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Thursday, April 28, 2005

Responses to comments

A few comments in response to some of the high and low quality responses to my post.

1) First off, I agree that it can be a very dangerous precedent to try and figure out the exact moment at which torture is acceptable, because of Prof. Waldron's great point about the danger of underemployed professional torture artists sitting around. However, his answer still seemed elusive to me because he characterized the hypothetical as a corrupt question. Why corrupt? Because he felt like it was unfair that he should be forced to consider extreme circumstances which might push him to accept extreme interrogation techniques (which, incidentally, seemed like something Prof. Yoo was not even pushing for. This slight of hand that so many want to perform, wherein they assume that reservist guards at Abu Gharib were reading internal Office of Legal Council memoranda on international conventions so as to know what they could get away with is beyond absurd, especially in the absence of any proof whatsoever. I am reminded of a South Park episode, where a troupe of underground Gnomes is sure that if step one is stealing clothes, step three will be profit. They just have not yet figured out what step two will be, though they are sure that when they figure that out, steps one and three will be seamlessly connected. But I digress . . .). As Prof. Yoo kept trying to point out, though, we have been attacked already. He pointed out REAL terrorists who had been arrested from whom the United States has acquired real information.

2) The memory that WE HAVE BEEN ATTACKED by international Al Queda should be an answer to the comment that there is no ''morality in all this madness.'' One cannot say the Geneva Convention will never apply. It applies in all conventional wars which served as the mental model for the drafters of the Geneva Convention. However, this situation is different. It is a more extreme version of the conflict that so often arose between rebel groups and entrenched governments in the 1980's, for which (as Prof. Yoo pointed out), President Reagan actively refused to allow expansion of the Geneva Convention. Here is a very simple point of morality: our elected officials are responsible for keeping the nation intact, even if it means infringing on what otherwise would be the rights of those terrorists who have vowed to kill Americans and have already perpetrated many devastating attacks. If this were a criminal law exam, the answer would be easy. All Al Queda members are part of a conspiracy to kill, which has been solidified as criminal by multiple overt attacks. Unless members disavow the conspiracy, they should be considered part of the effort. I am honestly surprised that so many find this, albeit extreme hypothetical, a cause for moral alarm. Even Prof. Waldron gave up the point, saying that in his ideal solution, after letting terrorists execute a massive attack against American soldiers, we would carry moral responsibility for our choices. He was right to point out that the terrorists would be infinitely more subject to damnation, but there is a moral choice in doing what one can to stop harm from occurring.

3) I will let you figure out for yourself the static moral quality of the tax debate. As Louis Armstrong said when asked to explain Jazz, ''Man, if you gotta ask, you'll never know. ''

4) In response to Anderson's comment, I think the issue of whether criminal liability could attach to an executive order to torture in these situations is complicated. For many such complicated points of international law, the international legal order relies on public opinion as its primary enforcement device. The theory is that since most treaties can never be enforced using state sponsored force, the most effective enforcement tool is public opinion. The corollary to this, though, is that if public opinion does not consider an executive action under a treaty a violation, then it is not worthy of enforcement, since mobilization of shame is the weakest international enforcement tool available. Prof. Waldron thinks the torture MEMO (again, not Abu Gharib), has brought internal and external shame to our country. If he is right, then we have been punished, and it would show a real harm to the policy (though perhaps not one which overcomes its benefits, and perhaps also a harm fueled largely by disingenuous opponents of the administration). However, I believe the world is filled with a lot of Senator Schumers, all of whom at some level agree with the need to at least contemplate more-aggressive means of information extraction if the ticking bomb was in their home town.

15 Comments:

Anonymous JDMcKay said...

This slight of hand that so many want to perform, wherein they assume that reservist guards at Abu Gharib were reading internal Office of Legal Council memoranda on international conventions so as to know what they could get away with is beyond absurd, especially in the absence of any proof whatsoever.

ignorantly cynical, & ridiculous. I've observed similar rhetoric from other Yoo (eg. "pro-torture") supporters: it seems to me these neo-con nationalist leanings come equipped with blinders. The evidence is vast.

I will let you figure out for yourself the static moral quality of the tax debate. As Louis Armstrong said when asked to explain Jazz, ''Man, if you gotta ask, you'll never know. ''

Oh, I'm well aware of moral claims in this tax "debate", just that I've not seen any real world evidence backing up the purveyors of this "theory". I can list at least a dozen entirely different published reasonings for claim to moralality of taxes, yet I've seen not one that comes close to making a case, much less a moral one. That you find a way to equate the "morality of tax" theory to murder/torture raises suspicion: you find sympathy with novel torture justifications, while dismissing vast evidence it's happened (and still does... see latest AI reports) as absurd.

Hmmm...

Respectfully, dismissive arguments like yours have served to harden my opposition to modern "conservatives". Far, far too often their case is made dishonestly, underpinned w/fabrications and 1/2 truths with promises of outcomes that never manifest. Then, they change the subject.

Lastly, I am pertpetually amazed at the dearth of discussion of CIA Mossadeq coup, explicitly executed for sole purpose to control of Iranian oil, the US assisted subjegation of Iranian populations protesting the same, and backlash from all of this leading directly to Khomeni and the birth of "Islamic fanatacism". Do you see any moral lesson in this history? That Bush has gotten away with the explanation: "They hate freedom", and sold it as an underpinning of his "moral" case, only further disgraces the truth. Building torture justifications on top of it all, affecting people who were never associated with Taliban/Al Quada only further attacks sensability. That it all has been sold to a US public is scary.

Sorry sir, no sale. BTW, I've played jazz guitar for 30+ years: not only do I know jazz when I hear it, I know bs when I read it.

12:47 PM  
Blogger Lord Coke said...

The idea that you are being "respectfully" dismissive is somewhat undercut by phrases like "b.s." and comments that posts are "ignorantly cynical" (a charge you back up with zero evidence that the Abu Gharib was caused by the torture memo). Or perhaps you attended the NYU School for Etiquette in Theoretical Discussion?

What is the evidence? Point me to the causal pathway between Prof. Yoo's internal White House memo on the legality of unconventional methods of interrogation and the abuses of Abu Gharib or retract your statement please.

1:22 PM  
Blogger Publius said...

Read Volokh's Mechanisms of the Slippery Slope. Great article. Saying that A is probably going to lead to B is a meaningless argument unless you can explain why A will, in fact or with greater likelihood, lead to B. Saying that the torture memo led to Abu Ghraib is pure conjecture unless you show how it did.

I'm not saying that there is no argument that they are connected, only that you aren't making one. Jeremy Waldron drew these conclusions as well, but similarly didn't explain their merits.

One problem with this argument is that the memo never led to any government policies sanctioning torture. If anything, "rumor had it" that the President was asking about whether torture violated the Geneva Conventions. Somehow, then, this got to the prison guards who, equipped with the knowledge that their actions were not violating a U.S. treaty, decided to use the torture. Do you buy this?

It's very easy to make conclusory and vague arguments. But these are unhelpful. As Lord Coke says, "point me to the causal pathway." Otherwise, conclusions of what led to what are unhelpful.

1:37 PM  
Anonymous Anonymous said...

Publius,

If you can't figure out why an internal memo on torture (if listened to), in the OLP,is likely going to weigh in on the amount of torture the US is going to do, then you're either kidding yourself or clueless about legal realism and law generally. I'm going with the former.

For your question to be even worthy of rebuttal, you'd have to imagine that OLP either serves absolutely no purpose at all or that they regularly engage in hypotheticals for purely academic purposes.

The equivalent of your causation concern (which has *absolutely* nothing to do with slippary slopes, my god), is that one cannot present as de facto evidence that Mob leader X is guilty of murder if the only two pieces of evidence you have is Mob leader X telling Mob Lieutenant A to have Victim V killed and that Victim V was in fact killed by members of the same Mob organization ran by Mob leader X.

If one requires to actually have the facts that tie conspiracy input to conspiracy output, one should just end the entire concept of conspiracy law because any conspiracy worth a salt is going to find a way to succesfully hide at least one of the chains. It seems, in that regards, inherently obvious that, given the constraints of political debate, that when Professor Yoo and Professor Bybee were asked whether torture could be justified, that (assuming they were listened to, without being able to get into the heads of anybody on the chain of command for why they did what they did) their answer "yes" factored in to at least the scope and/or length of the use of torture in both in DOD procedure...both at Guantanamo and Abu Gharib.

2:08 PM  
Blogger Publius said...

I guess I misunderstood the argument that was being made (at least by some), and if Anonymous is right, it is sillier than I thought.

I thought that the argument was (and what Waldron's article is arguing is) that the discussion of the legality of torture, even if never officially implemented, changes the culture such that really bad things happen. So, even if the President never orders torture, the discussion will bring it about somehow because people will view it as a legal determination, not a moral absolute.

Anonymous is saying that this memo did in some way contribute to actual orders from the President down the line to the guards at Abu Ghraib. Well, this, you're right, is a causation issue, not a slippery slope. But this was not how the debate started.

Slippery slope arguments can at least be discussed. "Conspiracy theories" are just ammo for ideologues.

2:24 PM  
Blogger Anderson said...

Folks, the problem is that we on the outside don't really have access to the evidence that would be needed to check the causal chain, if any, from the OLC memos to Abu Ghraib & Gitmo. How could we?

But we see (1) the White House & Pentagon ratifying torture and (2) troops in the field, along with CIA agents, using torture, and we go, "hm." We would have to be a little dense (or partisan) *not* to suspect a connnection, wouldn't we?

For ex, MAJGEN Geoffrey Miller appears to be the link between Gitmo & Abu Ghraib, and I'm very curious about his links to D.C., if any. That would be one area to investigate.

But at the very least, there's enough out there to suggest that an impartial investigation with full access is a good idea. If the WH et al. are as blameless as they say, they should be welcoming such an investigation.

One more thing: I really, really worry when I see such smart people falling over themselves to agree with Yoo's sweeping claims of executive privilege. Have any of you heard of Carl Schmitt, for heaven's sake? If this country slides into tyranny, it will be along the theories Yoo has laid out; and I am puzzled by a "Federalist Society" that isn't vigilant in combating such theories.

That said, I admire the tone of y'all's conversation on this subject, and wish to God that such a conversation on American torture were going on in a lot more places.

3:49 PM  
Blogger Publius said...

Well we are far afield from where we started. (evident by my previous comment). I totally agree that any policy by the WH that led to Abu Ghraib was wrong, and that there should, perhaps, be an investigation. I'm sensitive to the national security and military issues with such an investigation. But I wholeheartedly agree that anything that went on was wrong.

But this has nothing to do with Yoo. Yoo has to be attacked the way Waldron is attacking him, not the way this discussion is attacking him. I join in anyone condemning any orders or policies that were formed following the Yoo memo, but still side with Yoo on at least most of the merits of his memo.

The Executive privilege question is an interesting one, and one I'm actually writing something about right now. Check back for a new post discussing the topic.

3:58 PM  
Blogger Anderson said...

I join in anyone condemning any orders or policies that were formed following the Yoo memo, but still side with Yoo on at least most of the merits of his memo.

One word: Youngstown.

5:21 PM  
Anonymous Anonymous said...

When I said "conspiracy", I meant in the technical sense, i.e., a bunch of individuals coming together as an association to promote an activity (here, torture), and not the X-files sense. Oddly enough, any set of ideas about what "conspiracy" is, in the abstract, would be properly called "conspiracy theory". But if one takes away the normative judgement of the word conspiracy (and one was not neccesarily implied), then I disagree that the use of conspiracy logic is purely for ideologues.

5:59 PM  
Blogger Publius said...

I don't understand what Youngstown has to do with our compliance with the Geneva Conventions. It may speak to the power of the President to torture someone, but it doesn't influence its legality.
But, again, I think this is a great, but different topic. Forthcoming. :)

6:04 PM  
Anonymous JDMcKay said...

The idea that you are being "respectfully" dismissive is somewhat undercut by phrases like "b.s." and comments that posts are "ignorantly cynical"

your "slight of hand" comment & the several before deserve no less, on multiple levels.

(a charge you back up with zero evidence that the Abu Gharib was caused by the torture memo).

a) there *was* torture: we know for sure much more than we've seen, at the very least
because of senator's puking after viewing since classified videos.
b) Yoo wrote the memo saying this was ok. We know they bypassed JAG, and in fact JAG
dissented and protested.
c) We know there was concern in intelligence agencies that, without a white house
legal basis, they would possibly be liable in the future for crimes.
d) We know little else, because GWB admin has burried the rest.

Hello? You assert a connection of these dots is absurd?

I could understand a POV saying: "well, I'm not convinced. Let's put the people in question under oath, and ask 'em". That, I could live with. I'm sure the GWB admin would only be too happy to account for themselves in this manner, given their wonderful track record of openess and forthrightness.

But "absurdity"? Sorry, pal.

Or perhaps you attended the NYU School for Etiquette in Theoretical Discussion?

Well sir, I asked for explanation of your highly questionable "moral" equivalencies, and was greeted w/your liberal slur and something about jazz. What goes around, comes around pal. Personally, I'm heard more than enough of Gingrich's "liberal" innuendos... had it up to here w/that junk.

If you'd like to explain your particular take on "morality of tax", I'd be happy to rationally engage you. Actually, for starters I'd settle for your definition of a liberal.


What is the evidence? Point me to the causal pathway between Prof. Yoo's internal White House memo on the legality of unconventional methods of interrogation and the abuses of Abu Gharib or retract your statement please.


Already have. I'm reminded of this Mr. Fish commentary: http://harpers.org/art/cartoons/mrfish/BushRorschach_350x297.jpg

7:47 PM  
Anonymous JdMcKay said...

Anderson said...
Folks, the problem is that we on the outside don't really have access to the evidence that would be needed to check the causal chain, if any, from the OLC memos to Abu Ghraib & Gitmo. How could we?

But we see (1) the White House & Pentagon ratifying torture and (2) troops in the field, along with CIA agents, using torture, and we go, "hm." We would have to be a little dense (or partisan) *not* to suspect a connnection, wouldn't we?


Precisely. It's really not so hard.

7:51 PM  
Anonymous Anonymous said...

In light of some of the above comments, it really ought to be noted that there HAS been an independent investigation of Abu Ghraib and any sanction of it by the command structure.

An independent DOD inquiry led by former Defense Secretary Jim Schlesinger (a Carter administration veteran among other things) concluded that the abuses weren't connected to interrogations at all, let alone part of a new interrogation doctrine ordered by the White House.

Now you still can argue its all a cover-up or whitewash. But you can't just assert that people should "follow the dots" as though the Bush administration has forbidden an independent review of the actual facts.

11:27 AM  
Anonymous JDMcKay said...

An independent DOD inquiry led by former Defense Secretary Jim Schlesinger (a Carter administration veteran among other things) concluded that the abuses weren't connected to interrogations at all, let alone part of a new interrogation doctrine ordered by the White House.

"independent" DOD inquiry? What's that mean?

Rummsfeld appointed the staff. They had no subpeona power. The had extrememly
limited access to all kinds of stuff. The responses to this report speak for
themselves... including a number of statements/letters by well known (mostly)
conservative ex-military brass.

Anyway, I've read that report: please explain where it corroborates your claim (abuses
not connected to interrogations): I would point out there's significant *documentation* of just what you say the report omits.

Now you still can argue its all a cover-up or whitewash. But you can't just assert that people should "follow the dots" as though the Bush administration has forbidden an independent review of the actual facts.

Oh, but I can... and they have. Just as GWB's hand picked commision to investigate intelligence failures did not have looking at white house/pentagon in it's mandate. I suppose you think there's no evidence there as well? Chalbi's pentagon associations are "absurd speculations?"

2:51 PM  
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