Does it speak well of the American people that the torture interpretation didn't really occur to most of us -- or does it mean we're all just idiots who aren't conscious of our own history? I'm sure that Latin American viewers knew exactly what he meant, for instance.
(Is it against the law to suggest that a high government official is likely guilty of capital crimes?)
I'm sure that Latin American viewers knew exactly what he meant, for instance.
That's a good point. But I still find it shocking that five days (!) after September 11, making sure that we could torture people was already a priority. I'm pretty sure that if someone had told me he meant torture, I wouldn't have believed it.
(Cue someone to tell me I'm shrill, but isn't it totally obvious that some members of the Administration are likely guilty of war crimes?)
I'm sure that Latin American viewers knew exactly what he meant
No kidding. Also, those of us who protested against our government's Latin America policies throughout the '80s.
Guys, I think you're getting out of hand. Vice President Palpatine would never allow that kind of abuse of power.
It's not shrill, ogged, but Cheney may be forced to sue you for libel.
Vice President Palpatine would never allow that kind of abuse
...unless he got to personally throw the testicle electrical switch.
..as distinguished from electrical testicles.
Also, those of us who protested against our government's Latin America policies throughout the '80s.
You know, I did, and I still didn't think torture. This kind of rhetoric (at that time) impressed me with a generalized sense of "Oh dear, they're going to fuck this all up royally somehow", but the torture didn't occur to me. The thing that kills you about it is the uselessness of it all; I'd be opposed to it even if it were useful, but given the uselessness I don't understand why they want to torture people so much.
I actually have been worried (worried might be too strong a word, perhaps wondering) recently about something related to the parenthetical in 1, namely what purely verbal acts might constitute a conspiracy to commit treason.
I think this is just a manifestation of my mostly supressed paranoia, but there's nothing in conspiracy law preventing verbal acts from being overt acts, though there is in some reasonable readings of the treason statute (which I've read no case law on) or maybe you can somehow, I don't see how, get it out of the Article III treason requirement.
The reason I've been thinking about this is that I'd like to have some purely hypothetical real-life conversations about when one would know that a government had ceased to be legitimate (I don't think such a thing has happened, just want to have some criteria) by, for instance, switching from a constitutional democratic republic to some other form, and what specific actions one should take after coming to such a conclusion, but I have trouble broaching the topic.
I'm so naming my band the Electrical Testicles.
the torture didn't occur to me
With the School of the Americas still up and running at Fort Benning, I never doubted it. What's even more depressing than the Cheneyites' unassuageable desire to torture people is the rest of the country's willingness to go along with it. "What about the ticking bomb scenario?"
Criminy. I'll tell you what: if you wake up on the set of 24, then I will grant you one ticking bomb scenario. Otherwise, STFU.
I would say that if anyone is considering prosecuting you for hypothetical conversations of the type you describe (not that I think that it's likely) technical arguments as to the legality or otherwise of the conversations will probably not be a significant factor controlling how much trouble you're in.
Which would indicate to me that you should have the conversations: if they're unimportant, they're totally safe, and if by some dreadful chance they might possibly turn out to have real world repercussions, you should have them whether or not they're safe.
Does it speak well of the American people that the torture interpretation didn't really occur to most of us—or does it mean we're all just idiots who aren't conscious of our own history?
Now we know that the government is sanctioning illegal torture, and now there are even politicians who are nakedly advocating for policies that legalize torture while the President provides them with double-speak cover—and yet there's a disturbing business as usual quality in the atmosphere. That leads to dissatisfying conclusions about the American people, I think, and doubly dissatisfying since to date I've thrown zero bricks at federal buildings. And I'm so close to them!
On the ticking-bomb scenario, nothing is better than that piece of Belle's ("By the power of stipulation!"). Everyone who has the chutzpah to bring up the t-b scenario should be forced to read it.
Re: 9, I'd like to reiterate, that's zero bricks I've thrown. Also, I work in Bethesda.
I'd be opposed to it even if it were useful, but given the uselessness I don't understand why they want to torture people so much.
That's what terrifies me; they must know by now that torture doesn't really work, and yet they're still doing it. From there, I can only be led to the conclusion that people like it. There's some kind of sick sense of satisfaction, a grotesque fascination, that accompanies tales of torture. Americans (and most everyone else) seem to eat it up like candy. It's like we like living in a world where horrible and gruesome things happen, so we can continue to feel lucky and privileged.
It's entirely possible that the Abu Ghraib fiasco actually helped rather than hurt Bush & Co. It's scary.
I've been thinking the same thing about brick-throwing. I've given much, much more money to political campaigns since 2001 than ever before, but somehow that doesn't seem like enough.
I occasionally wonder similar things, and at what point armed revolution becomes a legitimate action. We're nowhere near that line, I think, but trends of late have made me uneasy about the future.
Well, I was just talking about a hypothetical official in a hypothetical country under a hypothetical constitutional regime in a hypothetical galaxy far far away -- and in parentheses, no less.
I think it's so incredibly obvious why they want to torture, but no one is allowed to say this incredibly obvious reason because it doesn't fit within the rules of our civil discourse, in which we must assume that all government officials are well-meaning rational actors, incompetent at the very worst -- until actual charges have been brought against them.
But since I don't think that Cheney and Rumseld are either well-meaning OR rational actors, I'm going to say: they want to torture NOT to gain intelligence, but for the sake of exercising power in its most extreme form. They want to torture in order to degrade the victims, to scar them for life, to send ripples of crippling fear through the population -- they want to be God.
They're neither Hitler nor Stalin quite yet, but given world enough and time, they would be. Hopefully they will be humiliated in the next two elections and quietly slink off into some think tank somewhere -- given the example of Kissinger, I think that it's unrealistic to expect that they'd ever be prosecuted. But I suspect that if they were given the least opportunity to declare a state of emergency and suspend the constitution, they would do so, and the state of emergency would never end.
given the uselessness I don't understand why they want to torture people so much.
They can't admit it doesn't work. If they did then they'd have to realize their parents should not have hit them, and they should not have hit their children.
Or, to quote the wonderful "Urinetown," "If it is wrong then why does it feel so right?"
But we're well past the line at which, say, (some) Parisians will pick up and riot for two weeks. I might feel differently if it were my car being torched—and putting aside the sensitive religious/ethnic questions specific to this case—the riots in Paris are an example of a superb tradition. The goal isn't to kill police or overthrow the government, it's to be so absolutely unruly that the government is forced to acknowledge concerns that otherwise simply do not cross the radar.
Kotsko said much more eloquently what I was trying to say, but I would stipulate that I don't think Cheney et al are some sort of peculiar evil animal alien to Americans. This is not to exonerate them, but to indicate my fear of their constituents.
People have become so scared, and yet drunk with fantasies of power, that they are willing to let their leaders do almost anything if they think that action will somehow protect them, whether it be now or sometime down the line (when the world lives in fear of the vengeful God that is America, or some shite).
I don't know if I agree with that, Adam. My guess is that torture does work some of the time, and they're willing to live with the times it doesn't work, and have convinced themselves that torturing in general is "unfortunate, but necessary."
Ph'nglui mglw'nafh Unfogged comments section R'lyeh wagn'nagl fhtagn! Aaaaiiiiii!!!!
it's to be so absolutely unruly that the government is forced to acknowledge concerns that otherwise simply do not cross the radar.
Yeah -- American demonstrations don't serve this purpose, somehow.
Armsmasher,
Visceral emotional actions don't have rational explanations. They aren't rational.
Torturing or 'kicking ass' appeals to people's emotions, not their intellect. It affects their primitive brains and the most basic patterns they've had beaten into them as kids.
My guess is that they're not as interested in whether it works as much as the message it sends.
Shorter Tripp: Rioting occurs when the id takes over. Torture also appeals to the id.
unfortunate, but necessary
That reminds me of a David Brooks column from Novermber 2003:
The fact is, we Americans do not like staring into the face of evil. It is in our progressive and optimistic nature to believe that human beings are basically good, or at least rational. When we stare into a cave of horrors, whether it is in Somalia, Beirut or Tikrit, we see a tangled morass we don't understand. Our instinct is to get out as quickly as possible.
It's not that we can't accept casualties. History shows that Americans are willing to make sacrifices. The real doubts come when we see ourselves inflicting them. What will happen to the national mood when the news programs start broadcasting images of the brutal measures our own troops will have to adopt? Inevitably, there will be atrocities that will cause many good-hearted people to defect from the cause. They will be tempted to have us retreat into the paradise of our own innocence.
Somehow, over the next six months, until the Iraqis are capable of their own defense, the Bush administration is going to have to remind us again and again that Iraq is the Battle of Midway in the war on terror, the crucial turning point where either we will crush the terrorists' spirit or they will crush ours.
The president will have to remind us that we live in a fallen world, that we have to take morally hazardous action if we are to defeat the killers who confront us. It is our responsibility to not walk away. It is our responsibility to recognize the dark realities of human nature, while still preserving our idealistic faith in a better Middle East. (emphasis added)
I see the "necessary," but have to be charitable to see the "unfortunate." Although it's possible that Brooks downplays it in order to avoid diluting the rally around the moral hazards message he thinks the President should emphasize.
Oh, man. I don't remember the Cheney interview, but I do remember that Brooks piece from when it came out. I sat there thinking "Thank God he's not in charge of anything, and nothing like this is going to happen." That was stupid of me, wasn't it.
My guess is that they're not as interested in whether it works as much as the message it sends.
Problem is, the message they think they're sending is not the message the rest of the world is getting.
Speaking of shrill, Brad quotes Josh quotes the Nelson report quotes the United States' comments to the UN and Senate after signing the International Convention Against Torture:
"Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offense under the law of the United States. No official of the government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. US law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances."
The only thing preventing the impeachment of President Bush is the lack of political power among Dems to simply say the word out loud.
No, Ogged, torture only works in the movies. It produces confessions, etc., but not truth. Look at the real function of torture in Latin America -- it wasn't to get the necessary information and solve some kind of discrete problem. You don't pick up random people on the street to get time-sensitive information, just like you don't pick up random goatherds in Afghanistan if you want pertinent information.
There is a body of literature on this: torture does not produce usable information, ever. It is a symbolic procedure -- just as in the scenario of official state torture of criminals, the point is not to "punish" the criminal or rebalance the scales so much as to assert absolute state sovereignty (monopoly of violence).
"Whether it works" or "sending messages" are all simply artificial rationalizations to allow people to do what 'feels good' but may be unacceptable otherwise.
I really think it is a simple as that. Human response to fear is fight or flight. When we cannot flee (they attacked us HERE, at HOME) we need to fight. We need to kick ass. Where and when and whether it will 'work' or even cause future problems are all secondary.
Culture, per Kinsley, matters more than the laws or documents we use to encode the culture. I'm substantially more troubled by the norm against some sort of due process that Graham is trying to encode than by the actual use of torture (which is, I agree, unAmerican). And the horror of last four years is that we have to acknowledge that the norm of due process, or the norm of requiring the government to justify itself to the governed, is substantially less well-founded in the US than we'd previously hoped.
Even after all of this goes away, we'll know that the cost of basic liberty and basic decency is 3000 civilians. It's just depressing. I honestly believe that the long term project of Democrats, whether we win in '06 and '08 or not, should be to devolve rights and responsibilities for governance back down towards the states. I just don't trust some of my fellow Americans enough anymore to let them have a part in it.
And then there was this Washington Post article, "U.S. Decries Abuse but Defends Interrogations: 'Stress and Duress' Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities", which I may have linked to before, from December 2002 that first broke the story on abuse in Afghanistan, but which, if you look at Lexis-Nexis, did not lead to much of a response from the rest of the press or the public. It includes these memorable lines:
While the U.S. government publicly denounces the use of torture, each of the current national security officials interviewed for this article defended the use of violence against captives as just and necessary. They expressed confidence that the American public would back their view. The CIA, which has primary responsibility for interrogations, declined to comment.
"If you don't violate someone's human rights some of the time, you probably aren't doing your job," said one official who has supervised the capture and transfer of accused terrorists. "I don't think we want to be promoting a view of zero tolerance on this. That was the whole problem for a long time with the CIA."
Shorter Brooks: Sometimes you have to burn the national norms to the ground to preserve them.
torture does not produce usable information, ever
Ok, I'd like to see that literature, because I have a lot of trouble believing this. I believe that, on balance, torture is, purely practically, bad (more noise than info, etc.), but I have trouble believing that sometimes someone, after being kept awake and freezing for two days, won't tell you who his co-conspirators were.
torture does not produce usable information, ever.
I'm not disagreeing, exactly, but I *am* wondering how we know this to be true. It's pretty reasonable to think that we have no idea about the totality of what has gone on in the black sites, for example.
I agree, SCMT, it's abhorrible that the executive branch has monopolized violence that the United States carefully, legally codified and distributed or outlawed over two centuries. What makes the Graham case (and also Cheney's play to change the wording of the McCain amendment) troubling is that they are moves to enshrine in law things that run counter to 200 years of post-Enlightenment society. But far worse is the fact that due process has been totally transformed since 2001 without changes to the law.
Adam, meet me and Labs at the Mineshaft. Thanks.
That's not just horrible, it's abhorrible!
'Ever' is a problem, certainly. Still, it's defensible if you stipulate (what there seems to be broad agreement on) that information procured by torture is not generally reliable (that is, torture makes people lie to make it stop). Once you have that assumption, then even if torture in a given situation produces true information, that information isn't useful because the torturer doesn't have reason to expect it to be true.
This is getting uncomfortably close to a Gettier problem, isn't it?
One of the special features discs for the re-release of The Battle of Algiers included an interview with "former National Coordinator for Security and Counterterrorism, Richard A. Clarke, former State Department Coordinator for Counterterrorism, Michael A. Sheehan" and one of them, I think Sheehan, conceded that torture can produce useful information, but that it is only of limited use tactically. Strategically, torture tends to hurt more than help in the long run because it's not acceptable publicly and you end up losing support and allies while your enemies step up recruiting.
At leas that's what I remember from seeing it last year.
And I see I've already tried to say what I think about this.
Right, if torture produces true information, it does so by accident. It's a lot easier to imagine that someone will say what he thinks the torturer wants to hear in the moment of being tortured. So defending torture as an information-producing method is similar to defending monkeys throwing darts as a stock-picking method.
As far as "no usable information" goes, keep in mind that this isn't the same as "no true information." You have to be able to tell the true from the untrue. If torture produces a string of information, some of which is true and some of which is known to be unreliable, you can't use even the true stuff (without using the false stuff, which is bad).
Too lazy to look now but on some of the blogs I've been reading (Gary?) there've been links to senior CIA interrogators saying basically "We opposed torture because it produces a bunch of shit."
I guess I may have seen it said that when you can check out the information you're getting you sometimes get something usable from torture. But if you can do that you already know what you're looking for.
And as maybe Atrios said, torture is great for getting people to say what you want to hear.
Anticipated by 43-48. LB, it's not a Gettier problem because you're not justified in believing what you get from torture.
I don't remember that statement from 2001, but looking at it now, I probably would have taken it as general political 'We're going to have to war, and it might involve the typical ugliness of war.'
I wouldn't be surprised if torture works sometimes, but I don't think the people advocating torture are really arguing that in 24-like scenarios, we will learn the Exact Location of Nasty Doomsday device, but more that allowing the threat of torture proves our seriousness and resolve to terrorists. Banning torture would be, on their view, like saying 'come and get us, you have nothing to fear.'
Note that in 45, the point is that the Israelis have tried it, so when they say it didn't work they speak with authority.
We do know that these are people who have a very serious commitment to hearing only and always what they want to hear, so the torture thing fits.
What if the "work" torture does isn't about getting information, but about terrorizing a population?
Let's say that sometimes torture produces factual information. Problem is, if you have a torture policy, you also produce a hell of a lot of bogus information; so that, as a totality, you're right back where you started, unable to distinguish what matters from white noise. So, on balance, we can say it doesn't work *even if* in individual cases, it does.
On the other hand, it seems to me that a culture of secrecy in which torture is a credible threat *does* function to suppress argument, dissent, and criticism. So on balance, in that sense, it "works." Of course, the flip side of that is that it creates more reasons for people to argue, dissent, and criticize, so let's say it works at least as a short-term approach.
Then we wind up with the fundamental argument that suppressing dissent with broad-based threats--keep in mind, dissent is suppressed *precisely because* torture is applied indiscriminately, both to those who are a "threat" and those who aren't--is fundamentally inimical to the idea of a democracy.
So, in the end, using torture to safeguard democracy is not only heinous and reprehensible and criminal: it's also logically inconsistent.
Pretty much sums it up, don't it.
It does. Now that the B is back, more time for cock jokes, less need for useless debate.
What did Marcus Aurelius say to the Celtic peasant without any pants on?
Using torture in the short term to enforce autocracy and reward your minions, I mean "satisfy your base" works pretty well. In the long term it might, I dunno, result in rebellion and the leader's head on a pike.
But it sure feels like it should work. And if your base is more motivated by what "should" work (based on feelings) rather than what "does" work your base is gonna like it very much.
although "your base is gonna like it very much" is not a bad try.
Tripp, conservatives aren't "feelers," so they can't feel that things should work.
Gawd I fucking hate them.
Mark R. Levin, NRO, today: "Even the Geneva Conventions distinguish between prisoners of war and unlawful enemy combatants, the later receiving no protection. "
Wikipedia: "The term "unlawful combatant" has been around for at least 100 years and has been used in legal literature, military manuals and case law. However unlike the terms "combatant" "prisoner of war" and "civilian" the term "unlawful combatant", or similar, is not mentioned in either the Hague or the Geneva Conventions. So while the former terms are well understood and clear under international law, the term "unlawful combatant" is not."
They're just fucking evil.
13th Amendment:
1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Even slavery requires due process, apparently.
(Also: note "United States" = "their")
washerdreyer,
I didn't mean the "conservatives," I meant the religious fundies. And they are all about using the heart instead of the head.
They're just fucking evil.
And, clearly, talking directly out of their asses. No wonder their breath stinks.
Oh, I was making a joke based Paul Deignan's political typology.
Unlawful combatant is a real term; but I believe that enemy combatant, which is, I think, the term used to describe a bunch of the people at Guantanamo and maybe Jose Padilla as well, is totally made up.
But is it a real term that also shows up in the Geneva Conventions? The wikipedia entry makes it clear that it shows up in other legal contexts.
(Of course Levin mixes the terms into "unlawful enemy combatant", so that just makes things more ambiguous.)
I don't remember that statement from 2001, but looking at it now, I probably would have taken it as general political 'We're going to have to war, and it might involve the typical ugliness of war.'
I don't know. I don't remember it, and I may not have even heard it then; but it seemed pretty clear to me at the time, or so I recall, that things were going to rapidly get worse from the already-bad state they were in. So any mention of us working "the dark side" probably would have struck me as pretty, well, dark, and not about the usual horrors of war.
In any event, it was not too long after that, if memory serves, that one started to hear (mostly from Fox and the like) those "ticking time bomb" questions. Would to be okay to, say, torture to get information that might save lives? Just asking! It was pretty clear at that moment that we were, or soon would be, torturing people. There wasn't much point in considering the question otherwise. They were softening us up, so to speak.
The whole thing is of a piece with their love of textualism. The written law doesn't define something, or speak to some set of circumstances. Into this lacunae steps the Executive (or, in appropriate places, the Congress), able to do whatever it wants. Suddenly there are Bantustans of categories where we can place people and do whatever we want to them.
It's more like bad-faith textualism, or bad formalism, where the textual interpretation directly undermines the obvious intent of the passage.
It goes something like this: here is a passage. The text could support [insert interpretation]. Therefore, it can only support [insert interpretation]. We can't re-write the laws!
Whereas actually, the text supports a multitude of interpretations, and if you were to acknowledge the other alternatives, it would be clear that you have in fact selected a tortured interpretation.
Is the pun your're groaning at the one on tortured, the one on your handle (making I groan at myself double meaningful), or both?
As far as "no usable information" goes, keep in mind that this isn't the same as "no true information." You have to be able to tell the true from the untrue. If torture produces a string of information, some of which is true and some of which is known to be unreliable, you can't use even the true stuff (without using the false stuff, which is bad).
Yeah, but how bad? Not bad enough that the administration cares, I don't think.
I wouldn't be surprised if most of the "torture doesn't work" evidence is based on single, 24-style incidents. But the administration has set up an operation that's well-suited toward maximizing torture's payoff. At Gitmo and the like they have a large population of subjects who will be available over the long haul. Different confessions can be compared over time, and they can compare stories from different subjects against one another. They also don't care about false positives -- it just means that some SEALs kick down a few extra doors, and maybe a few innocent people get detained. Gotta break a few eggs, ticking bomb, different kind of war, 9/11, etc.
Of course I don't say this to excuse the practice. As Drum said today, even if it worked we shouldn't be doing it. But, their "dark side" language notwithstanding, I'm wary of dismissing the administration as maniacal cowboy sadists who're implementing these policies because they're psychologically ill. That's just a caricature. They're badly misguided, but probably not in a supervillain/serial killer kind of way
I think we should leave the text open to the widest possible outcome.
I have yet to see something that leads me to believe I was wrong here.
At Gitmo and the like they have a large population of subjects who will be available over the long haul.
The argument against that, though, is that the evidence seems to show that a substantial percentage of those detained at Gitmo, for example, don't know anything useful at all. That cab driver who got beaten to death in Afghanistan wasn't a terrorist mastermind whose interrogation went a little too far -- he was a cab driver. While I can conceive of an 'effective' torture program (subjects who know a great deal of information that will not become obsolete quickly (this bit is very important. What do you think anyone at Gitmo knows now, four years after they were captured?) and so can be trained to realize that they will be reliably tortured for lying, but not for telling the truth) I don't see any indication that that's what we're doing.
76: I agree with you. But you have to remember: they don't care about imprisoning people like that cab driver, except insofar as they generate bad press. He wasn't a US citizen (hell, even if he was...). Paying for the imprisonment of a few innocent foreigners (whose governments can't or won't defend them) is almost certainly cheaper than affording them due process, much less the potential price of accidentally letting someone dangerous go. That's their reasoning, I suspect.
And you're right, of course, about information going stale quickly. But you can always get names of associates, then go after those people, then get the names of their associates, then go after those people... Look at how much money the Republican party was/is willing to spend on imprisoning people for victimless drug offenses. I can't even imagine how much money they're prepared to spend on indefinitely detaining vaguely suspicious foreigners in order to stop terrorism.
Me: If torture produces a string of information, some of which is true and some of which is known to be unreliable, you can't use even the true stuff (without using the false stuff, which is bad).
tom: Yeah, but how bad?
What I'm saying is that using the true stuff and the false stuff you can't tell apart from probably will be no more effective than pulling a bunch of stuff out of your as, from a pragmatic point of view. Or pulling in a bunch of random schmucks like Maher Arar. You may be right that they're OK with pulling in some false positives if there might be a teeny tiny chance that they get a real bad guy in there, but the fact that they go straight for torture while fucking around on things that might make us safer--that makes them serial-killer evil.
Tom,
I literally could not disagree with you more.
I wonder if anyone's counted this, but my impression is that torture on 24 almost always works. I haven't watch every episode of every season, so I could be wrong. I do remember them torturing the wrong person once, but that didn't result in information.
I do remember them torturing the wrong person once, but that didn't result in information.
How did they determine it was the wrong person, and not just a very steely and resolved Bad Guy?
It's more like bad-faith textualism, or bad formalism, where the textual interpretation directly undermines the obvious intent of the passage.
I'm not sure that it's bad faith. But once you admit that there are multiple sustainable interpretations, you've opened the door for judicial "legislation," which, of course, is supposed to happen.
I have a sneaking suspicion that the citizens most likely to support our government's use of torture are also the ones who were most moved by Holy Crap But Jesus Has a Lot of Blood The Passion of the Christ.
She was one of the CTU employees and they thought she was working for the bad guys. Then they found out she wasn't (I don't remember how; it was from other information). IIRC, she returned to work without showing any signs of physical damage but demanded that the record of her having been accused of being a spy be expunged from her personnel files. She also demanded extra compensation.
She was fired for not being a team player.
She was fired for not being a team player.
For real?
#70: I think this is pretty profound, actually. It explains the appeal of the Bush administration to the religious right, and to people who, dare I say, aren't all that bright, e.g. your standard wingnut: a written text has one meaning and one meaning only, and anyone who thinks otherwise is either waffling, stupid, or equivocating.
#76: The point is, it isn't a situation of getting good information along with bad and pursuing everything until you figure out the difference. The point is, you get 99% bad information and, if you're lucky, 1% good, and then you spend exponentially more energy and resources chasing wild hares than you do actually accomplishing anything.
Tom,
I literally could not disagree with you more.
Well, no offense taken (or intended). But the opposite of the position I've attempted to convey would be
1. torture is always ineffective, but we should pursue it
3. the administration is acting wisely but irrationally
Since that doesn't make much sense, you might have to be more specific.
There is a kind of responsible formalism, where you adhere to the text as much as possible, and where there are alternative interpretations, you enumerate them, and choose between them. That isn't the same as choosing the best policy position and then reasoning towards it, and it isn't what the Warren court did, arguably, but it is fine jurisprudence.
Wherever a jurist stubbornly insists that a difficult question is easy, that you only need to read the "plain meaning," or vaccilates between using a modern language dictionary and inferring the intent of the founders through a single quote from a federalist paper, I infer bad faith. Smart people plus bad arguments = bad faith.
Yes, it happened very quickly. Something like "we need everybody focused today and if you can't do that get out of the office."
what the hell was sexual chocolate not wrong about -- that's what's puzzling me. That my possible out-come is wide and extensive? well, duh.
of responsible formalism, where you adhere to the text as much as possible, and where there are alternative interpretations, you enumerate them, and choose between them
Ultimately, we're talking about some sort of voting system among a class of people who share similar training (lawyers) about what words mean. At some point, politics are going to enter in. Claims that are substantially stronger than that strike me as arguments about poetic "truth."
That's really unclear, but I am suddenly busy.
sure, politics enter in, but you can be careful about the number of possible interpretations, or you can be sloppy. As to which interpretation you choose, politics.
Or you can just say, I'm going to reason to the best outcome possible, and then do that. That's perfectly legit. Maybe there isn't much difference between the two methods.
I tend to think of torture as a problem on an individual level. Having lots of power over another person is so seductive that it overwhelms everything else. If the questioner/potential torturer has no fear of getting in trouble for what he does in the interrogation room, there's nothing to keep that power-elixir in check, and it becomes more important than gathering information or anything to do with the larger context at all.
Once a sense of discipline about it goes out the window--which it does when there are no consequences--then it's impossible to use it as an information-gathering tool at all.
in other words, torture turns ac on. just saying.
I think that "absolute power over another overwhelms everything else" can also apply at the governmental rather than the individual level. A lot of the legal thinking of Yoo and Gonzales seems, to this lay person's eyes, to amount to "We can torture people because we want to, and we should want to because we can." And the torture scandals do show that letting loose people's sadistic instincts leads to sadism for its own sake. (But I think even if it were kept in check torture would not yield much in the way of useful information, and would be wrong anyway, of course.)
This analysis of Yoo's "originalist" reasoning is quite disturbing. (I know I linked that a day or two ago, but I can't recommend it enough.)
For some reason, John Yoo is the person I despise most in this whole business. Maybe because he's providing intellectual cover.
Ah, John Yoo. I took two of his classes. He is smart, affable, funny (though in small doses), humble, soft-spoken, friendly, and was exceedingly interested in helping out his students (personally responsible for getting one a SCOTUS clerkship while I was in school, would take 1Ls out to lunch on his own dime, would advise students writing law review articles that I'm sure he disagreed with both legally and personally), in short, eveything you would like in a law professor.
I think his thinking comes down to, "I will tell you what the constitution means, and I will be certain that I am right, and I will continue to defend my view in the face of all criticism" (see his book and various op-eds after he left the DOJ). But I think his thought process ends there, he will say "of course the President can do that" full stop. He won't say whether the President should do that, in fact I bet the thought never even crossed his mind at the time (or maybe it did and he ignored it and focused on the assignment at hand). "Not my job or concern," I think he would say.
One other thing. He once commented in class (I forget the context) that he would never want to be a judge. Supreme Court Justices, on the other hand, were, in his view, not judges. So, I think that's ultimately his goal, and I think his continued defense of his view of "real, ultimate, executive power" is, in part, driven by that. After all, if you were President, wouldn't it be tempting to appoint someone to the SCOTUS that basically believes you are above the law (at least when it comes to foreign affairs, including launching and prosecuting wars)?
Ugh, what's mystifying about that is that from what little has leaked out, the legally analysis in the torture memos appears to have been laughably weak.
Also, maybe this is implicit, but 99 depicts Yoo as having pretty much the exact mindset that the phrase "banality of evil" was designed to cover (if my memory serves me right).
DaveL - I think I agree, there was a lot of talk about how he ignored the Youngstown Steel case in one of his memos, IIRC. But as the NY Review of Books points out, he was telling the administration what they wanted to hear, i.e., if OLC says "that's what the law is" then we must be in the free and clear. Plus, I think he sees his scholarship as a fundamental re-envisioning of constitutional law (and here I feel I'm going further out on a limb than my previous post), so what others describe as weak, he would say they don't understand what the founders' intended.
Plus, there's still one last memo that the WH has refused to release (or at least no one who has a copy has released it), which perhaps reveals a brilliant analysis. More likely it says that the PUSA can torture U.S. citizens to death as he pleases in pursuit of the WoT.
Matt Weiner - I'm not sure what "banality of evil" was intended to mean. I wouldn't describe Yoo as evil (or at least not from what I observed in class and his interaction with students), just a guy who thinks "this is the way it is, so sue me."
So apparently you managed to get through college without learning what the "banality of evil" means? Nice.
Re 102, yes, perhaps it is difficult for those of us who lack Yoo's deeper understanding to see how the Founders really meant to set up the Presidency in the mold of the British monarchy c. 1214, but perhaps there is a reason for that. Mostly I just remember reading the various memo excerpts that were posted at Balkin's site and thinking wow, that's really lame lawyering.
Well, this passage (from secondary literature) somewhat gets at what I'm thinking:
Arendt's perception that Eichmann seemed to be a common man, evidenced in his transparent superficiality and mediocrity left her astonished in measuring the unaccounted evil committed by him, that is, organizing the deportation of millions of Jews to the concentration camps. Actually, what Arendt had detected in Eichmann was not even stupidity, in her words, he portrayed something entirely negative, it was thoughtlessness. Eichmann's ordinariness implied in an incapacity for independent critical thought: "... the only specific characteristic one could detect in his past as well as in his behavior during the trial and the preceding police examination was something entirely negative: it was not stupidity but a curious, quite authentic inability to think."...
Eichmann had always acted according to the restrict limits allowed by the laws and ordinances. Those attitudes resulted in the clouding between virtues and vices of a blind obedience. In fact, it was not only Eichmann, as an isolated person, who was normal, whereas all other bureaucrats were sadist monsters. One was before a bureaucratic compact mass of men who were perfectly normal, but whose acts were monstrous. Behind such terrible normality of the bureaucratic mass, who was able to commit the greatest atrocities that the world has even seen, Arendt addressed the question of the banality of evil. This normality opened up the precedent regarding the possibility that some attitudes commonly repudiated by a society — in this case the Nazi German attitudes — find as a locus of manifestation the common citizen, who has not reflected on the content of the rules.Richard Bernstein highlights this "normal and ordinary behavior" of the bureaucratic mass in not thinking about the real meaning of the rules themselves, in the sense that they would behave in the same manner in the manufacturing of either food or corpses. "We may find it almost impossible to image how someone could 'think'(or rather, not think) in this manner, whereby manufacturing food, bombs, or corpses are 'in essence the same' and where this can become 'normal', 'ordinary' behavior. This is the mentality that Arendt believed she was facing in Eichmann... ."
Obviously Yoo isn't thoughtless, but the "here's a spiffy new theory that says of course the President can torture people to death, and whether he should or will isn't my department reminds me of the mindset that you don't think about whether what you're manufacturing is food or corpses.
I should also note that the thesis of the banality of evil is controversial, e.g. this exchange.
I was an econ major.
Ugh, indeed.
(I got my latest econ test back today. Not at all wc.)
Just a couple of notes: I'm no Arendt expert, but my understanding is that "thoughtless" is a technical term for her, derived from the kind of "thought" that Heidegger writes about in "What Is Called Thinking?" So it's an open question whether Arendt would call Yoo "thoughtless." My guess: yes!
And in that linked excange, do you think there's a real disagreement there, or does Kedourie just plain miss the point? Basically, he's saying, "but evil isn't banal, it's evil!!"
Isn't Kedourie saying that Arendt is saying that Eichmann was a cog in the machine, but that in fact Eichmann liked hurting people 'n'at? I don't know about Eichmann, nor about any technical terms Arendt might have been using, but that's sort of what I thought the disagreement might be.
Also, in 180 there should be a close-quote after "isn't my department."
95- Thanks for distilling my point so acutely and sensitively, text.
Would you believe that I only read paragraphs 1,2, and 4 of Kedourie? Because that's what I did. You're right, he is saying that there was something nasty in Eichmann; that at least makes it a disagreement. Yoo would seem to be a counter-example.
whether he should or will isn't my department
I think that's exactly right. In fact, I think Yoo himself has said something similar ("It's a policy decision").
what it comes down to, Ugh, is this:
A person bears moral responsibility for the consequences of his or her actions, at least if those consequences were foreseeable. Yoo said "not my job to think about how Bush will use these arguments." That's a cop-out, as is "I was just following orders." This is true whether or not the fellow takes students to lunch and writes favorable recommendations to Circuit Court judges.
I also knew Yoo at school, or knew of him, and heard that he was a swell guy. But if you think "well that's a policy decision" is an adequate excuse for writing memos later used to justify torturing people, well, I hope for your sake and ours that you are never confronted with a similar choice.
I wasn't clear as to whether in 116 Ugh meant to say "That's right as a description of what Yoo would say" or "That's right"--the former seems accurate, the latter awful.
(I'm trying to work in a "Fuck Yoo" joke here....)
I guess I went with the less generous interpretation -- bad form, on my part. A real "fuck yoo."
FWIW: A decent article from the folks at KR (aka, the only working newspaper service) on how unbelievable Graham's proposal is. I cannot describe how dismayed I am that people supporting this general trend aren't suffering greater political ills. What the hell is wrong with Red voters?