say, if that legal advice was not formulated in good faith, and a given CIA officer knew that fact through his contacts with DoJ, and he went into a waterboarding session with that knowledge, and tortured a prisoner, he’s not covered under the above “promise” (as Crook would have it), which is in any case expressed only as an “intention”, for the very likely reason the Obama administration probably can’t credibly promise any CIA officer involved in those interrogations that they won’t be subject to prosecution. Actually, quite the contrary, it seems — if you look at the press release from DoJ on the same day, you see that DoJ is actually promising to help with the defense and even (“[t]o the extent permissible under federal law”) with financial support, for any government employees covered by Obama’s above “intention”. Which could be everybody who actually tortured anyone. Or nobody. Those dice are still rolling, and perhaps with a little more time for “reflection” rather than going impatiently straight to “retribution”, we’ll see much more justice in the end.

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Michael Turner 04.30.09 at 11:01 am

JoB: During the trial it will emerge that it takes some bloody sociopath instinct to be able to do that . . .

If we part company anywhere, JoB, it’s here. Maybe I missed the CIA-internal recruiting poster that said “We’re looking for a few bad apples”, but I think the capacity for this sort of cruelty–especially under the multiple validations of legal sanction, organizational loyalty, patriotism and plain old vengefulness for seeing one’s fellow citizens ruthlessly slaughtered in a terror attack–would come quite easily to a very large proportion of the population. I don’t think I’m necessarily better than those people. Maybe I just took a different path in life. And maybe that’s all that really separates you from them, for that matter. A dead certainty that you’re not at all like them, well, that might be the first step toward thinking it’s OK to torture someone because they have some rare “bloody sociopath instinct” that could make them a terrorist.

As I like to say, the beginning of corruption is the belief it can’t happen to you.

Ah yes, for completeness, I think your parallel to WWII is a little bit ludicrous.

Quite naturally. I write from a different perspective–specifically, the third floor of this building, which burned to the ground during the Tokyo firebombing. It was right on the fringes of the conflagration, which extended for miles. It is difficult for me to pass old women in their 90s in the streets of Tokyo (quite a few of them here) without wondering–how do they see me? As a man who, being white, is related in some way to other men who incinerated family members and friends? All I can say for sure is, we don’t talk.

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Rich Puchalsky 04.30.09 at 12:10 pm

“I think you just called a few members of my family scum. Don’t worry, I’m not taking it personally. After all, by the same measure, you just called most Americans scum.”

There’s always the “But my mother thinks … what are you saying about my mother?” bit. Anyone who approves of torturing an “uncooperative terrorism suspect” (to quote you) is scum. That unfortunately includes some members of people’s families, because almost everyone is a member of someone’s family. If you’ve reached adulthood and you haven’t even figured out, or don’t care, that most “uncooperative suspects” are innocent, then I don’t really know of another short word that’s accurate.

And yes, I wrote about your supposed disapproval of torture. We’re at one of the rare junctures in American history where it may be possible to do something about it. And you’re saying that people should be offered immunity in exchange for testimony — immunity from what? From being brought to trial? But you’ve already said … wait, have you thought about this at all? Plea bargains require a credible threat of punishment. But instead you’re busily constructing scenarios in which torturers are equivalent to WW II soldiers. Whatever the merits of the case for a universal moral treatment of those who kill civilians during war, we aren’t talking about seeking out and punishing WW II vets. In fact, this is a distraction, one that opponents of doing anything regularly use whenever it looks like pressure to do something is building.

So, yes, your disapproval of torture is only supposed. It’s very easy for someone to say “I disapprove of torture”: almost everyone does. But when you’re saying that torturers shouldn’t be brought to trial, and that most Americans approve of it sometimes and hey that’s regrettable but basically you have to take people as they are, and that torturers are just like WW II bomber vets, then for all intents and purposes “supposed” really seems to fit.

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Michael Turner 04.30.09 at 1:04 pm

I don’t really know of another short word [besides “supposed”] that’s accurate

Oh, come on, Rich. You’re not really trying. You got off to a good start with your tellingly accurate “scum”, and it has four letters, which is very suggestive of how to proceed. Since I’m (according to you) only a “supposed” opponent of torture, surely I’m scum too, right?

How about “shit”? Can you call people like Clive Crook (and me) “shit”? Try it out — and a few more such epithets, let them really roll around in your mouth. Shit and scum aren’t really that different, after all. Admit it: when you wrote “scum”, you were really thinking “shit.” And why limit it to shit?

Then, there’s second gear: sexual insults. And after you’ve trapped some scum in your basement, the better to exact the justice so irresponsibly shirked by mainstream society, you can shed even more limits, you can really speed things up. You can strip the scum, kick the shit around, and to really humiliate them, you can make them mime sexual acts with each other.

After a little training in the details, you might try your hand at, yes, waterboarding.

Surely, scum deserve no less. And shit deserves much worse. And isn’t this all about what these people — I mean “scum” (sorry, not easy to maintain your very high level of verbal precision) — really deserve?

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Rich Puchalsky 04.30.09 at 1:15 pm

Yes, and comparing people who make straightforward, strong moral claims to torturers — that’s a good one too.

I don’t know why whenever you write something about torture here, it’s some transparent distraction, Michael. Maybe you’re not sincere. Maybe you’re just not very smart, as you keep saying. Who knows? Should anyone really care why you keep saying that nothing should be done, as long as you do?

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Barry 04.30.09 at 1:30 pm

Rich, Michael has a bad case of something my best friend has – righteous “I’m not PC!” contrarianism. Contrarianism is an egotistical condition where somebody gets off by contradicting things. Amazingly, by some major coincidences, the things being contradicted are those for which the contrarian is *not* subject to actual persecution for. It’s pretty much pure egotism.

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magistra 04.30.09 at 1:31 pm

It is difficult for me to pass old women in their 90s in the streets of Tokyo (quite a few of them here) without wondering—how do they see me?

Well, as long as they’re polite to you, it’s fine. But if they were to call you names because they (wrongly) think that you supported something evil, then you know that those little old ladies are just more potential torturers, like the rest of us on this blog.

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JoB 04.30.09 at 1:46 pm

Michael,

I’m sure I underestimated the capacity for cruelty but I’m rather confident you overestimate it -this being said I don’t have data on the matter and I agree nobody should be complacent on this matter of where they would put the limit when put under pressure. So let’s call that quits.

On your being in Japan, that makes it less ludicrous for sure. Still: bombing is at a distance, and waterboarding is not (watch out for Cheney going for this defence!) and moreover, as this was a first bomb of its kind the bombers really couldn’t start to imagine what they were asked to do. I think in both cases the authorizers are the main villains (although for Dresden & Enola Gay I do believe the more atrocious outcome does not automatically translate in a more heinous villain), but only in the case of direct, physical torture like in waterboarding is the personal aspect of the crime by the physical do’er unmissable.

I sure would hope that if I’d torture somebody whatever the context, somebody would have the grace of jailing me for it.

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dsquared 04.30.09 at 1:55 pm

My bad, and I’m very sorry for it.

Bullshit, Henry! Firstly, Crook is a professional journalist. If he can’t express himself clearly, that is his fault, not yours. Second, he’s very clearly rowing back and trying to rewrite history. His point d) is presumably based on the passage “Common sense may tell you that waterboarding is torture, but …”. The implication is clearly ” … but common sense is wrong.” The sentence is followed by “Congress should make waterboarding a crime”, not by “Congress should explicitly declare that waterboarding is torture”.

Furthermore, there is no point to all the relativising about flaying and crushing fingers if not to establish that waterboarding is a comparatively mild form of mistreatment, that journalists sometimes engage in for fun. This would read back to the previous paragraph, giving it the gloss “Congress should make waterboarding a crime, not necessarily as serious a crime as torture, but maybe on the level of common assault”.

Finally, we have “Waterboarding is shameful, and one may leave it at that”. This would seem to put waterboarding on the level of adultery, or farting in a lift. “Leave it at that” is particularly problematic, as it undermines the previous suggestion that it it ought to be criminalised.

Your original post was substantially correct – Crook set out to construct a weaselly argument for not prosecuting torturers, in the assumption that he could draft enough wiggle room to try and avoid being pinned down on the message he was trying to convey. No apology is required, he is very definitely the author of his own misfortune. And he doesn’t even address your points about his wildly disingenuous “they do it on YouTube” argument, or that he is effectively advocating capitulation on such an important issue in the name of bipartisanship

In a final and parenthetical note, if he honestly believes that “This is reprehensible” is an abusive remark, he really is being a wimp. His own remarks aimed at you are much more personal and much more abusive.

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Righteous Bubba 04.30.09 at 2:13 pm

Yep. In the original article every instance in which waterboarding and torture are put together are in imagined examples of yokel “common sense” or the hot-blooded declamations of partisan opponents. He’s very careful to call it a “method” and imagines that such treatment could never be successfully prosecuted because look over there.

It was a weasel article.

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Henry 04.30.09 at 2:31 pm

dsquared – I dunno. I am still highly dubious about the article, but also think that I misinterpreted it. The relativizing about flaying etc, which is the part that really got me exercised, is plausibly a statement of the case that the defence would make rather than a statement of Crook’s own views. That said, his position as he now states it, seems to be as follows.

(1) That waterboarding is unequivocally torture, and should be criminalized.
(2) That the law is ambiguous over whether or not the officials who gave the green light to waterboarding can be prosecuted.
(3) That those who are calling for these officials to be prosecuted are furious vengeance-seeking partisans who don’t care about justice.

There is at the very best a strange disjuncture between the arguments expressed in (1) and (2), and the argument in (3) (not a logical contradiction – but an implicit empirical claim that is quite peculiar). However, I deliberately did not get into this in my update, because I find non-apology-apologies highly irritating, and think that if I screw up on something, I should say as much without hedging it. So the apology can be taken as self-standing – but not as an affirmation on my part that Crook’s position is at all coherent.

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Michael Turner 04.30.09 at 2:37 pm

JoB: bombing is at a distance

Bomber crews over Tokyo reportedly vomited at the stench of burning meat. Presumably, they realized what kind of meat was burning. Presumably, word got around among crews who hadn’t yet flown such missions about what kind of meat was burning. Noncombatant human meat, for one thing. (Not much of any other kind of meat available in the urban cores of Japan, at that point in the war.)

and moreover, as this was a first bomb of its kind the bombers really couldn’t start to imagine what they were asked to do.

You missed the part about how the U.S. firebombed about 60 Japanese cities, before hitting Hiroshima and Nagasaki with nukes? (Of the major ones on Honshu, I believe only Kanazawa and Kyoto were spared.) Oh, well, that’s OK–so do most Americans. They figure I must’ve added a zero by mistake, or perhaps am confabulating.

But forget about the Greatest Generation Memory Hole. We have people walking around today, not just free but lionized, despite complicity in bombing massacres of similar scale in Southeast Asia in the 60s and early 70s — if that would make this sort of genocidal-scale crime more immediate for you. Henry Kissinger, for one. No, really, you can look it up!

Rich (“I mean scum in a nice way”) Puchalsky wants to know if I’ve thought about this at all. As if someone as stupid as I am could think!

No, when I’m not outsourcing my replies on this issue to wilted produce in my refrigerator’s vegetable bin, I enslave my brain to, well, Eric Holder, sorry to say. His apparent stance: he’s extending a promise, backed up by his boss, that those who engaged in what should properly be considered torture while apparently believing that they were operating in compliance with U.S. and international law, because the Bush DoJ told them they were, will be protected and even defended by the DoJ itself. In the meantime, determinations can be made as to whether the case made for waterboarding (and other torture) by the Bush DoJ was illegal and involved criminality. If it is found to be illegal, and moreover criminal, then, in one of those funny strategic twists that elude the Rich Puchalskys of the world, the more torturers getting a pass (if they can show good-faith discharge of duties), the better. Because that’s more eyewitnesses who feel free to speak out against their bosses, whom we all revile, right? Bonus points for the torturers who were truly traumatized by the experience of torturing, and who sue their bosses or who otherwise denounce them. After all, what will the wingnuts say then? Will they call them traitors? Let ‘em! Works for me.

If the Bush DoJ stance is not found to be involve criminality, that would suck, of course. But then at least the Obama administration can say it abided by the letter of the law, while clearly and openly holding its nose about violations of its spirit. And if this discussion is not mainly about primacy of the rule of law, and equality under the law, even for “scum”, what is it about?

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JoB 04.30.09 at 2:41 pm

Henry, by opting out of a non-apology-apology I am even more inclined to sympathize with you (although the use of the expression ‘My bad!” is very hurtful to my eyes) – you’ve falsified claim (3) to a whopping 100%!

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dsquared 04.30.09 at 2:50 pm

I find non-apology-apologies highly irritating

I know what you mean, but IMO the situation actually called more for a straightforward “non-apology-eff-off”.

oooh, “eff off”, hark at me. All that nagging from Keith Ellis is apparently having an effect.

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JoB 04.30.09 at 2:54 pm

Hark!

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Michael Turner 04.30.09 at 2:59 pm

Maybe you’re just not very smart, as you keep saying.

I’m really not, Rich. Which is why I need your help on a point of terminological accuracy. Do you think we should standardize on the term “scum” for “Americans who think torture could be justified in some circumstances”, while reserving the term “shit” for torturers? Or is that a hairsplitting distinction? Also, what do we call the people who wrote the torture memos?

I wouldn’t be asking you any this, if it weren’t for your strong moral stance on these issues, and your deeply felt concern for accurate description. I greatly respected you for these things to begin with, but even more so after you bravely declared the majority of Americans “scum” for their craven opinions on this issue. That’s the kind of stirring, uniting, strong-moral-backbone rhetoric that all of us torture-resisters can get behind. You do us proud.

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JoB 04.30.09 at 3:06 pm

Michael, don’t go all Rich on me! No, I hadn’t realized your referred to THAT. I am also not an American (where did you get that idea). But I stand by my distinction of face-to-face torture, & mechanized warfare and what kind of people can be got so far to commit either (hoping neither of these things will happen again) no matter how graphical your description is going to get – nor will I be much impressed by you suggesting what I should or should not do.

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Michael Turner 04.30.09 at 4:22 pm

Don’t worry JoB, if I was going to “go all Rich on you,” I’d find some pretext for classifying you as scum even though you aren’t an American.

Rich’s main charge against me seems to be that I bring in “distractions.” It’s a mere “distraction” to point to unprosecuted U.S. war crimes conducted on a much larger scale than the torture under the Bush administration, he feels. But my point is: if you’re really concerned primarily about justice, don’t you start with the bigger crimes and work down the list?

Another major charge of Rich’s is that I counsel doing nothing. Well, this is silly. I applauded Obama’s decision on his second day in office to end these practices. But what I think has to happen now is whatever is best for justice in the long run. Going straight after those who directly tortured could be very counterproductive for that goal.

It’s actually roughly analogous to the argument against torture from the point of view of effectiveness alone: cajolery and cultivation usually beat cruelty and suffering. Among those who perpetrated torture directly there are psychological casualties, almost certainly. Let them think about what they are owed for their psychological wounds. Some perhaps were guilt-stricken at the time, others may just be coming around to the realization they were involved in wrongdoing, however it might have been legally rationalized. Let their consciences come fully into the light. Yet others probably were the “bloody sociopaths” that JoB thought might have constituted 100% of the ranks of torturers, but who may well be a smallish minority who transgressed even the upper limit of Bush DoJ guidelines, and who would therefore certainly be subject to prosecution even under the apparently very lenient Obama/Holder doctrine recently announced. We’ll know them soon enough, if only by their choices (early and often) of legal counsel.

A rush to judgment now could merely scatter those who could otherwise be most helpful in going after the higher-ups. In the meantime, probably nothing is lost by waiting for ripeness. Hard drives can be wiped, videotapes blanked, and documents shredded overnight, so anything that could have gone down those particular memory holes probably disappeared by the eve of the Obama presidency, if not months or even years before. We’re a mere four months past the Bush regime, and legal ambiguity is only starting to clear up enough for those who were complicit (and those who merely witnessed), including some people who might have been waiting 5 or 6 years to come out of their institutional crouches and start talking.

So if it’s not about the scale of war crimes, nor about the best strategy for improving the chances of successful prosecution of higher-ups for these war crimes in the Bush administration, what is it about, for the Rich Puchalskys? Well, maybe Clive Crook is onto something. Maybe it’s about an American Left (or major segment thereof) that needs its revenge against the Bushies now. I sure hope not. Or if that’s the case, I hope this movement doesn’t get much traction. If the perfect is the enemy of the good, the demand for instant results is even worse.

[This latest edition of Turner’s Contrarian Ego Parade comes to you courtesy of a withered rutabaga in the back left corner of his vegetable bin. Certainly he himself is not nearly intelligent enough to have written the above.]

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Righteous Bubba 04.30.09 at 4:32 pm

Well, maybe Clive Crook is onto something. Maybe it’s about an American Left (or major segment thereof) that needs its revenge against the Bushies now. I sure hope not. Or if that’s the case, I hope this movement doesn’t get much traction. If the perfect is the enemy of the good, the demand for instant results is even worse.

Yes, Clive Crook is on to something because your feelings are hurt.

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Alex 04.30.09 at 4:33 pm

Crook appears to be arguing that, if it’s possible to do something worse than waterboarding, this is sufficient to stop it being torture. “It’s not torture – we could have put a THIRD live rat in his brain!”

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Rich Puchalsky 04.30.09 at 4:51 pm

” It’s a mere “distraction” to point to unprosecuted U.S. war crimes conducted on a much larger scale than the torture under the Bush administration, he feels. But my point is: if you’re really concerned primarily about justice, don’t you start with the bigger crimes and work down the list?”

Now this is really funny. If you’re not willing to go after WW II bomber vets, then you’re not serious! Let no one do anything about Bush-admin torture until we’ve tracked down those bigger criminals.

Meanwhile an insistence that we should bring people against whom strong evidence exists that they have committed a serious crime to trial is characterized as a “rush to judgement”. If Turner is sincere, he’s a living illustration that sincerity isn’t everything.

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Michael Turner 04.30.09 at 4:53 pm

Shorter BB: can’t figure out what’s wrong with Turner’s argument, so I’ll make something up.
Shorter Alex: can’t be bothered to read anything in detail, so I’ll make something up
Shorter Rich: both!
Shorter me, now: goodbye.

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Michael Turner 04.30.09 at 4:54 pm

Should have been “Shorter RB”, leading off. Carry on.

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Righteous Bubba 04.30.09 at 4:55 pm

Thank you for the correction and the brevity.

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Rich Puchalsky 04.30.09 at 5:09 pm

Ah good, now that Michael’s gone — and certainly wouldn’t ever come back, having said he was leaving — I can explain exactly what’s wrong with people like him.

It’s just another incarnation of Broderism. It goes something like this:

The DFHs are so mean — calling people “scum” just because they approve of torturing suspects! How uncivil is that? Instead we have to look to the long term — the time when, after Bush admin torture is safely in the distant past, and it is no longer a live political issue, historians can analyze and condemn it. Yes, we have to ease the American people gently into rejection of torture — if there is any hint that it’s a partisan issue, such as, say, by pointing out that one party is still dominated by strong supporters of torture — that may only make people embrace torture, just out of spite! Those people who are so gauche as to have “unyielding moral absolutism” that torture is wrong are really the wrong-est of all, because the failure to yield — anything that could be characterized as absolutism of any kind, whether it’s “torture is good” or “torture is bad” doesn’t matter because they are really equivalent — is really the worst characteristic of all. Needless to say, this absolutism is also ineffective, because everything that has ever been accomplished politically has been accomplished by people who carefully stood back and waited for consensus.

Clive Crook just adds a little more weaseling to that.

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Donald Johnson 04.30.09 at 5:32 pm

I’m on your side in the debate, Rich, on the main point at least–that we should prosecute torturers and not worry so much about how ordinary Americans will interpret this. But I think you’ve been a jerk towards Michael. I don’t object to accusations of bad faith on principle, but in this particular case I think he’s arguing in good faith and his case isn’t stupid. He doesn’t come across to me the way David Brooks or Tom Friedman do when they argue against prosecutions, because for one thing he doesn’t seem to be opposed to prosecutions. He just wants it done carefully, I think.

And I also think his WWII analogy has some validity. I don’t know for sure what WWII bomber crews knew, but from what I’ve read Americans knew perfectly well that our bombing raids were intended to cook civilians. There were even some liberal Christians and others who objected on moral grounds at the time, IIRC. And from what John Dower writes in “War Without Mercy”, atrocities by Americans against Japanese were sometimes of the face-to-face variety, though usually against the rare Japanese soldier who was captured alive.

I agree that it probably takes a greater degree of something unpleasant in one’s psychological to torture someone standing in front of you than it does to hit a switch and drop some incendiaries on a town. But that’s more a statement about human psychology and how we find it easier to commit atrocities in one form than another, and it’s why so many Westerners seem to think suicide bombing is worse than bombing civilians from a plane. I have problems with this.

I’m not sure if anyone is doing so in this thread, but I have seen people who seem to get offended when Bush’s crimes are compared to the war crimes of earlier Administrations. From my pov the Bushies broke new ground in making torture a respectable option for mainstream pundits to defend (though usually claiming that their preferred methods weren’t really torture). But it’s not like torturing someone is worse than piling up an immensely high bodycount with indiscriminate firepower unleashed in the Mekong Delta, or by burning down entire cities.

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dsquared 04.30.09 at 6:49 pm

surely the only conclusion to draw from the firebombing and Vietnamese cases is that the experiment with “don’t prosecute anyone, just be very stern that it mustn’t happen again” has been tried twice and didn’t work, and that you have to prosecute right away because if you leave it too long, it won’t happen at all.

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watson aname 04.30.09 at 7:05 pm

dsquared, I suspect that politicians draw a slightly different lesson: it probably won’t hurt us in the long run if we take the easy path and ignore this.

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Henri Vieuxtemps 04.30.09 at 7:11 pm

Actually, in my opinion the conclusion is different and quite trivial: powerful people get away with everything and anything.

And why shouldn’t they? This is what power is all about.

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Barry 04.30.09 at 7:25 pm

Donald Johnson 04.30.09 at 5:32 pm

“I’m on your side in the debate, Rich, on the main point at least—that we should prosecute torturers and not worry so much about how ordinary Americans will interpret this. But I think you’ve been a jerk towards Michael. I don’t object to accusations of bad faith on principle, but in this particular case I think he’s arguing in good faith and his case isn’t stupid. “

Michael Turner has a history – I’ve tangled with him before here and in Edge of the American West. I believe that Rich has tangled with him before, here. Mike is generally like that. I’ve not even sure that ‘Broderism’ is the way to put it; *sshole is probably more accurate.

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Michael Turner 05.01.09 at 1:12 am

Michael Turner has a history – I’ve tangled with him before here and in Edge of the American West.

Yes, Barry. You called me a New Deal Denialist. Despite my ardent defense of the New Deal, here and at EotAW (which nobody over there will deny–just try calling me that again, over there. In one of his print-publication pieces, Eric Rauchway actually used something I dredged up showing even Milton Friedman describing the New Deal as necessary.)

You called me a New Deal Denialist only because I pointed out the dangers of relying solely on correlation=cause arguments in discussing fluctuations in the level of employment during the New Deal period, particularly in the 1937-38 period, when FDR mistakenly turned fiscal conservative and cut back on work creation programs.

To me it’s obvious: when one is discussing the evidence from that period, one really ought to be equipped with some sort of understanding of Keynesian stimulus mechanisms and how they work, not simply with the statistics that help confirm that the mechanisms worked. To you, somehow, my advice to rely on more than just the numbers makes me a New Deal Denialist. Somehow. Nobody else seemed to think so.

In short, you brought all the intelligence of a rotten canteloupe to that argument, in leveling that utterly nonsensival accusation at me, and it was probably pretty conspicuous to everybody. In my experience, you don’t bring much more intelligence than that, to any argument. But, hey, go ahead: surprise me.

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someguy 05.01.09 at 10:05 pm

It fairly clear from Crook’s first piece that he does not think water boarding is shameful like farting in an elevator or adultery.

The Bush administration’s more honest critics accept that possibility, but argue that it does not justify these brutal methods. They are right.”

The clear implication is that he thinks water boarding is brutal.

Just so there is no doubt later

“So far as moral and tactical justification goes, this can be set aside. Waterboarding is shameful, and one may leave it at that. To repeat, Mr Obama was right to forswear its use and that of other brutal measures. “

Perhaps he wasn’t 100% clear that water boarding was torture.

But at the very minimum he was 100% clear that water boarding is a brutal practice that should be outlawed.

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Righteous Bubba 05.01.09 at 11:37 pm

But at the very minimum he was 100% clear that water boarding is a brutal practice that should be outlawed.

It is outlawed because it’s torture.

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