That’s Some High-Quality Wank There

by Henry on May 25, 2009

Clive Crook positions himself as a reasonable moderate between the extremes of Republican torture-and-detention-porn crazies, and people who, you know, who take civil rights seriously.

The left’s complaints make far more sense than Mr Cheney’s. Mr Obama is adjusting the Bush administration’s policies here and there and seeks to put them on a sounder legal footing. This recalibration is significant and wise, but it is by no means the entirely new approach that he led everybody to expect.

Mr Obama is in the right, in my view, but he owes his supporters an apology for misleading them. He also owes George W. Bush an apology for saying that the last administration’s thinking was an affront to US values, whereas his own policies would be entirely consonant with them. In office he has found that the issue is more complicated. If he was surprised, he should not have been.

The signature intellectual defect of the non-compromisers on each side of this debate is an inability to recognise conflicting ends. The Democratic party’s civil libertarians seem to believe that several medium-sized US cities would be a reasonable price to pay for insisting on ordinary criminal trials for terrorist suspects. There can be no trade-off between freedom and security, because the freedoms they prioritise trump everything. To many on the other side, no trampling on the liberty of ordinary citizens, no degree of cruelty to detainees, no outright illegality is too much to contemplate in the effort to stop terrorists. On this view, security trumps everything.

The “seem to believe” is a weasel-phrase, which would (to use his own dubious phrasing) “seem” to be nicely calculated so as to allow him to make very nasty insinuations and accusations without having to prove them, and the “several medium-sized US cities would be a reasonable price to pay for insisting on ordinary criminal trials for terrorist suspects” bit is a common-or-garden shameful and disgusting slur. If Crook has any substantial evidence that ‘several medium sized cities’ have been put at risk, or are likely to be put at risk, because of civil libertarians’ tiresome insistence on trials and such, I invite him to produce it. And no, hypothetical ticking bomb scenarios don’t do it, thank you very much.

The underlying claim of this shoddy exercise, such as it is, has three parts. First, that the people who are insisting on civil liberties in the GWOT are wild-eyed and extremist zealots, fundamentally similar in kind to the members of the lock-em-up-and-torture-em-to-death crowd on the other side. Second, that a difficult balance has to be struck between civil liberties for terrorists on the one hand and the need to avoid the destruction of medium-sized American cities on the other. Third, that the only people capable of making the necessary complex choices are sceptical moderates like Clive Crook who realise, as others don’t, that differing ends are incompatible, there are unavoidable trade-offs in life &c&c. In its fully fledged form, this might be described, after the example of Isaiah Berlin, as High Table Liberalism – that anguished and serious engagement with the difficulties of political choice in a world of irreconcilable and competing values which occurs somewhere between the end of the main course and the serving of the port and Stilton. But it reminds me even more of a radio comedy sketch I remember from my youth in Ireland, where a punter representing the Plain People of Ireland and a nun are discussing how best to deal with football hooligans. The punter says that they’re a pack of bastards, and the only solution is to chop off their goolies. The nun says no, we need to think too of the principles of charity and forgiveness, of Christian love etc – and the only solution is to chop off their goolies. Clive Crook is taking the part of the nun here.

{ 96 comments }

1

Matt D 05.25.09 at 2:29 pm

“Medium-sized”? That’s obviously crazy. I don’t think the terrorists are targeting Akron, Charlotte, and Oklahoma City (well, not *these* terrorists).

2

jre 05.25.09 at 2:35 pm

Free the Indianapolis 500!

3

PGD 05.25.09 at 3:05 pm

People like Crook replace the actual logic of argumentation with a naked appeal to the style or posture of reasonableness.

4

bert 05.25.09 at 3:31 pm

You’re remembering an old Not The Nine O’Clock News sketch:

Look, I know these kids, I’ve worked in the areas we’re talking about – round Lambeth, Lewisham – I know their problems, I know their frustrations – lack of community facilities – I know their parents. And in my opinion, Professor Duff’s suggestion that we should cut off their goolies … is the only solution!

The people who by the end of the sketch are foaming at the mouth and yelling “cut their goolies off” are both academic sociologists.

There’s an outside chance Clive Crook may use this fact to sneer at you. If he does, try to hold out for a few minutes before you fold.

5

anxiousmodernman 05.25.09 at 4:04 pm

“High Table liberalism”. What a perfect phrase! Pass the port, please. A good port opens the nostrils and lets us see how the world really works. Harumph!

Back to Crook: A great political gesture is to declare some matter – usually one’s own view of the matter – above debate. That is how I would describe his appeal to moderate “reasonableness”. Perhaps in times of immanent danger this is acceptable, but is the GWOT one, big, eternal time bomb ticking? Is there always a bomb about to go off?

The appeals to “reasonableness” are really attempts to make what we would have once considered emergency measures the new baseline scenario for justice. What are the long-term consequences of this besides a creeping authoritarianism?

6

Henry 05.25.09 at 4:06 pm

Thanks Bert – I am pretty sure that my memory is accurate here, not least because I have never seen NTNOCN (we didn’t have BBC when it was being broadcast) so I imagine that I heard Irish comedians ripping off the original version you link to and transposing it into a cod commenters.ntext where nuns rather than sociologists were the softhearted commenters.

7

Kent 05.25.09 at 4:12 pm

The ideology here described as “High Table Liberalism” has another name in the blogosphere already … courtesy of Atrios (I think??), which is “High Broderism” after its first and most insufferable practitioner, Mr. Broder.

I think I prefer the older label, because I’m not sure what in the approach is “liberal” in any sense.

8

Fellow Traveller 05.25.09 at 4:17 pm

Funny how during the Cold War the nuclear strategists, such as Herman Kahn, who engaged in ‘thinking the unthinkable’, thought that sacrificing a few medium sized American cities and their inhabitants was a reasonable price to pay for ridding the world of the Soviet Union and right wing hawks in the US government agreed. Only unpatriotic anti-Americans questioned that wisdom and considered it barbaric.

Boise, Idaho or a world free of communism?

9

Salient 05.25.09 at 4:34 pm

He also owes George W. Bush an apology for saying that the last administration’s thinking was an affront to US values, whereas his own policies would be entirely consonant with them.

WAAAIT wait wait wait, …, …, wait. Wouldn’t this mean he owes Americans an apology, for failing to establish policies which are “entirely consonant with” their US values?

…thought that sacrificing a few medium sized American cities and their inhabitants was a reasonable price to pay for ridding the world of the Soviet Union and right wing hawks in the US government agreed…

Yeah, I wait for the day when I am told that the 3,000+ lives lost in the Twin Towers was a reasonable price to pay in the Global War on Terror: “after all, it did rid the world of more than a dozen dangerous terrorists…”

10

Michael Bérubé 05.25.09 at 4:39 pm

The Democratic party’s civil libertarians seem to believe that several medium-sized US cities would be a reasonable price to pay for insisting on ordinary criminal trials for terrorist suspects.

People aren’t going to believe this, but there actually were acts of terrorism before September 11, 2001. One of them even involved the World Trade Center! I know, I know, it sounds crazy. But it’s true. And guess what? The United States convicted a bunch of terrorists in ordinary criminal trials and put them in jails on U.S. soil. As Lawrence Wright pointed out in The Looming Tower:

On May 29, 2001, in a federal courtroom in Manhattan, a jury convicted four men in the bombings of the American embassies in East Africa. It was the capstone of a perfect record of twenty-five terrorist convictions accomplished by the prosecutors of the Southern District of New York, which was headed by Mary Jo White, with her assistants Kenneth Karas and Patrick Fitzgerald.

Yep, twenty-five convictions in open court, not in secret military tribunals. Complete with habeas corpus — and no “enhanced interrogation” or “prolonged detention.” And all we crazy civil-libertarian types wanted, after that, was a President who wouldn’t respond to a memo titled “Bin Laden Determined to Strike in U.S.” by telling the intelligence official, “all right, you’ve covered your ass now.”

11

novakant 05.25.09 at 4:47 pm

Well, he has a point regarding Obama misleading voters and his policies being not entirely consonant with US values. In fact, if he succeeds in enshrining military commissions and all the habeas corpus violations that come with them into US law, he will actually have done more damage than Bush, as such powers will never be relinquished by future administrations. And those who voted for him will be in a bad spot.

12

Tom West 05.25.09 at 4:49 pm

If Crook has any substantial evidence that ‘several medium sized cities’ have been put at risk, or are likely to be put at risk, because of civil libertarians’ tiresome insistence on trials and such, I invite him to produce it.

Um, is there any substantial evidence that ‘several medium sized cities’ would be at put at risk if the USA opened its border with no identification required to anyone who wanted to enter?

The trouble is that there are no real figures for anything when n is small or zero. So, everybody is reduced to using their best guesses. And not surprisingly, we’re back to square one: How threatened do we feel we’d be with different courses of action.

You can’t really have a factual argument when there are next to no facts.

13

Tim Wilkinson 05.25.09 at 4:50 pm

Poor Clive claims to be very frightened:

“The attacks of September 11 2001 and subsequent terror plots show that the US is dealing with a tenacious and resourceful enemy, willing to kill as many innocents as its weapons allow, loosely organised around the world but organised nonetheless. This enemy is no ordinary criminal enterprise and suppressing it calls for extraordinary measures.”

It’s when stuff like this turns up in the semi-elite press like the FT and the Spectator – which memorably featured a similarly musteline screed from Dershowitz a few years ago – that I wonder what’s going on. I usually expect to get a semi-esoteric story in these kind of publications, with the cruder kind of propaganda ruled out as both ineffective and unnecessary. But on this issue it looks like the insider readership gets treated just like the rest of us – i.e. as morons. Don’t they mind? Don’t they even notice? Or does this stuff function not so much to sing the song as to provide the songsheet?

This kind of area provides some interesting research topics in social psychology, one of which is why not much work seems to get done on them. (If I’m wrong about that please please point me in the right direction.)

Actually come to think of it I remember the Speccy had a load of rousing guff about how wonderful ‘Dubya’ was before the 2000 election. I’ve probably overestimated the intelligence and reflectiveness of its readership by a biggish factor.

14

Fortuna 05.25.09 at 5:01 pm

Preventing 9/11 wouldn’t have required the extremes of “enhanced interrogation”, just, in fact, putting facts together and a coherent response from various agencies.

The reaction to it brought us all that.

15

Ginger Yellow 05.25.09 at 5:06 pm

“It’s when stuff like this turns up in the semi-elite press like the FT and the Spectator – which memorably featured a similarly musteline screed from Dershowitz a few years ago – that I wonder what’s going on.”

I’m not sure why you’re bracketing the Spectator with the FT there. You’re talking about a publication that still employs Taki Theodoracopulos.

16

Tim Wilkinson 05.25.09 at 5:28 pm

15 – Yeah quite right – it was some lingering impression that hadn’t been corrected. Above comment does have an afterthought that goes most of the way there. Now done a full sweep to update my neural records.

17

sharon 05.25.09 at 5:30 pm

I’ve gotta disagree with Henry here. It looks like pretty low quality wank to me.

18

novakant 05.25.09 at 5:39 pm

The scary thing is that Crook is only repeating what Obama himself said:

On one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and who would almost never put national security over transparency. On the other end of the spectrum, there are those who embrace a view that can be summarized in two words: “anything goes.” (…) Both sides may be sincere in their views, but neither side is right.

What Crooke says doesn’t matter one bit, what Obama says is of major importance, so one might as well focus the ire on him, rather than on some hack.

19

bert 05.25.09 at 5:49 pm

Re: #6
Interesting, Henry. Is it the same joke though? In the BBC version these are elbow-patched seventies public sector types, so to hear them talking like cab drivers is the source of the humour. Would an Irish audience have the same views about the social outlook of a nun – a widespread assumption that she’d be have a tout-comprendre-tout-pardonner set of opinions? Widespread enough to serve as the unstated premise of a joke? I’m doubtful. For my money, Velazquez had the last word on the softheartedness of nuns.

Apologies for the red herring.

20

Kieran Healy 05.25.09 at 6:04 pm

I imagine that I heard Irish comedians ripping off the original version

Must have been a direct knock-off then. I remember knowing the NTNOCN version from (audio) tapes of the series. In that sketch Mel Smith is the law-n-order academic type and Pamela Stephenson is the social worker from Lambeth.

21

watson aname 05.25.09 at 6:05 pm

what Obama says is of major importance

Surely, politicians being politicians, what is said is of very limited importance compared to what is actually done.

22

Tim Wilkinson 05.25.09 at 6:18 pm

18 fair point, though he was supposedly talking about state secrets rather than about torture wasn’t he?

Just heard a headline reporting that St. O is now saying “N Korea’s nuclear programme is a major threat to world peace”. (BTW does anyone else in the UK feel compelled to try and turn off the radio before the Archers theme starts? And disproportionately annoyed when that doesn’t work because it’s also on in another room?)

23

JoB 05.25.09 at 6:21 pm

watson, quite the reverse: what they say is of more importance than what they do. The former has all the legs and the latter is, literally, accidental. Certainly, if it consistently gets done the reverse of the way it is said – they should get voted out. Politicians – after all – are only accidental themselves.

novakant, what’s wrong with what he said? what’s the same as what Crook said? You’re being facetenious in exactly the same way Crook is. There are 2 sides to the debate (& I am not referring to pro-torture and anti-torture, as surely Obama was not). Although I have a distinct feeling that I will henceforward be put in Crook’s camp or worse (which is emphatically not the case – Henry is spot on there, again).

24

Henry 05.25.09 at 6:27 pm

novakant – the difference surely is that Obama isn’t suggesting that civil rights types would be OK with the deaths of hundreds of thousands of their fellow citizens. Not that Obama’s formulation is fair or anything to the people whose views he deprecates – but it is a whole different ballgame to Crook’s very nasty rhetoric.

25

Thomas 05.25.09 at 6:50 pm

Yikes. I’d hate to see how Henry would react if Crook had disagreed with Obama, instead of just aping his rhetoric to argue for the wisdom of his policies.

26

Kenny Easwaran 05.25.09 at 6:58 pm

I think he has a slight point on his side. People sometimes say “liberties should always trump security” or something of that sort. If you read that literally, then as a natural consequence, “several medium-sized US cities would be a reasonable price to pay for insisting on ordinary criminal trials for terrorist suspects”. In fact, several large-sized US cities would even be a reasonable price to pay if one believes that liberties always trump security.

Of course, the problem is that basically no one actually literally means that preserving civil liberties is worth any price in security – they just mean that it’s worth some modest price, and it seems exceedingly unlikely to cost more than this modest price, if even that. So Crook’s slight point about the rhetoric of some civil libertarians really doesn’t do anything to address what they actually believe.

27

Ginger Yellow 05.25.09 at 7:27 pm

Kenny, it’s only a natural consequence if you can’t prevent the destruction of several cities without infringing on civil liberties. Unless you’re going to take some maximal version of “civil liberties” which effectively nobody believes in, then it’s far from proven.

That said, I do think Obama’s false dichotomising is reprehensible, though not as much as Crook’s.

28

JoB 05.25.09 at 7:47 pm

Henry et al., I really don’t see where Obama is falsely dichotomizing or where he is in a business of deprecating views (if anything he doesn’t deprecate one views enough). It’s quite clear that what he says before novakant’s (..) is accurate although overstated for clarity. What he says after (..) is his point of view and I don’t see why he shouldn’t go & state it. After all, he clearly drew the line at torture and at due process. What’s left is to deal with the mess created before him; and there’s no easy solution to that. Thinking it is so is daft.

I also wonder why nobody so opposed to him on this (and I hope many will be opposed to him on all kinds of things) gives concrete policy advise like “get in the ICC”.

29

JoB 05.25.09 at 7:49 pm

And to put a one-dimensional proxy where Crook is bad and Obama less so is also quite distressingly oversimplifying (certainly in a thread rightly accusing Crook of same and more).

30

NomadUK 05.25.09 at 7:52 pm

BTW does anyone else in the UK feel compelled to try and turn off the radio before the Archers theme starts?

When I’m doing the washing up and The Archers starts up, it’s straight to Radio 3 for me. Usually stays there, unless I decide to switch back to Radio 4 for Front Row at 19.15.

I don’t actually hate The Archers or anything; I just don’t have any use for it. I’m sure other people enjoy it just fine. I mean, Inspector Morse was a fan of it (in the books), so how bad can it be? Still….

31

Ginger Yellow 05.25.09 at 8:13 pm

JoB: Well, for a start, the main thing his critics on the left are arguing for is not “transparency”. It’s the rule of law and the constitution. He was also extremely disingenuous when he said that there was no need for an independent commission into torture, because Congress could deal with it. At the very same time Congress was rebuffing him on Guanatamo.

32

JoB 05.25.09 at 8:21 pm

31: I admit I don’t know the details on the judicial side of things (I’m not American) – I did think that going against a court decision was odd, to say the least. Clearly if there’s a compelling non-appealable decision to publish and that’s the argument: I concur that he should publish and stop babbling about it. Is this so?

As to independent commisions, I disagree. Ignoring Congress because Congress has a different opinion than the President is one of the worst advises one can have. I do not see why we should proliferate independent commissions and why suddenly it would be easier to make a commision independent than to make a Supreme Court neutral in all of its members (after all this is not the UK).

33

novakant 05.25.09 at 8:41 pm

“I am not going to release individuals who endanger the American people.”

This is the crucial sentence: Obama will put those who he is certain can be convicted before a regular court, those who he is unsure about getting convicted before military commissions and those he knows cannot be convicted at all will be held in indefinite preventive detention.

What this means is: there is a predetermined desired outcome and the law is only applied in so far, as it does not endanger this outcome. It is the classic method of a totalitarian state and makes a mockery of the law.

34

Ginger Yellow 05.25.09 at 8:45 pm

It’s not a question of ignoring Congress. It’s a question of not depending on a Congress that has shown itself to be extremely susceptible to exactly the sort of “culture of fear” that Obama was decrying.

35

Cranky Observer 05.25.09 at 9:13 pm

Re Kenny’s #26: this bears some similarity to the debate in the computer systems world between advocates of security-by-obscurity and the advocates of security-via-openness. The classic security method is security-by-obscurity, to the point where is seems absurd to non-experts to even advance a theory that making systems architecture, design, and software code available for inspection by all would lead to more secure systems. “But… but… then the Bad Guys(tm) would see the software code!” More detailed thought, and much empirical experience, shows that openness is a very valid approach and it is used in a much larger percentage of systems than laypersons would believe. Which is not to say that it is a universally applicable or infallible method – just that it does work when intuition tells laypersons it shouldn’t.

I am not going to try to draw a direct line between the two situations, but the parallels are there. IMHO the history of the US and its international relationships from 1945 shows quite clearly that in 90% or more of the cases where the administration, the government, and/or specific secretive agencies arrogated to themselves the power to violate the law, violate the Constitution, keep information and actions secret, and commit heinous acts in the name of “national security” that the overall security of the Nation and its Citizens (as opposed to the political and financial security of certain elite groups) has actually be reduced, and that a more open airing of the information and decisions before the entire polity would have resulted in better and more secure decisions.

So I am going to need a bit more persuading that the citation of some scenarios concerning hypothetical “medium-sized cities” taken from the script of “24” before I agree that tearing up sections of the Constitution – written by men who had been chased up and down the eastern seaboard of the 13 colonies by British troops with orders to hang them – that codify our liberty will increase our “security”.

Cranky

36

Kenny Easwaran 05.25.09 at 9:27 pm

I can’t quite tell if Ginger Yellow and Cranky Observer are agreeing with me or disagreeing with me. All I’m saying is that there’s a hypothetical position someone might hold, on which any preservation of civil liberties is worth any cost in destruction of cities. It seems clear that such a position is wrong. However, this position is also pretty much a pure straw man – almost all civil libertarians base their positions at least in part on the empirical claim that violating liberties in these sorts of cases will add nothing to our security, and therefore there’s no need for liberty to trump security. Rather, we need to pay attention to liberty because it is a value that comes with little or no cost, and may actually help improve security, both by putting proper checks and balances on governmental power, and by cutting off a major source of recruitment for violent groups.

So I think that Ginger Yellow and Cranky Observer agree with me about the overall point, though they might be criticizing me for joining in the critique of the straw man position.

37

Henri Vieuxtemps 05.25.09 at 9:31 pm

What this means is: there is a predetermined desired outcome and the law is only applied in so far, as it does not endanger this outcome. It is the classic method of a totalitarian state and makes a mockery of the law.

Actually, according to Zizek, it’s a classic M.O. of the liberal order. You’re free to choose whatever you want, as long as you make the right choice. In a totalitarian state they would simply tell the courts to convict.

38

sleepy 05.25.09 at 9:35 pm

The link didn’t work but I assume Bert was referring to Jerónima de la Fuente.
Google images for that name. She is impressive, if that’s the word.

39

Anderson 05.25.09 at 9:46 pm

and those he knows cannot be convicted at all will be held in indefinite preventive detention

What I can’t figure out is where this step would be necessary.

Take KSM; let’s assume arguendo that he can’t be convicted for plotting 9/11 due to torture etc. But can we not even prove with admissible evidence that he’s a *member* of al-Qaeda? What are the penalties on the books for that? Life in prison?

I’m not categorically opposed to preventive detention with some checks & balances — some smart people whom I respect have suggested it’s worth a look — but I have trouble imagining just whom we would need to confine in this manner. People we kind of think maybe might be terrorists? That’s asking a bit much.

The only sense I can make of it is a lowered standard of proof — say, our intel suggests that someone probably is a terrorist, but we don’t think we have proof beyond a reasonable doubt. Preventive detention on clear and convincing evidence, then? Presumably upon the finding of a “national security court” (cleared to hear classified evidence, and made up of independent judges, not Executive Branch employees)?

40

Shoe 05.25.09 at 10:48 pm

I’m not categorically opposed to preventive detention with some checks & balances—some smart people whom I respect have suggested it’s worth a look—but I have trouble imagining just whom we would need to confine in this manner. People we kind of think maybe might be terrorists? That’s asking a bit much.

Perhaps this includes people who were radicalized by their treatment in prison. That is self-justifying imprisonment, which is bullshit, but if these people want to strike back if they are freed where do you draw the line?

41

Stuart 05.25.09 at 10:57 pm

But can we not even prove with admissible evidence that he’s a member of al-Qaeda? What are the penalties on the books for that? Life in prison?

Not anything like an expert on the law, but generally don’t you have to be convicted of crimes, rather than being part of a group of people that committed crimes?

42

bert 05.25.09 at 11:32 pm

Hotlink protection with a session cookie, or some such.
Thanks Sleepy, and you’re right, that’s the one.
How’s this: http://www.flickr.com/photos/8449304@N04/2497594662/sizes/l/.

The Latin reads “It’s a good thing to wait and praise God in silence.” (More loosely, “Speak up and see what you get, pal.”)

43

Ginger Yellow 05.25.09 at 11:57 pm

“Not anything like an expert on the law, but generally don’t you have to be convicted of crimes, rather than being part of a group of people that committed crimes?”

Yes and no. As far as I know, mere membership of a proscribed organisation in the US can only get you deported and your assets frozen. But there are all sorts of ancillary acts that it wouldn’t be hard to convict most members of, and certainly not KSM – providing material support, for instance.

44

Jon Livesey 05.26.09 at 12:48 am

The part of this debate that catches my attention is its ab initio tendency. I keep waiting for someone to list the other episodes in the past when the US has employed torture, when it has executed prisoners, when it has massacred opponents who had a credible claim to be non-combatants, when it has recklessly inflicted large-scale civilian casualties as a side-effect of military action.

What debates took place in those cases? What arguments were produced to justify such violence and violations of human rights, and what were the long-term consequences? Were public officials prosecuted, and did the scale of violence inflicted by the US decrease in the year, decade, or half century following the public debate? Or did the US public, reassured by the debate, simply fall asleep once more.

In other words, is this a real debate on either side, intended to lead to a correction to US behaviour, or is this just more kabuki, intended to reassure the US public that no matter what we have done, we sure take it seriously, yup, we sure do, when in fact we really want to air the dirty linen for just long enough before packing it away and passing on to the next episode of brutality?

45

derrida derider 05.26.09 at 3:31 am

This sort of rubbish is what happens when you listen to the foreign policy/national security establishment – liberal or not. They all have a worldview totally at odds with reality, where The National Interest is, conceptually at least, a single well defined entity (of which, of course, they consider themselves the guardians) that may or may not coincide with the interests of citizens of that nation. Obama appears to have been captured by them.

Folks, framing it as “finding the right balance between justice and security” begs the real question (as well of as being a false dichotomy). The real question is “what methods of preserving justice from extremists work”? The answer to that is, on the one hand, creating an example of a just society, and on the other very unsexy police and court work using time-tested methods. Throwing away our big advantages here – our openness, our concern with carefully establishing facts, and our rule of law – is not merely evil but also very, very stupid.

46

PHB 05.26.09 at 4:37 am

Crook and co are really just militarists, they see no solution to any problem that does not require the use of copious amounts of force. This has the dual benefit (for them) iof first excluding civilians from the decision making process and allowing them to derride their opponents as being unable to take ‘hard choices’. When in fact the choices they make are not hard for them personally at all: They like starting wars.

The problem for the rest of us is that the statistics show that militarism is not particularly good at anything other than starting wars. It is not particularly good at finishing wars and it is positively disastrous when it comes to fighting terrorism.

The ‘War’ on Terror is unfortunately just the latest militarist excuse to arrogate supreme, unchecked power and then use it for violent ends. Before that it was the cold war which the militarists would like us all to believe was ‘won’ by the actions of the US when a more realistic assessment would recognize that the Soviets really destroyed themselves and did so because they were even more corrupt and militarist that the brothers Dulles, J. E. Hoover and the institutions they founded.

There are plenty of people who know more about terrorism than the purported War on Terror experts. The British tried the same tactics used by the Bush administration and switched to the ‘criminalization’ policy because they failed. Torturing IRA prisoners only drew sympathy for their cause – in particular from New York City where Rudy Giuliani attended as many IRA fund raisers as he could fit in his calendar and gave their political leader Gerry Adams a ‘crystal apple’ as a humanitarian award.

47

Omega Centauri 05.26.09 at 5:05 am

Well (in a rather narrow sense which he probably didn’t intend) Clive was correct. That narrow sense is the effect of such arguments upon the attitudes of US voters. Clearly Obama (and too many Democratic Senators, and congresspeople), believe that the political danger of taking the right position here is too great. So the answer, is that this is less of a moral failing, then of our political class determining which public policy goals can be sacrificed in order to insure their ability to pursue other worthy policy goals. That is about as a good a defence as I think can be made for the actions of our elected representatives here.

I try to examine such issues wearing two hats. One is the hat of a disinterested (but moral) analyst trying to determine the best course of action. The second hat is to pretend I am some sort of mythical average Joe voter, how would I respond to the words, and actions? And, how can I (the politician) do the most good, without losing the political game -and hence lose my ability to effect policy? I think it is pretty clear that Obama gives a lot of weight to this second sort of opinion.

48

Fortuna 05.26.09 at 7:05 am

This is the crucial sentence: Obama will put those who he is certain can be convicted before a regular court, those who he is unsure about getting convicted before military commissions and those he knows cannot be convicted at all will be held in indefinite preventive detention.

What this means is: there is a predetermined desired outcome and the law is only applied in so far, as it does not endanger this outcome. It is the classic method of a totalitarian state and makes a mockery of the law.

While I think it’s rather farfetched that “enhanced interrogation” was the last and only step left to consider as Cheney would like us to think in preventing anything, I’m more inclined to imagine a real reality, if you will, is the evidence might actually be compromised against one or more dangerous individuals (either the evidence itself, or methods used to extract it).

Is it somewhat reasonable that Obama will have to answer for any of these people turning up again in some prominent activity directed against the U.S should he do the right thing?

Here, I see the potential for a frying pan and into the fire sort of result. Not good either way, if you ask me, (though no one did). Had Obama created the problem, I would not feel so conflicted.

49

Fortuna 05.26.09 at 7:07 am

(The second paragraph above should also have italics)

50

Henri Vieuxtemps 05.26.09 at 7:40 am

@47: I’m more inclined to imagine a real reality, if you will, is the evidence might actually be compromised against one or more dangerous individuals (either the evidence itself, or methods used to extract it).

While IANAL, it appears that the question of admissibility of evidence is left to the discretion of a judge; there is no fast-and-hard rule . According to wikipedia:

Even in a criminal case, the exclusionary rule does not simply bar the introduction of all evidence obtained in violation of the Fourth, Fifth, or Sixth Amendment. In Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159 (June 15, 2006), Justice Scalia wrote for the U.S. Supreme Court:

“ Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates “substantial social costs,” United States v. Leon, 468 U.S. 897, 907 (1984), which sometimes include setting the guilty free and the dangerous at large. We have therefore been “cautious against expanding” it, Colorado v. Connelly, 479 U.S. 157, 166 (1986), and “have repeatedly emphasized that the rule’s ‘costly toll’ upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application,” Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 364-365 (1998) (citation omitted). We have rejected “indiscriminate application” of the rule, Leon, supra, at 908, and have held it to be applicable only “where its remedial objectives are thought most efficaciously served,” United States v. Calandra, 414 U.S. 338, 348 (1974) – that is, “where its deterrence benefits outweigh its ‘substantial social costs,'” Scott, supra, at 363, (quoting Leon, supra, at 907). Whether the exclusionary sanction is appropriately imposed in a particular case is an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct. ”

And so, why should this cost/benefit analysis be performed by the executive rather than judiciary?

51

JoB 05.26.09 at 8:28 am

GY-34: I don’t get it. Surely we should not let an opinion we happen to have conflict with what Congress consitutionally has in its powers. There is a sense in many of the responses here that democracy is de facto broken. If so, say so. I personally do think that the Western democracy needs serious renovation work but whilst there is no alternative, one would do well to disagree on opinions and let the process run as provided for in the constitution. If anything, left-liberal forces will be hard pressed to survive any far right blitzkrieg :-(

Which brings me back to my unanswered question: did Obama unduely violate rule of law? Did he usurp the powers of his office infringing on the areas of other constitutional bodies?

And what is this about now? Not publishing the waterboarding photographs? Not having Bush & Cheney/Rumsfeld prosecuted? Detaining people that, because of idiots in the past, have gotten no due process? These are distinct issues and should not be amalgamated. If due process is what we need to preserve (& I wholeheartedly believe it is): these issues should be seen in the light of a due process and not in the light of ‘it is obvious that’ or ‘it is an outrage that’.

Since none of these issues are before the Supreme Court I venture to guess, unfamiliar with the details of the US judicial and constitutional arrangements, that all of them are still being treated by Obama within the powers conferred to him by the constitution.

52

novakant 05.26.09 at 9:08 am

Clearly Obama (and too many Democratic Senators, and congresspeople), believe that the political danger of taking the right position here is too great. So the answer, is that this is less of a moral failing, then of our political class determining which public policy goals can be sacrificed in order to insure their ability to pursue other worthy policy goals.

I used to think that this was the case, but since have seen so many formerly liberal politicians turn into paranoid control freaks once they had reached a position of real power and responsibility, that I’m now more inclined to believe that they actually think they’re doing the right thing, rather than just giving in to public opinion.

Is it somewhat reasonable that Obama will have to answer for any of these people turning up again in some prominent activity directed against the U.S should he do the right thing?

Well, yes, the media and opposition politicians will make sure of that, should something like this happen. But we let off suspected murderers, rapists, child molesters, drug dealers, wife beaters and dangerous drivers every day because there’s not enough evidence or even on mere technicalities and we can be sure just by looking at the statistics that a certain percentage of those will go on murdering, raping, molesting, dealing, wife beating and driving dangerously. If we held all of them in preventive detention, it is certain that the number of these crimes would be reduced, but we don’t and few are complaining about that.

53

ajay 05.26.09 at 10:59 am

Torturing IRA prisoners only drew sympathy for their cause – in particular from New York City where Rudy Giuliani attended as many IRA fund raisers as he could fit in his calendar and gave their political leader Gerry Adams a ‘crystal apple’ as a humanitarian award.

Clearly the RAF should have bombed Gracie Mansion.

54

Tim Wilkinson 05.26.09 at 1:17 pm

49 Henry VT: And so, why should this cost/benefit analysis be performed by the executive rather than judiciary?

Surely it should only be performed, if at all, by legislators/constitutional drafters. When it is applied by the judiciary, it’s because:

1) the executive has already wrongfully let the cat out of the bag and the courts must be concerned with the actually available evidence (contrary to popular mythology where villains are always ‘getting off’ on ‘technicalities’). Having said that, I think that the 5th Amendment is treated a bit differently, particularly wrt self-incrimination, possibly because the evidence itself (rather than the way it was got) is seen as tainted. This is only my fairly vague layperson’s impression though.

2) executive violations of constitutional rights are not in such cases properly investigated and punished in separate proceedings, and instead the weird situation has arisen whereby the ‘sanction’ applied is reduced likelihood of getting a conviction – a sanction not only rather ineffective but with substantial negative side-effects: the ‘social costs’ mentioned; and injury to complainants, if you think they have a special interest in criminal proceedings.

The latter seems to be part of a more general trend of keeping officials out of the criminal justice system – presidential pardons (!!?!) for Scooter Libbies come to mind, as does the situation in the UK whereby politicians like Blunkett etc get ‘punished’ for fraud by being made to pay back what they stole. A simple (informal, ‘by inspection’) cost-benefit analysis (especially bearing in mind a detection rate < 1) will confirm that this is notably deficient as a deterrent. Imagine the outcry if such a system were introduced for shoplifters!

[Quick response to an accidentally Parthian shot on another thread: zdenekv – the comment you quote was fairly clearly proposing a simple sociological/psychological hypothesis for discussion (now not forthcoming), rather than propounding an argument.]

55

cleathorpes 05.26.09 at 3:56 pm

Clive could be wrong that (some of) those insisting on civil trials are putting forward “liberty always trumps security” arguments, but he doesn’t need evidence that ‘several medium sized cities’ have actually been put at risk to make that case, he’s just drawing out the implications of arguments as he sees them. He thinks that arguments put forward by those insisting on civil trials imply that several medium-sized US cities would be a reasonable price to pay for insisting on ordinary criminal trials for terrorist suspects. What he needs to do is cite those arguments and justify his analysis of their implications. If he is wrong about that, and for all I know, he is, then I guess he’s slurring those insisting on civil trials, if you want to call it that, but I don’t really see what nasty and disgusting insinuations he’s making; he might think that civil libertarians don’t see the implications of their own arguments or are wrong about the empirical consequences of civil trials, with respect to risk of terrorist attack, without insinuating that those insisting on civil trials would continue to do so if they thought it would actually raise the risk of terrorist attack (which would be a nasty implication – otherwise he’s just saying people are mistaken, just like you’re saying he mistaken – that is, if you’re even being that generous to him). If you think that insisting on civil trials would not raise the risk of terrorist attacks, then you think that empirically there is no liberty-security trade-off, which explains why you might insist on civil trials without basing that on a a “liberty always trumps security” argument. If you thought that there was a trade-off, you might no longer insist on civil trials. Clive thinks there is such a trade-off. Again, he could be mistaken, but the idea that a liberty security trade-off exists is hardly outlandish, and much as you sneer at what you call High Table Liberalism, the argument that some compromises on liberty might be justified looks to me like an argument a reasonable person could make in good faith.

If you hold the position that a compromise is necessary – hardly unreasonable in itself – then of course you believe that those on the two uncompromising sides are both wrong – that does not amount to asserting that both are fundamentally the same kind of extremist zealot; he might think one side is much saner and altogether nicer than the other. Yes, he thinks a difficult balance has to be struck between civil liberties and security (your second point). I can’t make sense of your third ‘underlying claim’ of his argument that the only people capable of making the necessary complex choices are sceptical moderates like Clive Crook – on this question he thinks the right position is a compromise. If saying “I think the right answer is this” amounts to saying “only people like me are capable of getting the answer right”, how doesn’t that apply to, say, you too?

56

skidmarx 05.26.09 at 3:59 pm

Henri Vieuxtemps – while my knowledge of US judicial history is mostly confined to Miranda, it would seem premature to suggest that anything Scalia has to say is the last word on the subject.
Quite aside from the benefits of a fair judicial process in protecting America, it seems the discussion has finally gotten around to pointing out the dimunition of the US’ authority when it comes to commenting on judicial practices elsewhere in the world. And when Obama talked about Sri Lanka when he said he’d block the release of torture photos, I thought perhaps he would praise the government there for keeping the media out of the war zone, in case they should report anything that might adversely affect the image of the Sri Lankan military.

57

Henri Vieuxtemps 05.26.09 at 4:55 pm

@54: Punishing officials is a separate issue, but what do you mean “it should only be performed […] by legislators/constitutional drafters“? The point is exactly that it’s decided by a judge on a case by case basis: the same sort of vital but tainted evidence is more likely to be excluded when trying a pickpocket than a serial killer. This is a matter of judgment, it can’t be legislated.

58

Tim Wilkinson 05.26.09 at 9:00 pm

cleethorpes 55: Crook refers to mass deaths, rather than a vanishingly small increased risk of mass deaths, as the price for continuing existing legal processes. That’s a massive distortion. Crook doesn’t suggest extraordinary martial-law powers for use during the emergency that would arise if mass deaths were imminent.

And more broadly, this kind of authoritarian propaganda is presented as a neutral and balanced reexamination of an issue, but by treating the status quo as one extreme of a spectrum, the propagator attempts to force any ‘compromise’ solution to move toward the other extreme.

Henri VT 57: But it’s not a separate issue is it. The source you quote, at any rate, frames the issue as a trade-off between, on the one hand, something like the best fit of verdict to extant evidence and, on the other, deterrence of unconstitutional behaviour. The reason given for excluding evidence is to impose a ‘sanction’ (punishment) against the offending officer(s). That’s why I contrasted the distinct questions of ‘inherently’ tainted evidence (e.g. that which is of a type which is unreliable) .

On ‘it should only, if at all, be performed by the legislature’: the ‘cost-benefit analysis’ involved is surely rather intractable in individual cases and apt to produce wide variation in outcomes according to the particular prejudices of judges. Given that we assume the ideal legislature is competent to deal with teh issue sensibly, I would say that it would be better if the (informal) cost-benefit analysis were applied to possible systems of detailed rules, rather than case by case. But it’s a fair cop: the point wasn’t well-expressed or perhaps particularly well thought-out or cogent. Perhaps I should have concentrated on the main issue which is the inappropriate use of exclusioanry rules as a sanction against officials, which renders the issue of how to implement such a system irrelevant (the antecedent ‘if at all’ is false, so the rest is superfluous.)

59

Cranky Observer 05.26.09 at 10:55 pm

> Cleathorpes at 55
> If you think that insisting on civil trials would not raise the risk of terrorist attacks,
> then you think that empirically there is no liberty-security trade-off, which explains
> why you might insist on civil trials without basing that on a a “liberty always trumps
> security” argument. If you thought that there was a trade-off, you might no longer
> insist on civil trials.

Nice job of boundary maintenance. Embedded at the core of your argument is an assumption that:

{Constitution violating, law breaking, torturing} => “results” => increased “security”

Those who reject that assumption are not to be allowed to participate in the discussion, because by definition “then you think that empirically there is no liberty-security trade-off”.

Leaving aside the definition of what “security” means, which is clearly going to be different for authoritarians and Constitutionalists, my 35 explicitly raised the possibility that _even under the authoritarians definition of “security”_ that violating the Constitution and torturing might /reduce/, rather than increase, that state. Neither you nor Clive address that branch of the risk analysis.

Cranky

60

RobertSeattle 05.26.09 at 11:08 pm

Heck, we could save 40,000 lives a year if we made the national speed limit 5 mph – Bring it on – medium city lifesavers!

61

Tom West 05.27.09 at 3:18 am

If we held all of them in preventive detention, it is certain that the number of these crimes would be reduced, but we don’t and few are complaining about that.

In which America would that be?

The spectre of criminals getting off (or someday getting back on the streets) is perhaps the Republicans strongest and most reliable plank. No, let’s be clear. If Obama’s actions result in a few of the detainees being freed and if any of those detainees are involved in more than a handful of American civilian deaths, he can kiss his presidency effectively goodbye. The Republicans will eat him for breakfast.

Note, the Republicans could do the same, and it would hurt them only slightly. The Democrats would be punished for being “soft” on terrorism far more harshly than the Republicans every would.

62

Henri Vieuxtemps 05.27.09 at 6:52 am

Tim, I agree that punishing prosecution by letting criminals go free is silly, but this is a result of what the system is, fundamentally: a game, competition between prosecution and defense with an arbiter (judge). Justice is defined as the outcome of this game. Hence “legal dream teams”, hence the rich are destined to win, the poor are destined to lose.

Anyway, I was only responding to 48, who thinks that compromised evidence = inadmissible evidence; that is, apparently, not true. That’s all I’m saying.

63

Henri Vieuxtemps 05.27.09 at 7:20 am

@59, intuitively, though, it does seem that police state should be a safer model. Empirically too: places like Dubai, Singapore, Cuba.

64

JoB 05.27.09 at 7:48 am

Henri, in a police state you would be safer from all criminals … with one exception: criminals in the police. Also, anything can be seen as a game but ‘tainted evidence’ clauses are in this case to be seen as specific rules applied to the police to counterbalance the specific powers granted to a police. I do think however that we have driven this too far, specifically in the US. Abusers of the power of the state are rarely prosecuted or sanctioned but criminals are often released – balance can be better in this game.

65

Henri Vieuxtemps 05.27.09 at 8:02 am

Yeah, but I suspect that in a good police state criminals in the police avoid bothering ordinary citizens; they are involved in wholesale high-level corruption.

66

alex 05.27.09 at 8:08 am

Taking us back to “Actually, according to Zizek, it’s a classic M.O. of the liberal order.” Now that’s some high-quality wank, to which the above discussion of how police-states work is apposite. But of course, for friend Zizek, the only true freedom is in a revolutionary dictatorship, where habeas corpus means ‘where should I put the bodies?’…

67

cleathorpes 05.27.09 at 8:31 am

Cranky,

I am baffled by your comment. Of course those “who reject the assumption” of a liberty-security trade-off are allowed to participate in the discussion -the question of whether, empirically, there is a liberty-security trade-off, is a perfectly sensible discussion to have, and of course you can argue that there is not, or even that violating the Constitution and torturing might actually reduce security. Indeed, as I tried to suggest, arguing that there is no such trade-off is a perfectly sensible avenue of disagreement with Clive Crook, and a position I myself sympathise with (although the empirical question of whether there is such a trade-off is a very hard one to answer, and I wonder on what evidence opinionated people have based their opinions on). I think you have completely misread me – perhaps you have misread Clive too?

68

Tim Wilkinson 05.27.09 at 10:24 am

cleathorpes (what is cleathorpes?) 67: what about the fact that the trade-off has already been done (e.g. prisons etc etc) and you and Crook seem to want to apply a ratchet effect by treating the status quo as though it were at one end of the spectrum?

JoB 64 (& HVT): Part of the problem is that danger from criminals (trrists, invaders, etc) gets treated as worse than the same amount of danger from any other source, tapping into some emotional response or something. Try this one: I’d prefer my son to be (moderately!) sexually abused by a paedo than crippled by a car. Shocked? Disagree?

anything can be seen as a game yes agree; it’s not very helpful is it.

I’m genuinely not sure what you are getting at with ‘tainted evidence’ clauses are in this case to be seen as specific rules applied to the police to counterbalance the specific powers granted to a police. I am very intersted in the point about sanctions as it seems to get missed(it’s how the system works’) even by the legal types I’ve run it by. Can you clarify/expand?

On the original point from Fortuna 48 – most of these poor bastards have been rounded up more or less arbitrarily, in some cases no doubt because they were on a list of the names that some other torture victim could think of. Though they might be a bit less well-disposed to the US now – the prophecy fulfils itself, a bit like the notion of ‘Al Quaeda’ as a rallying point. So I’m inclined to put most of said compromised evidence on the ‘intrinsically tainted’ – i.e. in this case totally made up – side of the ledger. But as Tom W 61 points out, the attention has been so disproportionately focussed on the possibility of one of them doing something nasty, so there’s a kind of hindsight-waiting-to-happen trap set for Mr O.

69

cleathorpes 05.27.09 at 10:40 am

Tim

Cleathorpes

Yes, I think it’s fair to say we already compromise on liberty to some extent for the sake of security. I don’t imagine Clive would locate the status quo at the extreme end of the spectrum, so I don’t know what you mean him wanting to apply a ratchet effect. I certainly don’t know why you think I want to apply a ratchet effect – all I’ve said is his position is reasonable enough to be able to disagree with without treating him as a knave or a fool.

70

JoB 05.27.09 at 11:56 am

Tim-68,

Shocked? No. Disagree? No. Nonsense? Yes.

I was replying to Henri, pointing out that the main reason not every evidence is allowed isn’t to allow criminals to play games but is to avoid the police play certain games. IMHO — disallowing such evidence is to be seen in that light. In other words: if the evidence is established as real – & it is not impossible to corroborate certain suspect evidence without the suspectness remaining – and the crime and potential for recidive is high enough then the evidence should be allowed and the person responsible for its original suspectness dealt with in a separate trial.

I haven’t read enough of you to know where you are going with the emotion-thing. But it seems overstated. I don’t know the cases but I know it’s a bit emptier there as times go by, so this does not suggest to me that people are overly emotional even considering the hindsight-trap.

71

Henri Vieuxtemps 05.27.09 at 12:03 pm

So I’m inclined to put most of said compromised evidence on the ‘intrinsically tainted’ – i.e. in this case totally made up – side of the ledger.

Exactly. That’s a much better explanation than Fortuna’s 48:
1. There is no evidence whatsoever.
2. They don’t want to release people they’ve held and tortured for 6-7 years, that seems unwise. Not necessarily because these people are dangerous (in the ordinary sense), but for the same reason they refuse to release those torture photographs.
3. The publicity surrounding Gitmo’s prisoners makes it difficult to get rid of them quietly.

72

Tim Wilkinson 05.27.09 at 12:37 pm

@69: Maybe ‘seem to want to’ would have to be counted weasely, as applied to you at least, and I should have read back through and deleted it. On the other hand, your #55 would suggest that there is no such problem.

According to Crook, The Democratic party’s civil libertarians are non-compromisers for insisting on ordinary criminal trials for terrorist suspects. This is equated with the view that There can be no trade-off between freedom and security’.

And #55 says:
If you hold the position that a compromise is necessary…then of course you believe that those on the two uncompromising sides are both wrong… [here one of the uncompromising sides is the pro-status-quo-ante ‘civil libertarian’, isn’t it?, and the other an absolute authoritarian?] …that does not amount to asserting that both are fundamentally the same kind of extremist zealot – quite: and why is that? because in fact one of them has already compromised liberty in favour of security, even though you treat them as opposite extremes between which any compromise must fall.

73

Tim Wilkinson 05.27.09 at 1:17 pm

JoB 70: in a police state you would be safer from all criminals … with one exception: criminals in the police – but unless you meant that the police in a police state would all in some sense be criminals, you would also not be safe from non-criminals in the police, i.e., those exercising their legal discretion to do more or less whatever they like.

And that fact reminded me of the much wider point that ‘security’ (and ‘war’ as in GWOT) seems – in public opinion at large – to justify much more extreme measures than, say ‘health and safety’, even though the actual risks might be much lower. I don’t have any firm evidence to hand for that – it’s just the impression I have. The example was a bit tangential to the specific issue, and too unpleasant to dwell on…but the disproportionate fear of paedophiles seems quite similar to that of terrorists, in that the risks (and response) are inflated because of a gut reaction to the nature of the threat/threatener, rather than a dispassionate cost/benefit analysis.

On the other issue, my point is first, that there is (certainly in the UK and I’m fairly sure in the states though I stand to be corrected) not much correlation, and certainly no formal connection, between 1. evidence being excluded because wrongfully obtained, and 2. the officer responible being subject to other proceedings. And second, if such wrongful conduct were adequately deterred by other means than failed prosecutions, there would never be any need to exclude (merely extrinsically) tainted evidence.

74

cleathorpes 05.27.09 at 1:19 pm

Tim

say there is a continuum between an “absolute focus on liberty with no concern for security” at one extreme, and vice versa at the other extreme. Clive is certainly positioning himself in the middle of what he sees as two extreme positions, but I don’t see that he really implies the two extreme positions are symmetrically placed on the continuum or absolutely at the extremes of the continuum either, so long as they are both extremes relative to his position. I know you could read his words “non-compromisers” to mean he’s saying the ‘civil libertarians’ are actually at the extreme limit of the continuum, but I’d guess if you actually challenged him on it, he’d say that was a loose label rather than an assertion that their position actually entails absolutely no compromises whatsoever. When I used the world “uncompromising” I should really have preceded it with “relatively”. Say you place the status quo 1/4 of the way along the line, Clive 1/2 way along, and Cheney & Co 9/10ths along. That’d work. So I think his argument is still coherent, accepting, as you say, that “one of them has already compromised liberty in favour of security”. (you could probably find some nut jobs that think we have already compromised in favour of liberty, but never mind them). That doesn’t mean I’m saying Clive is right; his position requires two things, first that ‘civil libertarian’ arguments are (relatively) uncompromising, and second this trade-off exists. He could be wrong about both of those counts, I couldn’t say. I only piped up because I thought Henry’s response to him was off the mark.

75

Tim Wilkinson 05.27.09 at 1:22 pm

Forgot one last point @70 – I don’t know the cases either, but I think quite a few of the inmates have been sent home. I know some have managed to get released back to the UK. But in the US, some vocal people are apparently admantly opposed to having even one of them sent to a maximum security prison in their state.

76

Tim Wilkinson 05.27.09 at 1:31 pm

if you actually challenged him on it: too late – what was read was what he wrote.

you could probably find some nut jobs that think we have already compromised in favour of liberty I am one of them. We have not compromised all liberty in favour of security, therefore we have compromised some security in favour of liberty. And a bloody good thing too.

Right, back to work!

77

JoB 05.27.09 at 2:27 pm

Tim, if some have been released isn’t that a proof point that people are unemotional in getting to assess the cases? Of course there will be not-in-my-backyard reactions – but that hardly is a piece of evidence for the undue current treatment of Gitmo. I gather you agree that evidence, unduely obtained but independently corroborated, should stand and that the people that were unduely obtaining it be put on a separate trial, that’s fine then.

78

Barry 05.27.09 at 6:57 pm

Henri Vieuxtemps 05.27.09 at 7:20 am

“@59, intuitively, though, it does seem that police state should be a safer model. Empirically too: places like Dubai, Singapore, Cuba.”

Wow! There are only *three* police states left in the world!!!!!!!!!

I never knew. I would have placed the number in the double digits.

79

Tim Wilkinson 05.27.09 at 9:16 pm

@77 –
No, though clearly GWOT-induced trepidation is not so virulent and all-pervasive as to prevent some of the more obviously innocent captives being quietly released to other countries.

And, yes – if the evidence is not subject to exclusion for intrinsic reasons (e.g. unreliability), and with the rider that those responsible should face an adequate deterrent – I suppose uncorroborated evidence especially so, if anything. I’ve little confidence that such evidence is available in G’mo cases, though. And I’d add that some offences should themselves be considered intrinsically unsound, e.g. those procured by agents provocateurs.

@62 – surely: ‘police state should be a more secure model’, where ‘more secure’ means approx: ‘providing more safety from prohibited actions’. No comment on veracity.

80

Henry 05.27.09 at 10:14 pm

Cleathorpes – when someone writes to suggest that civil libertarians would be OK with the loss of several mid-sized American cities (and presumed death toll in the hundreds of thousands of people) as long as terrorist suspects received trials, I am inclined to take them as saying exactly what they seem to be saying. This is especially so when they are well paid opinion columnists whose tool of trade is the English language. If I had made a suggestion as disgusting and offensive as the one that Crook made, I wouldn’t either ask for tortured efforts to interpret this suggestion in ways at variance with their clear, plain language meaning, nor, frankly, would I deserve such charity.

81

Consumatopia 05.27.09 at 10:36 pm

As far as this security vs. liberty trade off goes, I’m surprised that I don’t see more made of the implications for international cooperation. If torture in the United States is still a very real possibility going forward (the GOP seems to be solidly behind it with few exceptions, so we could be back to waterboards and stress positions as soon as 2013, if we’re still practicing rendition to countries that torture, and if we claim the right to disappear people from across the globe and detain them indefinitely, well, I can’t speak for other countries, but I certainly wouldn’t want to cooperate with a superpower like that. Given that we’re running out of money and almost certainly will have to rely on other countries and the good will of their citizens for our security, then preventative detention, extraordinary rendition, and the lack of closure in the torture argument all seem to be serious threats to our security.

On the other hand, if what concerns you is not security, but the extent to which you can be blamed for security failures, then I can see why Obama might take the position he does.

82

cleathorpes 05.29.09 at 9:46 am

Henry,

your clear and plain reading of his words has Clive saying something extremely stupid (civil libertarians would be happy to see hundreds of thousands die rather than slightly compromise). Do you think that:

a) he really does think that (he is a moron)
b) he thinks no such thing, but wrote very sloppily
c) he thinks no such thing, but purposely wrote a “disgusting and offensive slur” anyway (he’s a loathsome rat bastard)

me, I think d) he meant something else and his meaning is plain enough; I don’t think it takes much of a “tortuous effort” to see it. When I read him, I did not think “OMG! He’s saying that civil libertarians … etc.!! How disgusting!” because I didn’t think he’d say anything so daft, and there was a more generous interpretation readily available (he meant “the civil libertarian position would imply …. [and implicitly] because they are mistaken about the nature of the world and/or don’t see the implications of their own arguments”).

but hey ho, I could be wrong and maybe Mr Crook is the kind of shit you say he is – and if the true state of affairs is either a) or c) then I’m in wholehearted agreement with you. But maybe you’re guilty of an offensive suggestion of your own.

83

Cranky Observer 05.29.09 at 11:52 am

> [and implicitly] because they are mistaken about the nature of the
> world and/or don’t see the implications of their own arguments”

To make such a statement without explicitly acknowledging that there is a competing hypothesis that there does not actually exist a “tradeoff” function between more lawbreaking/torture and more “security” is as far as I can see to make the assertion in your first paragraph.

(Similarly, not acknowledging that the definition of “security” is complex even within the current right-wing-framed colloquial meaning of that word, and more complex if one thinks through the full set of possible definitions {c.f. Schneier}, is also problematic).

Cranky

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Henry 05.29.09 at 12:39 pm

cleathorpes – I try not to engage in speculation on the internal psychological states of pundits – instead I deal with what they say. If I were to speculate, I would posit that the most likely explanation is that he realizes on some level that there is something morally wrong about his attitude to civil liberties, and is trying to deal with his internal contradictions by telling himself that civil libertarians are crazy extremists who don’t need to be listened to, because they are effectively indifferent to the deaths of hundreds of thousands of fellow citizens if only they get their way. But that is by-the-bye – the point is that he made a quite clear statement, using plain English prose. There aren’t many ambiguities. You can claim that he doesn’t believe that because believing that would be crazy. You might be right (I don’t think so). But the best witness we have to the actual beliefs of Clive Crook on this topic are the words and sentences written by Clive Crook. And these words and sentences suggest that – yes – he does hold this view, and is willing to say so in public.

Or, to put it a different way – since words are Mr. Crook’s tool of trade, I think we can grant that he is competent enough in using the English language to say what he actually meant to say. If he meant to say ‘this could be taken to imply that,’ he could actually have used the words ‘this could be taken to imply that.’ He didn’t, and instead used quite different words to make a quite different and extremely offensive claim. Nor has he sought in the interim to qualify or withdraw this claim.

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The Fool 05.30.09 at 3:52 pm

Well Crook is clearly wrong to suggest that all civil libertarians are extremists and particularly to suggest that somehow trials would put us at some particular risk of nuclear holocaust. But that said, Crook does touch on a valid point. Many civil libertarians would be willing to trade large numbers of deaths — even millions — as a fair price for not violating the civil liberties of a terrorist, i.e. not torturing in the ticking time bomb (TTB) scenario.

I’ll leave aside the plausibility and the implications of the TTB for now, but as a matter of fact, in debating the TTB on several liberal blogs including Greenwald’s at Salon, Lawyers, Guns, and Money, Yglesisas and Sadly, No, I have encountered many civil libertarians who explicitly claim to be willing to make just such a trade off. In fact, many of them are quite proud of it and see themselves as taking stand for morality in justice.

I think the TTB is both highly unlikely but possible. Yes, the circumstances have to be just so, but all the huffing and puffing aside, it isn’t really that hard to imagine a real world scenario that could lead to a situation that was relevantly similar.

Philosophically speaking, the TTB is certainly logically possible and stands as one of the strongest arguments against moral absolutist positions. Granted, most philosophers have more sense than to be a moral absolutist in a TTB kind of scenario but there are some nonetheless. What’s more, many deontological philosophers who do grudgingly allow that under certain circumstances they would allow torture in a TTB type scenario make appeals like Walzer to “dirty hands” or like Scanlon they throw their hands up in the air and say morality simply ceases to apply. But they do so at the cost of incoherence in their theories.

Practically speaking, dismissal of the TTB, as in the Belle Waring post that Henry links to, simply by ridiculing it may well be counterproductive from a public relations standpoint. Many people, myself included, CAN imagine a TTB scenario. We may not think it is very likely, but we don’t think it is utterly ridiculous. That’s why, for example, we think that it is wise for the U.S. to continue to fund the program that gives money to Russia to try to secure their loose nukes.

Now given, that there are a fair number of people who find the TTB plausible (if not probable!) then to simply dismiss the TTB as ridiculous carries the risk of backfiring on the anti-torture side. The risk is that they will be seen as ideologues who oppose the possibility of the TTB as a matter of faith. This will unnecessarily harm their credibility as a general matter. Given that we all think the TTB is improbable, it is much smarter to acknowledge that in the highly unlikely TTB scenario we might have to think the unthinkable, while pivoting and sharply distinguishing the TTB from any situation that currently holds, e.g. the situation that faced the Bush Administration.

An even worse strategy is to acknowledge the TTB and say that you would be willing to sacrifice millions of lives in order to preserve the rights of the terrorist. People here at Crooked Timber seem to think there are no such people, but in fact, as I say, there are. The worst thing that could happen to those of us on the anti-torture side is to branded as extremist pacifists. Then we will lose all credibility on these kinds of questions and there will be more torture rather than less.

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Cranky Observer 05.30.09 at 8:37 pm

> Then we will lose all credibility on these kinds of questions
> and there will be more torture rather than less.

Whilst those who violated the law, the Constitution, and 99.9% of the moral codes recognized by humanity, and enshrined torture and dictatorial government as the future path of the United States (*) whilst simultaneously making the United States LESS “safe” (whatever that means, but in this case by their own definition), did not harm their credibility at all. No SIR! And they must not be questioned or held to account for their actions. No, never: those who so question might be branded “extremists”. Unlike Dick Cheney that sensible centrist man.

Cranky

(*) There is no question in my mind that an Obama presidency is better than any of the alternatives. But knowing the South Side of Chicago as I do I was fairly certain from the start that Obama was a conservative, and that is proving out. A kinder, gentler conservative Democrat to be sure, but a conservative nonetheless. And one who firmly believes in the primacy of Presidential power. He will take actions around the edges to reduce the horror, but he will leave the structures intact for the next Republican president (the Cheney daughter?) in 2016.

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Phil 05.30.09 at 8:50 pm

“Philosophically speaking, the TTB is certainly logically possible”

I don’t see it. The scenario implies that you’re certain that there is a bomb, certain that the suspect knows how to disarm it and certain that he’ll talk under torture. In the real world we can’t read minds in this way – which is pretty much why we have due process.

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The Fool 05.30.09 at 9:12 pm

Whilst those who violated the law, the Constitution, and 99.9% of the moral codes recognized by humanity, and enshrined torture and dictatorial government as the future path of the United States (*) whilst simultaneously making the United States LESS “safe” (whatever that means, but in this case by their own definition), did not harm their credibility at all. No SIR! And they must not be questioned or held to account for their actions.

Who said that? Certainly not I. I despise torture. Bush faced nothing like the TTB and deserves to be tried for his many crimes, including war crimes that include torture.

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The Fool 05.30.09 at 9:18 pm

@Phil:

I said it is “logically possible”. Do you maintain that the concept of the TTB is self-contradictory?

Empirically speaking, it is an open question just how likely the TTB is. I have already agreed that it is unlikely. But over the next 50-100 years, as more and more countries like Iran and Iraq and North Korea develop nuclear weapons? With the rise and fall of nuclear regimes like Pakistan? Seems like a live possibility to me.

Are you unconcerned with whether or not the Russians secure their loose nukes? Do you find the money we spend on the program to encourage the Russians to secure those nukes to be a complete and total waste?

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Righteous Bubba 05.30.09 at 9:21 pm

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The Fool 05.30.09 at 9:31 pm

Bubba, perhaps you’d care to make an argument? But probably not. Name calling and ridicule is about the extent of your repertiore.

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Phil 05.30.09 at 10:30 pm

Empirically speaking, it is an open question just how likely the TTB is. I have already agreed that it is unlikely. But over the next 50-100 years, as more and more countries like Iran and Iraq and North Korea develop nuclear weapons?

Completely and utterly irrelevant. The structure of the TTB is: our use of torture is justified because we know in advance with perfect certainty that it will prevent a greater evil. Exactly the same argument could be used to justify pre-emptively executing future terrorists, or for that matter pre-emptively imprisoning future murderers – if we had perfectly certain advance knowledge. In real life we never can have that kind of certainty, so we have to do what we can consistent with our own ignorance and the suspects’ rights. Hence, due process.

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The Fool 05.31.09 at 12:19 am

@Phil: nothing in the real world is ever known with “perfect certainty”. But we allow extrajudicial kiilings in the case of war and self-defense and the rescue of others under attack without demanding perfect certainty. Certainly we would require a high standard of proof in a TTB scenario though, maybe proof beyond a reasonable doubt.

To spin out a hypothetical scenario that would satisfy the condiditons: if we had a group of terrorists who had been under surveillance for some time and if we had bugged their quarters and had recorded daily conversations for the last month in which they planned in detail their nuclear terrorism plot, and if we had other evidence that they had acquired a nuclear device, and if some of those conversations included statements that the bomb was in place in New York City and if some of those conversations indicated which of them knew the location of the bomb and if we had gotten the names of which ones those were and if we then arrested one of the ones whom we knew to know the location, then we would have sufficient cause to use whatever force was necessary.

Granted, that’s a lot of conditions but any complicated scenario involves multiple conditions. The point is that such a scenario is logically possible and, while unlikely, it is not impossible to imagine it happening in the real world. The real world contains nuclear weapons. In the real world there has never been a weapon that has been kept out of the hands of the wicked forever. In the real world, plots have been thwarted by police work. You put those things together and you get the TTB in the real world.

P.S. Your argument about preemptive execution of murderers is inapt for at least two reasons. First, The TTB is not about somehow predicting a future crime, it is about thwarting a crime in progress. Second, the TTB is much more compelling than any case about a single murder because of the large number of lives at stake — potentially millions.

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Cranky Observer 05.31.09 at 2:36 am

> To spin out a hypothetical scenario that would satisfy the condiditons: if
> we had a group of terrorists who had been under surveillance for some
> time and if we had bugged their quarters and had recorded daily
> conversations for the last month in which they planned in detail
> their nuclear terrorism plot, and if we had other evidence that
> they had acquired a nuclear device, and if some of those conversations
> included statements that the bomb was in place in New York City and if some of
> those conversations indicated which of them knew the location of the bomb and if
> we had gotten the names of which ones those were and if we then arrested one of the
> ones whom we knew to know the location, then we would have sufficient cause to use
> whatever force was necessary.

Let’s just continue your hypothetical a bit, since by your rules we can continue adding suppositions until we get the result we want: after 6 hours of agonizing torture, including crushing the testicles of the suspected terrorist’s 6-year-old son in front of his eyes, the suspect breaks down and provides The Fool with the location of the nuclear device in New York City and the necessary disarming code. The Fool personally leads a team of trained commandos across New York City to the location of the bomb, killing several pedestrians in haste to get there. The Fool and his team smash into the device’s location through the side wall. As they charge into the room, guns and Geiger counters ready, they hear a loud recorded “bang”. At that instant Boston is vaporized by the terrorist’s real device.

I mean seriously, if anyone actually has such a device and is both stupid and utterly evil enough to use it they will bring it into the US in a shipping container, load it into a heavy-duty delivery van, drive it directly to the location where they want to detonate it, and then … detonate it. The idea that utterly evil, hardened, dedicated terrorists add ticking timers to their weapons and play “24” type fictional games is so ridiculous that it would be insulting to 2-year-olds to call it “childish”.

It also fails to address the growing evidence that Dick Cheney and his gang derived personal satisfaction and enjoyment from ordering torture – as torturers throughout history have eventually so derived. At first they tell themselves that it is “necessary” to “avoid ticking time bombs” that they make the “tough decisions”, but it always and everywhere rapidly degenerates into a sick personal (and possibly sexual) satisfaction.

Finally, if The Fool absolutely thinks that torture is necessary then the correct procedure is to (1) personally order and conduct the torture (2) Save New York from Terrorist Annihilation (3) turn himself in to the nearest police station, FBI office, or US Attorney’s office, waive his Miranda rights, waive his right to counsel, and make a full confession of his crime. Is that what Dick Cheney did? David Addington? John Yoo? Hmmm… back to that sexual satisfaction thing…

Cranky

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The Fool 05.31.09 at 3:12 am

@Cranky:

At that instant Boston is vaporized by the terrorist’s real device.

1) I could spin out a scenario in which we have a fuse of an arbitrarily long length. We might have weeks or months. We threaten the terrorist with increasingly intense torture if he lies. If he gives us a location we can send agents to check it out. We have lots of time to make his pain increasingly unbearable if he lies. Many, many people would crack under these conditions. I know I would. And if I would, so would you. Maybe not Super Terrorist who can withstand all pain, but many real people. In any case, assuming as I do that we have tried everything else unsuccessfully, it is worth a shot to find out whether or not we got unlucky and captured Super Terrorist.

2) It is possible that we might learn of the plot at an even earlier stage. Let’s say they are still in the planning stages in Pakistan. We know they have acquired the nuke and are planning on detonating it in a U.S. city. But they haven’t even gotten the weapon into the U.S. yet. It is still in Pakistan. But we don’t know where in Pakistan. But we have captured one of the terrorists who does know. We have tried non-torture techniques for weeks but they have failed. Now we have to torture him. There is no danger of the bomb going off at that time — certainly not in Boston.

I mean seriously, if anyone actually has such a device and is both stupid and utterly evil enough to use it they will bring it into the US in a shipping container, load it into a heavy-duty delivery van, drive it directly to the location where they want to detonate it, and then … detonate it.

See 2) above.

It also fails to address the growing evidence that Dick Cheney and his gang derived personal satisfaction and enjoyment from ordering torture

As I have said, I’m not defending Cheney in any way. he should be tried for war crimes and as far as I can tell convicted. We have not been facing a TTB.

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The Fool 05.31.09 at 3:18 am

The bottom line is it is really idle to pretend that the TTB couldn’t possibly happen. You can raise all kinds of pragmatic obstacles but in the end the terrorists might not have a flawless plan. Few plans are flawless, even ones that are carefully devised. It COULD happen. Probably won’t. But it could.

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