Since my first attempt to critique Clive Crook on torture seems to have “ended rather badly”:http://clivecrook.theatlantic.com/archives/2009/04/more_on_torture_prosecutions.php, here’s a second go. NB that this post is _not_ an obviation of “the apology below”:https://crookedtimber.org/2009/04/28/torture-schmorture/ for my initial misunderstanding and mischaracterization of his position. That stands – if I screwed up in reading him, I screwed up in reading him, and am perfectly prepared to take my lumps. It is, instead, a reflection of the fact that my perplexity has in part increased as he has sought to explain himself and his position further. I am quite confused about the logical connections that are supposed to pull key parts of his argument together. Now this confusion could be a reflection of my ‘remarkable incompetence’ as a reader, or alternatively of my ‘total lack of good faith.’ Or it could be a result of incoherencies either in Crook’s views themselves, or in his presentation of same. Because I simply don’t get the argument that he is making (and from the evidence of our comments section, at least some others are similarly confused). And I’ll try to present my understanding of it as non-snarkily as possible in the hope that if I don’t use words like ‘reprehensible,’ he won’t continue to suggest that I am an idiotic hack and a disgrace to the legacy of the “blessed Isaiah Berlin”:http://www.georgescialabba.net/mtgs/2001/10/the-crooked-timber-of-humanity.html, if indeed he bothers to reply at all.
As I understand Crook’s position – and I am open to correction here, it is as follows.
(1) _That waterboarding is unequivocally torture, and should be criminalized._ This was not clear to me in his initial op-ed – while he said that torture was ‘shameful’ and should be criminalized, I didn’t think that Crook thought it was torture. His exact words were:
But this already far from simple issue gets even more complicated when you turn from the question of justification to the law. Many just take it for granted that waterboarding is torture, and hence illegal. The convoluted legal defences in the memos are so false, in their view, that they compound the crime. The bizarre care the memos prescribe to guard against lasting physical harm to suspects, for instance, is dismissed as a sham that only makes the enterprise more disgusting. Not so fast. Common sense may tell you waterboarding is torture, but the law is less clear-cut.
This, together with his later suggestion that waterboarding differed in kind from flaying, finger-crushing and other things that journalists and YouTubers are reluctant to inflict upon themselves, led me to believe that Crook himself thought that the ‘common sense’ view was wrong. I am happy to accept his clarification that “Waterboarding is torture in the ordinary meaning of the word.”
(2) _That the law is ambiguous over whether or not the officials who gave the green light to waterboarding can be prosecuted._
In the original piece:
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.
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.
In Crook’s clarificatory blogpost:
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.
(3) _Therefore we should not bring prosecutions._ In the original article, his primary concern is that it would hurt America’s reputation abroad, and his second, wider concern is that it would hurt bipartisanship. I quote:
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. And that is by no means the only risk. 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.
In his later clarification, he brings forth a new concern, which is not expressed in the original piece.
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 [and] 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.
Here, his claim is not the (pragmatic, and on its face value-neutral) one expressed in the original piece – that a failed prosecution would hurt America’s standing in the world, and damage bipartisanship. It is a quite different claim: that the major risk of failed prosecution would be to legitimize the future use of torture.
(4) _That those who want to see prosecutions brought against torturers are rage-filled partisans who are more concerned with getting vengeance than with seeing justice done._ I quote the relevant bit again:
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.
So here are the two continuing problems with Crook’s position as I see them.
(1) Crook’s defence of not prosecuting the officials who authorized torture was originally twofold – that a failure to convict would hurt America’s international reputation, and that prosecuting these officials at all would damage the prospects for bipartisanship. Now it’s threefold. In addition to the aforementioned, Crook is now arguing that a failure to convict would make it more likely that torture would be legitimized in the future. The fundamental problem is that his arguments seem to me to be incoherent. His initial claim that prosecuting officials at all would further damage the already scanty prospects of bipartisanship cooperation suggests that when push comes to shove, we should value any prospect of bipartisan cooperation, however slight, over punishing the people who authorized waterboarding. But his explicit acknowledgment that waterboarding is torture – and that our aim should be to stop torture happening again – seems to suggest that stopping waterboarding should be our ultimate goal.
Now, he does present us with a possible resolution of this clash but it is not at all a convincing one. When he suggests that a ‘political project’ of ‘changing people’s hearts [and] minds’ would not only be less divisive but also more likely to stop torture happening again in the long run, he is saying that we can have our bipartisan waterboarding-banning cake and eat it too. But the problem is that the ‘we all need to sit down and build a moral consensus’ argument has much in common with the ‘all we need to solve the problem are more ponies! And fluffy baby unicorns!’ defence. In the absence of any actual, concrete proposals as to how such a consensus could be built, it’s more about wishing the problem away than about solving it.
The second problem has to do with claim (4), which is really rather a slur. Does Crook really believe that the people who want to see prosecutions of these officials are embittered partisans who don’t much care about justice? Crook himself says that waterboarding is unequivocally torture. As it happens, rather a lot of people agree with him on this, but either disagree on the likely legal outcome of prosecutions (as they are entitled to – Crook is, as he admits, not a lawyer, and doesn’t in any event try to argue that administration officials have a cast-iron defence), or on the downside risks of a failed prosecution, or on whether we should be taking a consequentialist approach to the prosecution of war crimes in the first place. To suggest that these people care about nothing more than sticking it to the Republicans is hardly a good example of the Isaiah Berlin style values of open-mindedness, tolerance, and civility that Crook says he admires. And even to the extent that some of the most vigorous proponents of prosecutions are associated with the Democratic left, there is a strong argument that Crook has the causality going the wrong way. Much of the divisive partisanship that Crook dislikes so much is the product of people’s quite justified anger at the previous administration’s war on Iraq, wilful disregard of human rights and concerted attacks on civil liberties. The last administration had a radicalizing impact on many people, including some of Crook’s fellow conservatives, who found themselves disgusted (as they should have been) at what their government was doing in their name. While I don’t agree with a lot of what he says, I am convinced that e.g. Andrew Sullivan was quite sincere in his Damascene conversion, and that it was motivated by his perception of the human rights abuses that the Bush regime was perpetrating. The same goes for many less well-known conservatives that I know.
Political passions can surely lead to many vices, but so too can a moderation that is overly deferential to a perceived bipartisan consensus, and which, even while it deplores human rights violations, simultaneously condemns those whom it sees as being a little too exercised by these abuses. If Crook wants to distinguish his position from this kind of moderation, I invite him to do so.
{ 111 comments }
Mike Lubika 04.30.09 at 8:09 pm
Well put. To your first point Henry, I think if Clive wants to maintain that the objective of minimising future torture is better pursued by the ‘political project’ than an impeachment, then he needs to flesh out this political project a bit more – or else face scorn of your ponies/unicorns variety.
What I think Clive is specifically overlooking is that, whilst an impeachment or two would indeed be likely to further entrench pro-torture attitudes amongst many right-wingers, this effect would be offset by an opposite effect as, following a proper airing of the details and circumstances of torture, a number of moderate torture supporters would presumably change their views; and that conversely, a Ford/Nixon-style pardon would also have an entrenching effect on pro-torture attitudes.
mcd 04.30.09 at 8:10 pm
I don’t believe you misubderstood him; he was deliberately being obscurantist.
(g) boils down to a political point- if Republicans really really oppose something, it doesn’t serve the public by going against them.
(e) and (f). I suspect you could replace “waterboarding” and “torture” with “rape”, “armed robbery”. “breaking and entering” or any other such terms and argue the same. You can always argue what you did isn’t *exactly* the “commonsense” understanding of such terms.
(c) . If doing some act leads to absolutely no negative consequences, then in what sense can it be disgusting or immoral or wrong? (his attempt to demonstrate how “fairminded” he is- see he doesn’t approve of torture!)
I am actually waiting to see when some defense attorney will bring in Bushite apologetics in defense of their clients.
John Protevi 04.30.09 at 8:12 pm
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.
Who knows what evil lurks in the hearts of men? Clive Crook does!
Bloix 04.30.09 at 8:22 pm
As I said on the last comment thread, you seem to think you are debating with a rational person, but in fact you are well out into Sadly, No territory. You decided to wrestle with a pig, and you are disturbed to find that you are covered in shit. Worse than that, you seem to be surprised that the pig is enjoying himself.
magistra 04.30.09 at 8:25 pm
Crook asks: ‘What would acquittals mean for US standing in the world?’ What he carefully doesn’t ask is ‘What would the US failing to try people when there is substantial evidence of torturing mean for its standing in the world?’ When you ask that question, his disingenuity becomes plain.
dsquared 04.30.09 at 8:30 pm
#5: yes indeed. It was that stuff about “US standing in the world”, this late in the game, that rather tipped me off that friend Crook was … no, I’ve turned over a new leaf and I don’t use nasty words any more … that he was a little bit reprehensible.
Donald Johnson 04.30.09 at 8:36 pm
Henry–on rereading his first post, I think you were right the first time.
Rich Puchalsky 04.30.09 at 8:39 pm
Surely U.S. standing in the world will rise if we fail to prosecute torturers because we’re afraid we might not convict them and might, in fact, go to full and open support of torture.
Righteous Bubba 04.30.09 at 8:42 pm
Crook couldn’t have written that waterboarding was unequivocally torture in his first column because that would have made the column stupid: of course you prosecute torturers. So he weaseled. Now he claims to be clarifying and in the process he demolishes the point of his column.
Rich Puchalsky 04.30.09 at 8:46 pm
But RB, everyone knows that you don’t prosecute any criminal if there’s a chance that they may have a legal defense.
Bloix 04.30.09 at 8:46 pm
BTW, on the issue of the difficulty of conviction: one of the problems with the “let the actual torturers off, just go after the top people” position is that, if you don’t have the testimony of the actual torturers, it’s much more likely that the top people will go free. A jury that actually saw the waterboarding would be much more likely to convict – presumably that’s why the tapes were destroyed. Now, in order to convict, the prosectutors will need a source of genuine, believable, graphic testimony on what this crime is like – and the best source of that testimony will be from the operatives. (The victims have been driven insane and would be poor witnesses even if they were in possession of their faculties.) If the torturers don’t testify, there will never be convictions. And the only way to get their unvarnished, fully truthful testimony is to indict them, and allow them to plea-bargain to little or no prison time in exchange for complete cooperation.
Barry 04.30.09 at 8:50 pm
Clive’s current BS is just one more move in the GOP multi-step. Remember when it was ‘we don’t torture!’? Which segueed into ‘it was necessary!’, ‘they deserved it!’, ‘we have b*lls, unlike you DFH p*ssies!’, ‘the information saved lives!’, blah blah blah blah blah. Like any good dance, they can go back and forth between the steps as the music leads, and even do multiple steps at once.
The current steps are ‘prosecutions are teh SUXXOR’; it looks like “who can say what this ‘torture’ you speak of actually is?” is the next step.
Henry, I appreciate that you’re open minded, but you’ve really given him the benefit of the doubt far more than he deserves. His act is to appear indecisive, etc. because that currently helps the right.
Write his *ss off, unless he pulls an Andrew Sullivan and repents.
Barry 04.30.09 at 8:58 pm
mcd 04.30.09 at 8:10 pm
“I am actually waiting to see when some defense attorney will bring in Bushite apologetics in defense of their clients.”
We probably won’t even hear about it. Any defense lawyer who pulled Bushite sh*t like ‘who can define XXXXXXXXXXXX?’ will probably get a quick lesson in the legal literature and precendents defining XXXXXXXXXXXX from the prosecutor. The judge *might* look at the defendant and think ‘you poor dumb SOB – did your fool of a lawyer come up with this or are you a fool yourself?’.
Righteous Bubba 04.30.09 at 9:00 pm
I think it’s worth saying that “Obama’s needless fight over torture” is the headline of the first piece and not “Let the torturers off scot free”. Why, that second headline would make Crook look like a monster!
christian h. 04.30.09 at 9:18 pm
Sorry, but I can’t believe you apologized to Crook. The fact that many people “mis”understood his original piece proves in itself that it wasn’t a model of clarity, one suspects on purpose.
His legal argument boils down to “things are complicated” (or, “don’t be so absolutist“). This is of course a favorite of self-declared moderate and sensible people everywhere in their defense of the most despicable acts, but it’s quite simply bs. Sometimes, things are simple. This is one of those cases.
His political argument is virtually non-existent, that is, it is simply a series of claims that are not supported by any argument or evidence; apparently, we are supposed to take it on faith.
Finally, his whiny tone alone suggests that an apology is unnecessary and in fact counterproductive. If Crook doesn’t like being argued against forcefully, he should stop drawing a pay-check for expressing his opinion publicly.
Doctor Science 04.30.09 at 9:35 pm
My only disagreement with the previous commenters is in our advice to Henry.
Henry, I think you are performing a necessary though filthy public service in this debate. You may feel rather muddy, but as your wrestling goes on the porcine nature of your opponent becomes ever-clearer to onlookers.
I don’t know how to deal with statements like those who want to see prosecutions brought against torturers are rage-filled partisans who are more concerned with getting vengeance than with seeing justice done otherwise. CC seems to have completely bought into the authoritarian mindset Sara Robinson recently outlined:
To me it seems that CC sees that people like myself (or Andrew Sullivan, Glenn Greenwald, Marcy Wheeler, etc.) are in a towering, burning rage — which we are. He never seems to make the connection that the degree of our anger is in fact proportionate to the offense, and that what he calls my desire for “vengence” is the need to make certain that no-one ever tries this kind of thing in my name again. Deterrance, that’s the word, and it’s one law-and-order conservatives are very fond of.
I don’t know what CC means by the “justice” that we rage-filled leftists are ignoring, but what *I* mean is the restoration of right human relationships. Specifically in this case, “right human relationships” means “no man is above the law”. None. And the only way to demonstrate that we hold to this principle is through a public, legal process that shows it.
bob mcmanus 04.30.09 at 9:46 pm
Given a choice, I think I would actually prefer a “hearts & minds” project to prosecutions, with a firm committment to leaving no heart or mind unchanged, a finite timeframe in which it should be accomplished, and a flexibility as to means. I think this would be more appropriate in so many ways.
Ahistoricality 04.30.09 at 9:57 pm
I honestly don’t understand Crook’s argument about acquittals legitimating torture. Prosecutions would, in themselves, indicate that the actions were prima facie unacceptable and that we remain committed to the rule of law. Acquittals, if the result of a failure to prove specific events and actions rather than a Nuremberg defense, would again confirm our committment to the rule of law.
Initially, I thought that there was some legal cover for the torturers because of the OLC’s standing in the administrative branch, but I’m pretty well convinced at this point that I was wrong about that, and any competent jurist in this country should be able to dismiss a “following orders” defense with a minimum of fuss and bother. It gets slippery when you move up the chain of command to policymakers, but that’s no reason why they shouldn’t be judged by a jury of their fellow citizens.
Phill Hallam-Baker 04.30.09 at 10:21 pm
For the sake of argument let us stipulate that the Bybee memos are justifiable interpretations of law and not the transparent sophistry written to enable the torture policy that they obviously are in fact.
Let us also leave aside the fact that the law does not permit harsh treatment that falls short of torture either.
Even under these facts it is imperative to prosecute, convict and imprison Bybee, Yoo and the rest.
Unlike the Bushies, I did not start thinking about terrorism after 9/11. for Europeans terrorism was a fact of life for decades before 9/11. The different approaches and the different measures of success resulting are instructive. The West Germans faced a terrorist threat from the Baader-Meinhof gang (RAF) that was considerably more sophisticated and better trained than the IRA in 1969. Yet five years later the Baader-Meinhof gang was almost eliminated while the conflict in Northern Ireland was at its peak.
The difference was that the British authorities responded to Protestant terrorism using the frame of a military response. Two years later the death rate was 500/year and Catholic terrorist groups were the principle concern. Internment did not solve the problem, it made it worse. Torture did not solve the problem, it encouraged US politicians such as Rudi Giuliani to support and raise funds for the IRA through its NORAID front.
In 1976 the British government adopted a policy of criminalization. No more referring to a war against the IRA, no more special status prisoners, no more extra-legal means. The death rate dropped from a steady 300 a year to about 75 a year for the following decade – a 75% drop. This was even true during the IRA hunger strike – a campaign against the refusal to award ‘political’ status to convicted terrorists.
We cannot defeat Bin Laden by adopting the same despicable tactics that he employs. That allows him the dignity of treatment as an equal. Abu Ghraib is their recruiting sergeant. To win the propaganda war we must utterly repudiate despicable methods. To do that we must prosecute those involved to the fullest extent to the law.
The essence of the Republican argument is that people are disposable in the service of the interests of state – an argument that I have heard direct from KGB colonels. On that point I agree. The only point of disagreement is that I believe that it is expedient to consider them to be disposable in the service of state interests while this is something that they believe is only ever true of others.
Ginger Yellow 04.30.09 at 10:31 pm
I don’t follow Crook’s point (well, I don’t follow many of them, but I’ll stick to this for now) about the AG’s supposed discretion. The AG may have general discretion not to prosecute crimes (IANAL, so I don’t claim to know either way), but a) the torture statute says that offenders “shall” be punished without mentioning any discretion, and the torture convention that the US ratified very explicitly says that torture shall always be prosecuted without exception. Now you may be able to make a weaselly argument that it is domestically legal for the AG not to prosecute, but it is a clear breach of our treaty obligations and also gives other countries the right to prosecute any and all US enablers of torture. Does Crook really think we’d be better off if Yoo et al were prosecuted in Spain rather than America?
LizardBreath 04.30.09 at 10:49 pm
For the sake of argument let us stipulate that the Bybee memos are justifiable interpretations of law and not the transparent sophistry written to enable the torture policy that they obviously are in fact.
Even under this assumption, I think there’s a straightforward argument for prosecuting Bybee and the rest for conspiracy to torture. The memos were written, whether in good or bad faith, with the knowing intent to facilitate the, e.g., waterboarding of prisoners; they were an overt act toward accomplishing the goal of an agreement (between the lawyers, the policy makers, and the CIA functionaries) to waterboard. That’s all the mens rea you need for conspiracy — there’s no general ‘good faith mistake of law’ defense.
marcel 04.30.09 at 10:55 pm
In re 16 above: I think it was LBJ* who said, “When you got ’em by the balls, their hearts and minds will follow.”
*Though a google search attributes this to Chuck Colson.
dsquared 04.30.09 at 11:06 pm
#20 – thanks for that, LB. It did strike me as very weird that writing torture memos was easier to get away with than filing an incorrect Sarbanes/Oxley declaration.
mart 04.30.09 at 11:12 pm
whilst the rest of his ‘argument’ is bad enough, I’m really struggling here with claim 4:
“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.”
I don’t see why the motivation of those pushing for prosecutions is an argument against them – surely if the relevant authorities believe that an illegal act has taken place then they have a duty to investigate/prosecute, even if motivated by “revenge”?
joel hanes 04.30.09 at 11:26 pm
I don’t know what CC means by the “justice†that we rage-filled leftists are ignoring
He means :
+ everyone tortured is a priori a Bad Guy. (No innocents are ever tortured, of course. If they were innocent, we wouldn’t be torturing them now, would we?)
+ when Bad Guys are tortured, it’s no more than they deserve, i.e. “justice”
It is inconveivable to CC that someone could think that even Bad Guys don’t deserve to be tortured.
Jon Livesey 04.30.09 at 11:42 pm
Just in case anyone took Mr Hallam Baker’s comments about Northern Ireland seriously, his attempted cause-and-effect is unhistorical and misleading. The notion that any terrorist group will lay off and treat you nicely because you eschew rough methods is grotesque. What they will do instead is bank the benefits and move on to new outrages.
What really happened in Norther Ireland was threefold: first, Protestant terrorism reached the same levels as Catholic, leading to a stand-off. When it ceased to be mostly risk-free to support SF/IRA, support for SF/IRA among the N. Ireland public declined.
Secondly, the British did not move away from military methods at all; what they did was move to more effective methods. They penetrated SF/IRA at all levels, leading to a situation where it literally did not know which of its operatives it could trust. This is very bad for an urban terrorist group which depends on “informal” support.
Finally, anti-British public posturing in the US was gradually replaced by a policy of bringing SF/IRA to heel. When the Clinton administration showed that it was committed to a peace process, and would enforce US law, US funding ceased to be the reliable lifeline for SF/IRA it had been.
This leaves the US no better and no worse off than it has been. Torture is a US domestic scandal. Torture is mostly ineffective as a way of gathering information, but abandoning torture is unlikely – to say the least – to bring about a change of heart chez Taliban.
What the US needs to do is what the British did in their Empire a century ago; first, develop the language and other skills needed to penetrate the societies they wish to control, and second, develop policies that are beneficial to at least some social classes in those societies. It’s almost a joke, but if the US actually wants to run an Empire, it will finally have to assume Kipling’s “burden” and make sure that its policies benefit the populations of the countries it occupies, rather than benefiting US Corporations.
To achieve this, dropping torture should be seen as a start, but no more than a start. Dropping torture is an issue of decency, not a clever war tactic or good PR.
Donald Johnson 05.01.09 at 12:25 am
“What the US needs to do is what the British did in their Empire a century ago; first, develop the language and other skills needed to penetrate the societies they wish to control, and second, develop policies that are beneficial to at least some social classes in those societies. It’s almost a joke, but if the US actually wants to run an Empire, it will finally have to assume Kipling’s “burden†and make sure that its policies benefit the populations of the countries it occupies, rather than benefiting US Corporations.”
No thank you. We’re talking about the British Empire here? I read “Late Victorian Holocausts” some years ago and while I know the Brits built train lines and so forth, I’m unwilling to use them as a model for anything the US should do. Not that we haven’t piled up the bodies pretty high ourselves in some places.
Walt 05.01.09 at 12:37 am
It’s not until this moment that I appreciated how much Broderism has become a threat to the Republic. Crook is actually arguing that if members of one political party feel that something is not a crime, then the government should not prosecute. This is the exact philosophy pursued towards lynchings in the South, to excellent effect.
Watson Aname 05.01.09 at 12:43 am
What the US needs to do is what the British did in their Empire a century ago; give up on the idea of empire, as it can only end in tears.
There, fixed that for you.
Donald Johnson 05.01.09 at 12:44 am
And what Watson Aname said as well–the US should get out of the Empire business.
Watson Aname 05.01.09 at 12:45 am
I could have sworn “what the British did in their Empire a century ago;” had strike-through in 29 when I hit “submit”.
The way it is now it doesn’t make any sense.
tao9 05.01.09 at 2:54 am
Bloix 04.30.09 at 8:46 pm:
“The victims have been driven insane and would be poor witnesses even if they were in possession of their faculties.”
So KSM & Zubaydah were Compos Mentis prior to capture? Good to know.
Evan Woodward 05.01.09 at 3:12 am
I’m sensing a recurring theme in the complaints of the “moderates” and outright torture apologists in this debate that is akin to the mugger blaming his victim for the gun pointed at his head. In this situation, the ‘leftists’ who support prosecution are considered the partisans despite having the default machinations of the rule of law on their side, while the knee-jerk defender of torture is increasingly revealed to be fumbling about in search of any non-ideological rationale. Likewise with those who claim that prosecutions would establish a pattern of “criminalizing policy differences” by incoming administrations. Those making this claim seem to forget that one instance of a thing cannot be a pattern, and that this conclusion would only be possible after a second instance, presumably (failing the meteoric rise of some third party) pursued by a future Republican administration, perish the thought. Those making this claim correctly predict future partisanship, and seek to lay the blame for it at the feet of torture opponents in the present.
Michael Turner 05.01.09 at 3:29 am
Does Crook really believe that the people who want to see prosecutions of these officials are embittered partisans who don’t much care about justice?
I can’t see into his heart, I can only look at his words, which are
Now, as someone who was born in Berkeley and grew up there in the 60s (and who went to college there in the 80s), who has at times considered himself too far to the left to even be a Democrat, I believe I can credibly claim a more-than-glancing acquaintance with the Democratic left in America. These are people who, I think, are overridingly concerned with justice, indeed it is their most endearing quality. What Clive Crook is saying is not that they don’t care about justice, but that, on this issue, they are so consumed with a desire for revenge that it’s significantly hampering their ability to see what would be more just in this case. I’m not sure I agree with him, but I certainly don’t agree with misrepresenting what he said, both here, and with the following, which takes the misrepresentation of CC even further:
The Democratic left cares about a lot more than “sticking it to the Republicans”, and I’m sure Clive Crook knows this.
As for good examples of the “open-mindedness, tolerance and civility” of Isaiah Berlin, I’m not sure the last thread on this subject showed much encouraging evidence of it. We had Rich Puchalsky signing up for the proposition that any American who thought torture might be justified in some circumstances is “scum” (making a probable majority of Americans “scum”.) Dismayingly, we had very few protesting his categorization. People had no trouble distorting my opinions, and showed no contrition when corrected.
Even one who saw some reason in my position had already decided somehow that 100% of those who had done any torture at all were “bloody sociopaths.” Well, I wonder what Isaiah Berlin would have to say about such an assumption? He might say (as I do) that the certainty of one’s own incorruptibility is the first step down the path of corruption. In a not-entirely-dissimilar context, he wrote this:
I don’t think Berlin would say that approaches to reconciliation and instruction of the American people about what Obama has called our recent “dark period” is advanced in any way by comparing them to attempts to get some “consensus” on it (unachievable, and I’m sure Berlin knows this). Even if Clive Crook were proposing something so utopian as “consensus” here — which I don’t see him doing, correct me if I’m missing something — I can’t imagine Berlin responding with anything like this:
As for this:
please show me where Clive Crook has hallucinated any “bipartisan consensus” in America today. Check out what Fox News is carrying on Obama’s torture policies. He can’t win on that end of the spectrum because (you can’t make this shit up) he’s being too harsh!
If there’s a delicate balance requiring any ideological coddling, here, at this point, it’s probably more in making sure that relatively few Blue Dog dems defect from the much-needed (but not yet adequate) economic stimulus programs we have now. And more of them might do that, as part of some shameless sop to constituencies that are not only concerned about that spending, but also easily enraged by a rush to judgment on torture prosecutions.
What, our economic straits are irrelevant to any question of true justice? Ah, those who do not learn from history . . . . At the risk of a Godwin’s Law violation, I would remind you all that the German National Socialist Party canceled its 1929 summer convention for lack of funds. Life was improving, hardly anybody was buying what they were peddling. It was the Crash and the Great Depression (admittedly on top of other national humiliations) that breathed real political viability into the Nazis at that crucial moment.
So, unlike Clive Crook, I’m not opposed to prosecutions (of higher-ups, yes, all the way to Bush if it can be pushed that far). But I’d feel far more comfortable with prosecutions if no cases went to trial until after a November 2012 Obama victory. With the economy conspicuously on the mend. With possibly dozens of ex-torturers having since gone public to tell the American people — and how could they not listen, given the source? — that what they’d been doing was wrong. But also saying (vide Isaiah Berlin above) that the environment fostered by conditions, including not just working with the cold rage following 9/11 but also working under the Bush DoJ doctrine, blinded them to that fact, and that such blinding could happen lots of people, maybe to anyone — with history that’s still (barely) within living memory providing some pretty compelling support for that view of human fallibility.
Justice is important, but ripeness is all–even when it comes to justice, and perhaps especially so.
Jeremy 05.01.09 at 4:40 am
CC: “[W]hat 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.”
This is a false dichotomy. Prosecuting people for committing crime X is a way to guard against X being committed again. Failing to prosecute them, on the other hand, is a way to give a green light for X. CC might, I suppose, suggest that Congress could pass new laws that are clear and enforce them going forward. But that leaves intact this precedent: those who broke the law got a free pass. So what good is another law?
But maybe this is the worst from CC, IMHO: “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.”
So when people disagree loudly, we must hold up our hands and deny we can know the truth? So when, for example, Creationists raise a fuss about evolution, we’re supposed to admit there’s a controversy and render the education system agnostic about human origins? No; we don’t equate loudness with credibility; we point out they’re wrong. Same with the torture apologists.
Michael Turner 05.01.09 at 5:05 am
Correction: “(unachievable, and I’m sure Berlin knows this). ” Make that “Berlin knew this” or “Crook knows this”, I can’t remember which I was thinking, and it doesn’t matter for that particular point.
Henry, all nitpicking aside, thanks for working to keep it civilized with CC.
There are so many interesting points made on this thread, I can only pick one with the time I have left today:
I actually wholeheartedly agree. Here are some questions, though: do you think this means that any public, legal process will create progress toward this goal? Are there none that could be counterproductive? What makes prosecutions, starting right now, of those who directly engaged in torture, necessarily productive? What’s the basis for your certainty that they wouldn’t be counterproductive? Would you consider the processes of Truth and Reconciliation in South Africa, and in the wake of the Rwanda civil-war/genocide, “public, legal processes”, even though they perhaps fell short of being trials, and definitely didn’t involve punishment for all perpetrators (in fact, critically depended for their success on amnesty provisions)? For that matter, does an ex-CIA officer writing a tell-all book about his harrowing experiences in the torture chambers count as part of a “public, legal process”? (I would say, literally, yes, it would–if he can get the clearances, anyway. It would be legal for him to do that, and it would obviously be public. And it might do more to sway mainstream American opinion on these issues, in the right–which is to say, left–way, than a dozen successful prosecutions.)
If the Obama administration is doing what I think it’s doing, don’t expect them to tip their hand. Don’t expect Eric Holder to hold a press conference tomorrow and tell the world, “This is really a ‘Net the Big Fish, in the Long Run’ strategy for improving the chances of successful prosecutions of high-level Bush administration officials who are pretty obviously legally guilty.” Why would they do that?
If you want to demonstrate that no man is above the law, drag down the highest ones you can find guilty, even if it means biding your time and letting lower ones off the hook. The real proponents of torture could turn out to bear a striking moral resemblance to proponents of terror: they’d probably just as soon see their opponents maximize the sheer number of martyrs. Let’s not give them that opportunity. Let’s not give them pitiable “patriotic” martyr-figures among the torturers — or no more of them than they’ll ordinarily claim anyway.
When Obama called this a time for “reflection, not retribution”, some ex-torturers heard those words too. Why not give those ex-torturers time to reflect? I refuse to believe they are all monsters, and even the monsters might be turned against their former masters, in time–I sure wouldn’t complain if they did.
We might get so much more out of waiting than we could ever get with moving on everybody all at once with all deliberate speed, straight to the speediest trials possible. And the virtual amnesty of the Obama/Holder declarations (which, as written, do not seem to let the lawyers off the hook at all) provides the necessary breathing space. It’s hardly guaranteed to work, but at least (as I point out above in my comments on the fiction of “bipartisan consensus”) it has other advantages in the meantime.
Michael Turner 05.01.09 at 6:24 am
My correction @ 33 (and my reference to “above” in the last sentence of same) are both for a comment awaiting moderation.
mossy 05.01.09 at 7:25 am
I have been reading a sickening daily batch of op ed pieces, the main point of which seems to be a pre-emptive strike against prosecution by discrediting the process ahead of time: it wasn’t really torture; well, it might have been torture, but it was effective; it was unfortunate, but the information we got saved millions of lives (i.e., the ends justify the means); well, even if it was sort of torture, they deserved it; the people pushing prosecution are lying – they are really just pushing their own (petty) political agenda and thus endangering the US; by even talking about this we are giving away crucial intelligence that will help our enemies; if we prosecute we will endanger our standing in the world; if we prosecute we will make more of our enemies hate us more, and they will be more likely to attack us; if we are attacked again, it’s the fault of all of those who talked about this, wrote about this, urged prosecution and prosecuted.
From which I take: these guys know they are guilty as sin and are terrified of being tried, convicted, and spending the rest of their lives in prison. So they are trying to make it politically unpopular to prosecute.
So I’m impressed that many of you are taking their arguments seriously and puzzled by it.
JoB 05.01.09 at 8:51 am
Henry, thanks for disproving (4) as you had disproved (3) in the earlier thread!
There will always be a mess when the decision to prosecute torture is seen as a political decision. I don’t know whether CC is right on AG’s options but he could well be; there is much to be improved in Western legal systems with respect to such things.
But the simplest, most productive and straightforward thing to do for the US is this; go and support the International Court on crimes against humanity, and refrain from this hypocritical insistence US should not be equal before such a court to North Korea and thereby suggesting that it is somehow conceivable that the US would ever feel the less strictly hindered by the universal rights of man.
I don’t know, maybe that would be even worth a plea bargain of sorts: Cheney & so can walk iff their ilk do not block that bill in Congress.
Michael Turner 05.01.09 at 8:54 am
I take it then, mossy, that the writer of the following lines had just gotten off the phone with one of his CIA-torture buddies?
Garrison Keillor, in his “Truth, not punishment” op-ed. How unsettling: Mr. Lake Wobegon, CIA puta, this whole time. Who knew? If they got to him, there must be many, many more of their moles, burrowed even deeper into the media.
With such pervasive media control, there’s nothing we can really do, except maybe talk about more diverting things. How about that WTC 7 collapse, mossy? Waddya think? Was it the Bilderberg cabal? Or the Rosicrucians?
DPirate 05.01.09 at 9:55 am
Seems to me that his premise is that since alot of people figure waterboarding et al to be bad, then we shouldn’t do it. I agree with that, I suppose, even though it is the logic of an adolescent. The rest seems to be a statement that since it isn’t specifically illegal, that it’s probably not illegal at all, or that it isn’t illegal as practiced by the United States under Bush, presumably simply because he is one of us?
He keeps returning to this caveat of “as practiced under the Bush administration”, without explaining what the hell he means by it. I am curious to know why he feels waterboarding is ok when done by the CIA but not ok when done by those we have prosecuted for it. Could be simply a matter of it being bad when done merely for kicks, but that doesn’t let Bushites off the hook, since some we have prosecuted felt they had good reason.
Honestly, I think what I came away with from his opinion was that he was for it before he was against it.
dsquared 05.01.09 at 10:04 am
With such pervasive media control, there’s nothing we can really do, except maybe talk about more diverting things. How about that WTC 7 collapse, mossy? Waddya think? Was it the Bilderberg cabal? Or the Rosicrucians?
If you’re ever wondering why people are so rude to you Michael, this excerpted paragraph is the sort of thing that annoys them.
JoB 05.01.09 at 10:20 am
Yep, Michael, I have to concur – although I’m glad I didn’t understand a word of it, you were quite clear on the innuendo.
Barry 05.01.09 at 11:54 am
Aw, JB and dsquared – obviously you’re both revenge-crazed leftists for beating up on St. Michael of (always takes the right-wing side) Turner.
MT, you’re not fooling anybody now, at least on the topic of torture prosecutions. It’s clear by now that along with innuendo, long-windedness is your main logic.
To others – when Rich and I exhibited no respect for MT in the previous torture prosecution thread, some wondered why. It’s because we’ve dealt with him before, and so exhibited the appropriate level of respect. Please note that the usual right-wingers have pretty much run out of steam; only MT is still going strong. The only alleged liberal I’ve seen who can match him is Steve Fuller (google on CT to see who and what he is).
JoB 05.01.09 at 11:57 am
Barry, nope – I have no respect for your display of gangin up on the other thread. I can be critical on my own.
Rich Puchalsky 05.01.09 at 12:21 pm
Turner’s back, with Godwin and his new touchstone of the heartland, Garrison Keillor. We should all take our instructions on what the American people believe from Garrison Keillor — and let him instruct us in the fundamental goodness of aw-shucks Midwestern torture supporters.
And of course Michael is back to demanding civility — without any expression of civility on his part, of course. I already wrote what I thought about that syndrome:
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.
Donald Johnson 05.01.09 at 12:39 pm
Some of Michael’s arguments in this thread and the other seem reasonable to me, though it sounds like we have to trust Obama and Company to be secretly planning to prosecute on a long time scale while in the meantime it will appear as though they don’t want to do it. All I want from Obama is a declaration that it’s not appropriate for him to voice an opinion about who should be prosecuted. As for Clive, he’s a weasel.
Garrison Keillor’s pov is silly– if we don’t prosecute anyone at all, then there’s no deterrent effect the next time. The idea that we’re all going to sit around and reflect really hard and come to a consensus that torture is wrong sounds wonderful. But I don’t think we have a consensus about our past war crimes, except maybe for a consensus that we won’t refer to them as such. The American tendency is to wait awhile, maybe a century or two, before becoming brutally honest about such things. Twenty years isn’t enough– I’ve seen young liberals at other blogs refer nostalgically to Reagan as an honorable man who would never have done the sorts of things that Bush has done. Twenty years from now, when President Jindal is breaking new ground in the annals of American atrocities, we’ll have young liberals talking about the good old days when President Bush the younger may have ordered that a couple of Al Qaeda types be roughed up a little, but only because he had to, not like this Jindal character.
Righteous Bubba 05.01.09 at 1:31 pm
What do you figger “biding your time” means?
Michael Turner 05.01.09 at 1:44 pm
Much as I’d like to agree fully with Donald above: The public opinion problem isn’t getting a consensus in America, folks. The problem, as I pointed by citing very recent polling on the last thread, is how to get (or even get somewhere near) a slim but solid majority of Americans who are ruling torture completely out of bounds. (I.e., the consensus position here, including my own, Rich’s lovely categorization of me as merely a “supposed” torture opposer notwithstanding.)
Every time people raise the bar to “consensus”, they are taking a very easy way out of what will continue to be a very difficult opinion-leadership struggle. And of course, there are easier paths still, as when Rich Puchalsky declares he has trouble seeing how there’s anything uncivil, really, about calling a majority of American “scum” for believing that torture might be justified under some circumstances. Yes, indeed: why try to come to “consensus” when it would only be with “scum”? Thanks, Rich. Your easy path only makes it harder for those of us who approach this debate with their forebrains packed with something other than snot. Yet another tried-and-true way to slack on difficult issues that I’ve see on display here repeatedly: just assume everyone who disagrees with you is arguing in bad faith, or is “adolescent” (or otherwise critically deficient) in their reasoning.
And, as should be clear from my comment quoting Garrison Keillor’s op-ed (which I do not agree with, by the way), there’s a way to turn this sort of position utterly rancid, to make it thoroughly (and quite unnecessarily) repulsive to anyone not yet persuaded that torture is always and everywhere immoral: just resort to undisguised conspiracy theorizing to explain why prevailing opinion differs so much from your own. Compared to that sort of cancerous discourse, Clive Crook’s rhetorical and logical failings are vanishingly innocuous blemishes.
tib 05.01.09 at 2:00 pm
Isn’t the social purpose of the judicial system the “building of a moral consensus?” At least in this Republic?
John Protevi 05.01.09 at 2:05 pm
I can’t see into his heart, I can only look at his words
So begins Michael Turner @ 34. A nice start, that, promising that we’ll get out of the heart-gazing game. But then Turner’s refreshing modesty about his own heart-gazing abilities takes a bad turn:
Now, as someone who was born in Berkeley and grew up there in the 60s (and who went to college there in the 80s), who has at times considered himself too far to the left to even be a Democrat, I believe I can credibly claim a more-than-glancing acquaintance with the Democratic left in America. These are people who, I think, are overridingly concerned with justice, indeed it is their most endearing quality. What Clive Crook is saying is not that they don’t care about justice, but that, on this issue, they are so consumed with a desire for revenge that it’s significantly hampering their ability to see what would be more just in this case. I’m not sure I agree with him…
So it seems that Turner’s initially refreshing denial that he has special heart-gazing abilities is apparently restricted to not being able to look into *Crook’s* heart. With regard to the hearts of the “Democratic left in America,” though, Turner knows that both good and evil lurk there, and he’s willing to claim that Crook knows this too:
The Democratic left cares about a lot more than “sticking it to the Republicansâ€, and I’m sure Clive Crook knows this.
So to sum up, while both acknowledge that the desire for justice and the desire for revenge inhabit the hearts of the Democratic left in America, Turner is not sure Crook has the proportions correct in this case. I think that sound coming from Berkeley was a great sigh of relief.
Something, however, is “significantly hampering their ability to see what would be more just in this case” and that something, evidently, is their inability to see the merits of Michael Turner’s “wait for the right moment, which is 2012 and then only if the economy is mending and lots of low-level guys have ‘fessed up and as long as we recognize that the Bush people were trying their best in harsh circumstance and are only fallible human beings and that their blindness could have happened to anyone” argument.
So while he’s “not sure” Crook is correct about the moral shortcomings of the Democratic left in America, Turner does see their epistemic shortcomings at not buying his argument.
Michael Turner 05.01.09 at 2:12 pm
Lessee, we got:
(1) Rich, who responds to quotes from Garrison Keillor by deciding that, however much the guy might have written scathingly about the Bush administration before (which quite extensively and vitriolically), he is now one of those “aw-shucks Midwestern torture supporters.”
(2) Barry, who in a previous discussion called me a New Deal Denialist, despite ample evidence that I’ve defended the New Deal quite ardently. (He did this simply because I pointed out that the Depression-era employment statistics that Amity Shlaes was abusing shouldn’t, after correction, be cited alone, but rather in tandem with reasoning about how Keynesian stimulus actually works, so as to avoid any charges of correlation=cause reasoning. For this, he called me a New Deal Denialist. No, really: that stupid.)
(3) mossy, new to me, but who apparently thinks that every disagreeable op-ed on this issue could only be a sign of some full-court-press media blitz by torturers and their enablers, who have somehow figured out how to make all those journalists and editors write what they want to see. Well, if they can do that, what hope can there be for the Republic now?
Which is to say, these people have a few screws rattling around loose up there.
And dsquared wants me to be civil to them? Doesn’t work with paranoids, dsquared, since merely disagreeing with them strenuously is enough to make them classify you among Those Who Work for The Enemy. To whom they are far from civil.
Rich Puchalsky 05.01.09 at 2:19 pm
Michael, you have the amazing lack of self-knowledge necessary to tut-tut about incivility while, in the other thread, you told me to fuck myself, created a whole imaginary scene in which I was depicted as enjoying torturing people, and rather mysteriously convinced yourself that I’d said “shit” when I hadn’t. As an episode in trollmanship your performance is amusing, but as a serious argument? No, it’s really not. Especially when all of this was predicted on my calling you a “supposed” torture opposer.
Because what you are is really a torture apologist. I see the same syndrome in global warming denialists who won’t admit that that is what they are. They insist that they have all sorts of personal reasons, motivations, whatever — but in actual fact, they do the same thing as any other denialist: attempt to throw up a smokescreen including any confused issue that they can find in order to justify doing nothing. That really was apparent about you from the moment in which you first brought up WW II bombing as if it were relevant. You’ve hit the gamut of slimy insinuation dressed up as “people may believe this if you’re not careful”, the latest being your ludicrous warnings against conspiracy theories in a forum where no one has proposed conspiracy theories.
It really makes no difference whether you believe yourself to be sincere or not. You’re a torture apologist.
Rich Puchalsky 05.01.09 at 2:38 pm
The whole thing about where America stands on torture has been brought up elsewhere, so it deserves a more serious treatment than Michael is capable of providing. Essentially, it never should have been put into the realm of politics again in the first place. The Bush administration succeeded in taking something that had been agreed was always wrong and turning it back into an issue. It’s as if slavery became a live issue again, with some people being pro-slavery and some not.
Whenever you put something back into politics in this way, there always will be people polling on it with a range of opinions. I’d guess that if slavery somehow became halfway respectable again, there’s a solid core of racists in the U.S. who’d be for it, and a fringe of people — maybe even a majority! — who’d be for it in some cases if they were talked up like the “ticking bomb” has been, like perhaps slavery for poor children who had no other means of support. One purpose of political leadership is to keep society from drifting down those paths again. Because none of these social advances were made by consensus, or when people were ready. They were made by political leaders, supported and urged on by a minority of activists. Try re-reading “Letter From Birmingham Jail” and ask yourself why MLK Jr. thinks that the person urging caution is worse than the outright racist.
Michael Turner 05.01.09 at 2:44 pm
So it seems that Turner’s initially refreshing denial that he has special heart-gazing abilities is apparently restricted to not being able to look into Crook’s heart.
Wow, with context and all, you still don’t get it, Protevi: Clive Crook I can know only from his words. The Democratic left I can reasonably claim to know from having grown up and lived among them.
No difference, to you? Gosh, you must have lived an awfully “textual” life.
Then, later on, you take some interpretations of CC, and put them in my mouth. Well, that’s hardly fair, is it? (And it makes me wonder how competently “textual” you are, if in fact you’re so textual that living among people is scarcely different from only reading what they write.)
Finally: I made it quite clear, I thought, that my guess about the Obama administration’s strategy for prosecutions is just that: my guess. It wouldn’t surprise me if most on the Democratic left haven’t speculated along such lines yet. It might seem absurd that Obama et al., wouldn’t particularly mind that the Democratic left was out of the loop on it, if it really is their prosecution strategy. However, the idea does embody a fact of life in politics: there are certain kinds of worthwhile initiatives — yes, even in a democracy — whose success can be endangered by being too public and explicit about the strategy being pursued. And among the costs (only temporary, one hopes) of pursuing such strategies, one might have to accept looking stupid, oblivious, craven, spineless, or faithless to previously supportive constituencies. But even those costs can have an upside: your apparent political incompetence might lull your opposition into a false sense of complacency–and it’s always useful to be underestimated by your enemies. I think Machiavelli said that.
Nice try, though. (The “epistemic,” especially; very “textual”.)
Henry 05.01.09 at 2:49 pm
This is getting to be a nuisance and a distraction – this is supposed to be a comments thread about the Crook article, not a back and forth between Michael Turner and everyone else over his merits or otherwise as a commenter and thinker. Michael – I’ll thank you not to be making provocative comments that suggest you think your intellectual opponents are conspiracy theorists etc . You need to learn how to play nicer here – and in a hurry. Everyone else – please calm down.
John Protevi 05.01.09 at 3:00 pm
Hi Rich, I’m not sure the slavery analogy holds, in that it was at least arguable that some people benefited from slavery on terms they were willing to acknowledge, i.e., economic ones (the owners, the bankers, the merchants, the insurers …). Sure, some people made moral arguments for slavery (improving the savages, etc.), but while I don’t think anyone still makes these arguments, I think there still are people who might make and accept economic arguments. (Caveat: I am not an economist …)
But there’s a strong pragmatist / consequentialist argument that no one benefits from torture on grounds they are willing to acknowledge (i.e., it produces reliable information that could not be otherwise obtained). Now some people do benefit from torture on grounds they are unwilling to acknowledge (it produces useful false confessions, it demoralizes and terrorizes a target population, it presents the politically useful image of being tough defenders of democracy in a harsh world, etc.).
So while people were willing to be upfront about how they benefited from slavery economically and how slavery benefited the slaves (on the moral uplift argument), no one is really willing to be upfront about how they really do benefit from torture. So I’d rather concentrate on the falsity of the belief that torture is “justified in some circumstances” as Turner puts it @ 34 (reading “justified” as “yielding reliable information” and “some circumstances” being the [ridiculous] ticking bomb scenario).
I guess the question I would put to Turner is this: Do you, Michael Turner, believe torture is justified in some circumstances? And if not, what are you doing to combat the falsity of that belief you attribute to the “majority of Americans”? And what are you doing to analyze and combat the ways this false belief is produced and transmitted?
Michael Turner 05.01.09 at 3:08 pm
Try re-reading “Letter From Birmingham Jail†and ask yourself why MLK Jr. thinks that the person urging caution is worse than the outright racist.
Actually, Rich, he doesn’t. He says this:
He also says this:
And this:
If and when protesters are being dragged away by the cops from sit-ins where they are protesting inaction on prosecuting torturers, I do hope they aren’t chanting “Scum! Scum! Scum! Scum! Scum!. . .”, meaning by that word any and all Americans who happen to think torture might be justifiable in some circumstances. It wouldn’t exactly be the “more excellent way” that King preached, would it?
John Protevi 05.01.09 at 3:22 pm
Sorry, Henry, you’re right. I suppose I could claim a point of personal honor to respond to being called a “textualist,” but I’ll pass. Please take 57 as directed to Crook, not to Turner. You cite Crook as writing:
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 [and] minds.
I take it that one path to the changing of hearts and minds is to attack the “justified in some circumstances” line as false on pragmatic / consequentialist lines. As laid out by a book I very often cite in this argument, Bob Brecher’s Torture and the Ticking Bomb (Blackwell, 2007). NDPR review here.
John M. 05.01.09 at 3:25 pm
What really happened in Northern Ireland was …they put the terrorists from both sides in charge. Amazing it took so long for everyone one to think of it.
I know that’s off topic but while I admire Henry’s willingness to take on the lost cause of trying to approach this with rational analysis, it is a pointless task. I present the relevant comment threads on this blog as all the evidence needed for that statement.
Michael Turner 05.01.09 at 3:26 pm
you told me to fuck myself
After you called me a “supposed” opponent of torture, please note. After you basically said I’m writing all this in bad faith. After you called a couple hundred million Americans “scum”, whom we might have a better chance of persuading if they are spoken of, addressed, and treated more as, well, human beings (imagine that!), despite what we might see as their moral uncertainties and failings.
And if you can’t see what’s wrong with your saying any of that, well, then, [he glances over his shoulder at Henry] then . . . then . . . you can go and
Find
Unusually
Complete
Knowledge
of
yourself.
Henry 05.01.09 at 3:39 pm
OK – Michael – hint was clearly not taken. You need an enforced cooling off period. Please don’t comment here again for 48 hours. Any comments you do make will be deleted.
Rich Puchalsky 05.01.09 at 3:41 pm
John Protevi (I’m spelling out your name just because there’s lots of Johns here), I personally don’t think that the pragmatist / consequentialist argument is that important. For the people who may be a position to order torture or to do it, it doesn’t matter because they tend to know full well that what they want is a false confession. For the vast majority of people who have no personal connection with official torture, it’s just not part of their lives. You can tell them all you like that torture doesn’t work, but that, as a story about something outside their experience, is just as influential or perhaps less influential than the ticking bomb story that they see in the media. Most people just don’t think about issues in terms of “whether they work”, and if they do, they are easily confused by denialists — see .e.g global warming denialists, who have fairly successfully turned a scientific issue into he said / she said. You can convince a small slice of the technocrats (if I may generalize), like people here, but people like us have a good deal less influence on society than we generally like to think.
I think that torture is best treated as a moral issue. Of course there are people who will not be comfortable hearing that they are supporting evil. But I’m really not concerned with those people’s comfort. In order to put this thing back in its box, it’s required not only that wrongdoers be prosecuted, and punished if found guilty, it’s also required that ordinary people accept that if they support torture, they will be condemned.
The Fool 05.01.09 at 3:51 pm
Farrell should not have apologized to Crook.
Nowhere in Crook’s original column did he ever forthrightly take ownership of the position that waterboarding is torture. Nowhere.
Here are some of the things he did do instead:
1) He admits that common sense “may” tell you waterboarding is torture, but he leaves it as a distinctly uncertain proposition. He quite conspicuously does NOT say Clive Crook says waterboarding is torture. Rather, it’s common sense that may or may not tell us that.
2) Clive Crook says waterboarding is shameful. But he never says “Waterboarding is torture.” Lots of things are shameful that are not torture.
3) He makes a point out of noting that there are gradations of abuse, leaving the clear implication that waterboarding may not quite reach the level that constitutes torture.
4) He clearly thinks waterboarding may well not legally be torture.
5) He thinks the desire for prosecutions is better explained by rage and revenge than a sense of justice. That view makes more sense if you don’t think waterboarding is torture. But if you DO think waterboarding is torture, then clearly anyone with a sense of justice would be motivated by this outrage against justice. To think that it must be revenge suggests that he doesn’t think it is torture.
6) He argues that waterboarding was not justified but he rests that case on pragmatic grounds having to do with our reputation and our self-image, not on the grounds that Bush’s use of waterboarding was unjustified torture.
Henry: you were right the first time. Crook was too conspicuously concerned to dance around the statement that waterboarding is torture without making it. And the conclusion that he goes on to draw that there should be no prosecutions is a torture-friendly position that will only lead to more torture in the future. Crook does not deserve the benefit of what is not even really very much in doubt, however much he may have backpedaled later.
The Fool 05.01.09 at 3:54 pm
@Protevi
I have now read that Brecher book and it is quite poorly argued, to the extent it is argued at all. But that’s another debate entirely.
The Fool 05.01.09 at 3:59 pm
Anyone who wants to read a good argument against the ticking time bomb scenario should skip Brecher and read David Luban’s “Liberalism, Torture, and the Ticking Bonb” in The Torture Debate In America edited by Karen J. Greenberg. It is also available on the web in various forms. I happen to disagree with Luban on some important points but his piece is far better than Brecher’s book.
John Protevi 05.01.09 at 4:00 pm
Hi Rich, thanks, that’s a very good (consequentialist!) argument that a deontological stance is the most effective. But I wonder if you don’t underestimate the popularity of pragmatism among Americans (“don’t give me a bunch of theory, just tell me what works or doesn’t work!”).
But instead of us trading intuitions about what works, I think we have an empirical question: what *is* the best strategy for torture opponents to change contemporary American hearts and minds? I suppose that can be tested and we’d have a way to decide. Though I predict the answer is “it depends on what segment of the population you’re talking to.” Which is what you say. So the question goes to relative weight of the strategies.
Anyway, to some extent I heard Obama using both arguments in his press conference the other night: torture doesn’t produce reliable information we couldn’t get otherwise, and it makes us less safe in the long run (a consequentialist argument) and it corrodes our values (I guess that’s really a virtue theory argument than strictly speaking a deontological argument, but close enough).
John Protevi 05.01.09 at 4:24 pm
@ The Fool, thanks for the Luban reference. It is indeed very good and a discussion of its relative merits vs Brecher would be long and difficult and not really to the point here. Read them both, is what I would recommend. Anyway, I make a habit of pointing to Brecher to indicate that consequentialist arguments against the ticking bomb do exist, and because the NDPR review gives people a quick look at those arguments.
Thanks too for your # 64. It’s excellent.
Rich Puchalsky 05.01.09 at 4:47 pm
Michael has commented on this despite his cooling-off period — and of course his comment is full of self-congratulatorily civil inanities like “hate addiction” that I know responses to are meaningless, since his comment will shortly be deleted. I suggest that Crooked Timber either just decide not to moderate comments, or upgrade him to full ban.
Righteous Bubba 05.01.09 at 5:11 pm
A notable precondition for torture prosecutions is that Achilles pass the tortoise.
Henry 05.01.09 at 8:12 pm
I am now back from the zoo, where I spent twenty minutes of my one solid afternoon that I have with my three year old son every week trying unsuccessfully to deal with this on my phone, and I am not happy. Michael Turner – if you comment again during the cooldown period, you will be banned permanently and completely from Crooked Timber. We have rules for a reason. But Michael Turner is not the only commenter I am displeased with here. He made some comments which appear to me to have been deliberately aimed to provoke – but I was not at all happy with the response. The comments section of this blog is deliberately open to people from a wide array of ideological perspectives. This means that people are often going to be annoyed by others whom they disagree with fundamentally, and suspect of trolling. But unless there is clear evidence of bad faith, you are going to have to suck it up. We do not want self appointed ideological cleansing squads. If I see more of this happening, I am not at all going to be pleased, and will express my displeasure forthrightly and vigorously. Enough said.
Righteous Bubba 05.01.09 at 8:58 pm
Charles Krauthammer is somewhat more bullish on torture than Clive Crook.
Patrick S. O'Donnell 05.01.09 at 11:43 pm
Perhaps some of you would be interested in the short reading list of books and articles I put together on “torture.” There’s some invaluable stuff there, and many of the articles are available for download: http://ratiojuris.blogspot.com/2009/04/torture-moral-legal-political.html
(The focus is on relevance to current issues and discussions but several of the books have excellent bibliographies beyond that constraint.)
roy belmont 05.01.09 at 11:47 pm
It’s hard to see torture as an act of cowardice, because it’s so dominant an act.
It’s complete dominance, and we’re not used to thinking of cowards as dominant creatures.
But that’s what you get when cowards obtain, you get torture, you get slavery, you get the long and sadly still growing list of inhuman depravities that are responses to a coward’s thwarted desires for safety and comfort.
That is what those scum are justifying their heinous acts by isn’t it? The preservation of the comfort and safety of the elect, themselves and those they serve, their masters and their progeny.
Whereas, not that there’s a diametric opposition exactly, but nobility refuses these acts regardless the consequence. Nobility will not even farm the acts of torture out to those whose lesser bent souls incline them to the task. Nobility will see the extinction of all that’s good and holy before it will compromise with blackmailing evil. That’s what makes it noble, that attitude.
Which means when we look back through actual as opposed to recorded history we should see blank places, empty places, where those who chose extinction rather than compromise with evil are not represented, because they disappeared with their principles intact.
What is all pervasive now is the tacit assumption that whatever needs to be done to preserve the pathetic lives of the craven is justified, by their survival.
You’d expect that eventually, the culling of the uncompromised the advantage to the craven, a building up of inferior men. The miracle is the continuing presence of even enough fragments of nobility to shame us by example.
Arguing the jots and tittles of what is or isn’t torture per se is probably necessary and important, but without some sense of what’s available, what’s possible still for each of us no matter how degraded we may have become, it founders as moral argument.
It isn’t just that torture’s wrong, it’s that nobility is right.
Martin James 05.01.09 at 11:58 pm
I don’t think that people that want to prosecute torture are doing so out of partisanship, I think that people highly outraged by the USA using torture tend to prefer the Democratic Party. Likewise, I don’t think that everyone against prosecuting torture in this instance are acting out of partisanship, I think that those more likely to have an “All’s fair in love and war” mentality are more likely to identify with the Republicans.
I also think that the decision to use torture and the decision of who to prosecute for torture are political decisions. Not many are arguing that the torture was done for personal advantage. Likewise, from a strict justice point of view, everyone would be equally guilty from the bottom to the top.
It is very hard not to believe that Obama is making political rather than justice-based decisions about who should be prosecuted. Furthermore going after the lawyers seems to be out of character for the US. It would seem to me that going after the lawyers for not acting in good faith is extremely unusual. Lawyers may commit malpractice be incorrectly interpreting the law, but how many gangsters lawyers have gone to jail for telling them something illegal was really legal. The closest thing may be tax avoidance schemes where the lawyers are aiding an abetting tax fraud.
It would be interesting to see a poll of federal judges on the matter of seeking prosecution. How high would the percentage favoring it be. I think it would take a very high percentage to convince me that the political considerations are secondary rather than the primary goal of prosecution.
After all legal justice is what the judges say it is.
Henry 05.02.09 at 2:10 am
Brownie, for your information, we can see IP addresses and sockpuppeting is an unpleasant, cowardly and quite pathetic practice that we cordially detest. You are permanently banned from commenting at Crooked Timber. Any comments we see from you will be deleted immediately. Goodbye.
(for others who may be mystified at this, Brownie is making comments under a pseudonym that are trapped in our moderation queue).
Doctor Science 05.02.09 at 2:35 am
With reference to MT’s questions for me @36:
I’m of the opinion that what we *need* right now is a press for prosecutions focussing on the lower levels. The lawyers and the doctors/psychiatrists are supposed to abide by professional codes as well as laws, so they’re the first targets. The strategy is to press on the lower people, offering immunity as the carrot to get them to implicate the higher-ups. That carrot is only believable if the stick of prosecution is believable, so yeah, we have to prosecute the lower-downs like we mean it.
A Truth and Reconciliation Commission is something you get after the civil war, and we haven’t earned it yet. First the national torment, *then* the reconciliation. Sometimes house-cleaning looks like “pulling the country to pieces” while you’re in the middle, sometimes you have to move *all* the couch cushions and get out the funny stick attachment for the vacuum cleaner. I think we need to do the political and legal (meaning, in the courts of law) equivalent.
My personal best-case scenario involves the Bush family in Paraguay, Cheney pulling a Ken Lay and dying before he can do time, and Rumsfeld and Rice getting so Strongly Spoken To that no Cabinet Secretary thinks they’re above the law again. And Charles Krauthammer, Thomas Friedman, and David Broder lose their jobs so thoroughly that *they don’t get invited to the right cocktail parties any more*.
I know, I’m dreaming big.
Jay 05.02.09 at 2:56 am
We minimize the risk of torture by a) criminalizing it and the b) prosecuting. It’s really quite simple and in fact we’ve already done “a”.
Rich Puchalsky 05.02.09 at 4:51 am
The Krauthammer article that RB linked to is a classic example of its kind. It starts with “Torture is an impermissible evil” and spends most of the rest of the article saying why it’s quite permissible — not just permissible, but required, such that someone who refused to torture should be disqualified from interrogation. That’s exactly why I think that broad statements about how bad torture is should be given zero weight.
Take racism for comparison. There are fringe groups that are openly racist. But most GOP party operatives trade on racism, use it, call on their supporters through it, but preface all of their remarks with some version of “racism is bad”. It’s a sentence that they know has to be said in order to function as part of the power elite. But it’s no more than that.
mossy 05.02.09 at 6:21 am
Yikes. This is a bit like joining a dinner party where everyone knows everyone else and you have no idea who’s who or what the hot button issues are. So you say, “Lovely garden out back†and get pummeled.
My two cents: Rich Puchalsky wrote more articulately than I could have – torture (waterboarding) has been made into an issue that it is appropriate to have different opinions on. That’s what I’m objecting to.
(Naively): Isn’t this like a father or mother who has watched his/her son-in-law beat the crap out his/her daughter for years, and finally loses it and whacks the guy over the head with a two-by-four? It’s against the law to kill the guy, no matter how awful he was, no matter how little the local cops did, no matter how many restraining orders the guy violated. But the judge and jury are expected to take all that into account as possible mitigating factors.
So I say: Let them go to trial and make their case for “ticking bomb†and “the only way to get critical information that saved lives.†Yes, it will be politicized, but that’s what human beings do. It’s not a reason to avoid prosecution.
(Not naively): I happen to live in Russia and they are having a field day with this and, if people go to trial, it will be an orgy of demonization. (Just to give you an idea of what I mean by demonization: two nights ago someone announced on the radio that “as a microbiologist†he can “say for a fact†that the swine flu culture was developed in a secret lab in California and dumped on Mexico as a test case for sending it out into the world, killing off half the population, and achieving total world domination.) So this will be awful, but I’d rather have that than sweeping it under the rug.
Martin Wisse 05.02.09 at 11:30 am
You rarely get so good a demonstration of the principle of “as above so below” as in this thread. You got Clive Crook (a greatly appropriate name for a warcrime apologist) trolling in the rarified world of newspaper op-eds while you get that spewer of verbal and monstrous (but oh so civil as he’d never use a naughty word and always has a smile for the people he calls evil) diarrhea Michael Turner doing the same schtick here.
A lot of hot air and thousands of words of insinuation later and to an uncurious onlooker it looks a lot as if it is possible to disagree about waterboarding being torture and not be evil.
Do not debate these people, slap them down.
Barry 05.02.09 at 11:36 am
Henry 05.01.09 at 8:12 pm
” But Michael Turner is not the only commenter I am displeased with here. He made some comments which appear to me to have been deliberately aimed to provoke – but I was not at all happy with the response.”
Henry, I apologize for my contribution to this.
engels 05.02.09 at 11:52 am
Nice reading list, Patrick.
Henry 05.02.09 at 1:04 pm
Barry – apology accepted.
John Protevi 05.02.09 at 1:13 pm
Seconding engels: thanks for the reference, Patrick. Very helpful and bookmarked already.
Bullsmith 05.02.09 at 1:36 pm
On the topic of prosecuting the lawyers, I feel there is an urgent need for the professional associations to clean up their acts. These interrogation programs were proposed by psychiatrists, enacted with the aid of doctors and given legal cover by lawyers who were supposed to be acting as an honest check on the executive when it approached the boundary of the law, not an aid in redefining that boundary. In all these cases it seems to me that individuals clearly failed to live up to the standards of their profession and must be investigated and sanctioned by their professional bodies. Since both lawyers and doctors are largely self-regulated this is imperative.
Once the Bybees of the world are exposed as failures simply on professional grounds, I think it is much easier to follow the chain of prosecution without an overwhelming taint of partisanship, because it is lawyers saying this is not acceptable legal practice, and doctors saying this is indeed torture and not acceptable medical practice.
As for Crook, the more he writes the less sense he makes. Did the O.J. verdict help legitimize murder? Does the fact a jury let him go indicate that black men shouldn’t be prosecuted for murder for fear of future jury nullifications? And why does his assumption that Democrats want revenge lead to the conclusion that the law and justice should be ignored?
dsquared 05.02.09 at 1:50 pm
The Truth & Reconciliation Commission idea is crazy. They have those in Rwanda or South Africa, places where the level of evildoing was on a completely different scale. The reason you have a TRC is that some large percentage of the entire population was involved in the wrongdoing, and so it’s impossible to simply imprison the malefactors without tearing the country apart.
You don’t have a “truth & reconciliation commission” for less than four dozen torturers. What’s next, a truth & reconciliation commission for the bloke who keyed my car?
The only remote parallel I can think of (and it’s a very remote parallel indeed, because the entire Chilean Army was corrupted in the Pinochet days, whereas the officer class of the US Army has been in the forefront of those trying to convict and punish torturers) is the no-prosecution deal that General Pinochet cut in order to leave power peacefully. I seem to remember a lot of Bushites (and more than a few “moderate” Deomcrats) yucking it up at those silly leftisses who made Pinochet analogies in the last day of Bush; now they’re apparently picking up the ball and running with it.
Barry 05.02.09 at 2:13 pm
Henry 05.02.09 at 1:04 pm
“Barry – apology accepted.”
Thanks. I felt really bad when you had to deal with the crap from the zoo, with your kid (although it would make a nice lesson – ‘look at the animals squabbling, in the cage and in the blog’).
What’s really needed in blogging software is something that Salon’s TableTalk had, back in the late 90’s – Evade Noisy User. Each user could maintain a list of 10 others; all posts from those users were marked read. The list was rolling; putting in #11 meant that the bottom one dropped out. Simple and highly effective. It was, of course, copied from Usenet readers; it’s an interesting comment on programmers that it was not implemented in blogging software everywhere.
Doctor Science 05.02.09 at 5:20 pm
dsquared:
The fact that Truth & Reconciliation is being floated suggests to me that most of the CIA, at least, *is* complicit. The armed forces might be able to get rid of their bad apples; the CIA might have no-one left — they’ve certainly *acted* as though there’d be no-one left.
Doctor Science 05.02.09 at 5:21 pm
Barry:
What’s really needed in blogging software is something that Salon’s TableTalk had, back in the late 90’s – Evade Noisy User.
omg. I think I need to see if that can be done for current platforms …
Righteous Bubba 05.02.09 at 5:33 pm
I’ve enjoyed this at Sadly, No!:
http://userscripts.org/scripts/show/38746
Patrick S. O'Donnell 05.02.09 at 5:40 pm
engels and John P.: Thanks for the kind words.
Phil 05.02.09 at 7:46 pm
What’s next, a truth & reconciliation commission for the bloke who keyed my car?
You might want to google “restorative cautioning”.
John Quiggin 05.03.09 at 12:57 am
Mossy, I think you had the misfortune to run into a particularly atrocious troll on your first visit, and unfortunately that produced some retaliatory flaming. But I don’t think you should feel unwelcome here, unlike the trolls we have just banned.
Rich Puchalsky 05.03.09 at 3:09 am
“My two cents: Rich Puchalsky wrote more articulately than I could have – torture (waterboarding) has been made into an issue that it is appropriate to have different opinions on. That’s what I’m objecting to.”
Thanks. This is a principle that I owe to a guy named Alan McGowen, who more than a decade ago was writing, about environmental issues, that eventually we would just put them into a sort of higher category of things that were accepted as givens, as underlying the political structure and not part of it. I’m representing him badly, but you probably get the idea. If we have an economic crisis in the contemporary U.S., we don’t say “Hey, maybe one of the things we could do is to start taking and selling slaves.” It’s just taken for granted that that’s something you don’t do. Similarly, nonsustainable ecosystem destruction is going to have to be put into that same category. Torture was wobbling unsteadily into that category, but one of the largest effects of the Bush regime was to pull it back out.
Lee A. Arnold 05.03.09 at 6:19 am
Clive Crook went wrong by his paragraph #5: the U.S. can afford the debate, and it won’t be self-destructive.
The torture situation appears to be worse than most people think. Prisoners have been killed and some of this has been defined as murder. The torturers aren’t just a few dozen bad guys. Several U.S. allies and other countries are involved. It isn’t only recently; U.S. rendition goes back at least as far as the Reagan Administration.
In various op-eds and comments in recent days, this policy is now being defended by (1) a “letter of the law” argument that the specific torture techniques, or the non-combatant status of the victims, aren’t covered, and/or (2) the “Nuremberg defense,” also known as “We were only following orders,” and/or (3) American “exceptionalism” in the face of a determined foe, also known as “Really, there are no rules.”
Unless we exercise extreme vigilance against the emergence of psychopaths into positions of political power, the U.S. is well on the road to a police state. If and when there is another attack on the “homeland,” your Arab-looking neighbor will disappear, and you won’t be able to find out what happened to him. If you protest too loud — you will disappear too.
mossy 05.03.09 at 6:36 am
Thanks for the welcome. I still don’t quite understand the various proposals for everything BUT a court case. Didn’t John Yoo write a legal opinion on why the “detainees†weren’t enemy combatants and why waterboarding wasn’t torture? Well, if it was a legal opinion, let him argue it in court. Let everyone else argue their point of view: let them say they were operating in “good faith†under a legal opinion provided to them, let them state all the mitigating circumstances, let them make a case for the urgency and the “ticking bomb†etc. (The defendants will claim that all the press coverage has prejudiced the case ahead of time, but defendants in high-profile cases always claim that.) Let them have their day in court; let them make their case. True, I’m a weak on who brings the cases against them and in which court… but it’s not as if “being tried†is absolutely synonymous with “being convicted.†They get to defend themselves. The fact that they (and their supporters) are doing everything to keep themselves out of court suggests to me that they know how weak their case really is.
JoB 05.03.09 at 9:00 am
Henry, I’m baffled – you were on the phone because of the blog? Yet another thing I ‘ll just have to strike from my list of things I might want to do with my life.
My apology if I was part of the disconvenience. ‘Nuff said indeed.
Henri Vieuxtemps 05.03.09 at 9:06 am
The court tactic is quite clear. People who committed those atrocities requested and received absolution from official government lawyers. Both Obama and his AG clearly declared that none of the people who committed atrocities under these circumstances will be prosecuted by the feds; moreover, the feds will do their best to protect them from being prosecuted elsewhere.
And the lawyers? They won’t defend the opinions expressed in the memos, they will admit it was a mistake. They will regret and explain how these mistakes were made, how their intentions were pure, and how they acted in good faith. Is it possible to prove they didn’t? I doubt it.
Michael Turner 05.03.09 at 10:17 am
Both Obama and his AG clearly declared that none of the people who committed atrocities under these circumstances will be prosecuted by the feds
That’s not the commitment of the AG statement. Nor, as far as I can tell, does it square quite with anything Obama has said. What AG press release says (in part) is:
And it’s those, and only those, who would get DoJ protection from the legal action of others.
Officials who sought — after the fact or at the time — to shape Bush DoJ legal counsel around crimes already committed . . . Henri, please tell me, how does that fit any possible definition of relying on “authoritative legal advice” in “good faith”?
And what about officials who exceeded the ostensibly-legal mandate? (I suppose you could exceed it even by going one second over the supposed 40-second limit on water applications in waterboarding.) How would such conduct represent “conform[ing] their conduct to that advice”?
As I understand it, such misconduct was rife. I mean, lots of people in the CIA secret prisons died under interrogation or as a result of it. Say what you want about waterboarding, walling, stress positions and sleep deprivation as prescribed by the memos — it would take an awful lot of that kind of torture to actually kill anybody, assuming you even could. Permanent mental disability, yes. But death?
It may well turn out that the Obama/Holder position only lets a smallish fraction actual torturers off the hook. Among those who are legally in the clear, there might be dozens who backed away from opportunities to do worse, who saw horrible things, and who realized they could only preserve both their careers and their sanity by getting reassigned. Among those on the borderline of compliance with Bush DoJ, or just beyond it, there might be some who realize (or have been told by their lawyers, at least) that there’s no reasonable doubt of the case against them. They might exchange testimony in exchange for immunity. Among those who went well beyond the Bush DoJ limits, there might be some who have (or in the case of the real sociopaths, merely claim) resulting psychiatric conditions, who could hope to win a case against culpable figures in the erstwhile administration. The hope should be that this kind of thing snowballs into a real case against those who architected the system, and who ordered it made in the first place. I imagine that’s a realistic hope because I imagine — silly me — that Barack Obama and Eric Holder are much better lawyers than I could ever be, and have even more such lawyers on tap.
As for the Bush DoJ lawyers, who knows what can be proven? As lawyers, they are CYA experts. However, the testimony of an apparently guilt-stricken and contrite Bybee could net you the obviously unrepentant Woo. I think this is one of those rare cases when Krugman could have gotten it slightly wrong (but maybe only because he relied on the usually very reliable Adam Serwer). Is Bybee “completely shocked to find that the rules have changed”? Serwer apparently assumes that the WaPo piece is the fruit of a sudden and recent organized PR campaign on Bybee’s behalf (and maybe Krugman swallowed that assumption whole). But why couldn’t the story equally have been the fruit of investigative journalism? That WaPo piece suggests Bybee’s misgivings go back as far as 2002. Maye time to stick a fork in him, not incinerate him. Or maybe a little more basting is in order? I’d rather leave that judgment call to expert meat roasters, frankly.
Michael Turner 05.03.09 at 11:24 am
Oh, and by the way, in my discussion of the above quote from the AG press release — it doesn’t even start on how common sense interpretations of “reasonably” and “authoritative” might limit prosecutorial scope and defendent clemency. Somebody could be otherwise within the letter of the law as conveyed to them by their Bush DoJ bosses, but because they didn’t behave reasonably, or because some (at least) of the letter of the law was patently unreasonable and not “authoritative” in some important legal sense, they’d still be in trouble.
This idea that the Obama administration has basically let everybody off the hook just didn’t pass the sniff test with me, so I went looking and found pretty much the kind of thing I expected they would say (Rahm Emanuel’s pathetic on-air fumbling excepted). But why does it seem like I’m the only one in this discussion who does things like that? After all, Crooked Timber is an academic blog. Is the academic habit of turning up, quoting, parsing and commenting on primary sources just more “verbal diarrhea” when it comes to blog comments, at least on this issue? I guess so. At least, if Martin Wisse’s diagnosis of me @ 81 is correct. (Thanks for that one, Martin, by the way. I love you too.)
Phil 05.03.09 at 11:32 am
You seem to be having trouble counting up to 48, Michael.
Michael Turner 05.03.09 at 2:54 pm
Yeah, Phil, and I spell it “Woo” instead of “Yoo”.
Did you have something substantive to say, about the subject at hand?
Phil 05.03.09 at 5:05 pm
No, I didn’t. All I wanted to say – and perhaps I should have said it more plainly – is that you were asked not to comment here for 48 hours, on pain of being banned completely. You managed 42. That strikes me as rude.
Henry 05.03.09 at 6:13 pm
Michael – you have been warned that if you broke the 48 hour ban again, you would be banned permanently. I don’t particularly have patience or time to deal with this nonsense. You are now banned permanently from Crooked Timber. Any future comments you make will be deleted. Goodbye.
trane 05.03.09 at 9:53 pm
On my reading, MT was arguing in good faith, and in any case has a practical point that it is difficult to prevent torture if you are not prepared to argue with the, unfortunately, many people who support it, in some form or other.
It is frustrating and terribly wrong that public debate on this issue is still in large measure focused on Ticking Time Bomb scenaria. But that is a fact we must deal with to prevent the use of torture.
On this, one of the discussions at Balkinization is particularly inspiring and useful:
http://balkin.blogspot.com/2006/10/torture-and-ticking-time-bomb.html
Especially Brian Tamanaha’s comment to Stephen Griffin:
“You have written a compelling response to the Ticking Time Bomb Scenario. The TTB is used to score rhetorical points, and to justify heinous conduct. However, although I fully agree with your argument, and am absolutely against torture, I wonder whether there is a response that better acknowledges and meets the intuitive appeal of the scenario. In order to do this, one must accept the basic premises of the TTB scenario (recognizing that it is unrealistic and stacked and faulty in many ways).
When working through this issue, I have wondered what I would do if my young daughter was abducted and held captive in an undisclosed location by a bad guy. If I happened to get my hands on that guy, how far would I be willing to go to find out where my daughter was being held? Time and again, my honest answer was that I would do whatever it takes, including inflicting severe pain and permanent bodily injury, if necessary, to get this information from the bad guy.
If I am willing to do that, then it must be acknowledged that there are situations in which torture would be considered even by those opposed to torture (assuming other opponents share my position). Although there are big differences between these scenarios, the TTB scenario intuitively works the same way: by placing on the scales an extraordinarily compelling cause that outweighs the normal absolute ban against torture.
Now comes the key difference with TTB and how it is being used by proponents of torture. The people who invoke TTB want to whitewash their conduct, making it legal and moral, and ordering someone else to do it. In my scenario, in contrast, I did what I did directly, with my own hands, and I would not claim that it was either legal or morally justified. My actions–imagine the worst–were evil. But I did it because I felt it was absolutely necessary, given the stakes. I broke the law and should be punished.
If Bush Administration officials approached the issue the same way–that is, they would have to do it with their own hands and they would thereafter suffer the legal punishment–they would not be pushing for torture. And if that is indeed the case, it demonstrates the lie perpetuated by the TTB scenario.”
Cedric Green 05.03.09 at 10:26 pm
I visit CT often but have only commented once before. I like this blog and the thoughtful conversations it stimulates, but I have to say the judgment of the authors in determining who and who not to ban, is puzzling in the extreme. In particular, I think the treatment of Michael Turner during the course of the last couple of days is nothing less than shameful.
Righteous Bubba 05.03.09 at 11:13 pm
You don’t actually have to argue with them if it’s illegal. And it is.
Rich Puchalsky 05.04.09 at 12:06 am
The honest racist argues for racism in good faith, so did the white moderates who told MLK Jr. to go slowly. There’s nothing magical about it.
As for the rest, I’ll propose another point of view. Why should we argue with people who support torture? I think that we should just condemn them. If that leads to greater divisiveness within society, good. If it leads to pro-torture belief being adopted as a core element of the GOP — which, to be honest, it already has — good. If it has to be a political issue, let’s let everyone see the options and make their choice. It’s a choice between civilization and a disgusting evil that combines both decadence and barbarism. By all means let the GOP become the party of torture, and let all of their works be tainted, when the public eventually comes to its senses, with that association. Or if the public doesn’t, as I said before — fair warning to the rest of the world.
Righteous Bubba 05.04.09 at 12:27 am
The Bullshit Hypothetical Endorsement League also demands that you decide whether or not to torture your terrorist daughter.
Henry 05.04.09 at 12:46 am
I am now closing this thread.
Update: In response to Cedric Green, I should make it clear that the ban on Michael Turner was not because he voiced opinions that were unpopular on CT. It was because of his repeated unwillingness to abide by the rules. I had asked people to stop the personalized back-and-forth – he jumped back in again shortly thereafer. I then imposed a 48 hour cooling off ban on him – he immediately violated it. I told him that he was on his last warning (this is rather more leeway than we usually grant in these situations) – and he started commenting again before his cooling off ban was up. If we are to have structured conversations here, people need to abide by rules, especially when they are told that the conversation is degenerating. None of us get paid to do this – we write posts and moderate comments sections purely on a volunteer basis, and our time and patience are limited. When commenters make it clear that they are unwilling to abide by the quite clear rules we have set, they get booted. It is as simple as that. If it was a simple case of banning someone for acting like an arsehole, I very likely would have banned Turner – but would have banned Rich Puchalsky and Righteous Bubba too.
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