Torture, Schmorture

by Henry Farrell on April 28, 2009

I used to put Clive Crook in my ‘disagree with him on mostly everything but basically a decent-sounding and reasonable guy’ box, but not any longer. This “piece”:http://www.ft.com/cms/s/0/4af5dad2-328c-11de-8116-00144feabdc0.html on how (a) we shouldn’t do waterboarding on pragmatic grounds, but (b) it isn’t really torture, is reprehensible.

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

First off – if prosecuting torturers makes bipartisanship more difficult, then tough shit for bipartisanship. The prospect for actual bipartisan consensus between people who think that torture is a good thing, and people who think that torture is fundamentally abhorrent is obviously rather limited. Crook’s preferred approach of ‘mistakes were made’ is effective capitulation to the pro-torture side. Obviously, torture _shouldn’t_ be a partisan issue, but that it is tells us an awful lot about the shape that the Republican party is in today. Second, his guff about how no journalists or Youtubers have volunteered to be flayed or have their fingers crushed seems to me to be actively disingenuous. According to the “Bradbury memo”:http://emptywheel.firedoglake.com/2009/04/18/khalid-sheikh-mohammed-was-waterboarded-183-times-in-one-month/, Khalid Sheikh Mohammed was waterboarded _183 times_ in March 2003. If there are any journalists or Youtubers lining up to be waterboarded 183 times in a month, I haven’t heard about it. Which suggests (if I’m wrong, and if Clive Crook really believes that what happened to Mohammed was no great sweat, wasn’t really torture etc) that there is a gap in the torture-porn punditry market that Mr. Crook himself can fill, by himself volunteering to be waterboarded 183 times so as to demonstrate that it isn’t really torture, has no lasting effects &c&c. To fit this in with his doubtlessly busy schedule, I’d be prepared to spot him a few ameliorations – perhaps he could do this over a three month period, not be subjected to stress positions, nasty cramped cells or other forms of abuse. And perhaps he could even live-blog the experience for the _Financial Times_ or the _National Journal_ (or, if he wants to go a bit downmarket, do it for reality TV – I’ve no doubt that there would be an audience).

Update: “Clive Crook responds to critics, including me”:http://clivecrook.theatlantic.com/archives/2009/04/more_on_torture_prosecutions.php.

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

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

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

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

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

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

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

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

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

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

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

Update 2: see “here”:https://crookedtimber.org/2009/04/30/clive-crook-on-torture-a-second-try/ for a lengthier response.

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Bunglers, Egos, and Law vs. Politics

by Mark Schmitt on April 28, 2009

“When we care about something, we waste money on it,” the political theorist Benjamin Barber once told me, an aphorism that came to mind frequently as I read The Conservative Legal Movement in America several months ago. On one level, sure, the book chronicles one of the most successful social and intellectual transformations in American history, and perhaps the only one that did not involve a mass movement. The Law and Economics project in particular had an influence far beyond the legal world, bringing the tools and priorities of neoclassical economics to bear on any question of policy, so that questions such as the appropriate level of regulation in financial markets were answered by the very framing of the question. It was an oversimplification, but not crazy, when someone said to me recently, “I want someone to write the whole story of everything that led to the financial crisis, starting with that whole Law and Economics thing.” [click to continue…]

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One economist’s perspective on the law and economics movement

by Tyler Cowen on April 28, 2009

Law and economics has done well for some straightforward reasons. Most of all, law schools have become more research-oriented over the last twenty years. Publication is more important and word-of-mouth about the quality of publication is more important. Law and economics, which draws so much of its method from economics, has been ideally positioned to benefit from this trend, albeit by a kind of historical accident. [click to continue…]

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Sneak preview of Wolfram|Alpha today!

by Eszter Hargittai on April 28, 2009

The following should be really neat. Today at 3pm ET, the Berkman Center will host a sneak preview of the Wolfram|Alpha search engine or “computational knowledge engine”. I saw a preview of it by Stephen Wolfram a month ago at Foo Camp East and was mesmerized. Stephen Wolfram will be talking about the system with Jonathan Zittrain at today’s event. Join the live Webcast, participate remotely using the Berkman Center question tool, by interacting with its Twitter account or on IRC.

UPDATE (4/29/09): The video of the session is now available here.

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Adventures in Book Reviewing

by Daniel on April 27, 2009

I think it’s generally agreed that the worst possible sin for a book reviewer is not to have read the book in question. However, what if you really really knew what the book was going to say? How about if you’d spent the previous five years obsessively maintaining a blog about the author, reading all of his published work and developing a whole political philosophy in reaction to his? If the book hadn’t quite come out yet, would you really feel like you had to wait until it did to write your response? Remember, when the thing comes out, it’s going to be reviewed by all sorts of people who have only the barest awareness of the context of the author’s views, and will most likely have skim-read the thing working to a deadline.

Basically, David Aaronovitch (the British Thomas Friedman) has a book in press entitled “Voodoo Histories: The Role Of The Conspiracy Theory In Shaping Modern History“. I’ve been aware that something like it was in the pipeline since 2006, when he delivered a lecture on the subject. I have a number of political disagreements with Aaro, and one of the most important ones is over his structural tendency to give politicians the benefit of the doubt, the origins of which I locate in his early career working on “Weekend World” with John Birt. I also don’t like the general tendency among commentators to act as if explanations of events by reference to covert or criminal/political activity were per se evidence of unseriousness or paranoia; after Watergate, Iran/Contra, P2, the Tonkin Gulf and the Zinoviev Letter one might have hoped that we would have learned a lesson. I’ve written an essay on this subject, over at “Aaronovitch Watch (Incorporating ‘World Of Decency’)”, in the form of a review of the forthcoming book. I honestly believe that more thought and effort has gone into it than is remotely likely to be exerted by any of the eventual reviewers who write with the benefit of having read a copy. See what you think.

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What Teles Can Tell Us About Constitutional Change

by jack_balkin on April 27, 2009

Because constitutional change is a focus of my research these days, I thought I might say a few words about how Steve Teles’ book The <a href=”http://www.amazon.com/Rise-Conservative-Legal-Movement-Princeton/dp/0691122083″>Rise of the Conservative Legal Movement</a> is important to contemporary theories of constitutional change. Teles’ book discusses how competition between different ideological groups occurs outside of the electoral process: through institution building, norm development and norm proliferation. These mechanisms are quite important to understanding constitutional change, and legal change more generally. [click to continue…]

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What Liberals Shouldn’t Learn from Conservatives

by rick_perlstein on April 27, 2009

One of the impressive things about Steven Teles’ book is that it helped orient me better about the apparent implications of my own work. When I wrote Before the Storm: Barry Goldwater and the Unmaking of the American Consensus, the notion that, in narrating the capture of the Republican Party by the conservative movement, I was offering advice to progressives (like me) about how to seize national power themselves, was distant in my mind if it was present at all. The exigencies of commercial promotion (a perhaps over-glib framing of the book as an allegory for liberals) and an accident of history (the cult-following the paperback developed among progressives wrapped up in the nascent Netroots and Howard Dean movements) led to the book being read rather narrowly: as a universally applicable “movement” blueprint.  Not infrequently I would receive phone calls and emails from avid left-insurrectionists for practical advice as to how a “progressive infrastructure” to match the conservative one built through and after the Goldwater campaigns. Not infrequently I would convince myself I had plenty to say on the subject—though not without ambivalence. When, of all extraordinary things, I was invited to address the Senate Democratic caucus on “building a progressive idea infrastructure,” I said what I pretty much still believe: interests, not ideas, have much more motor force in politics. Ideas are fine, but if anything progressives have too many ideas. But deliver some more middle class entitlements like free healthcare, I argued, and Democrats will really be on their way to a restored hegemony. [click to continue…]

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Fairness for me, but not for thee – a prolegomenon to any paraconsistent theory of justice

by John Holbo on April 27, 2009

I know, everyone read the New York Magazine piece with everyone singing Poor, Poor Pitiful Masters of the Universe. That was so a week ago. Thankfully, everything is back to normal. But let’s revisit ancient history. The following bit was especially wondered at (by Kevin Drum, for example): [click to continue…]

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The hole in the political landscape

by John Q on April 26, 2009

One way to think about the political impact of the GFC is to look at the range of political positions it’s rendered untenable. This range is large, encompassing, in the US context, everyone from Bill Clinton to Newt Gingrich. More generally, it covers anyone who embraced the claim that a US-style economic system, as of, say, 1995-2005, was the best that had ever been seen anywhere, and could only be improved by making government smaller and/or more business-like.

Minus the US-specific triumphalism, this range includes the positions held by most major political leaders in the developed world at the time the crisis erupted, notably including both George Bush and Barack Obama. It covers anyone who saw the growth of the financial sector and the explosion of global financial transactions as beneficial and who regarded with equanimity phenomena like the growth of inequality and the decline of trade unions which both resulted from and reinforced these trends. Virtually everyone holding this view downplayed or disregarded the looming crisis until it exploded in late 2008.

A critical assumption underlying these views was that the system was stable enough to maintain equilibrium without substantial government intervention and without collapsing into crisis. As far as I can tell, no one seriously argues this in relation to the current financial crisis. There are those who argue that the kind of massive intervention we’ve seen shouldn’t be undertaken and/or will only make things worse. But, AFAIK, no one seriously suggests that, without intervention the system could right itself fairly fast and return to the situation prevailing in, say, 2006.

What are the implications of the collapse of such a large section of the political landscape, both for those who formerly occupied it, and for the rest of us?

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Cohen on Constructivism (Chapter 7)

by Jon Mandle on April 25, 2009

Continuing the discussion of G. A. Cohen’s Rescuing Justice and Equality – sorry about the delay – chapter 7 is on “Constructivism.” Cohen argues against the view that fundamental principles of social justice can be identified by considering a selection procedure that addresses the question, “What rules of governance are to be adopted for our common social life?” (p.275) The selection of principles from the original position is his primary target, although the specific features of that choice situation are not at issue. The main objection that he presses is familiar from chapter 6: constructivism mistakenly identifies the principles of justice with all things considered judgment concerning rules of social regulation. This must be a mistake, for Cohen, because the all things considered perspective encompasses considerations other than justice (including other virtues), and asks how best, given certain circumstances, to achieve the optimal balance of these various considerations.
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Quiet around here

by John Holbo on April 25, 2009

You’ve met The Girls From Planet 5. Now meet … [click to continue…]

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I dunno, I just like it

by John Holbo on April 23, 2009

I found this old photo on Flickr. (Click link, then click again, for larger image.)

skiinggirls

Apparently it “was published by the Sydney firm Charles Kerry & Co. and is part of the Powerhouse Museum’s Tyrrell collection which contains over 2,900 glass plate negatives by Kerry & Co. Although a few appear to be from the 1880s most were produced between 1892 and 1917.”

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Hope You Had a Happy Krauthammer Day!

by Henry Farrell on April 23, 2009

I forgot to note a very special anniversary yesterday. April 22nd is the date on which Charles Krauthammer “opined:”:http://www.aei.org/events/filter.,eventID.274/transcript.asp

Hans Blix had five months to find weapons. He found nothing. We’ve had five weeks. Come back to me in five months. If we haven’t found any, we will have a credibility problem.

You’ve now had six years. How’s that credibility looking?

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Thus spake Hegel

by Chris Bertram on April 23, 2009

bq. Particularity by itself, given free rein in every direction to satisfy its needs, accidental caprices, and subjective desires, destroys itself and its substantive concept in this process of gratification. At the same time, the satisfaction of need, necessary and accidental alike, is accidental because it breeds new desires without end, is in thoroughgoing dependence on caprice and external accident, and is held in check by the power of universality. In these contrasts and their complexity, civil society affords a spectacle of extravagance and want as well as of the physical and ethical degeneration common to them both. ( _Philosophy of Right_ sec 185).

Alternatively

… “Everything is amazing; nobody is happy.”

via “The Online Photographer”:http://theonlinephotographer.typepad.com/the_online_photographer/blog_index.html .

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Young Americans for Socialism

by John Q on April 23, 2009

American adults under 30 are almost evenly divided on the question

Which is a better system – capitalism or socialism?

37% prefer capitalism, 33% socialism, and 30% are undecided. For the US population as a whole, only a bare majority prefer capitalism (53% prefer capitalism, 20% socialism, and 27% are undecided.)

Granted that socialism can mean anything from “Policies adopted by Joe Stalin” to “Policies deplored by Joe the Plumber”, these are quite striking results, and certainly help to explain why the invocation of the socialist bogy by JTP and other Republican hacks has been so ineffective (to the point that JTP has recently taken to adding a “neo” prefix, which certainly made both “liberal” and “conservative” scarier).

Update SNAP!

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