Quote Of The Day – Torture
By Justin Gardner | Related entries in History, Law, Torture
“The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.”
- President Obama in a statement about the torture memos released today
As I said earlier, these memos reveal that everybody in the administration new what they were doing would be considered torture. So the fact that Obama released these memos were important.
And, again, I disagree that anybody who carried out these orders should be prosecuted.
But if you want to go after the folks who okayed these techniques?
Well, that I’m a bit more flexible on.
This entry was posted on Thursday, April 16th, 2009 and is filed under History, Law, Torture. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
April 16th, 2009 at 10:04 pm
I only skimmed the Bybee memos very briefly, but the sense that I got from them was that, far from establishing that “everybody in the administration new [sic.] what they were doing would be considered torture,” the “techniques” were specifically determined to not be torture within the meaning of relevant federal statutes.
April 16th, 2009 at 10:09 pm
For example, 18 U.S.C. § 2340 makes “severe physical or mental pain or suffering” the threshold question for § 2341’s ban on torture, and Bybee argues – not without force, it must be said, although I can’t say if it’s adequate without a closer reading – that absent pain, which wasn’t implicated in any of the methods proposed, the statute doesn’t even come into play.
April 16th, 2009 at 11:07 pm
I dunno–kind of sounds like torture to me. There is no “for example” about it. You make a wonderful legal argument, but in the end, torture is torture and anything else is just rationalization.
April 16th, 2009 at 11:14 pm
Simon–Didn’t we already decide the meaning of torture when we prosecuted the Japanese for the same thing after WWII?
April 17th, 2009 at 3:10 am
JG, you can’t have your prosecutorial cake and eat it too. Nuremberg taught us that. So you can’t selectively call for the prosecution of the order-givers without prosecuting those who carried out the orders as well. And you’d be prosecuting them for something that isn’t a crime.
If you want to campaign to change the laws and specifically outlaw a certain list of actions (such as those included in this report), that would be more realistic than attempting prosecution of “the folks who okayed these techniques.”
And what are your thoughts on Bagram? Would love to hear how Obamapologists rationalize that.
April 17th, 2009 at 7:46 am
Gerry, if you want to think about the torture question in terms of pure morality, you can offer tautologies like “torture is torture and anything else is just rationalization.” If, however, you want to talk about whether and to what extent U.S. interrogation practices were illegal (which, remember, is the question that Bybee was asked), torture is whatever the relevant statutes define it to be. (Unless they fail to define it at all, that is, in which case one falls back on default rules of statutory construction.)
18 U.S.C. § 2340A(a) provides that a person “outside the United States” who “commits or attempts to commit torture” may be fined, jailed, or even executed in certain circumstances.” Note that this prohibition is limited. It is cabined by § 2340A(b)’s jurisdictional requirements, it is cabined by its own internal elements (to say that it applies “outside” of the United States is to say that it does not apply within the United States), and most importantly of all, it’s cabined by the meaning of the term “torture” – a term specifically defined, as I mentioned above, by § 2340. For purposes of 18 U.S.C. § 2340A, to adapt your comment, “torture is whatever 18 U.S.C. § 2340 says is torture, and anything else is just rhetoric.”
To be sure, Bybee’s argument (so far as I recall it) isn’t airtight. Although it’s clear that waterboarding isn’t severely painful, § 2340 speaks invariably in terms of “pain or suffering,†and at first brush, one has to wonder if these aren’t separate categories. I have no idea if that simplistic reading holds up to scrutiny; in law, things are not always as simple as they seem (for example, is “pain or suffering” a term of art with definite content?).
So, rush to judgment if you’d like; morally, torture is torture (although I thought centrists and moderates rejected absolutes, preferring to acknowledge that the complicated real world is painted in shades of gray). But whether what the United States did specifically violates any specific law is not a question that turns on how passionately you feel about it.
April 17th, 2009 at 7:56 am
Kevin, I don’t know anything about those prosecutions, so I can’t really comment. What I will say is that I think it’s somewhat unlikely that we definitively settled the meaning of Title V § 506 of the Foreign Relations Authorization Act of 1994, 18 U.S.C. § 2340, five decades before it was enacted.
That having been said, as I mentioned above, “pain and suffering” in the context of torture might conceivably be a term of art whose meaning was settled by the prosecutions you mention and relied on by Congress in writing § 506. I really don’t know, so I can’t speak to that. As with Gerry, though, if you want to talk about torture as a moral question, in vacuo, you can pick any definition you like. If you want to talk about whether the administration did anything illegal, however — which is all that OLC’s memoranda are going to speak to — you’re stuck discussing that in terms of specific law and specific fact.
April 17th, 2009 at 8:30 am
So, to bolster your argument, you are now moving the line–waterboarding isn’t “severely” painful?
And waterboarding is only painful (but not severely painful), but it might or not be suffering?
Simon, you’re a smart guy. It’s fun to make an a crazy statement and then try to defend it, but I am sure if you were waterboarded you would qualify it as painful, suffering and torture.
Everyone involved with the various “enhanced interrogation techniques” from the actor to the commanders who ordered it knew they were engaged in torture
One of the memos from 2005 that was written by the Bush legal team intended to establish a legal basis for “aggressive interrogation techniques” actually contains a footnote that describes waterboarding as falling within the administration’s definition of torture.
As for “I thought centrists and moderates rejected absolutes, preferring to acknowledge that the complicated real world is painted in shades of gray”: gee, I thought conservatives did believe in morality and absolutes–oh, unless those moral absolutes make them look bad. Then they turn to legal loopholes.
I happen to believe in absolutes. Your argument is absolutely ridiculous.
April 17th, 2009 at 8:52 am
Simon,
I would think that prosecutions on a world stage would set a large precedent which should have some standing that required more than an internal position that seems to always come to the conclusion that “whatever we do is A OK”
We did sign a treaty saying we were against torture which is why Spain is going after the administration figures. I’m guessing we have an out on that too?
Based on your legal gymnastics I am left with the conclusion that the legal field rightly deserves their standing and that no one on the right should have been saying anything when Clinton asked for the definition of the word is.
I guess for me it is quite a simple proposition. Do we follow the same laws that we expect others to or not? If not, it shouldn’t take a law degree to know that is not a position that is defensible. Although I am sure you will find a way.
Out of curiosity, when we prosecuted the Japanese for torture (which included waterboarding) what were we doing in your opinion? And did we just make it up? I guess that is possible, but I would hope not.
April 17th, 2009 at 9:21 am
I’m not moving the line, Gerry, I’m telling you that (1) this is the line drawn by the statute, and (2) the statute’s line is the relevant line, because whatever line you or I might dream up to satisfy our sense of moral outrage, it’s the statute’s line that is actionable under the statute. I realize that sounds tautological, but it has to be said because you don’t seem to be getting it (if you did, you wouldn’t be able to accuse me of moving the line in good faith, and I am assuming good faith).
I have never been waterboarded, and I bet you haven’t either. Since the news that we may have used it became public, however, several people have been in order to write about the experience. Chris Hitchens was, for example, and fulfilling the fantasies of our friends on the left, so too was a Fox news correspondent. Doubtless we can find other accounts, but Hitchens’ will suffice; although Hitchens concluded that waterboarding was indeed torture, he was speaking in the same abstract, moral language that you have used. He isn’t a lawyer, and he wasn’t trying to make a legal argument. You’ll notice that although Hitchens did not enjoy his experience, finding it tortuous, at no point does he say that it was painful. No credible account that I have found suggests that the experience is painful, and there is no particular reason to think that it would be: why would we assume that in order to be awful, something must be painful when we know from everyday experience that there are any number of experiences that are extraordinarily unpleasant but that are not painful?
And if severe pain is a threshold requirement for § 2340 et seq., plainly, a procedure that is not painful is not inflicting severe pain. That is one of Bybee’s points, and he’s unquestionably right. That’s only useful, though, if “severe pain” is the threshold requirement for application of the statute, and as I mentioned, it isn’t. Is “severe suffering” an independent trigger (and if so, does waterboarding qualify)? I don’t know; that’s a question of statutory interpretation, and no amount of huffing and puffing about “loopholes” is going to change that. Bybee’s analysis may be right or wrong, but to dismiss it simply because the result offends your sense of morality is immature. My intuitions and moral preferences don’t define the reach of federal statutes.
Perhaps it would help to make explicit what ought to be clear implicitly: the law of man is not coextensive with the law of God. Not everything that violates natural law violates “the” law. We do not have statutes criminalizing everything that is bad, and to the extent we have statutes designed to prohibit certain bad behaviors, those statutes are often both overinclusive (reaching behavior that they weren’t designed to reach) and underinclusive (failing to reach behavior that they were or would have been designed to reach). You should not make the mistake of thinking that because § 2340 ought to criminalize waterboarding by the government, therefore it does — or, more broadly, that because the statute is designed to prohibit torture, its actual terms can be set aside when a new torturous practice comes to light that falls beyond those terms. In those circumstances, it is up to our elected representatives in Congress to amend the law or not, as the country through their agency sees fit.
April 17th, 2009 at 9:41 am
Guys, Simon seems tome to be making a clear and simple point, and you don’t seem to get it.
In the end, if this ever goes to court, a LEGAL decision will be made about whether or not these actions constitute torture, and these WILL be decided precisely on the bases that Simon describes.
Your moral judgements that “of course these actions were torture” will NOT be incorporated into the decision. Whether you guys like it or not, these actions are quite defensible legally, if not morally. The decision will rest with the court, based on the applicable laws, as they are worded.
This latter point is one which you are free to think is wrong, is regrettable and ought not to be the case. But you really ought not to deny that Simon’s explanation is correct, unless you’ve got a quality counterargument based in legal mechanics.
Frankly to call it silly and absurd strikes me as willful opaqueness. If you take the opportunity to understand it now, you might save yourselves some trouble later should these things go into court and either be dismissed or decided in a way which disappoints your moral sense.
FWIW, it is possible that if this goes to court it could be decided that these actions were torture. The point that Simon has made very well is that regardless of how clear cut it may seem morally, it’s NOT clear cut legally. Like that or lump it.
April 17th, 2009 at 9:46 am
Simon: seriously, WTF? If you can’t close the deal with a thousand words move on. I doubt many people are reading all of your posts.
BTW you never did answer the question asked; we have prosecuted people for waterboarding and called it torture, how does this jive?
Keep your answer short or I won’t read it.
April 17th, 2009 at 9:52 am
Simon made the point
Perhaps it would help to make explicit what ought to be clear implicitly: the law of man is not coextensive with the law of God. Not everything that violates natural law violates “the†law.
So you start by saying anything goes unless there has been a law codified that is perfect in it’s syntax and meaning and then go to an imaginary being that somehow is the source of all law but we don’t necessarily have to obey that law (even in the party that thinks it is God’s representative). Do you ever get dizzy?
I get the desire to obfuscate the manner but there was the saying of that fellow in the book, that supposedly codified everything into “Do unto others as you would have them do unto you”. Under that one — seems pretty clear (to me).
So to put it to rest. Is torture something you want your country to do? Regardless of who is in power. I think we get that there will not be a time where there is a perfectly written law. If that was the case, we wouldn’t need courts. But assuming that society makes laws for it’s benefit and tries to do (one would hope) what is right. Should torture be legal here or anywhere else? and finally, I would ask, shouldn’t a Christian have no trouble answering that? If not, time to roll up the moral superiority and close up the churches.
April 17th, 2009 at 9:53 am
Anyone who thinks those comments make sense really ought not bother to try to understand Simon’s posts, or mine for that matter. Maybe go watch American Idol instead. Wouldn’t want you to get hurt.
Short enough for ya?
April 17th, 2009 at 10:02 am
First, I think Simon is a lawyer. So that’s a decent explanation for his logarrhea.
Having said that, I think we can all benefit from reading something a bit longer and more nuanced. It’s not going to kill you Rob.
April 17th, 2009 at 10:05 am
I “get” the legal argument you are making, but it is simply one legal argument among the hundreds that will/could be made.
I will grant you that the statute you cite provides enough vagueness to try and say we didn’t torture. OK.
But that is one legal argument.
As I obviously didn’t make clear enough–but Rob seemed to pick up on it:
when one of the 2005 memos from Bush legal team written to establish a legal basis for “aggressive interrogation techniques†actually contains a footnote describing waterboarding as falling within the administration’s definition of torture, how can that same group argue they didn’t torture?
Seems pretty clear, doesn’t it–clear enough even for a lawyer. Or do Bush supporters simply ignore that one because it is harmful to their argument?
April 17th, 2009 at 10:07 am
kranky wrote
Whether you guys like it or not, these actions are quite defensible legally, if not morally.
I think we get that. In Simon’s able hands, my guess is that anything that has or ever will be done is defensible legally. The question is should there be some questions where we can all agree? It saddens me that the guy who claimed God picked him and the people who think they are more moral than the rest of us have any doubt. There is zero benefit to religion if that is the case.
I think this is a question of right and wrong, in many cases there are areas of grey. In this one, I just don’t see it. And we as a nation, at least said we didn’t see it either when we prosecuted the Japanese, signed the Geneva Convention, or the Uniform Code of Military Justice. If all our pronouncements, in the end mean nothing, we should never feel morally superior to anyone anywhere.
Finally, of course it comes down to how the laws were written. If written poorly, that means they could get away on a technicality. If written deliberately, I think we should be ashamed. But we certainly shouldn’t take on it’s face that it was ok because the people who did it said it was. I would also go further and say if it is up in the air, it would behoove us to define it so it isn’t.
April 17th, 2009 at 10:09 am
1) Legal arguments aside, the United States tortured. In fact in the famous insect case we used the precise technique described by George Orwell in his infamous room 101. We also used techniques we ourselves have prosecuted as war crimes.
2) Mr. Bush, Mr. Cheney and others knew we tortured and lied to us about it. Repeatedly.
3) What happened at Abu Ghraib was no worse than what was accepted at the CIA — and yet we prosecuted very junior Guardsmen while Mr. Bush, the torturer-in-chief, condemned them as un-American.
4) None of the cases in the memos involved a ticking bomb. This was not heat-of-the-moment Jack Bauer torture, it was cold, deliberate and rationalized. As Andrew Sullivan points out today, imagine what would have happened had this torture regime been handed off to a Rudy Giuliani or Mitt Romney. Thank God the choices were Obama and McCain.
5) Very few of us (including me, to my shame) made much noise about it. It doesn’t quite lower us to the level of the good Germans who never quite noticed the smells coming from Dachau, but it doesn’t exactly cover us in glory, either.
6) I don’t know whether prosecution of high level creeps like the former president and vice president are legally possible. And they’d probably be a bad idea anyway. But there may be lesser but effective punishments. Let’s start with this: Mr. Bush’s proposed library should be shut down by SMU. And I do a think a Truth Commission is in order. Let’s get all the facts out there.
April 17th, 2009 at 10:09 am
Kevin, as I mentioned, I’ve not studied the japanese prosecutions, so any answer I could give you would be entirely off the cuff and uninformed. I must add that it really isn’t helpful to your position to keep repeating “torture” as though it was a precisely-defined
As to treaties, a treaty is ordinarily (there are exceptions) a promise to do something rather than the doing of it. “A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument.” Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829); see Head Money Cases, 112 U. S. 580, 598 (1884); Medellin v. Texas, 128 S. Ct. 1346 (2008). The United States might well sign a treaty promising to make various kinds of conduct, including waterboarding, illegal – but if the United States then enacts a law to implement that treaty that fails to criminalize waterboarding, that does not empower the judiciary to “correct” Congress’ oversight (cf. In re The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 71 (1821) (“to alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functionsâ€); Chan v. Korean Air Lines, 490 U.S. 122, 135 (1989) (same)), still less to correct what appears to be Congress’ deliberate choices.
You seem to want to have it both ways: to complain that the administration violated the rule of law, but then casually set aside the rule of law yourself in order to charge illegal behavior. (The reference to “legal gymnastics.) American substantive criminal law is entirely a creature of statute; we have no common law crimes. See Alan Morrison, Fundamentals of American Law 295 (1996). That being so, you cannot charge the administration with illegal conduct unless there is a statute that actually criminalizes the behavior they allegedly engaged with. If Congress failed to enact a statute that is on all fours with our treaty obligations (I assume for sake of argument that the treaty did in fact obligate us to ban waterboarding), appealing to that treaty (or to other nations’ interpretations of it) doesn’t help you.
April 17th, 2009 at 10:22 am
Simon wrote
Kevin, as I mentioned, I’ve not studied the japanese prosecutions, so any answer I could give you would be entirely off the cuff and uninformed. I must add that it really isn’t helpful to your position to keep repeating “torture†as though it was a precisely-defined
In your able hands Simon, I doubt anything ever has been precisely defined.
So the questions I’d ask are 1) Should we precisely define it if it hasn’t been? Can we? If not, does anything go? 2) Should we attempt to keep our word(in treaties)? If not, why waste the time and effort on any of them. Let’s just say we’ll do whatever we feel like. Should we say things we don’t mean and won’t back up with law? 3) Do you think it is torture? I don’t need or want a legal argument. I want you as a member of the human race to say whether you think we should do such things?
April 17th, 2009 at 11:31 am
Kevin, I think I can for the most part go along with your last post in-re mine. Especially given that you acknowledge that it may be the case that the relevant statutes could possibly be deficient. Anything more I said to that would be quiblling.
As regards Simon, I’m more familiar with him from lengthy exchanges at stubborn facts. While we often disagree, and often vehemently, nothing I have learned of his nature leads me to think his understanding of legal matters is such that he would defend anything simply because it could be defended. If he says there is ample room for doubt, I lean towards believing him.
As to torture itself, my own view is one that many might find peculiar when taken as a whole. I think any nation with as much moral pretense as ours MUST officially abhor torture, and clearly establish that it is illegal (potentially leading to the kinds of adjustments you say may be necessary. NO nudge-wink approval transmitted through a chain of command could be tolerated, and if proven should be prosecuted, top to bottom.
BUT. And this is a big but. If I were in a position where I genuinely felt that torturing someone held a reasonable probability of saving lives that were in immediate danger (choose your own ticking bomb scenario), I would reluctantly undertake that torture, and pray to god to save my soul. And if I were on a jury charged with the responsibility of judging the rectitude of such actions, I would very likely not vote to convict the person who made a direct choice to torture in any scenario that seemed valid to me. But I WOULD vote to convict anyone who participated in a chain of command that sought to establish shadowy official approval of torture.
Torture cannot be condoned as a reasonable policy. But I believe that circumstances can exist where it may nevertheless be necessary. So while it cannot ever be condoned as a policy, I believe that it is at least possible that it can be forgiven as an action.
April 17th, 2009 at 12:07 pm
Rob Says:
Ssh, sweetie, the grownups are talking.
Have we prosecuted people under section 2340A for waterboarding? No. You’re asking, in effect, “why won’t you read this statute to mean the same thing as some other statute that we once had? Why don’t all laws on a general subject mean the same thing?”
kranky kritter Says:
Right, although I’d be even more specific than that: the decision will be made about whether they constitute torture as that term is understood by a specific statute. If the statute did nothing more than ban torture, then the court might be free to cast around for any definitions of torture that fit the bill, but the statute defines what it understands to be torture, and that being so, it would impermissably delete the definitions section to simply read into the prohibition whatever we might believe to be torturous.
Kevin Jackson Says:
Precisely. The law is not aspiration. The law is not intent. The law is not vague banalities (indeed, a law that was would be unconstitutional, see, e.g., Chicago v. Morales, 527 U.S. 41, 64-9 (O’Connor, J., concurring). The law, in this case, is what Congress enacted. (It of course isn’t quite that simple, but we needn’t discuss the common law and other judge-made law in this context). Whether the administration tortured someone in a moral sense is a quite different question to whether it tortured anyone in ways that violate federal laws banning particular activities.
Obviously I failed to complete the first paragraph of my previous comment, and I apologize for that; presumably I would have written something to the effect of warning that torture is a vaguely-defined concept rather than a specific activity. There is no precise action called “torture” – that is a broad heading that takes in many different actions, which is why the federal law at issue tries (however imperfectly) to nail down a definition.
Clearly it isn’t the case that “anything goes,” because we have at least one statute, and it criminalizes various behavior. We can certainly define torture with precision, and Congress has done so; the problem is that precision may have led to underinclusion. In specifying precisely what will be torture, Congress may have left a loophole – that’s the trouble with specificity. The alternative is problematic, too: delete the definitions section, and you simply delegate to judges the authority to make a common law of torture, which has a whole host of problems, not least the violation of the well-established principle that “the citizen is entitled to fair notice of what sort of conduct may give rise to punishment,” McNally v. United States, 483 U.S. 350, 375 (1987) (Stevens, J., dissenting).
At any rate, the current statute goes a long way towards covering most of the conduct we want to deter. It is imperfect, but any attempts to improve on it will have their own difficulties. With these things in mind, it seems likely that the best response is to leave the statute as it is.
I’m inclined to think that the United States should very rarely make treaties; when it does, they should only be concluded when it is in our interest to do so and should be abandoned when they cease to be in our interest. Whether we should try to keep our word may depend upon who “we” is and whether “we” can. If the United States promises to make a law binding states to do certain things, and the United States lacks the authority to impose that rule on the states by statute, it doesn’t gain that authority merely by promising another country that it will. That would be the antithesis of limited government, and if an administration is so rash as to make such a promise, we should not worry about keeping his word. The President of the United States speaks only for the United States, thus cannot speak for more than the authority delegated to the United States, and thus “he” is only “we” to the extent that he speaks intra vires.
It certainly seems to be, based on accounts from Hitchens and the like. I don’t think we should do it.
That said, one can conceive of exceptional situations. A situation may arise in which it is vitally necessary, immediately imperative, and in fact possible to use waterboarding as leverage to obtain information; those circumstances are very unlikely to ever occur in practice, but the world is dangerous enough that we should be clear-eyed about the possibility. Critics point to the unlikelihood of the ticking time bomb scenario, for example, but hide behind that unlikelihood in refusing to say what they would do in that situation. In those extreme (and extremely improbable circumstances), I would accept waterboarding as a necessary evil. In ordinary circumstances however, no, I don’t think we should do it, and assuming the factual accuracy of my understanding of its use during the Bush administration, I would not have ordered its use in those circumstances.
April 17th, 2009 at 12:37 pm
The last paragraph of my last comment is intended to say what KK said much better in the last paragraph of his (his? I’m not sure, and don’t want to presume) 11:31 am comment: “Torture cannot be condoned as a reasonable policy. But I believe that circumstances can exist where it may nevertheless be necessary. So while it cannot ever be condoned as a policy, I believe that it is at least possible that it can be forgiven as an action.”
April 17th, 2009 at 1:06 pm
Granted, whether or not specific actions constituted torture within the meaning of the statue will be determined at trial. But the actions which the OLC memos say are not torture are, at least as I read the US Code, at minimum close enough to fitting the definitions in the law that a prosecution is not unreasonable. It may not be successful; but it would not be an abuse of prosecutorial discretion by any means.
Now, if the actions are held to be torture within the clear meaning of the law, then what? First, Bybee and his staff would appear, on the precedents from Nuremburg, appear to be guilty of war crimes for having written legal justifications for torture. And so would those in the military and CIA chains of command who ordered those actions.
Note: whatever you think of Mr. Cheney, it is clear that as Vice President he was not in either chain of command. So anyone who wants to argue that he should be prosecuted for war crimes would seem to have to show that he carried out torture personally. Or else find something in the law that makes it illegal to merely advocate illegal actions — which may be a challenge.
April 17th, 2009 at 1:26 pm
Simon: you may think the grownups are talking, but to me it looks like you are talking in circles in order to excuse torture.
You can quote US Code all you want, but we tortured (there is no other way to say it, as hard as you try) prisoners captured on the battle field (and elsewhere); we violated the Geneva convention, which we signed on to. So ship their butts to The Hague, if you truly think there is no provision in the US Code to prosecute.
But I guarantee a half way decent lawyer could come up with a statute that applied, if only we had the political stones to do it.
I can’t figure out your motivation, there is right and there is wrong, you are lining up on the side of wrong. Why put in so much effort to be on the side wrong? Who wants to associate themselves with legitimizing torture?
April 17th, 2009 at 1:28 pm
Do you really want to make criminals out of people who gave legal opinions just because we might disagree with those opinions?
It seems deeply dangerous to me to say that those who give “wrong” legal opinions should be made into criminals. That way lies the criminalization of policy differences. What would be next — the criminal prosecution of anyone who advocated a legal opinion that opened a loophole in a tax code? And then after a party change in the executive branch, maybe we could make criminals out of anyone who wrote a legal opinion to the effect that a war with Iran would be in violation of international law. After all, once we have a precedent that says that disagreeable legal opinions carry criminal liability, why assume that only Democrats would get to wield that sword?
April 17th, 2009 at 1:37 pm
Jason, there is a difference, and I think a clear difference, between prosecuting someone for a policy disagreement and prosecuting them for producing a legal opinion which says that an action which violates the law is actually legal. Obviously, if the action is question does not violate the law, the question is moot.
Assume, just for the sake of discussion, that a lawyer in the OLC produces an official opinion that says that it is legal for the government to shoot anybody in the country who has blue eyes. Without trial, let alone appeal. (I think we can agree that such actions would, in fact, be illegal.) Is that lawyer’s action a violation of the law? Certainly it is more than a mere “policy disagreement.”
April 17th, 2009 at 2:02 pm
Simon, bucyrus here. Tried to change my nom de plume over at SF one day and couldn’t figure out how to make it happen. Probably shouldda tried harder, was in a rush.
April 17th, 2009 at 2:50 pm
So what makes the person who says the action was illegal presumed correct and the one who produces a legal opinion that said the action was legal a criminal for merely disagreeing? We’re not talking about something as clear-cut as your “shoot anyone with blue eyes” example, as Simon’s citations of the relevant statutes makes clear. We’re talking about GOOD-FAITH differences of opinion. And you wanting to criminalize them.
This is really really dangerous. Basically, you are saying that if a lawyer produces a legal opinion in good faith that a judge later just disagrees with, that lawyer can be sent to PRISON. You seriously don’t see the potential for abuse in such a precedent?
I bet you would see the potential for abuse in such a precedent if the partisan tables were reversed. And that unfortunately is entirely what this is about — partisanship. The Bush-haters can’t let it go — they still want blood. And they don’t seem to care even a little bit about the dangerous precedents they might set in the process of pursuing their vendetta.
April 17th, 2009 at 4:41 pm
Yes, I am worried that the Republicans will try to claim precedence and prosecute someone from the Obama admin for something questionable. But read this
http://www.cbsnews.com/stories/2005/03/16/terror/main680658.shtml
This doesn’t seem questionable, how can we just look the other way.
April 17th, 2009 at 5:26 pm
Simon:
Aricle VI:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
For emphasis: “[Along with the Constitution], all Treaties made[...] under the Authority of the United States[...] shall be the supreme Law of the Land.”
Therefore, if there are any laws which are in contravention of treaties which have been properly and legally entered into by the United States, then those laws are, in effect, unconstitutional.
April 17th, 2009 at 5:54 pm
Jason,
First off, accusing somebody of being partisan and saying they’d think the opposite if the tables were turned belies the very idea of partisan ideology. I don’t think we’ve seen folks on the left clap at Obama saying it’s okay to wiretap, et al., so I think it’s misguided to just talk about these things in partisan terms.
Also, let’s please keep the idea of “Bush haters” out of this. What people hate is Bush’s policies, which embarrassed this country and (many feel) made us weaker as a result. And call it a vendetta if you want, but I think people just want to make sure this country doesn’t torture people we detained without access to legal council for years on end. I think you’d find that many people would call that justice.
Also, there’s the potential for abuse in any precedent…like the one where we let people off scot free. That’s not a good excuse for letting people who set in motion these policies the ability to always get off. The point is we can’t allow somebody to just write a memo justifying anything and have it be policy because they’re in power. We have laws for reasons.
Now, I’m assuming these lawyers and officials will get off scot free, or at very worst be publicly embarrassed (like they are now) for drafting such nonsense, but we shall see. I don’t think there’s a lot to be gained after these memos were released because they’re damning enough. And a show trial would just be a lightning rod. Better to reveal what you’re not going to do from here on out and just move on. That’s why I like these moves by Obama.
However, since we’re talking about precedents…the more dangerous precedent is the one where we throw soldiers and intelligence officials in prison for carrying out orders that came from above and, if not followed, are grounds for incarceration. That I don’t agree with, and I think Abu Gharib provides a perfect example of the hypocrisy of not holding the lawyers and leaders accountable too. Just watch Standard Operating Procedure by Errol Morris and you’ll see how unjust that whole situation was…at least for some of the soldiers.
Michael,
People keep bringing up Nuremburg and I don’t think the comparison is apt. The Nazis obviously did what the Nazis did, and there’s no point in even arguing there’s a parallel. But when it comes to the Japanese, they went far, far beyond the practices laid out in these memos and they also, by default, supported what the Nazis did. So please don’t go too far down that rabbit hole.
April 17th, 2009 at 6:59 pm
I think it is also important not to exaggerate what happened. Unfortunately, exaggeration is such a useful tool for demonization, so much so that unproven exaggerations become accepted even by some reasonable liberals as unquestioned truth.
April 17th, 2009 at 8:11 pm
The only clear points are that the USA did torture people, and that our elected leaders did in fact approve those policies. Everything else is speculation and conjecture because as hard as we try we just don’t know all the facts. A truth commission would help bring those facts into the sun light so that this type of behavior never happens again, and it would uncover another layer of the obfuscation and lies that permeate this issue.
Does anyone actually think that torture is a good policy under any circumstance? If you believe that it may be, then you are agreeing that the torture of American citizens (by our enemies) is OK under some circumstances as well – and it isn’t – and that is the precedent that was set here. The people who ordered the torture committed crimes – and so did the people who carried out the torture. They knew they were breaking the law so the got a legal lackie to write an opinion saying it was OK. They spread the blame so that it looked like everyone acted above board – eventhough they didn’t. Kind of like when Cheney quoted the NY Times as a source for a statement – after he had the story planted by one of his own people. These people told lies on top of lies, framed by lies. All other comments, rationalizations, legalese mumbo jumbo is all just that – BS – plain and simple.
The conflicting “noise” surrounding this issue is deafening and it’s preventing the truth from coming out – which is probably why everyone involved was apparently given a “get out of jail free card”. But maybe it won’t go away. Maybe enough Americans will realize that this type of behavior is unacceptable and that those attorneys who said there was legal precedence for torture and helped the Bush Administration act on that will pay. Maybe. Then again, maybe not.
April 18th, 2009 at 12:42 am
Terence:
People are more comfortable talking around the subject. The alternative is admitting that our government tortured and that we let it happen.
April 18th, 2009 at 1:10 am
Jason, I’m sorry, I don’t see how the passage you cite is exaggerated in any sense of the word. That’s the reality of the situation. It’s what happened explicitly and I have proof to back it up.
So, since it was such an extreme situation, it’s incredibly easy to call these practices into question and condemn them. So it’s hardly “demonization” when we’re talking about facts.
TerenceC and Michael, the Bush years have been such a tragic chapter in our nation’s history. And while I understand why the Bush folks took the actions they did given the horrific nature of 9/11, I think they were horribly misguided and woefully shortsighted. In any event, well said.
April 18th, 2009 at 8:07 am
In response to Kranky and Simon’s response to my post
This may be a red letter moment. I think I agree with both of you. With a wee quibble thrown in. I was discussing this with a friend and he brought up what I consider to be a tired argument, what if you needed to torture someone to save your child. I took it one level further, what if you needed to torture/kill your child or someone was going to kill a million/ten million/100 million people. There is always a level of need that could get many/most of the people to do something horrible for the greater good. As I think you rightly state, you don’t make laws for that. You make laws for the more realistic scenario and deal with the exceptions if they come up. That is not what the Bush administration did. It becomes even more troubling when you look at the stats from a place like Abu Ghiraib and see that we ourselves said possibly 70% of the people there were completely innocent and we still did the things we did to them.
Where I have the wee quibble is—you can always take a side. That is why there are courts. It now appears that Simon has had the same position as most of the rest and that it came down to a legal question. Which is precisely why it should go to Court. As much as I think that Bush/Cheney were reprehensible excuses for human beings, Americans and elected officials, the legal adjudication would show the world that we do have core principles and we are something different than the run of the mill despots out there. Failing the courts, I hope I am woefully wrong on hell, because I do think they deserve to be tormented for all eternity.
Simon responded on treaties 
I’m inclined to think that the United States should very rarely make treaties; when it does, they should only be concluded when it is in our interest to do so and should be abandoned when they cease to be in our interest.
Which, I might point out wasn’t the question and not the point. A treaty will always be a compromise. The question is when we pass one, should it mean something? If not, then I agree they are useless. It just makes us into hypocrites. That said, I think we isolate ourselves from the world when we say we make the rules and we don’t have to follow them. I doubt anyone thinks that Iran and North Korea having nuclear weapons is a good idea, but who the hell are we to dictate that? Imagine Cheney’s (or even your generic red stater) reaction if he were Iranian or North Korean.
I guess my goal would be to see an attempt for the precision that Simon dictates, Don’t say it unless you mean it, don’t do it unless you can. I think America led best when it led by example and lately, we’ve been setting a pretty horrible example.. That said, Tony Levin is a great bass player (and a nice guy) and Camel has one of the most amazing guitarists you’ve likely never heard of.
April 18th, 2009 at 3:26 pm
Kevin, re your para 2, I agree that you can usually make arguments on either side of a case (indeed, if you can’t, you probably shouldn’t file the suit/appeal!), but it is an unusual case when the law doesn’t supply a right answer, and it is a very rare case where there isn’t a quite clearly better answer. Even in United States v. Santos, decided last term by the Supreme Court, which was an extraordinarily peculiar situation, had a clearly right answer supplied by the law (although the statute was utterly opaque, the law supplied a clear answer in the rule of lenity).
What is more important, however, is that we entirely agree about Tony Levin, who is (as Peter Gabriel rightly put it), the emperor of the bass guitar. His work with Gabriel and King Crimson is truly wonderful.
Bill, how very protestant of you. Most people, when confronted with an opinion from Chief Justice Marshall, a fortiori one that limits national power, would say to themselves “gee, I opened up the Constitution and this line was in there, but maybe the story’s a bit more complex, maybe this bit of text I’m reading ahistorically and acontextually might not mean what it’s convenient for me to believe it means.” I don’t have time to explain why your simple-minded reading of the supremacy clause is wrong, and to do so is needless – read Foster and Medellin, supra, for starters. I will only add this: even if your view of the Supremacy Clause’s effect were correct, the last in time rule would trump your point. A statute enacted more recently than a treaty that can’t be reconciled with the treaty would supercede the treaty.