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.

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.

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.

People are more comfortable talking around the subject. The alternative is admitting that our government tortured and that we let it happen.

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.

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 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.

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.

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.

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.

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.

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.”

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?

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?

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.

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.

Ssh, sweetie, the grownups are talking.

we have prosecuted people for waterboarding and called it torture, how does this jive?

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:

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.

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:

Finally, of course it comes down to how the laws were written.

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.

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?

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.

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?

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.

3) Do you think it is torture?

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.

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.

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?

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 functions”); 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.