The Law and Pop Culture Morality
Over at the National Review, Jonah Goldberg offers some typically superficial analysis of the recently released IG report detailing numerous acts of torture by U.S. officials against detainees.
If, on the other hand, you were to tell a different story, say one involving a detainee of questionable guilt being brutally beaten to death with a flashlight (as described in the IG report), you would likely elicit a very different emotional response.
All that popular fiction like 24 really proves is that under a very elaborate set of moral pre-conditions (ones that never obtain in real life), many people are willing to excuse otherwise inexcusable conduct (at least when it is immediately shown to save lives). That's completely unsurprising.
More importantly, though, it is completely beside the point. This is simply not how we determine what kind of conduct is right or wrong, legal or illegal. Audiences may cheer when Dirty Harry blows away bad guys or secretely root for Dexter as he chooses his next deserving victim, but that doesn't mean it's okay for cops to execute people or to freelance as serial killers. We don't make the laws based on television morality, nor do we excuse law-breaking because it is possible to imagine some hypothetical scenario in which breaking the law seems morally excusable. I can't go around town attacking various low-lifes and point to Americans' love of Batman as my defense.
The IG report describes numerous acts of torture that are clearly illegal under any number of laws and treaties. That's all that really matters.
That said, I have much more confidence than Jonah does that if Americans are presented with the actual facts of these cases (as opposed to the fictional scenarios of 24), they'll be far less willing to excuse the conduct of the torturers.
I haven't read the IG report yet, I've just seen a few write ups and excerpts around here and other places. Without getting into the substance of the controversy, I'm doubting that there will be a lot of popular outrage over any of the allegations of abuse. Right or wrong, I think the average American assumes that some rough stuff goes on behind the scenes and that's okay. One reason for that assumption is that Hollywood tells us so every day.It is disturbing how often acts of torture are presented in pop culture as morally justifiable. But the fact that they are says a lot less about prevailing moral attitudes than Goldberg seems to think. Movies and television shows, like clever hypothetical questions, are carefully designed to lead viewers to specific moral conclusions. When you are shown unequivocally that the person being tortured is an evil mass murderer and that the person doing the torturing is a pure-hearted hero -- and you are then shown that the torture in fact leads to the disclosure of information that saves a bunch of childrens' lives -- it is no wonder that viewers are prepared to morally absolve the torturer. That moral conclusion is being spoon-fed to them in the form of a highly-stacked utilitarian calculus. The thumb is pressing down quite hard on the scale.
I've long been fascinated with the disconnect between what pundits, politicians and various activist groups complain about and the status of interrogation techniques in the popular culture (here's a column I did on the subject in 2005). In countless films and TV shows the good guys — not the bad guys — do things to get important information that makes all of the harsh methods and allegedly criminal techniques in the IG report seem like an extra scoop of ice cream and a Swedish massage. In NYPD Blue, The Wire, The Unit, 24 and on and on, suspects are beaten, threatened, terrified. In some instances they are simply straight-up tortured. In movies, too, this stuff is commonplace. In Patriot Games, Harrison Ford shot a man in the kneecap to get the information he needed in a timely manner. In Rules of Engagement, Samuel L. Jackson shot a POW in the head to get another man to talk. In Guarding Tess, Nick Cage blows off a wimpy little man's toes until he talks. In The Untouchables Sean Connery conducts a mock execution.
Now, I know I will get a lot of "it's just a movie" or "TV shows aren't real" email from people. At least I have every other time I've made this point. So let me concede a point I've never disputed while making one these folks don't seem to grasp. If such practices, in the contexts depicted, were as obviously and clearly evil as many on the left claim, Hollywood could never get away with having the good guys employ them. Harrison Ford in the Tom Clancy movies would never torture wholly innocent and underserving victims for the same reasons he wouldn't beat his kids or hurl racial epithets at black people. But given sufficient time to lay out the context and inform the viewers of the stakes, as well as Ford's motives, the audience not only understands but applauds his actions. Of course it's just a movie. But the movie is tapping into and reflecting the popular moral sentiments. Think of these scenes as elaborate hypothetical situations in the debate about torture and interrogation that are acted out and played before focus groups of normal Americans.
If, on the other hand, you were to tell a different story, say one involving a detainee of questionable guilt being brutally beaten to death with a flashlight (as described in the IG report), you would likely elicit a very different emotional response.
All that popular fiction like 24 really proves is that under a very elaborate set of moral pre-conditions (ones that never obtain in real life), many people are willing to excuse otherwise inexcusable conduct (at least when it is immediately shown to save lives). That's completely unsurprising.
More importantly, though, it is completely beside the point. This is simply not how we determine what kind of conduct is right or wrong, legal or illegal. Audiences may cheer when Dirty Harry blows away bad guys or secretely root for Dexter as he chooses his next deserving victim, but that doesn't mean it's okay for cops to execute people or to freelance as serial killers. We don't make the laws based on television morality, nor do we excuse law-breaking because it is possible to imagine some hypothetical scenario in which breaking the law seems morally excusable. I can't go around town attacking various low-lifes and point to Americans' love of Batman as my defense.
The IG report describes numerous acts of torture that are clearly illegal under any number of laws and treaties. That's all that really matters.
That said, I have much more confidence than Jonah does that if Americans are presented with the actual facts of these cases (as opposed to the fictional scenarios of 24), they'll be far less willing to excuse the conduct of the torturers.
posted by A.L. at 2:14 PM
109 Comments:
This is very well-argued & well-written ... I did see a few typos here & there, & while I hate to be stickler for grammar, it may limit the effectiveness of your excellent argumentation esp. for those not predisposed to your (& my) point-of-view.
Geoffrey
In countless other films, the bad guys win. Not only that, but you, as the viewer, want them to win. Goldberg's argument is ludicrous (again) on its face. As you point out, movie makers manipulate audience response in order to entertain, completely independent of "popular moral sentiments."
I am no sociologist, but I'd posit that extreme behavior in movies often acts as a surrogate for behavior not acceptable in society. Movies allow one to feel the triumph of fantasy behavior in fictional scenarios that temporarily ameliorates the sense of frustration and powerlessness experienced in the nuanced world of everyday life.
Let's play Jonah's game for a moment and apply the pop culture storyline to the case of the recently released Mohamed Jawad who was abducted as a 12 year old by American forces and held in Guantanamo until last week.
Will Sean Connery shoot his toes off or will Harrison Ford remove his kneecaps before the plot twist where we the audience realize that Mohamed Jawad is a 12 year old that did nothing to justify 8 years of hell?
That said, I have much more confidence than Jonah does that if Americans are presented with the actual facts of these cases (as opposed to the fictional scenarios of 24), they'll be far less willing to excuse the conduct of the torturers.
A large majority won't and never will. And it won't have anything to do with pop culture, but remembering what the real monsters did on 9/11 (and every subsequent act of terrorism they've committed).
By the way, that last sentence always disturbs me when made by so-called "civil libertarians". You will make statements like this:
If, on the other hand, you were to tell a different story, say one involving a detainee of questionable guilt being brutally beaten to death with a flashlight (as described in the IG report), you would likely elicit a very different emotional response.
The detainee is of questionable guilt. But those the "civil libertarians" call "torturers" haven't been indicted, let alone convicted, of any crime, even torture. Yet in the eyes of the "civil libertarian", the "torturers" are already guilty otherwise they would be considered alleged "torturers", just like a terrorist is called an "alleged terrorist" or a "detainee of questionable guilt". Aren't the Americans who may have committed torture (although I don't see it that way) due the same consideration and rights as the "detainee of questionable guilt"?
SteveAR: ... So the alleged torturers should have the same lack of rights as the detainees of questionable guilt?
Or are you just saying that we should beat the to death with flashlights too?
And for those that didn't know: Psychological torture is the worst kind of torture. It doesn't take the long way trough the pain inflicted upon your body, it goes straight for the mind and shatters it.
hey geophrey m. golia: go fuck yourself...now, how is my grammer?
Anonymous (5:01pm):
So the alleged torturers should have the same lack of rights as the detainees of questionable guilt?
Or are you just saying that we should beat the to death with flashlights too?
That's a question you should ask the so-called "civil libertarians". After all, they've already convicted their fellow Americans but not the terrorists...I'm sorry, alleged terrorists...residing in Gitmo or actively at war with us.
Right, SteveAR, it's only our own Inspector General's report, compiled from eyewitness testimony and the reports of those who carried out the interrogations or supervised them -- the facts of which are not disputed. How can we conclude from that that a crime was committed?
After all, that's hardly the same quality as the hearsay, coerced information, or questionable circumstantial evidence that got the detainees held for years without trial and tortured.
Why, A.L.'s assertion is equivalent to hearing that the coroner has determined that a body found died due to obvious murder and then saying that the person responsible for the crime should be tried. Shocking.
I think that SteveAR's confusion about all this stems from the fact that there are apparently some typos in the original post.
When A.L. gets those fixed, I'm sure that Steve will embrace the idea that torturing people is wrong.
C2H50H:
Why, A.L.'s assertion is equivalent to hearing that the coroner has determined that a body found died due to obvious murder and then saying that the person responsible for the crime should be tried.
No it isn't. He calls his fellow Americans torturers, yet it hasn't been determined that torture, as defined in the law, has been committed, or that it was authorized by the government.
The one incident where the Afghan died after being beaten to death by a flashlight, the guy who did it has already been tried and was convicted of felony assault (he wasn't convicted of murder because the Afghan's family wouldn't authorize an autopsy, so nobody knew if the injuries sustained by the beating actually caused his death). The IG report came out in May, 2004. The guy eventually convicted of the assault wasn't charged until after the report came out, and he wasn't tried or found guilty until 2006. But he was charged, tried, and convicted.
He wasn't convicted of violating the statute against torture, so I suppose someone could try him for that. But if that was the case, why wouldn't he have been charged with violating the torture statute back in 2004? And don't give me the cop out answer that the Bush administration covered it up, because that isn't believable. Give me the right answer.
This is why photographs and video footage of real interrogations are so powerful and ought to be released (rather than destroyed). Most people would be unable to reconcile the reality with the sanitized, contrived version that we see in movies and TV. Film and photos of real interrogations takes the thumb off the scales.
Your retort is dumb even by your standards. The IG report describes numerous unquestionable acts of torture. Those acts were committed by someone (a torturer). I'm not saying that any specific person is guilty of these crimes, just that someone is. As C2 points out, this is no different than saying that someone was murdered (and therefore a murdered exists). If anyone is charged with these crimes, they will be presumed innocent until proven guilty (which is much more than guy who was beat to death with a flashlight got).
I enjoy watching you blow away the stupid with your truth-shooters. Please keep up the good work.
A.L.:
The IG report describes numerous unquestionable acts of torture.
Oh really? As a result of this IG report, the DoJ prosecuted one...count 'em, one...guy, for assault, the one I mentioned above (the guy with the flashlight). He wasn't even charged with having committed torture as defined in the U.S. Code. Other incidents weren't prosecuted by the DoJ, and many of those involved were given administrative punishments by the CIA.
Other than the incident with the Afghani who died (for which there has already been prosecution and punishment), many of the methods used may appear to have been harsh. But torture? Not under the definition in the law or someone would have been charged with it already. As far as I can tell, it wasn't political appointees who refused to prosecute, but career DoJ lawyers, so that will contradict any attempt at saying it was political. To call these individuals torturers without it being preceded by the word "alleged", just as you do with "alleged" terrorists, isn't kosher.
As far as your assertion that the American people are going to care one whit about this, forget it; they don't care. Not that they like torture, but most still remember the horror of 9/11 and who did it; people at war with us who do not follow the rules of war. Plus, they see Obama going on vacation to Kennedy Island (Martha's Vineyard), and as he's leaving, he dumps a $2 trillion bomb on them showing how clueless he and the Democrats in this Congress are on economic matters, that everything they are doing are nothing but a disaster waiting to happen, something that will make this recession seem mild compared to what's coming.
Goldberg:
If such practices, in the contexts depicted, were as obviously and clearly evil as many on the left claim, Hollywood could never get away with having the good guys employ them.
Sure some people applaud the movies Goldberg cites, but so what? There are audiences for all sorts of things, including child porn. Does that mean they are validated? No.
Also, watching a movie and even enjoying it and the protagonist's actions is in no way translatable into a thoughtful moral stance. I'm convinced that in a post-movie discussion, several "fans" would, upon reflection, say that actions portrayed in a film shouldn't be condoned.
A lot of people like it when Bugs Bunny gets another character flattened or blown up. It's a fun cartoon and yes, Daffy Duck deserved what he got for stealing Bugs' carrots. But does that mean we all support random blasting of small animals outside of the theater? Of course not.
I'd like to see Goldberg's claim that movies with humans in them are meaningfully different from cartoons when it comes to establishing moral standards.
Steve,
Two things: First, just because prosecutions haven taken place, in no way proves that torture didn't happen. This is a legitimate debate about whether prosecutions are the right course, but if you read the reports, it's clear that torture happened.
Secondly, most of us haven't forgotten 9/11, and I believe most Americans want to defeat our terrorist enemies, but there is such a thing as the rule of law. If you're going to argue that anything goes in war, and that it's perfectly fine to torture in wartime, then go ahead. Many of us, believe it or not, belive that we can prosecute an effective war on terror, and not violate our moral standards.
And no, it's not that terrorists aren't monsters, it's that we aren't monsters.
The IG report describes numerous acts of torture that are clearly illegal under any number of laws and treaties. That's all that really matters.
Really? In the court of public opinion the absence of outrage will be very important, regardless of "the law". (As an aside, I haven't had time to read the report - is the cigar smoke blower guilty of biological warfare by threatening a detainee with second-hand smoke, or is he in direct violation of statutes bannign smoking in a Federal facility? The public really, REALLY wants to know.)
Tom Maguire
I enjoy most of the Tom Clancy movies, and I even read and enjoy the bitter little neoconservative militarist gnome's books. That doesn't mean my moral or political compass is shaped or informed by those books.
The reason the neoconservative vigilante morality is so satisfying to people in fiction and cinema is precisely because we (or rather, the majority of 'we')understand it isn't appropriate in the real world. We understand that guilt is almost never crystalline clear and diamond hard, that the hero's 'any means necessary' approach is likely doomed to failure in the real world, and that wish-fulfillment fantasy is best kept in the fantasy world.
Unless we're hard core neoconservative zealots. I increasingly become concerned that neoconservatism, Dominionism, and American exclusivity as practiced by the Christian right are our nation's version of the Pan-Germanism and Pan-Slavism that wracked Austria, Prussia, and Russia during the turn of the 20th Century and led directly to two world wars.
Looks like the Right has embraced situational ethics. In a BIG way.
Steve, 9/11 is now almost a decade old. What is the statute of limitations for invoking it as a justification for "ends justify the means" conduct by the US?
I'd also like to point out that many of the torture allegations involve the treatment of IRAQI prisoners. Surely you aren't suggesting with a straight face that Iraq had something to do with 9/11 or Al Queda? (here's a hint, they didn't).
By the way, staging mock executions is most definitely against the law, as well as several human rights treaties that the US is a signatory to. Just because pseudo-lawyers Yoo and Bybee were ordered to write briefs retroactively declaring torture to be legal doesn't erase this.
The American willingness to throw away adherence to the law is proof that AQ has already won.
Rafique:
...but if you read the reports, it's clear that torture happened.
I've read the IG report and it isn't clear at all, especially with how I see how torture is defined in the law, with the possible exception of the Afghani man beaten with a flashlight (the perpetrator, as mentioned before, was already prosecuted, albeit without being charged with torture or murder).
If you're going to argue that anything goes in war, and that it's perfectly fine to torture in wartime, then go ahead. Many of us, believe it or not, belive that we can prosecute an effective war on terror, and not violate our moral standards.
I'm not arguing that anything goes in war or that torture is perfectly fine during wartime. What I am saying is that torture wasn't sanctioned by the government, and those cases where abuse occurred have already been handled. What I'm also saying is that what was officially sanctioned wasn't torture.
Lastly, most of the American people don't believe what happened to KSM, al-Nashiri, and Zubaydeh was tantamount to torture. As Mr. Maguire mentions above:
In the court of public opinion the absence of outrage will be very important, regardless of "the law".
So if torture didn't occur, and abusers were punished with prosecution by the DoJ and with administrative action by the CIA, how can American "civil libertarians" call fellow Americans torturers without first prefacing that with the word "alleged" just as they do with "alleged" terrorists?
And another question for the "civil libertarians". We are to believe the detainees at Gitmo are "alleged" terrorists. Yet, this administration, as with the last one, still launches missile strikes from drone aircraft into villages (one of the few things about this administration I support). Many times, civilians are killed, although the administration says the targets were Al Qaeda terrorists. If the three detainees in Gitmo I mentioned earlier are part of Al Qaeda but only referred to as "alleged" terrorists, then aren't those Al Qaeda people killed by missile strikes not terrorists but also "alleged" terrorists? And that's not counting the civilians killed. Yet I don't see "civil libertarians" taking this administration to task, or at least not in any way that they want to take to task those in the previous administration. I find it disturbing.
SteveAR. Yoo Twisted Little Freak.
The opening paragraph from your odious link:
"an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control"
You aren't that stupid but you are that persistently deviant as a torture defender who is too much of a wimp to admit you enjoy (you need) to torture people who stand in the way of America's global empire.
This isn't ad hominem as logical fallacy, btw. I'm calling a spade a spade. You are a torture apologist leading America toward fascism. I will not conform with you ever because I am an American who values my autonomy from authoritarian thugs like you.
You have no moral compass and have lost all integrity with me.
Open your eyes, jackass.
/rant off
Sorry, but Maguire and the rest of you cretins should just give up the moral high ground.
Just admit you're into torture, and your constant backpeddling won't look so stupid.
Waterboarding isn't torture done in the SERE method, you said. We don't torture our own guys, you snortled.
Now the IG Report says those pussy SERE methods were ditched quick and real Khmer Rouge style waterboarding was used.
So I guess your new position is waterboarding is not torture period.
Fools. Just admit you're prepared to embrace torture and then you won't have to rationalize away the next revelation.
SteveAR,
You've read the report? And you read how the interrogators used mock executions and threats of violence to the family of the detainees? And you link to a document which lists, explicitly, as torture, "the threat of imminent death", as well as "the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality"?
And you (and Tom Maguire) still claim that there was no torture?
OK. If you can't see it, then you are cognitively handicapped, at least so far as I can judge by your comments here. It's OK, not everybody can be normal -- but don't be surprised if, when you exhibit your handicap, people edge away from you.
Since torture inarguably occurred, it's logically necessary to call the people who carried it out "torturers". QED.
As for the missile strikes in Afghanistan and Pakistan, there's this legal document called the AUMF which allows the US Military to be used anywhere in the world. While we may regret the inevitable loss of innocent life, that makes it legal to drop bombs on those whom we cannot arrest or take into custody. Please note that the CIA may point out the targets, and ask for the missile -- but it's military personnel who have to operate the actual hardware, according to the AUMF.
Once they are in custody, however, even the military is not legally entitled to torture, kill, or disappear them.
Does that clear it up for you? Maybe another analogy would help. The police gang squad arrives at a crime scene and find a robbery in progress, with armed gang members with hostages. After negotiations fail, snipers shoot the gang members, and in the process, a bullet fragment wounds or kills a hostage. That's a tragedy, but not criminal.
In another scenario, the gang squad arrests someone because they don't like the color of his skin, throws him in jail, where he is beaten by a guard and dies.
That's a crime.
Given that "24" has been cited more than a few times by torture apologists, perhaps we should be glad that the pop culture influenced conservatives aren't in power right now, thus avoiding the inevitable confluence of torture policy with "Inglorious Basterds"
No one has been convicted for 9/11 either so we can safely assume that SteveAR doesn't believe 3000 people died that day.
(FACT: Most people who died on 9/11 died in ultra-liberal New York City. Coincidence? Or conspiracy? Only SteveAR knows!)
One other thing about 9/11. If I'm not mistaken, more than a few victims that day were actually citizens of other countries. Did THOSE countries immediately start torturing people in the name of vengeance for 9/11, or was it only America that decided to abandon the rule of law?
So, to summarize Mr. Goldberg:
When popular entertainment portrays law enforcement or military officials authorizing torture, not only does the "context" of the story make us "applaud", such storylines merely represent popular sentiment, not an effort to propogandize.
I'd be curious if he feels that movies and television programs that portray, oh, Muslims and gays as actual living, breathing human beings and not horrific stereotypes are ALSO reflections of the "public sentiment". I wonder how easy it would be to see Mr. Goldberg's opinions on movies like "Milk", "Munich", "Waltz with Bashir", "Longtime Companion" and the like. Can't help but wonder if he'd call it "liberal propoganda".
C2H50H, et al.,
You call what the CIA did to KSM and those others torture. Crap.
What happened here was torture. What happened to these two captured American soldiers was torture. What happened to Daniel Pearl was torture. Unlike how the few members of the CIA and their contractors have treated some detainees, it is the standard operating procedure of Al Qaeda terrorists to wage war in a way that is a complete violation of the law of war.
The law defines torture as inflicting severe physical or mental pain and suffering. Other than the guy who was beaten with a flashlight, nobody else mentioned suffered severe physical pain. So that leaves the mental pain and suffering. But looking at the definition of that, those being interrogated had to have suffered prolonged mental harm. How can those who committed the acts I linked to above, which is SOP for Al Qaeda terrorists, have had prolonged mental harm done to them by the CIA? Get real. The only way they could show it is if the terrorists would use the Vincent Gigante defense, which ended up not working for Gigante.
You all throw the word torture around quite freely, lessening the meaning of what torture really is as defined by the law.
C2H50H:
Once they are in custody, however, even the military is not legally entitled to...disappear them.
Apparently, you haven't read where the Obama administration will continue the use of extraordinary rendition.
Steve, do you honestly believe that mock executions don't constitute torture as defined by both US Federal Law AND the UN Conventions on Torture (which the US is a signatory to).
By your repeated insistence that all suspected AQ prisoners are horrific monsters, I suspect that you don't really care that they are tortured. The other inherent problem with your "logic" is that what happens if you subject a person to these techniques and it turns out that they either didn't actually commit a crime or had no knowledge of any impending "plots".
We were able to try, apprehend, and convict the 1993 WTC bombers without resorting to breaking out the leather belts. What would have really been the problem with FOLLOWING THE LAW when interrogating post 9/11 prisoners? On the flip side, if these "techniques" are so sure-fire and legal, do you feel that local law enforcement ought to be able to employ them on domestic crime suspects?
SteveAR,
Transferring prisoners to other countries is sometimes the appropriate thing to do. Your link even asserts that it will no longer be for the purposes of torturing them (do you read these things? Do you understand them when you do? You can't answer both those questions with "yes", obviously.)
Second, transferring a prisoner to another authority isn't the same as just disappearing them. Rendition can be legal, in certain circumstances. In the cases listed in the IG report, somebody exhibited, at the least, criminal negligence, and, in the worst case, the missing person was murdered. Either way, a crime.
Anonymous (9:38am):
Steve, do you honestly believe that mock executions don't constitute torture as defined by both US Federal Law AND the UN Conventions on Torture (which the US is a signatory to).
It doesn't matter what I think, but what the law thinks. Even with the guy who was convicted of assault with the flashlight, the DoJ didn't see any reason to charge anyone with having committed torture. It is also known that several people at the CIA were punished by the agency in some fashion (I believe dismissal was on order for some), but who or for what hasn't been made public.
Tom Maguire put up this quote from A.L. in his comment:
The IG report describes numerous acts of torture that are clearly illegal under any number of laws and treaties. That's all that really matters.
This belies the fact that nobody has been charged with committing torture in the five years since this report was issued. Abuses that weren't tantamount to torture were prosecuted and handled.
So if the law doesn't call what happened torture, why does that word get bandied about in such a deliberate way as to render it meaningless?
SteveAR,
You can't really be stupid enough to believe that, because nobody was charged by the Bush DoJ, there was no crime. We're talking AGAG, Bybee, Goodling, et al, operating under the beneficent supervision of Cheney.
By the way, "belies" means, literally, "calls a lie", so, yes, the IG report does directly condemn the Bush DoJ.
Perhaps this isn't what you meant?
And, finally, the law does call many of these actions torture. Explicitly. Which renders your whole argument, well, just silly.
SteveAR, you are conflating the "law" being the set of rules which we use in a civil society to regulate behavior, and the "law" as law enforcement. There is no other way you could argue that because no one has been charged, the "law" doesn't regard the acts as torture. Let's take this really slow.
The law, which YOU linked, defines "threats of imminent death" as torture. The CIA's own report states that this happened on at least one occasion. Now, if you believe the CIA report is accurate, then "torture" happened, according to the law. This is easy stuff.
Whether someone is charged with violating the law is another story.
The really scary thing is that SteveAR is smarter than Palin.
I also like that thing in movies where bullets don't hit the good guys. Have we researched that technology, and if not, why not?
C2H50H:
You can't really be stupid enough to believe that, because nobody was charged by the Bush DoJ, there was no crime. We're talking AGAG, Bybee, Goodling, et al, operating under the beneficent supervision of Cheney.
I'm making legal arguments and you're dragging politics into this. I've already made my political argument earlier about why Holder (and by extension, Obama) is doing this.
...the IG report does directly condemn the Bush DoJ.
I read it, and it mentions some inconsistencies. But it doesn't condemn, that is unless you want to redefine the word "condemn" as you would redefine the word "torture".
And, finally, the law does call many of these actions torture.
Where?
Mobius:
The law, which YOU linked, defines "threats of imminent death" as torture.
No it doesn't. It describes what is torture:
(1)“torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
It then goes on to define severe mental pain or suffering as prolonged mental harm caused by things like "the threat of imminent death" and other items. But issuing the threat itself is not torture, especially if the ("alleged") terrorist doesn't have any mental pain or suffering. Considering the type of "person" this was done to, al-Nashiri, and what his group does as part of their SOP (I described earlier), I don't see how anyone can determine he had any mental pain or suffering. And based on what is in the report, he sure didn't suffer anything that would have caused him severe physical pain, at least nothing that would have led to a charge of torture, nor implication of the Bush administration in any crime.
Does the swaggering, pseudo-macho Tom Maguire wish to debate this, for real?
The technique of standing directly in front of a detainee and blowing smoke continuously in his face for five straight minutes is expressly designed to induce vomiting in the detainee. But by all means, do tell us more about the biological warfare angle, given that it's another subject on which you've displayed such scintillating wisdom in the past.
And maybe you can be so good as to explain the ever-so-sophisticated scare quotes you place around "the law".
Of course, AL wasn't talking about "the court of public opinion" in the particular passage where he states "That's all that really matters", but that doesn't matter to a demagogue like you, does it?
Perhaps we can add Tom's picture to the pantheon of American tough guys?
Some people inexplicably think this fellow is clever.
SteveAR, you're truly an idiot.
It's an intent statute. The focus of inquiry is not on the detainee's state of mind, but on the intent of the person acting under color of law.
Whatever ESP powers you are using to determine whether the detainee is too hardened to suffer mentally is irrelevant.
I do not concur that SteveAR is smarter than Palin.
SteveAR,
You comedian, you. Your own link, under subheadings (B) and (C) of the second bullet, contradicts you.
I'm at a complete loss how you can imagine anyone can take you seriously after this display of idiocy.
But I don't really want these people to be prosecuted especially. Most of them are probably the usual ex-military people of limited intellectual and moral capacity that gravitate to mercenary work.
I want the people prosecuted who turned them loose and gave them encouragement. That bunch knows that "24" and the like are fiction, and have no excuses.
C2H50H:
Most of them are probably the usual ex-military people of limited intellectual and moral capacity that gravitate to mercenary work.
How informative this quote is. This is the opinion you have of those who have volunteered to defend your right to make such a hateful comment. Quite illuminating.
Doesn't matter. A.L.'s idea that the American people are going to care what happens to KSM and the rest of the vermin if the "facts" come out is ridiculous. They see it as a political stunt by the administration under the guise of the "rule of law", all in order for the administration to try to bolster the eroding support of the administration's policies and as a cover to the administration's abysmal handling of the economy and federal budget.
SteveAR,
So you think Blackwater personnel represent the best of America?
You did notice that I said "ex-military", didn't you? Or perhaps not.
Unlike your pathetically uninformed self, I was actually in the military, and I know what I'm talking about.
C2H50H:
In your previous comment, you said:
Most of them are probably the usual ex-military people of limited intellectual and moral capacity that gravitate to mercenary work.
Now you are saying:
So you think Blackwater personnel represent the best of America?
I'm pretty positive I didn't read where you had mentioned Blackwater in that first comment. Based on my seeing it (and showing it) again, I can confirm it.
You said ex-military. According to the VA, there are nearly 24 million living veterans, former members of the military. Are you saying that Blackwater has employed 24 million ex-military? Considering Blackwater has been around for 12 years, that means that they have employed 2 million ex-military every year on average. If they were all paid an average of $50,000 a year, Blackwater would be paying $100 billion in employee salaries every year; the VA's total budget (at the same VA link) isn't even that big. Somehow, I don't think every ex-military person has worked for Blackwater. I suspect that Blackwater hasn't employed more than a few thousand (less than a divisions's worth) ex-military in its entire 12-year history. Which means the vast majority of ex-military have never been Blackwater employees.
You said most ex-military, not most ex-military at Blackwater. Like I said, your initial comment is informative. This is the opinion you have of those who have volunteered to defend your right to make such a hateful comment. Quite illuminating.
creepy dude:
It's an intent statute. The focus of inquiry is not on the detainee's state of mind, but on the intent of the person acting under color of law.
But in order to determine that the person acting under the color of law is committing torture, the state of mind of the detainee is required to be determined.
SteveAR-
But in order to determine that the person acting under the color of law is committing torture, the state of mind of the detainee is required to be determined.
I've corrected this before, and since I'm lazy, I'll just repost it:
Now we're talking. This is the key provision the apologists fall back on. However, your reading is not true to the text of the statute. This requires recognizing the presence of a definite article:
“severe mental pain or suffering” means the prolonged mental harm caused by or resulting from...
Unlike what you said ("severe mental pain or suffering" as creating "prolonged mental harm"), the statute does not need proof any action causes “prolonged mental harm.” The statute takes it for granted that prolonged mental harm is caused by any of the four acts. This is a serious flaw in the statutory analysis performed by the OLC.
I'll give you the example from the article by Kate Riggs in the Harvard Human Rights Journal:
The statute strongly suggests that prolonged mental harm inescapably results from each of the four predicate acts, and is not a separate element to be considered when determining an act as torture. Consider the difference between the following sentences:
Sentence A: “He is responsible for harm resulting from his actions.”
Sentence B: “He is responsible for the harm resulting from his actions.”
Sentence A connotes conditionality and abstract responsibility—if any harm results from his actions, then he is responsible. Sentence B connotes an affirmation of certain responsibility—he is responsible for the harm that inevitably results (or has already resulted) from his actions. The insertion of the extra word is puzzling and arbitrary unless the drafters of the statute perceived such a difference in connotation between including and omitting the definite article.
The plain text does not support your contention that there needs to be proof of prolonged mental harm. Rather, a natural reading of the statute makes it clear that “prolonged mental harm” is presumed to occur when any of the predicate acts have been performed on a person.
Furthermore, there is plenty of evidence that these acts have negatively affected the people upon which they were performed.
SteveAR,
I didn't say ex-military alone, and your pretending that I did just makes you pathetic. After all, you dolt, I'm ex-military, by my own admission.
What part of "ex-military people of limited intellectual and moral capacity that gravitate to mercenary work" are you having trouble understanding?
Hi nerpzillicus:
The statute takes it for granted that prolonged mental harm is caused by any of the four acts.
Furthermore, there is plenty of evidence that these acts have negatively affected the people upon which they were performed.
I'm sorry, that doesn't wash. We're talking about people who make a living out of committing real torture and outright butchery for a living (see an earlier comment where I linked to information about the SOP of Al Qaeda members). They train to commit these acts, and they are trained how to react if captured (usually by claiming they were tortured). I fail to understand how what the CIA did negatively affected already affected individuals.
In an earlier comment, I mentioned the contractor who was convicted of felony assault (the guy with the flashlight in the report). Now, it was known the guy did beat a detainee with a flashlight. He couldn't be convicted of murder because the family disallowed an autopsy which may have shown that the detainee died from the wounds he received from the contractor. By your reading of the statute, however, that wouldn't have precluded the contractor of being charged with having committed torture; yet, that never happened. Yes, the contractor abused the dead man, and is in prison for it; no, he did not torture the dead man, at least not as far as the DoJ or the law was concerned.
One other thing. On page 19 of the report (page 24 of the PDF file I linked to earlier), the IG mentions that there had never been a prosecution under that statute (as of May, 2004), and therefore there was no case law for which the DoJ could base an opinion on. So that means everyone was flying blind on this. Later in the page, this is noted:
OLC determined that a violation of Section 2340 requires that the infliction of severe pain be the defendant's "precise objective."
This could explain why the contractor was never charged with torture since the intent wasn't to inflict severe physical or mental pain or suffering (which is something Al Qaeda makes a habit of). Granted the contractor did abuse his detainee, and had there been an autopsy showing the injuries the contractor inflicted caused the detainee's death, the contractor would have been charged with murder. But torture? It didn't look like the law saw it that way.
On page 18 of the report, the IG mentions that the defined severe mental pain or suffering part of Sec. 2340 was put in as part of a reservation that the U.S. included as part of the ratification to the Torture Convention (it was believed that the Convention, as written, went beyond what was the U.S. had in the Constitution; see page 17).
http://action.aclu.org/torturefoia/released/102405/
Over 100 detainees were found dead under U.S. custody. Some of those were murdered. Others died as the result of denied medical care or negligent homicide.
SteveAR's insistence that only the detainee beaten with the flashlight is… surprising, given what we know took place that's been covered in other reports.
It is worth noting, however, his insistence that all those who were tortured are "vermin" and must have been guilty. We just freed a guy who was 12 when he was arrested, who by all accounts was innocent.
SteveAR's post are evidence of a certain sickness in the conservative psyche--lots of words, and a fair amount of intellect, in defense of something that's inexcusably evil. I wonder where all the Republicans went who used to complain about moral relativism.
I watched "Cry Freetown," a documentary on the chaos in Sierra Leone. It shows people in the seconds right before they get shot, for sport it seems. After watching that, I never looked at TV violence the same way. There's no sound track, or angled shots, just cold blooded murder. Jonah Goldberg needs to know there's a great distance between Hollywood's depiction and the real thing.
teveAR-
The statute takes it for granted that prolonged mental harm is caused by any of the four acts.
Furthermore, there is plenty of evidence that these acts have negatively affected the people upon which they were performed.
I'm sorry, that doesn't wash. We're talking about people who make a living out of committing real torture and outright butchery for a living (see an earlier comment where I linked to information about the SOP of Al Qaeda members). They train to commit these acts, and they are trained how to react if captured (usually by claiming they were tortured). I fail to understand how what the CIA did negatively affected already affected individuals.
Now Steve, we have been through this many times before. There were (and probably are) innocent men in Gitmo. There have been (and probably are) some of those innocent people who have been tortured by our government. I find it interesting that you belabor the point that there is one person (with the flashlight) that assaulted a captive, but we shouldn't call all these people tortures, yet you continuously fall back on the fallacy that everyone we mistreated is an Al Qaeda member, which is demonstrably untrue and has been shown to you numerous times. Furthermore, it is fallacious that the nature of the victim determines the conduct permissible. What you are basically saying is the same act is torture on some, but not on others. One of the main reasons for the proper reading of the law as I have laid out is so we can avoid this “well, the victim can take it” or “he is too tough for this too hurt” mentality. The act is or is not torturous – to whom it is done is immaterial.
Binyam Mohammed is a fine example of the repercussions of the torture we committed upon innocent people.
In an earlier comment, I mentioned the contractor who was convicted of felony assault (the guy with the flashlight in the report). Now, it was known the guy did beat a detainee with a flashlight. He couldn't be convicted of murder because the family disallowed an autopsy which may have shown that the detainee died from the wounds he received from the contractor. By your reading of the statute, however, that wouldn't have precluded the contractor of being charged with having committed torture; yet, that never happened. Yes, the contractor abused the dead man, and is in prison for it; no, he did not torture the dead man, at least not as far as the DoJ or the law was concerned.
Steve, just because an act isn't prosecuted (or more accurately, one specific theory was not charged), it does not logically follow that the act isn't illegal or that the uncharged theory of criminality is not applicable. There are numerous reasons, from plea bargains to prosecutorial discretion to good ol' 'not wanting to set a precedent since there are a lot of people breaking the law by torturing and we don't want to make our pathetic legal defense any more pathetic' for a potential criminal theory to not be pursued.
One other thing. On page 19 of the report (page 24 of the PDF file I linked to earlier), the IG mentions that there had never been a prosecution under that statute (as of May, 2004), and therefore there was no case law for which the DoJ could base an opinion on. So that means everyone was flying blind on this. Later in the page, this is noted:
OLC determined that a violation of Section 2340 requires that the infliction of severe pain be the defendant's "precise objective."
This could explain why the contractor was never charged with torture since the intent wasn't to inflict severe physical or mental pain or suffering (which is something Al Qaeda makes a habit of). Granted the contractor did abuse his detainee, and had there been an autopsy showing the injuries the contractor inflicted caused the detainee's death, the contractor would have been charged with murder. But torture? It didn't look like the law saw it that way.
Uh, dude, you realize this is simply a summary of John Yoo's interpretation of the law? If you haven't noticed, the soundness of his opinions has been, let's say, questioned, and his motives and competency are not well thought of. John Yoo might not have seen it that way (or simply wrote a piss-poor analysis to attempt to give a green light to his bosses), but most legal experts find his reasoning to be lacking. And by “lacking,” I mean so devoid of decency, good faith, and intellectual rigor, it would be laughed at if it weren't so sad. I hope, for the sake of the quality of his intellect, that he wrote these memos with the specific intent of justifying the unjustifiable, because if he actually believes they represent quality work-product from an attorney advising his client, one would be better off with Lionel Hutz as counsel.
On page 18 of the report, the IG mentions that the defined severe mental pain or suffering part of Sec. 2340 was put in as part of a reservation that the U.S. included as part of the ratification to the Torture Convention (it was believed that the Convention, as written, went beyond what was the U.S. had in the Constitution; see page 17).
No. The convention required States to undertake to prevent “degrading” treatment of people within its territories. The executive (Reagan, I believe) thought “degrading” was broader than what was included in the Constitution. However, the torture statute does not address degrading treatment, so this red herring is irrelevant in the current conversation. Further, even if the Constitution does not go as far as the Convention, there is no reason why the Congress couldn't expand the protection beyond the Constitutional minimums of the Fifth, Eighth, and 14th.
nerzillicus:
...yet you continuously fall back on the fallacy that everyone we mistreated is an Al Qaeda member, which is demonstrably untrue and has been shown to you numerous times.
This is a war. This is a war that wasn't started by the U.S. This is a war where the enemy, Al Qaeda (those who committed the terrorist acts on 9/11), doesn't follow any rules of war, including the wearing of uniforms. Fighting these guys isn't done as if it were a law enforcement exercise, where standard police investigative procedures, complete with warrants signed by judges, are required to kill or capture a potential enemy like the ones we are fighting, the ones that don't follow the rules of war.
You mention Binyam Mohammed. It is a fact that he had gone to Afghanistan prior to 9/11, stayed through the invasion, and then went to Pakistan, where he was captured in 2002 trying to leave the country on a passport he admitted to falsifying. He claims he went to Afghanistan for humanitarian reasons, then he claims he was tortured after he was captured. I say he's a liar, and I say that with all the same evidence you and everybody else has said vindicates him. If he was released for any reason, it was due to political pressure and not because of the law. This is what happens when lawyers want to fight this war in the courts. Period.
Steve, just because an act isn't prosecuted (or more accurately, one specific theory was not charged), it does not logically follow that the act isn't illegal or that the uncharged theory of criminality is not applicable. There are numerous reasons, from plea bargains to prosecutorial discretion to good ol' 'not wanting to set a precedent since there are a lot of people breaking the law by torturing and we don't want to make our pathetic legal defense any more pathetic' for a potential criminal theory to not be pursued.
This was a jury trial. It took 8 hours for the jury to come back with a guilty verdict. The prosecutors were not happy that the jury didn't find the contractor guilty of more than than the one felony they came back with. In any event, there was never a charge brought of violating the torture statute. Probably because there was no evidence of torture.
What you said was entirely political, speculative, and in no way provable by you. But if you want to go down that road, I would say that politics played into why the current DoJ isn't going after the voter intimidation by the New Black Panthers (who were found guilty before the case was dropped) and dropped the Richardson investigation. Politics also played a part in the release of these documents in order for Obama to distract from his miserable performance on the economy and falling support of his health "reform" fiasco.
Steve,
The date these documents were to be released was set by court order well in advance of the uproar over health care.
Look, come on, we know why Hollywood has so many good guys torture. Because a lot of people have a little bit of latent sadism that gets off on it. But they feel guilty about it at the same time because they know torture is wrong. So what Hollywood wants to do is make torture look good and virtuous so viewers can indulge their inner sadist while feelilng moral.
Needless to see, the widespread existence of subtle sadism is not a good basis for public policy.
nerpzillicus:
Uh, dude, you realize this is simply a summary of John Yoo's interpretation of the law? If you haven't noticed, the soundness of his opinions has been, let's say, questioned, and his motives and competency are not well thought of.
Uh, dude, do you realize the Kate Riggs piece you showed earlier was written about 5 years after Yoo wrote his stuff and around 6 years after 9/11 and the invasion of Afghanistan? It is really easy to second-guess someone years after the fact, especially when the person being second-guessed didn't have the luxury of all the information that came out afterwords that the second-guesser does.
Remember also, the assumption in the administration was that none of these ("alleged") terrorists were covered by the Geneva Conventions. But the second-guessing (and completely wrong) Justice Stevens fouled that up with his erroneous application of Common Article 3 in Hamdan. Of course, there was no Hamdan in 2001 and 2002. Again, second-guessing is easy.
And speaking of that part of the Riggs piece you pulled up, it's ridiculous. Her thesis states that an assumption, without evidence, is somehow legally true. I can accuse you of murdering me all day long; but if I'm not dead, there is no way I could prove it. Unless it can be shown that there is prolonged mental harm, how in the world can you prove torture?
SteveAR-
...yet you continuously fall back on the fallacy that everyone we mistreated is an Al Qaeda member, which is demonstrably untrue and has been shown to you numerous times.
This is a war. This is a war that wasn't started by the U.S. This is a war where the enemy, Al Qaeda (those who committed the terrorist acts on 9/11), doesn't follow any rules of war, including the wearing of uniforms. Fighting these guys isn't done as if it were a law enforcement exercise, where standard police investigative procedures, complete with warrants signed by judges, are required to kill or capture a potential enemy like the ones we are fighting, the ones that don't follow the rules of war.
ugh, this is old. So are you admitting the fact there have been and probably are innocent people in Gitmo? Are you admitting we tortured them? I don't really care about your rationalizations, since I will never agree with your world view, I only care about the facts. If you think the nature of Al Qaeda is such that we are justified in torturing innocent people, throwing due process out the window, and failing to acknowledge or rectify mistakes – fine, argue that, instead of this “that isn't torture” garbage.
My world view is that the only way for the US to win this conflict is to win the hearts and minds of the people who may be sympathetic to the criminals and terrorists in Al Qaeda. I believe we do that by demonstrating we are not the evil doers they portray us to be, and by proving our ideals are better. We do that by not torturing innocent people, for example.
You mention Binyam Mohammed. It is a fact that he had gone to Afghanistan prior to 9/11, stayed through the invasion, and then went to Pakistan, where he was captured in 2002 trying to leave the country on a passport he admitted to falsifying. He claims he went to Afghanistan for humanitarian reasons, then he claims he was tortured after he was captured. I say he's a liar, and I say that with all the same evidence you and everybody else has said vindicates him. If he was released for any reason, it was due to political pressure and not because of the law. This is what happens when lawyers want to fight this war in the courts. Period.
Sooo, Bush administration has dangerous terrorist, but they let him go because the British (who are still preventing the public dissemination of the torture done to Mohammed from coming out) were politically pressuring the administration to release dangerous terrorist, so they could immediately free him after some questioning? Yes, clearly the logical explanation. Steve, sometimes the facts are simply the facts.
Steve, just because an act isn't prosecuted (or more accurately, one specific theory was not charged), it does not logically follow that the act isn't illegal or that the uncharged theory of criminality is not applicable. There are numerous reasons, from plea bargains to prosecutorial discretion to good ol' 'not wanting to set a precedent since there are a lot of people breaking the law by torturing and we don't want to make our pathetic legal defense any more pathetic' for a potential criminal theory to not be pursued.
This was a jury trial. It took 8 hours for the jury to come back with a guilty verdict. The prosecutors were not happy that the jury didn't find the contractor guilty of more than than the one felony they came back with. In any event, there was never a charge brought of violating the torture statute. Probably because there was no evidence of torture.
What you said was entirely political, speculative, and in no way provable by you. But if you want to go down that road, I would say that politics played into why the current DoJ isn't going after the voter intimidation by the New Black Panthers (who were found guilty before the case was dropped) and dropped the Richardson investigation.
I certainly did not claim that was the reason it wasn't charged. Maybe you are right, and there was not sufficient evidence to support it. I was not trying to “prove” why no torture charges were filed against this individual, instead I was trying to show to you that your claim that the law “saw no torture”, so there would be no charges, is categorically false. It's really funny how you can conclusively claim Mohommed is a liar and was released only for political reasons (as opposed to the fact there was not one iota of evidence against him), but obviously, there could be no political (or more accurately, ass-covering) reasons for the non-charging of torture in this circumstance.
Politics also played a part in the release of these documents in order for Obama to distract from his miserable performance on the economy and falling support of his health "reform" fiasco.
Now Steve, you have to answer something for me – do you really think Obama wants to get in this trap of torture investigations, or that he thinks its good politics? Seriously? He has been running from it his whole Presidency, trying to paper it over. The release of the documents is from a court order in an ACLU FOIA request. Obama is fighting this stuff tooth and nail, even bringing out the odious state secret defense. This is a distraction from what he wants to do – the economy and health care. However well or poorly you perceive his actions on those fronts to be, that's where he wants to be. He could easily charge up the left by opening prosecutions on Yoo and Bybee, or releasing more stuff without having to have it yanked out of his hands, but he doesn't want to. Look, I get it, you don't like Obama or his policies. But stating stuff like this doesn't help your argument against him, it simply makes you appear like you have no clue as to what is going on. I understand the desire for the cheap points on calling things “porkulus” or saying health care reform is going to be defeated, but if you really think he wants to cause a distraction from those policies, and bring the discussion to torture and war crimes, you really have a poor sense of politics. He is avoiding this stuff like the plague. Trust me, I know – I would love for what you say to be true. Sadly, for me, it ain't.
Uh, dude, you realize this is simply a summary of John Yoo's interpretation of the law? If you haven't noticed, the soundness of his opinions has been, let's say, questioned, and his motives and competency are not well thought of.
Uh, dude, do you realize the Kate Riggs piece you showed earlier was written about 5 years after Yoo wrote his stuff and around 6 years after 9/11 and the invasion of Afghanistan? It is really easy to second-guess someone years after the fact, especially when the person being second-guessed didn't have the luxury of all the information that came out afterwords that the second-guesser does.
Uhhh, dude, the statute was the same. Any lawyer worth his salt would have taken notice of the definite article in the definition. It is the natural reading of the phrase. He had all the information Riggs had, he simply chose to let his conclusions lead him to the facts and reasoning he wanted. And his job was to try and advise what the law was. An honest person would not have come up with the conclusions he did, at least without a whole bunch of caveats as to how a court might disagree with his conclusions.
Remember also, the assumption in the administration was that none of these ("alleged") terrorists were covered by the Geneva Conventions. But the second-guessing (and completely wrong) Justice Stevens fouled that up with his erroneous application of Common Article 3 in Hamdan. Of course, there was no Hamdan in 2001 and 2002. Again, second-guessing is easy.
Again, Yoo's job was to advise the President as to what the law was. If a lawyer failed to see the potential that detainees may be covered under Common Article 3 was, at least a strong probability, they should not be practicing. Steven's decision is perfectly predictable, whether one thinks it to be correct or not. Yoo consistently fails to advise that he is possibly (and really, most likely) wrong, and the severe consequences should he be so proven.
And speaking of that part of the Riggs piece you pulled up, it's ridiculous. Her thesis states that an assumption, without evidence, is somehow legally true. I can accuse you of murdering me all day long; but if I'm not dead, there is no way I could prove it. Unless it can be shown that there is prolonged mental harm, how in the world can you prove torture?
driving drunk is typically defined as having over a certain BAC. But, some people could easily drive with a BAC over 0.08 (functional alcoholics, for one), and not really be impaired. The law finds that this level is too high no matter what, so therefore the driver is still guilty at 0.081, even if he is a better driver there than someone at 0.02. The law does this all the time.
There doesn't need to be harm for something to be a crime. You can be guilty of attempted murder, trying to shoot me through a window while I was in a restaurant, even if I never knew you were trying. If you stole money from my bank account, went to the casino, quadrupled it, and put it back into my account without me knowing, guess what – it's still (potentially) larceny, theft, and bank fraud. This isn't a civil action, where the plaintiff needs harm to recover, this is a criminal statute punishing certain activities. The consequences are (sometimes) meaningless, it is the actions and intent of the wrongful party that matter.
Nerp,
Since SteveAR basically regurgitates brainlessly whatever he reads that Andy McCarthy writes, it would be more efficient to simply point him here and leave it at that.
nerpzillicus:
So are you admitting the fact there have been and probably are innocent people in Gitmo? Are you admitting we tortured them?
No and no.
I don't really care about your rationalizations, since I will never agree with your world view, I only care about the facts.
Well maybe you should agree with my world view. You talk about throwing out due process. Due process in a war allows for the killing and capturing of individuals determined to be the enemy without following traditional police methods. That's just as much due process as anything else that's defined as due process. That is a fact. There is no assumption of innocence before having guilt proven. That's why it's allowed to kill someone, even someone only suspected of being the enemy, with a missile launched from a drone. This isn't a rationalization, but fact.
My world view is that the only way for the US to win this conflict is to win the hearts and minds of the people who may be sympathetic to the criminals and terrorists in Al Qaeda. I believe we do that by demonstrating we are not the evil doers they portray us to be, and by proving our ideals are better. We do that by not torturing innocent people, for example.
That's fine. But we don't do that by being weak-kneed ninnies against an enemy that knows how to take advantage of weakness in a time of war. Look what happened when Obama tried to look smart by not getting involved in chastising the Iranian government for that fraud of an election; the U.S. was blamed for interfering anyway. It didn't take rocket science to see that coming from 10,000 miles away. He was as weak as the Iranians had perceived. And they continue on their way to nuclear weapons.
It doesn't mean we commit torture, or start carpet bombing Afghanistan or Pakistan. But it does mean that the politicization of the law, which has gone all the way up to the Supreme Court, threatens the national security, the defense of this nation, while the nation is at war; instead of worrying how to find and fight the enemy, every single soldier, sailor, airman, and agent has to worry more about being brought up on charges by his own people.
Sooo, Bush administration has dangerous terrorist, but they let him go because the British (who are still preventing the public dissemination of the torture done to Mohammed from coming out) were politically pressuring the administration to release dangerous terrorist, so they could immediately free him after some questioning? Yes, clearly the logical explanation. Steve, sometimes the facts are simply the facts.
It's a fact that many terrorists (not alleged) who were captured were released because some weak-kneed judge, and by extension President Bush, played politics with the law, justifying it by saying there wasn't enough evidence to continue holding them, or that somebody's idea of due process, but not the one I described above, wasn't followed. And many of these terrorists went back to commit terrorist acts. Remember my world view; this is a war, the enemy is not considered innocent before being proven guilty. I have no doubt that those people were terrorists when they were captured, before their incarceration, and then went back to terrorism when released. So yes, Binyam Mohammed is no different. If he commits no terrorist acts, I'll change my opinion of him.
Now Steve, you have to answer something for me – do you really think Obama wants to get in this trap of torture investigations, or that he thinks its good politics?
Oh, I think he wants to, in a big way. But you're right, it would be a trap. But I don't doubt that Obama got Holder to do it in the way it's being done because of his political problems. I mean, even Obama's base is criticizing Obama for his actions (his secret deal with the pharmaceuticals) regarding this health bill. So he's throwing them a bone.
nerpzillicus:
He had all the information Riggs had, he simply chose to let his conclusions lead him to the facts and reasoning he wanted. And his job was to try and advise what the law was.
Yoo wasn't coming up with a paper that was to be published in a journal or preparing for a court case. An enemy we're at war with probably wouldn't grant a continuance until we get all the "t"'s get crossed and all "i"'s dotted. The U.S. in 2001 and 2002 was worrying about another terrorist attack and preventing it. Actions in war are far more unpredictable and time-sensitive than the two items I mentioned a couple of sentences ago. A second-guesser, even more than getting a paper published or preparing a court case, let alone defending the nation from another attack, can take all the time in the world.
There doesn't need to be harm for something to be a crime. You can be guilty of attempted murder, trying to shoot me through a window while I was in a restaurant, even if I never knew you were trying.
Yes, but I mentioned murder on purpose, not attempted murder, which is a different crime. I'm talking about a specific crime, not variations.
if these techniques that stevear and his ilk (yes, i said "ilk") condone as "not torture" then why not use them in our police stations? if they are not illegal under u.s. law then it shouldnt be a problem and will help grease the wheels of our justice system!
torture smorture...its coercive thought redistrabution, thats all.
thats how we found those weapons of mass destruction...
Well, a point that has been raised before: Torture is useful only for eliciting false confessions.
Western civilization has known this for hundreds of years.
If that weren't true, then there's no way I could get SteveAR to confess to the Manson murders by torture. I'm totally willing to give Steve the opportunity to prove me wrong.
I'll also cite Jessie Ventura. And Mancow.
SteveAR-
So are you admitting the fact there have been and probably are innocent people in Gitmo? Are you admitting we tortured them?
No and no.
The second one shows you are either in denial or still relying on John Yoo's false interpretation of the torture statute. The first shows you don't live in reality.
I don't really care about your rationalizations, since I will never agree with your world view, I only care about the facts.
Well maybe you should agree with my world view.
Thanks, but no thanks. Reality is good for me.
You talk about throwing out due process. Due process in a war allows for the killing and capturing of individuals determined to be the enemy without following traditional police methods. That's just as much due process as anything else that's defined as due process. That is a fact. There is no assumption of innocence before having guilt proven. That's why it's allowed to kill someone, even someone only suspected of being the enemy, with a missile launched from a drone. This isn't a rationalization, but fact.
And its a fact that there is a difference between a battlefield and a guy in a cell. If a police officer kills a drug dealer in a shoot out on the street, that is categorically different than if the officer shot him in his cell, unarmed and not a threat, after the dealer was arrested. Indeed, the Geneva Conventions recognize you could legitimately kill someone one minute, and the moment they surrender, you can't. So don't make a false analogy.
My world view is that the only way for the US to win this conflict is to win the hearts and minds of the people who may be sympathetic to the criminals and terrorists in Al Qaeda. I believe we do that by demonstrating we are not the evil doers they portray us to be, and by proving our ideals are better. We do that by not torturing innocent people, for example.
That's fine. But we don't do that by being weak-kneed ninnies against an enemy that knows how to take advantage of weakness in a time of war. Look what happened when Obama tried to look smart by not getting involved in chastising the Iranian government for that fraud of an election; the U.S. was blamed for interfering anyway. It didn't take rocket science to see that coming from 10,000 miles away. He was as weak as the Iranians had perceived. And they continue on their way to nuclear weapons.
And you really think it would have been better to interfere? The Regime loses credibility when it has to make stuff up. The Iranian people are not stupid – they know the regime is lying to them. By acting prudently, Obama gave the regime no credible evidence to back up their claims. Now the regime is forced to allege Mousavi, Khatami, and Karroubi were working with the west, which is a laughable claim. Obama, who has let me down a lot, acted brilliantly there.
It doesn't mean we commit torture, or start carpet bombing Afghanistan or Pakistan. But it does mean that the politicization of the law, which has gone all the way up to the Supreme Court, threatens the national security, the defense of this nation, while the nation is at war; instead of worrying how to find and fight the enemy, every single soldier, sailor, airman, and agent has to worry more about being brought up on charges by his own people.
The military has the UMCJ, and they have had it for a while. There is a code which civilized people, even in war, follow. This is systemic, and it isn't the serviceman's fault. That's why my attacks are lodged at Yoo and the administration. If they had simply advised the jailors and interrogators sensibly, no servicemember would need to be nervous. The politicization comes from the Bush Administration's perversion of the rule of law, not vice-versa. Thankfully, he was not able to get quite enough apologists on the Court before he left to have an unrestrained executive.
Sooo, Bush administration has dangerous terrorist, but they let him go because the British (who are still preventing the public dissemination of the torture done to Mohammed from coming out) were politically pressuring the administration to release dangerous terrorist, so they could immediately free him after some questioning? Yes, clearly the logical explanation. Steve, sometimes the facts are simply the facts.
It's a fact that many terrorists (not alleged) who were captured were released because some weak-kneed judge, and by extension President Bush, played politics with the law, justifying it by saying there wasn't enough evidence to continue holding them, or that somebody's idea of due process, but not the one I described above, wasn't followed. And many of these terrorists went back to commit terrorist acts. Remember my world view; this is a war, the enemy is not considered innocent before being proven guilty. I have no doubt that those people were terrorists when they were captured, before their incarceration, and then went back to terrorism when released. So yes, Binyam Mohammed is no different. If he commits no terrorist acts, I'll change my opinion of him.
Wow. This is as clear and concise of a statement of ignorance as I have ever seen. Even if you buy the dubious numbers of the recidivism rate, over 80% of the released detainees have gone back to living peaceful lives. Again, how do you square this with your righteous indignation that (with ample evidence) A.L. calls the actors in the IG report torturers when there has been no due process for them, yet when courts have looked at the absolute sham of evidence for holding someone (let's not forget Murat Kurnaz), you are going to whistle past. There is no consistency, principle, or logic to your worldview.
Now Steve, you have to answer something for me – do you really think Obama wants to get in this trap of torture investigations, or that he thinks its good politics?
Oh, I think he wants to, in a big way. But you're right, it would be a trap. But I don't doubt that Obama got Holder to do it in the way it's being done because of his political problems. I mean, even Obama's base is criticizing Obama for his actions (his secret deal with the pharmaceuticals) regarding this health bill. So he's throwing them a bone.
Steve, I really think you need to learn to let your emotions go when analyzing a situation. I know you don't like Obama, but this makes no sense. If he wants to go there so bad, why does he keep holding up the process? Why does he fight the ACLU at every turn. I agree he released some things (like the torture memos) to try and appease those who want the rule of law restored, but he did it not to go down that path, but in the hope it would cut off his left wing's cries at the pass. He genuinely believes he can sweep the Bush years under the rug (so he can focus on what he wants to focus on, health care, the economy, his foreign policy), by limiting prosecutions as much as possible. This is a pandora's box he is trying to keep shut, and all the evidence and all his actions point to that. Your assertion does not jive with the facts, and doesn't make any sense. And he knows it's a trap (meaning, it will bog down his domestic agenda, and hurt his post-partisan image he wants to maintain.) Sorry dude, but he clearly does not want to go there.
He had all the information Riggs had, he simply chose to let his conclusions lead him to the facts and reasoning he wanted. And his job was to try and advise what the law was.
Yoo wasn't coming up with a paper that was to be published in a journal or preparing for a court case. An enemy we're at war with probably wouldn't grant a continuance until we get all the "t"'s get crossed and all "i"'s dotted. The U.S. in 2001 and 2002 was worrying about another terrorist attack and preventing it. Actions in war are far more unpredictable and time-sensitive than the two items I mentioned a couple of sentences ago. A second-guesser, even more than getting a paper published or preparing a court case, let alone defending the nation from another attack, can take all the time in the world.
Uhh, i've had to prepare briefs and opinions on issues in a much tighter timeframe than he. And if time was such a concern, and he knew he couldn't get his t's crossed and i's dotted, he should have gone the conservative route and said “you probably can't do this, since it would be an unprecedented expansion of executive authority never thought of by any mainstream jurist, and this stuff is pretty poor treatment of detainees, which should make most decent people vomit in their mouth thinking that you are doing it in their name, oh and by the way, an awful lot of the people we have captured don't appear to be guilty of anything.” That's what you do when you are pressed for time and are uncertain of the results. I have no idea what they were thinking, but I would have fired him the second I read his shotty research and poor analysis. Inexcusable for an attorney trying to advise his client in good faith on whether his actions are legal. Hopefully Yoo is more competent at civil procedure that Constitutional law, or else his students should demand their money back.
There doesn't need to be harm for something to be a crime. You can be guilty of attempted murder, trying to shoot me through a window while I was in a restaurant, even if I never knew you were trying.
Yes, but I mentioned murder on purpose, not attempted murder, which is a different crime. I'm talking about a specific crime, not variations.
Yeah, but the specific crime we were talking about was the one defined by the torture statute, which does not require proof of prolonged mental suffering. Murder is a different crime with different elements. So I don't see how your reference to murder in the context of the torture statute is any more relevant than my reference to theft or attempted murder. Indeed, my point was the law can define what a crime is in such a way that harm does not have to be proven. Murder requires harm. The torture statute does not.
C2H50H-
Since SteveAR basically regurgitates brainlessly whatever he reads that Andy McCarthy writes, it would be more efficient to simply point him here and leave it at that.
True, true. But, sometimes (and very rarely for me) the point is not efficiency, but a diversion from real work! :)
Anonymous-
If these techniques that stevear and his ilk (yes, i said "ilk") condone as "not torture" then why not use them in our police stations? if they are not illegal under u.s. law then it shouldnt be a problem and will help grease the wheels of our justice system!...
An excellent point, one to which Steve in the past has responded by saying he would only perform enhanced techniques on (alleged) terrorists, not a shoplifter. However, I agree with you, if it's cool, why not go the whole nine yards? Why limit your options? If a kidnapper has hidden the victim, a murderer hidden the body, or one member of a shoplifting crew refuses to name his accomplices, why not go to the waterboard with them? If it works, right? It certainly couldn't be because these actions are torture, but by injecting a “scary terrorist” into the argument instead of a jaywalker, reason and logic can give way to emotion, as the emphasis is placed not on the deplorable conduct of the torturer, but to the alleged deplorable conduct of the victim? Nah, that can't be it. And to hell with a system that is applied equally and with logical consistency and a lack of internal contradiction.
Eudaemonic-
Well, a point that has been raised before: Torture is useful only for eliciting false confessions.
Western civilization has known this for hundreds of years.
If that weren't true, then there's no way I could get SteveAR to confess to the Manson murders by torture. I'm totally willing to give Steve the opportunity to prove me wrong.
I'll also cite Jessie Ventura. And Mancow.
not only a good point, but there are a number of innocent people released from and currently in Gitmo (those Steve likes to pretend don't exist) who were picked up from false info gained by torturing people.
Eudaemonic:
Torture is useful only for eliciting false confessions.
I'm not going to argue that. However, as it was noted in the IG report, if anyone bothered to read it, the EITs that were used allowed agents to get all kinds of information that saved American lives.
nerpzillicus:
Thanks, but no thanks. Reality is good for me.
Uhh, i've had to prepare briefs and opinions on issues in a much tighter timeframe than he.
...if it's cool, why not go the whole nine yards?
This is your reality? Do you have any idea of the nature of war? Because if you say you do you surely aren't showing one iota of that understanding. This isn't a court case where the adversary tells you in advance when you need to be ready for his attack. If this is reality to you, then you are clearly not living in reality.
By acting prudently, Obama gave the regime no credible evidence to back up their claims. Now the regime is forced to allege Mousavi, Khatami, and Karroubi were working with the west, which is a laughable claim. Obama, who has let me down a lot, acted brilliantly there.
Bull. And not only does he look weak to the Iranian regime, Obama appears weak to the Iranian people protesting the regime, and someone not to be relied upon, even rhetorically, to back them up. This was proven again with what he's doing to Honduras in backing a leftwing Castro-wannabe whacko bent on destroying the freedoms in that country.
The military has the UMCJ, and they have had it for a while. There is a code which civilized people, even in war, follow...The politicization comes from the Bush Administration's perversion of the rule of law, not vice-versa.
It was the so-called "rule of law" that prevented the government from being able to defend against the attacks on 9/11 by those who were able to pervert the rule of law. The only politicization of the law has come from those who refuse to understand the reality of war.
This is as clear and concise of a statement of ignorance as I have ever seen....There is no consistency, principle, or logic to your worldview.
Re-read what I wrote regarding my worldview.
Steve, I really think you need to learn to let your emotions go when analyzing a situation...If he wants to go there so bad, why does he keep holding up the process?
It isn't emotion directing me on what I said, but observation. The man has a rudimentary knowledge of politics, but he has never run anything in his life (running a campaign isn't the same thing). His ideology is your ideology, and that still drives him.
SteveAR,
"The man has a rudimentary knowledge of politics," ...
Really? Coming from you, that's just absolutely hilarious.
"but he has never run anything in his life (running a campaign isn't the same thing)."
And you have "run" something besides your mouth?
"His ideology is your ideology, and that still drives him."
Based on what?
Nerp,
As long as you keep it fun and diverting, I'm happy -- As SteveAR gets more desperate, he gets even more ridiculous and funny. I only made the suggestion in the interests of efficiency.
SteveAR-
Torture is useful only for eliciting false confessions.
I'm not going to argue that. However, as it was noted in the IG report, if anyone bothered to read it, the EITs that were used allowed agents to get all kinds of information that saved American lives.
Actually, if you read the IG report and the reports Cheney wanted disclosed, you find it inconclusive if any good information was obtained through torture, or whether the information had already been obtained.
nerpzillicus:
Thanks, but no thanks. Reality is good for me.
Uhh, i've had to prepare briefs and opinions on issues in a much tighter timeframe than he.
...if it's cool, why not go the whole nine yards?
This is your reality? Do you have any idea of the nature of war? Because if you say you do you surely aren't showing one iota of that understanding. This isn't a court case where the adversary tells you in advance when you need to be ready for his attack. If this is reality to you, then you are clearly not living in reality.
Yoo is not on the battlefield. He's safe in an office in DC. If a grunt, in the middle of Afghanistan, with bullets flying around, makes a mistake and shoots a civilian, you better believe I have a different standard for him or her. Even if the interrogator, fearing an imminent attack, feels he has to do some bad stuff to a guy, I'd have some sympathy. Yoo has no excuse. He knows the law, he had plenty of time to look up the law, and he should have known he was wrong. You continuously make these false equivalencies between guys fighting a war (with guns, on an actual battlefield) and a lawyer on Westlaw. There is none. The product Yoo created as “advise” to his client is something a competent lawyer should be ashamed of. Period. People who want to act like the world is a battlefield should join the armed forces, so they can see what a real battlefield is. I realize this is simply a bridge too far for either of us, but I cannot delude myself sufficiently to act like there is any other battlefield than Iraq, Afghanistan, and parts of Pakistan. Just can't, sorry.
And you still never answered why we can't waterboard a shoplifter.
By acting prudently, Obama gave the regime no credible evidence to back up their claims. Now the regime is forced to allege Mousavi, Khatami, and Karroubi were working with the west, which is a laughable claim. Obama, who has let me down a lot, acted brilliantly there.
Bull. And not only does he look weak to the Iranian regime, Obama appears weak to the Iranian people protesting the regime, and someone not to be relied upon, even rhetorically, to back them up. This was proven again with what he's doing to Honduras in backing a leftwing Castro-wannabe whacko bent on destroying the freedoms in that country.
The politics of the guy in Honduras is immaterial. He was not legally removed from his post. For someone who complains about the politicization of the rule of law, you have a strange way of supporting it when it happens.
Most Iranians and Iranian-Americans I know are thrilled we stayed out of it. They think the best chance for the regime to fall is if there is no grounds for the regime to rally the middle around it. The internal corruption of the Iranian system has to become apparent to the people, and the only way to do that is for the regime to be able to have any credibility when they try to blame their problems on a foreign boogey-man.
The military has the UMCJ, and they have had it for a while. There is a code which civilized people, even in war, follow...The politicization comes from the Bush Administration's perversion of the rule of law, not vice-versa.
It was the so-called "rule of law" that prevented the government from being able to defend against the attacks on 9/11 by those who were able to pervert the rule of law. The only politicization of the law has come from those who refuse to understand the reality of war.
Political infighting between the FBI and the CIA (and the utter lack of competence of the previous administration) is more likely a contributing factor. You have no idea what you are talking about.
This is as clear and concise of a statement of ignorance as I have ever seen....There is no consistency, principle, or logic to your worldview.
Re-read what I wrote regarding my worldview.
I have. Some people are guilty no matter the facts, some people are innocent no matter the facts. I guess I just haven't figured out who sorts out what individual goes in what group.
Steve, I really think you need to learn to let your emotions go when analyzing a situation...If he wants to go there so bad, why does he keep holding up the process?
It isn't emotion directing me on what I said, but observation. The man has a rudimentary knowledge of politics, but he has never run anything in his life (running a campaign isn't the same thing). His ideology is your ideology, and that still drives him.
Then why hasn't he done what I want him to do? If we are ideological brethren, why haven't charges been brought, why isn't the FISA amendment (which he voted for) repealed, why is the state secret doctrine still being asserted, why did he continue to fight the freedom of the Uighurs, why haven't the new torture photos been released? You just look silly when you say this. Either you are too invested in your emotional dislike of the man, or your powers of observation are sorely lacking, (or both).
C2-
As long as A.L. allows me to avoid work (and the work I have to do continues to be unappealing), I'll keep on divertin'!
nerpzillicus:
Actually, if you read the IG report and the reports Cheney wanted disclosed, you find it inconclusive if any good information was obtained through torture, or whether the information had already been obtained.
Wrong. Read it again.
Yoo is not on the battlefield. He's safe in an office in DC. If a grunt, in the middle of Afghanistan, with bullets flying around, makes a mistake and shoots a civilian, you better believe I have a different standard for him or her. Even if the interrogator, fearing an imminent attack, feels he has to do some bad stuff to a guy, I'd have some sympathy.
Wrong again. Fighting a war is a team effort. Granted the Bush administration, in hindsight, wasn't as good as it could have been in getting Congress and the people on board, but every administration makes mistakes during a war.
And you still never answered why we can't waterboard a shoplifter.
Because you didn't show me the AUMF authorizing the "War on Shoplifting".
Most Iranians and Iranian-Americans I know are thrilled we stayed out of it.
While I don't know the Iranian-Americans you know, I don't know how you can say most Iranians (and I assume you mean the ones in Iran) are thrilled we stay out of it. I've read about plenty of Iranians who think otherwise. But I wouldn't make a claim that most Iranians wish Obama would have said something.
The politics of the guy in Honduras is immaterial. He was not legally removed from his post.
Zelaya was legally removed. What may have been illegal was his deportation. As a side note, the new President has offered Zelaya a deal by which Zelaya comes back to Honduras and is pardoned, Micheletti resigns as President, and both never run for office again. The ball is in Zelaya's court.
Then why hasn't he done what I want him to do? If we are ideological brethren, why haven't charges been brought,...
He's working on it.
...why isn't the FISA amendment (which he voted for) repealed,...
Ask Pelosi or Reid.
...why is the state secret doctrine still being asserted,...
Because he isn't stupid, and I would never claim he is.
...why did he continue to fight the freedom of the Uighurs,...
Obama isn't stupid, but he has been completely incompetent over how to deal with the Gitmo detainees, as he has been with pretty much everything else.
why haven't the new torture photos been released?
Because he isn't stupid, although he is reckless (he did want them released). Fortunately, he had the sense to listen to those who know there is no point to releasing them, and would put our soldiers in the field in unnecessary danger. That wouldn't be a good thing for those soldiers' Commander in Chief to do.
I would say the only politicians who seem to want the pictures released are those who don't mind putting our soldiers in the field in unnecessary danger, as well as the American people, and doing so only for personal political gain. The only non-politicians who would want the pictures released would be those who support the same scummy politicians who want the same thing.
ever notice people like stevear never join the fight? rush limbaugh couldnt go to vietnam because he had a boil on his ass (true story) and when they removed it they realised it was sean hannity....seriously though. none of these guys ever go fight these wars but they love getting into them. right wing philosophies are dangerously childish.
SteveAR,
When Nerp says "Actually, if you read the IG report and the reports Cheney wanted disclosed, you find it inconclusive if any good information was obtained through torture, or whether the information had already been obtained."
He's right. This is the conclusion of many who have read the IG report, myself included.
You say "Wrong. Read it again."
Tell you what, why don't you read it again, and point out, specifically, where it says that some information was obtained by EIT which was both valuable and could not have been obtained by conventional methods?
When you pretend to justify EIT for "terrorists", but not for shoplifters, you say Because you didn't show me the AUMF authorizing the "War on Shoplifting".
But since shoplifting is already against the law, and the perpetrator is already in the jurisdiction of the police, there is no need to declare a war on it. The whole purpose of the AUMF was to allow the use of the military to kill or apprehend people worldwide in the pursuit of those who participated in 9/11. Without that law, the military could not legally be used. It is patently obvious that, for a suspected shoplifter caught inside the USA, there's no need for a new law to place that person into peril of losing their freedom.
Care to try again? And this time, engage a few brain cells.
As for the pictures, that's all about domestic politics, as anyone can see. Releasing the pictures will result, not just in some overseas tempest (who, in the administration, really cares about that?), but in a domestic call for the heads of more people, higher up the chain than "a few bad apples." These will be CIA contractors, who operated under the supervision of the CIA, which means the CIA will take heat and retaliate against the administration.
Given that this will happen, shouldn't it happen sooner, when the military is already on guard, rather than later, when it can endanger some hoped-for stability?
Oh, I know, you'll ignore this comment, like you ignore all the things which trouble your little authoritarian mind. I find that amusing.
When you parrot what you read on right-wing web sites, the arguments are usually at least coherent, but when you step outside the bounds of what you've copied, you fall flat on your face.
C2H50H:
Tell you what, why don't you read it again, and point out, specifically, where it says that some information was obtained by EIT which was both valuable and could not have been obtained by conventional methods?
What would be the point? I could point the chapter and verse of the exact thing you want. But then you will, as you always do, change the parameters you had originally requested, and then use the occasion to not believe what was written and further hurl insults.
When you pretend to justify EIT for "terrorists", but not for shoplifters, you say Because you didn't show me the AUMF authorizing the "War on Shoplifting".
I was replying to his snark with snark. HELLO!!! Besides, the whole premise was utterly ridiculous.
The whole purpose of the AUMF was to allow the use of the military to kill or apprehend people worldwide in the pursuit of those who participated in 9/11. Without that law, the military could not legally be used.
Sure it could. Since the War Powers Resolution was passed in the early 1970s, the military has been used a couple of times without formal congressional authorization, most recently in 1999. And it was perfectly legal. The AUMF was obtained in order to satisfy the statutory requirements of the War Powers Resolution and to make sure Congress funds the operation, as is required in the Constitution.
Now, how all this relates to shoplifting is beyond my understanding of leftist nuance, which I find petty and ridiculous.
Releasing the pictures will result, not just in some overseas tempest (who, in the administration, really cares about that?), but in a domestic call for the heads of more people, higher up the chain than "a few bad apples."
Sometimes I wonder if you're right, if anyone in the upper reaches of this administration actually cares about the soldiers in the field. But anyway, to believe the release of the pictures is only a domestic concern is dangerous, and would put troops and others in danger unnecessarily. We've already seen how Islamist terrorists take advantage of the perverted lies by moonbat "journalists" trying to undermine the military and the Bush administration, which is what happened with the false Koran flushing story.
Given that this will happen, shouldn't it happen sooner, when the military is already on guard, rather than later, when it can endanger some hoped-for stability?
Why release them at all? Or better yet, why not do a whole TV special showing the 9/11 terrorist attacks? Then we can have pictures of people leaping from 800+ feet to avoid being burned up, showing how they looked after they hit the ground, along with any pictures of the bodies from the collapse of the towers, showing the effect of 1500 feet of concrete falling on nearly 3000 human beings. Follow up that with pictures of Americans and others who have been captured by Al Qaeda terrorists, showing the effects of the brutalization and butchery of the Al Qaeda monsters. Then that could be followed up with pictures of the "poor", "alleged" terrorists that were "tortured" by the U.S. What do you say to that? Or would that not be prudent since it isn't the one-sided propaganda you would rather put out?
SteveAR,
Do you really think anyone older than 15 will fall for the "I could point the chapter and verse of the exact thing you want, but I won't" argument?
Grow up. You claim, and Cheney has claimed, that torture gathered important intelligence, that could not be obtained any other way. The rest of us, including many people with vast expertise in interrogations, say, "that runs counter to the entire history of the use of torture. Prove it." And the answer is the released documents, which apparently you cannot use to prove the claim.
Conclusion: you, and those like you, are delusional.
As for shoplifting and EIT, if there's a legal or other reason why the same methods should not be universally applied, you can't escape by saying "that's ridiculous." Oh, I'm sure that it's beyond your understanding -- which is the whole point.
As to the whole BS about 9/11 justifying whatever barbarities, please. That is so contrary to Christian philosophy, except that practiced in the inquisition, so contrary to the legal philosophy upon which this country was based, so contrary to simple humanity, that it should repel any thinking person.
Really, try and spend a few minutes actually thinking about all this, don't just thoughtlessly react, and perhaps you'll be less pitiful.
appearently 9/11 changed everything but stevear's diapers.
C2H50H:
As to the whole BS about 9/11 justifying whatever barbarities, please. That is so contrary to Christian philosophy, except that practiced in the inquisition, so contrary to the legal philosophy upon which this country was based, so contrary to simple humanity, that it should repel any thinking person.
Barbarities on the part of the U.S. my tuchus. A thinking person understands that the legal philosophy behind the Constitution does not allow that document to exist in order for those who make war upon the U.S. to politicize the law, nor to allow those who make war upon the U.S. to exploit the law. This happened in Rasul, Hamdan, and Boumediene. The Justices who ruled in the majority of every one of those cases have helped an enemy at war with the U.S., and an enemy that has repeatedly attacked the U.S., politicize and exploit the law, just as those here who politicize the law in order to justify legal attacks on Americans trying to defend the nation from further attacks. All that does is give Al Qaeda the impetus to continue with their barbarity, their butchery, and their truly illegal war against the U.S.
There is no point in continuing this discussion until you understand that point.
SteveAR,
I understand perfectly that, when pushed to justify yourself hard enough, you end up basically admitting, as you just did, that you do not believe in the rule of law and checks and balances on the power of the executive.
For my part, I'm not willing to throw the Constitution into the shredder yet.
C2H50H:
I understand perfectly that, when pushed to justify yourself hard enough, you end up basically admitting, as you just did, that you do not believe in the rule of law and checks and balances on the power of the executive.
Still trotting out that garbage? Checks and balances on the power of the executive? Are you kidding me? One of the other gems in the IG report is proof that members of Congress of both parties knew what was going on and didn't have a problem with it (see Items 47 and 48 of the report, which you will probably discount anyway). As an aside, it also proves that Pelosi lied through her teeth a few months ago. I'm sorry the checks and balances didn't measure up to your "standards" (or lack thereof), but that doesn't mean there weren't checks and balances.
For my part, I'm not willing to throw the Constitution into the shredder yet.
I don't know what constitution you're talking about because you clearly are not talking about the U.S. Constitution.
SteveAR,
So, as a result of a single terrorist attack, which resulted largely because the Bush administration wasn't paying attention, you are willing to abandon the principles upon which this country was founded.
That is either the act of a coward or the act of someone who doesn't actually share those principles in the first place.
Either way, it makes you pretty worthless.
C2H50H:
So, as a result of a single terrorist attack, which resulted largely because the Bush administration wasn't paying attention, you are willing to abandon the principles upon which this country was founded.
Apparently you don't remember recent history. It wasn't one attack, but at least three that began in 1998, the year bin Laden officially declared war on the U.S. The Bush administration wasn't in office for those first two.
You also have forgotten other American history. After an attack on a fort that killed nobody led to the Civil War, a past Republican President suspended habeas corpus and threatened to throw the Chief Justice into jail. After unprovoked attacks on American ships that led to America's entry into WWI, a Democratic President threw people protesting our involvement into prison on charges of sedition. After an unprovoked attack on the U.S. Navy at Pearl Harbor led to America's entry into WWII, another Democratic President rounded up nearly 200,000 Americans and put them into "relocation camps", which was justified by a Supreme Court stacked by the very same President. Would you say the wartime actions of these Presidents, with all the checks and balances by Congress and the courts, abandoned the principles upon which the country was founded? Or are you just blowing smoke out your tuchus?
The Bush administration did none of those things.
To add on to my previous comment, Lincoln, Wilson, and FDR are all remembered by history as Presidents who defended the nation and upheld the Constitution, despite what they did.
9:15 AM SteveAR said... It wasn't one attack, but at least three that began in 1998, the year bin Laden officially declared war on the U.S. The Bush administration wasn't in office for those first two...
Which makes his refusal to heed any warning even more egregious and, quite frankly, criminal. Of course, the way he ran like a scared rabbit, shows his cowardice as well.
Sorry, there is no way you can compare Bush to Lincoln, Wilson or FDR no matter their own faults. Bush has no redeeming actions. After all, Clinton punished those responsible for the first Trade Center bombing and handed Bush the information to use against those responsible for the Cole Bombing. Unfortunately, Bush chose not to punish the Cole bombers at the beginning of his administration. Sadly, he chose to violate all standards of human decency later.
Mike
Steve-
I was replying to his snark with snark. HELLO!!! Besides, the whole premise was utterly ridiculous.
...
Now, how all this relates to shoplifting is beyond my understanding of leftist nuance, which I find petty and ridiculous.
For once I agree with you. The idea that you could waterboard a shoplifter is ridiculous. Unfortunately, however, it is the natural result of your theories of executive power (just as the Obama kidnapping you and putting you in Gitmo without judicial review scenario is the natural result of your theories on habeas corpus). My comments were not snark, and don't blame me for taking your beliefs as to the boundaries of the executive's power to their natural conclusion. If waterboarding ain't torture, but simply an interrogative method, you have failed to cite one reason why we couldn't transplant the method into normal law enforcement. If the detainees in Gitmo are all terrorists because the President says so, and no one can question him, least of all a court of law in a habeas proceeding, then you fail to explain why the same rules are not applicable to any person the executive says is a terrorist (and this goes beyond the simple “black hole” jurisdictional question of Gitmo being in Cuba). Your whole theory falls apart because it lacks the rigor to explain the results in these cases. If you think either torturing shoplifters or kidnapping conservative Arkansans without due process into judicial black holes is absurd, you are attacking the results of your own theories. It is simple logic.
Your theory rests upon the wise and benevolent authoritarian executive model, one which is thoroughly inconsistent with this nation's values, and exactly the antithesis of how the founders viewed the role of the Constitution and the branches of government – the prevention of the accumulation of lawmaker, judge and executioner in the hands on one or a small group of people – which is what you propose. We, in the rule of law gang, don't rely upon the goodness or infallibility of the executive, or the ridiculous-soundingness of any particular action, to assuage us that certain actions will never occur. We instead look for rules of law that will check officials – any official - from ever getting to a point were such power is so capriciously accumulated.
You also have forgotten other American history. After an attack on a fort that killed nobody led to the Civil War, a past Republican President suspended habeas corpus and threatened to throw the Chief Justice into jail. After unprovoked attacks on American ships that led to America's entry into WWI, a Democratic President threw people protesting our involvement into prison on charges of sedition. After an unprovoked attack on the U.S. Navy at Pearl Harbor led to America's entry into WWII, another Democratic President rounded up nearly 200,000 Americans and put them into "relocation camps", which was justified by a Supreme Court stacked by the very same President. Would you say the wartime actions of these Presidents, with all the checks and balances by Congress and the courts, abandoned the principles upon which the country was founded? Or are you just blowing smoke out your tuchus?
Yes. They were all illegal, and recognized as lowlights in our history. (Although the WWI arrests have not been declared illegal, no one , after Brandenburg really thinks they would hold Constitutional muster). That's the point. Defending Bush's actions by citing other illegal executive action is not very compelling. I mean, the Japanese Internment, besides the Trail of Tears and Slavery, is probably the worst government program ever in this nation's history. Just because the Courts and Congress were too cowardly then to stop it doesn't mean its wasn't wrong.
To add on to my previous comment, Lincoln, Wilson, and FDR are all remembered by history as Presidents who defended the nation and upheld the Constitution, despite what they did.
No, they are remembered as imperfect humans, who did great things, but certainly made some mistakes along the way. And Lincoln, after placing the embargo on the South, recognized he had acted ultra vires since Congress was not in session, and asked for Congress to retroactively approve his actions. Lincoln knew he was acting outside of the law, and asked Congress to ratify his actions because they were illegal. Unlike the previous regime, who simply tried to hide their bad acts.
SteveAR,
I'll add to your list of presidents who engaged in illegal activity TR, JFK, LBJ, RMN, and perhaps half of the presidents down through history. Which excuses exactly what?
Let me be simpler yet. Just because I jaywalked this morning does not make jaywalking legal.
And I happen to know that FDR is hardly regarded, on the right, as a hero who upheld the Constitution. Quite the opposite, in fact.
That good people do bad things does not make those bad things good, nor excuse them in any way. Is that hard for you to understand?
Let the people who tortured admit it, come forward, and ask to be forgiven or punished as the law sees fit. They won't, of course, because, like you, they're either cowards or they don't believe in the rule of law.
nerpzillicus:
If waterboarding ain't torture, but simply an interrogative method, you have failed to cite one reason why we couldn't transplant the method into normal law enforcement.
Because those terrorists subjected to waterboarding (all three of them) aren't protected by the Geneva Conventions, and therefore, not by the Constitution. You yourself should see the fallacy of saying they are.
You spent time talking about 18 U.S.C. Sec. 2340, and that the word "the" in the paragraph about severe mental pain and suffering means that the condition is to be assumed (I still disagree).
But according to Hamdan, the terrorists are protected under Common Article 3. I've read Stevens' and Kennedy's opinions, and they are ridiculous. First off, Common Article 3 starts out:
In the case of armed conflict not of an international character...
But in the mind of the majority in Hamdan, the word "not" or the words "not of an international character" don't exist. Never mind that the enemy planned their attack from Afghanistan and other foreign countries, which would make the war one that is international in character, or that the three waterboarded individuals were captured outside the U.S. (ergo, "of an international character"). Nope. Despite all this, the words "not of an international character" become meaningless in the opinion of that ruling. Using your own rules of looking at the meaning of words in the law, what was done in Hamdan was the same as what you accuse Yoo of doing, but on steroids. Either words have meaning, or they are subject to the whim of some arbiter who can get away with it without any political fallout, in this case, an authoritarian Justice.
You say my thinking on all this relies on a "wise and benevolent authoritarian executive model", while you belong in the "rule of law gang". Yet, what was Hamdan? Hamdan could have only occurred because of Rasul, which was as authoritarian a ruling as any action you say was committed by the Bush administration. In Rasul, the majority on the Supreme Court relied on Braden, which had to do with ordinary criminal acts and nothing to do with acts of war (especially illegal acts of war by a foreign enemy of the United States), and thus granted terrorists habeas "rights". Stevens also goes on in his opinion to define, without any guidance or reference, what a war is:
Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States;...
A war is a political event, not a legal one, and a war is waged based on politics, not the law. So for Stevens to say what constitutes a war according to the law is an act of judicial authoritarianism. Neither he nor any other member of the Judicial Branch has any say on when troops get sent into combat. And because of that, it isn't for Stevens to say that the Suspension Clause has any role in the holding of foreign nationals captured due to a wartime action. He created a right that had never existed before, that foreign nationals captured as a result of a wartime action had habeas rights.
To be continued...
From the authoritarian ruling in Rasul came Hamdan and Boumediene. With Hamdan, the majority called Bush's commissions a violation of Art. 36 of the UCMJ because supposedly the Bush administration didn't come up with reasons why court-martial rules didn't apply; but the only way the Justices could come up with that is if they came up with new definitions of the words of Common Article 3 (which I mentioned earlier) to grant terrorists unheard of Geneva Convention protections, and the erroneous activism of Rasul granting terrorists habeas rights just like ordinary criminals. Because of the travesties of Rasul and Hamdan, the majority in Boumediene made the continued false assumption that Congress had invoked the Suspension Clause when, if looked at logically, Congress did no such thing. The Court unconstitutionally took the constitutional authority away from Congress and the President. Tell me that isn't authoritarian.
Or are you going to tell me those decisions aren't authoritarian because you agree with those rulings? Because unless you come up with some kind of arguments that make legal sense, your reason for agreeing with them are entirely political and not based on the law.
Besides, actions that you call authoritarian on the part of the administration ignores the checks and balances that have been in place. I've shown from the IG report that Congress was fully informed of the EITs since 2002 and didn't have a problem with them. Just because you don't agree with them doesn't make the Bush administration authoritarian, unless you plan on changing the definition of that as well. Just because members of Congress who had once supported EITs but don't now isn't a sign of legal realization, but hypocrisy for political gain.
Steve-
If waterboarding ain't torture, but simply an interrogative method, you have failed to cite one reason why we couldn't transplant the method into normal law enforcement.
Because those terrorists subjected to waterboarding (all three of them) aren't protected by the Geneva Conventions, and therefore, not by the Constitution. You yourself should see the fallacy of saying they are.
OK, let's unpack this a little. First, you have it backwards – whether or not the detainees are covered by the Geneva Conventions, the Constitution still applies. It is never “turned off”. Your statement is fallacious, as it does not make sense. The Constitution will operate on government action no matter what treaties are in effect. The only thing Geneva does is supplement domestic law, as part of the Supreme law of the land.
So, the first question is whether the Constitution prohibits the conduct. Amendment 8 states:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Now, don't start preaching to me about reading the text if you fail to note that there is no “only citizens are protected” caveat there. As we have discussed before(I believe), the Bill of Rights is a series of negative liberties, i.e. the Constitution does not give you the right to free speech, it prohibits the government from interfering with that right, “Congress shall make no law...” The Eighth Amendment prohibits certain government action, and does not limit the universe of people whom the government is prohibited from treating. Therefore, in a world where Geneva did not apply (or even did not exist), you still have an Eighth Amendment problem here.
Second point-
You spent time talking about 18 U.S.C. Sec. 2340, and that the word "the" in the paragraph about severe mental pain and suffering means that the condition is to be assumed (I still disagree).
The statute is more important. It also does not limit who can be a victim of torture. It is illegal no matter what. So unless waterboarding is not torture, what was done was illegal. Period. Whether the Geneva Conventions apply or not, the statute has been violated if waterboarding is torture. There's no getting around that by reversal of Hamdan.
Third Point-
I am more than happy to discuss the merits of Hamdam, Rasul and Boumediene. But first, the detainees ARE covered under General Article 3. You can disagree with the reasoning, but that is the current state of the law. If your theory is that Hamdan is wrong, and that is what allows waterboarding, I sorta follow, but that doesn't get you past the torture statute, which does not rely upon the Geneva Conventions for its authority. The statute is not limited to preventing torture of someone covered by the Conventions, so I don't see how your complaining about Hamdan is going to change the result that the torturers have committed crimes.
Now, with that all said, the Geneva Conventions don't apply to the shoplifter, either. So how they are going to protect him, I still don't know. At this point, under your theory, we can torture terrorism suspects, and we can torture shoplifters, but we cannot torture members of the Iraqi Army under Saddam (or maybe the Taleban, if we consider them the de facto government at the time of the invasion, but anyway). So what distiguishes KSM from the shoplifter?
But according to Hamdan, the terrorists are protected under Common Article 3. I've read Stevens' and Kennedy's opinions, and they are ridiculous. First off, Common Article 3 starts out:
In the case of armed conflict not of an international character..
...Either words have meaning, or they are subject to the whim of some arbiter who can get away with it without any political fallout, in this case, an authoritarian Justice.
You say my thinking on all this relies on a "wise and benevolent authoritarian executive model", while you belong in the "rule of law gang". Yet, what was Hamdan?
Well, I sympathize with you in the sense that it seems a little strange. However, this is actually (and admitted by Thomas in his dissent) a plausible reading. This is because Article II applies to “International Conflicts”, defined as a declared or undeclared conflict between two signitories, or a signitory and a non-signitory. Thus, “not of an international character” is the universe of things not included in “international conflict.” So, one and only one of Article II or Article III should apply to each conflict, creating a closed universe of possible situations. What the Bush administration did, as they always do, is to try and construe a third scenario, which, happily for them, has no law applicable to it (seeing a pattern here, yet?) They argued it was an international conflict to which Article II did not apply. Thomas cannot eve argue the position of the Administration, he just urges deference to the absurdity. Alito and Scalia, to their credit, avoid this silly argument. Scalia ignores this argument completely, and Alito assumes GC# applies, but has been met by the commissions. GC3 clearly applies, and only the Yoo crowd sees it otherwise. So when you see Hamdan as an authoritarian judge case, realize you are implicating 8.5 of the justices on that count, with only Thomas' “duty to defer to Yoo's interpretation” as the basis for the non-apllicability of GC3 to Hamdan.
Hamdan could have only occurred because of Rasul, which was as authoritarian a ruling as any action you say was committed by the Bush administration. In Rasul, the majority on the Supreme Court relied on Braden, which had to do with ordinary criminal acts and nothing to do with acts of war (especially illegal acts of war by a foreign enemy of the United States), and thus granted terrorists habeas "rights". Stevens also goes on in his opinion to define, without any guidance or reference, what a war is:...
...And because of that, it isn't for Stevens to say that the Suspension Clause has any role in the holding of foreign nationals captured due to a wartime action. He created a right that had never existed before, that foreign nationals captured as a result of a wartime action had habeas rights.
But, again, Rasul simply stands for a very fundamental and reasonable principle – the branches' powers should be coterminous. If the executive can create places where the other two branches cannot reach, he has achieved an accretion of power which is abhorrent to our Constitution. Rasul is not an authoritarian ruling – it restores the balance between the branches, and prohibits the executive from creating bastions of lawlessness. Rasul didn't even (at its base) involve Habeas rights (that's Boumediene), it involved the territorial jurisdictional limits of the courts. You really need to reread these cases before you discuss them - though, it let's me pull out one of my favorite sayings of all time That's not right. It's not even wrong.”
SteveAR,
1. Being at war is both a political and a legal state.
2. If, as you say, the SCOTUS has no say in whether a state of war exists, then it is patently obvious that no state of war can exist unless the Congress explicitly passes an unequivocal declaration of war, which didn't happen, so we're not, legally, at war, according to your reasoning. That means that you are contradicting your own earlier insistence that we are at war.
Please continue holding forth as if you, and not the SCOTUS, are the arbiter of what the law is, or even that you have a clue as to how the law is interpreted. It's so convincing.
nerpzillicus,
You're honestly going to tell me that those who make war upon us are still protected by the Constitution and the Bill of Rights? Prior to the majority's ridiculous Hamdan ruling, in what alternate universe does that happen in? Are other countries that terrorists live in states as defined in Article IV? Are those countries that aren't states now a part of the United States? Are terrorists who live in those foreign countries that aren't states allowed to vote in our elections, despite the fact that legal aliens aren't afforded that right? Does Congress have the power to tax terrorists who live in countries that are not states? While you are correct that the Constitution provides mostly negative rights on the government, it does give Congress the authority to make the rules on military captures. And they did it in Art. 36 of the UCMJ. That undermines your contention that Bush set the original tribunals up in an authoritarian manner.
The error in Hamdan is that the majority believes a treaty confers complete individual civil rights upon prisoners captured in an international conflict. It doesn't and never did; nowhere in the history of habeas corpus has a POW, let alone a terrorist or a spy, had that right (which means they have no 1st Amendment right to redress any government, including the U.S. government, for their detention). That doesn't mean the Constitution is turned off. If anything, it's the Supreme Court who ruled in the majority in Rasul, Hamdan, and Boumediene who are turning off the Constitution by usurping the political role of the other two branches in regards to war.
While I understand that Hamdan is law now, it is still my contention that the Constitution wasn't written so that it could be subverted via a treaty. Nor was it written to be a suicide pact whereby the United States is destroyed through the politicization of the law, which is exactly what the five Justices have been consistently doing.
And as far as waterboarding being torture, the fact that it is done to our own people as part of a training regimen shows it isn't torture. After all, if it were torture, and we still did it as part of training, then why not also include in the training regimen the burning of trainees with cigarettes, or setting them on fire, or cutting them up with razors? Because that's what our troops can expect if they get captured by the terrorists. Personally, I am against using torture as part of the training of U.S. soldiers. But they still get waterboarded. Therefore, it isn't torture.
C2H50H:
2. If, as you say, the SCOTUS has no say in whether a state of war exists, then it is patently obvious that no state of war can exist unless the Congress explicitly passes an unequivocal declaration of war, which didn't happen, so we're not, legally, at war, according to your reasoning.
Oh that's rich. That is just too funny. According to my reasoning? I don't think so. In case you hadn't heard or read, the U.S. can be in a state of war without an explicit declaration. Read the War Powers Resolution some time.
Also remember that it was the U.S. that was attacked on 9/11. Or had you forgotten that as well?
SteveAR,
The WPA does not create a war, nor does an attack (if that's what you want to call a terrorist action.) It simply gives the President 60 days to use the military (with another 30 days for withdrawal) during which Congress must either authorize the military use or declare war.
You seem to be hopelessly confused about the fact that only Congress can declare war.
If you are complaining, as you do above, that the SCOTUS overstepped its bounds in finding the AUMF equivalent to a declaration of war, then you cannot escape the logical conclusion that, absent that finding, there is no state of war.
So you contradict yourself. As much as your incoherent, not-even-coherent-enough-to-be-wrong BS can be understood.
You just keep getting funnier, and your ignorance becomes ever more apparent.
Steve
You're honestly going to tell me that those who make war upon us are still protected by the Constitution and the Bill of Rights? Prior to the majority's ridiculous Hamdan ruling, in what alternate universe does that happen in?
Yes. In the sense that the executive still must follow the law, and the Congress cannot make any law contrary to the Constitution – say one authorizing cruel and unusual punishment. There is no limitation in the Eighth Amendment that says “Only a citizen cannot be cruelly or unusually punished.” For a textualist, it seems strange you keep missing this.
Are other countries that terrorists live in states as defined in Article IV?
Have we admitted those countries as New States to the Union, as provided in Article IV?
Are those countries that aren't states now a part of the United States?
See above.
Are terrorists who live in those foreign countries that aren't states allowed to vote in our elections, despite the fact that legal aliens aren't afforded that right?
Considering the right to vote is typically restricted to citizens, I would think not. Note how the voting rights Amendments read:
15. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude
19. The right of the citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex
26. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
Contrast with the basic rights of due process:
5. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation
6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. (No indirect object or subject)
Further contrast that with the mixed Amendment:
14. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Now, it is a common canon of judicial interpretation that when two distinct words with different definitions are used in a document, you don't read them interchangeably, instead, you must maintain the separate definition each word has in context. Therefore, while a citizen can vote, no person can be deprived of life, liberty, or property without due process, and most certainly cannot be subject to cruel and unusual punishment.
Does Congress have the power to tax terrorists who live in countries that are not states?
Well, I don't know if I have the answer to that. I guess the basic question would be whether the US has jurisdiction over those persons to impose taxes upon them. I would think not.
While you are correct that the Constitution provides mostly negative rights on the government, it does give Congress the authority to make the rules on military captures. And they did it in Art. 36 of the UCMJ. That undermines your contention that Bush set the original tribunals up in an authoritarian manner.
Slow down Cowboy! This is an actual legal argument. Agreed - Congress is granted the power to regulate captures. Yeah, Agreement! Art 36. of the UCMJ, though? Let's see-
(a)Pretrial, trial, and post trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.
inconsistent with this chapter.
(b) All rules and regulations made under this article shall be uniform insofar as practicable and shall bereported to Congress.”
See, it's part (b) that causes the problem. Since (b) requires the military commissions' regulations to be uniform to regulations for Courts Martial, he couldn't set up commissions that didn't provide the same procedures as Courts Martial. So, the Congress did give the President authority to set up military commissions, however, he did not set them up in a way compliant with the statute. Thus, they were not legal. And by not following the statute, the President was making up law as he went along, and usurping the plenary authority of Congress. You have (yet again) misread Hamdan – it wasn't that the President couldn't set up commissions, it was that he could not do it contrary to statute.
The error in Hamdan is that the majority believes a treaty confers complete individual civil rights upon prisoners captured in an international conflict.
Hamdan did not involve civil rights, it involved the legitimacy of the military commissions used to try prisoners captured in an international conflict.
It doesn't and never did; nowhere in the history of habeas corpus has a POW, let alone a terrorist or a spy, had that right (which means they have no 1st Amendment right to redress any government, including the U.S. government, for their detention).
As always, your bias does not permit you to understand the nature of the habeas challenges - the petitioners were arguing they were not prisoners of war, and that the President did not have the legal authority to detain them. So, yes, a POW is not entitled to a writ of habeas corpus (because he is legally detained pursuant to the laws of war). But an alleged POW is entitled to challenge the fact that he is a POW with a petition for a writ, recognized by Jackson in Eisentrager “Courts will entertain his [enemy alien] plea for freedom from Executive custody only to ascertain the existence of a state of war and whether he is an alien enemy and so subject to the Alien Enemy Act. Once these jurisdictional elements have been determined, courts will not inquire into any other issue as to his internment. Ludecke v Watkins, 335 U.S. 160” Eisentrager, 339 U.S. 763, 776. So, there does exist jurisdiction of the Court to determine whether the person held by the executive is an enemy alien. All of the ancient cases, like the Three Spanish Sailors, involved the court determining the petitioners were POWs, or enemy aliens. But that the Courts determined this as a judicial fact is what counts – the right to petition existed, but the facts did not support issuance of the writ. So clearly, you can't deny the writ until you have determined he is a POW. And the President doesn't just get to say “because I said so.”
That doesn't mean the Constitution is turned off. If anything, it's the Supreme Court who ruled in the majority in Rasul, Hamdan, and Boumediene who are turning off the Constitution by usurping the political role of the other two branches in regards to war.
Congress does not have authority to suspend the writ except in times of insurrection or invasion. Since we aren't in those times, and the civilian courts are open, any person can challenge the legality of their detention by the executive. The executive cannot make up rules, or ignore the laws, or create legal black holes. This is all (IMHO) fairly common sense.
While I understand that Hamdan is law now, it is still my contention that the Constitution wasn't written so that it could be subverted via a treaty. Nor was it written to be a suicide pact whereby the United States is destroyed through the politicization of the law, which is exactly what the five Justices have been consistently doing.
Quips and phrases are nice, but they have to make sense. For instance
“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.
So, a treaty, like say Geneva, becomes the Supreme law of the Land. Quite the opposite of subverting it, that's how the Constitution works.
As far as the “suicide pact” and politicization of the law, those slurs are only because you personally disagree with the cases, but can't find any reasoned argument to back it up. I have not seen (aside from the very brief UCMJ Art 36 argument, which you misunderstood also) one actual legal argument from you as to why these cases are decided incorrectly. I have given you legal reasoning as to why these cases were all decided correctly. You think Rasul is about habeas. I rest.
And as far as waterboarding being torture, the fact that it is done to our own people as part of a training regimen shows it isn't torture. After all, if it were torture, and we still did it as part of training, then why not also include in the training regimen the burning of trainees with cigarettes, or setting them on fire, or cutting them up with razors? Because that's what our troops can expect if they get captured by the terrorists. Personally, I am against using torture as part of the training of U.S. soldiers. But they still get waterboarded. Therefore, it isn't torture.
Okay, then you have no objection to this non-tortuous interrogation technique (which the Spanish Inquisition did before doing jello shots with their guests) being used on shoplifters, right? And of course, we train our guys and gals with this technique because it is a walk in the park, that way they'll be completely unprepared for anything a captor may perform on them? And cutting with razors (in extremely painful places) is what happens to those we extraorinarily rend -ered? ated? itioned?.
nerpzillicus:
You're honestly going to tell me that those who make war upon us are still protected by the Constitution and the Bill of Rights? Prior to the majority's ridiculous Hamdan ruling, in what alternate universe does that happen in?
Yes.
The preamble:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Nothing in the preamble states that the Constitution was meant for anyone who makes war upon the United States. And there is nothing in the Constitution, the law or the Geneva Conventions that keeps this nation from defending itself from an enemy that has publicly declared its intention to carry out an illegal war.
I'm not going to beat a dead horse further regarding Hamdan, but suffice it to say that the idea that the President was authorized by law to create the tribunal system was fully justified under the Constitution, U.S. law, and the Geneva Conventions, as are EITs and renditions. The arguments by Justices Stevens and Kennedy suggesting that the President didn't satisfy subsection (b) of Article 36 with those tribunals are utterly ridiculous since they ignore the basic premise of the type of enemy we are fighting, one that not only has the ability to cause the kinds of death and destruction upon the United States as a military power would, but an enemy that by their own admission has no regard for the laws of war.
Congress does not have authority to suspend the writ except in times of insurrection or invasion. Since we aren't in those times, and the civilian courts are open, any person can challenge the legality of their detention by the executive.
By every military standard, we were invaded on 9/11. Again, that has been ignored by the usual majority of Justices on the Court.
And cutting with razors (in extremely painful places) is what happens to those we extraorinarily rend -ered? ated? itioned?.
I have a question about that. According to Binyam Mohammed, he was tortured after his detention. But we know that prior to 9/11 he went to Afghanistan, via Pakistan, on a phony passport, and stayed in Afghanistan, with Al Qaeda and the Taliban, until early 2002. As far as I can tell, there is only Mohammed's word that he was tortured after being detained. However, it's possible he was cut up as part of his training by Al Qaeda and/or the Taliban prior to his leaving Afghanistan. Is there any evidence from the time of his initial capture of any detailed medical examination that he may have gotten that shows that the scars he now has weren't there? Is there any medical evidence that shows his scars were definitively caused by wounds received while he was in custody after his capture? I mean unless there is definitive proof that the scars he has were caused by wounds received while detained, it would be reasonable to assume that those wounds may have occurred prior to his capture and that they were acquired while he was with the terrorists. I would like to know if anyone has such information.
Steve-
Nothing in the preamble states that the Constitution was meant for anyone who makes war upon the United States. And there is nothing in the Constitution, the law or the Geneva Conventions that keeps this nation from defending itself from an enemy that has publicly declared its intention to carry out an illegal war.
Wow. That's some strict constructionist stuff there. So because the People created the Constitution, we should ignore the plain text of it? The Bill of Rights, as you agreed earlier, does not create rights for any particular person, but explicitly prohibits certain government action. For instance the Fourth Amendment talks about the right of “the people” to be secure in their homes. So, if this was an alien claiming an illegal search, the question would come up, “is he a member of 'the people' the Amendment recognizes can not be search without a warrant?” However, as you will note, the Eighth Amendment does not contain any limiting language, only a direct, clear, and unambiguous command that the government shall not take part in cruel or unusual punishment. But, I guess the right for the government to do anything it wants, and ignore the plain text of the Constitution is somewhere in the “penumbra” of “commander in chief” powers, right?
I'm not going to beat a dead horse further regarding Hamdan, but suffice it to say that the idea that the President was authorized by law to create the tribunal system was fully justified under the Constitution, U.S. law, and the Geneva Conventions, as are EITs and renditions. The arguments by Justices Stevens and Kennedy suggesting that the President didn't satisfy subsection (b) of Article 36 with those tribunals are utterly ridiculous since they ignore the basic premise of the type of enemy we are fighting, one that not only has the ability to cause the kinds of death and destruction upon the United States as a military power would, but an enemy that by their own admission has no regard for the laws of war.
Steve, you aren't beating a dead horse, since you seemingly have no idea what any of these cases are about. You may be beating a telephone pole or manhole cover, but it ain't no horse. What on earth does this even mean? The court should look at the black letter law, see the President isn't following it, and then ignore the violation because of “the basic premise of the type of enemy we are fighting?” Isn't that a textbook definition of an activist judge? Bush had the power to create commissions, no one debates that (whether he should have from a policy standpoint is another question altogether). But he had to do it according to the rules for captures Congress set up, and which you recognized above as a power of Congress. He didn't. There isn't any dispute to that either. Now you are saying that a good, non-authoritarian, strict constructionist judge should throw out the procedures and policies written by the Congress, and ratify the President's illegal acts, because of some vague nature of the enemy? Sorry, that's the “utterly ridiculous” reasoning. You really don't have even the slightest modicum of legal reasoning to base your opinions on, do you?
Congress does not have authority to suspend the writ except in times of insurrection or invasion. Since we aren't in those times, and the civilian courts are open, any person can challenge the legality of their detention by the executive.
By every military standard, we were invaded on 9/11. Again, that has been ignored by the usual majority of Justices on the Court.
One would say that is the case in the Civil War too, yet the writ was still available in the non-battlefields of the North. Since the Supreme Court, over about one hundred and fifty years ago said the writ is available unless the civil courts are closed, you happen to be wrong. Again.
Let's look at Ex Parte Milligan, 71 U.S. 2, 125-128 (apologies in advance for the long quote)
It is essential to the safety of every government that, in a great crisis, like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previously good character, wicked enough to counsel their fellow- citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies; and their influence may lead to dangerous combinations. In the emergency of the times, an immediate public investigation according to law may not be possible; and yet, the period to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit in the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested, in answer to a writ of habeas corpus. The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable. But, it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so.
It will be borne in mind that this is not a question of the power to proclaim martial law, when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on states in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service, during the late Rebellion, required that the loyal states should be placed within the limits of certain military districts and commanders appointed in them; and, it is urged, that this, in a military sense, constituted them the theater of military operations; and, as in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and with it all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.
It is difficult to see how the safety for the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal; and as there could be no wish to convict, except on sufficient legal evidence, surely an ordained and establish court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.
It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed, and justice was always administered. And so in the case of a foreign invasion, martial rule may become a necessity in one state, when, in another, it would be 'mere lawless violence.' We are not without precedents in English and American history illustrating our views of this question; but it is hardly necessary to make particular reference to them.
So your theory on the Suspension clause was completely and utterly refuted, and properly placed in the dustbin of history, a century and a half ago. The Justices in Hamdan are, yet again, correct, and you are, yet again, incorrect.
And cutting with razors (in extremely painful places) is what happens to those we extraorinarily rend -ered? ated? itioned?.
I have a question about that... I would like to know if anyone has such information.
I would like to know, too. We can agree on this, also. Unfortunately our government, under both the Bush and Obama administrations, is trying to keep the evidence secret. I'm sure it does this because it completely vindicates it from any wrongdoing (in Bush's case), and because it in no way would create a firestorm of protest for prosecutions (in Obama's case). So, if you would like to contact your representatives, and I'll contact mine, we can try to exert some pressure on them to release the documents on Mr. Mohammed's detention. Although, allow me to warn you in advance, I'll bet you will not receive the results you are hoping for.
nerpzillicus:
I'm not expecting or hoping for anything. All I'm trying to do is piece this together. Remember, this was a person who was known to have traveled to Pakistan through a fraudulent passport he created himself, voluntarily went to Afghanistan prior to 9/11 to meet up with Al Qaeda, stayed through the U.S. invasion, and then went back to Pakistan and tried to leave that country on the same fraudulent passport. Despite all this, it is assumed by many that he is telling the truth about his being tortured after being captured. And yet, these same people who believe Mohammed don't express an interest in finding any medical information on him at the time he was captured. They just assume that someone who admitting to committing fraud is telling the truth.
SteveAR said... Nothing in the preamble states that the Constitution was meant for anyone who makes war upon the United States...
Nothing says it doesn't. More and more, you sound like either you are, or you are channeling John Yoo who claims the American president has all the powers of the North Korean Dear Leader …. at least when the American president is Repbulican.
SteveAR said... By every military standard, we were invaded on 9/11.....
Er, none of the 'invaders' represented a foreign government, and all are dead. So the majority of the Supreme Court is correct; the wacko authoritarians on the right sound like they never read the Constitution nor any American history. Nothing gives the U.S. Government the right to violate its clear treaties and legal obligations merely because some fools claims otherwise.
SteveAR said... this was a person who was known to have traveled to Pakistan through a fraudulent passport....
So, if true, that is a violation of law, punishable according to statute, and not an alibi for torture. No Red Herring is an alibi for war crimes or crimes against humanity.
Mike
SteveAR,
You say "Nothing in the preamble states that the Constitution was meant for anyone who makes war upon the United States. And there is nothing in the Constitution, the law or the Geneva Conventions that keeps this nation from defending itself from an enemy that has publicly declared its intention to carry out an illegal war."
The Constitution is a document intended to limit the power of government. That is central to understanding the document. What you say above has absolutely no basis in the Constitution, and would make the founders shudder.
You say: "By every military standard, we were invaded on 9/11."
Utterly false. A terrorist act, which was never meant to occupy or control any part of the USA, is not an "invasion."
The deliberate conflations of meanings that you indulge in are so transparently an attempt to steal the argument by falsely framing the argument as to be laughable.
By the way, take a look at Tom Tomorrow today. In the first panel, that's our own SteveAR, in drag, in the first panel, on the left.
It is the belief -- proven by its use in Hollywood movies -- that good guys don't get hit by bullets that makes Jonah so cavalier about sending people to war.
Can we just get a little technical detail correct here? I'm a big fan of Tom Clancy's novels (up until the long-term plotline got mired in the absurdities that put Jack Ryan in the White House...) I'm having a very hard time recalling Ryan ever engaging in torture. Frankly I believe that Clancy's fanboy militarism is strongly leavened with a moral clarity that abhors torture. Jack Ryan keeps the gloves on, where Dick Cheney wants them off, despite sharing a front row view of the Great Danger. Moral duty in means as well as ends is a rather ginormous theme in "Clear and Present Danger".
Of course, Jonah G. is a knucklehead who can't tell Harrison Ford from Keifer Sutherland. But TAL's readers should get this straight.
Please just CONSIDER the fact that you are being PLAYED - one against the other - right/left, democrat/republican, bush/obama, conservative/liberal…
If you start digging into 9/11, you will find that “TRUTH” is not a bad word, or a conspiracy theory. Why do talk show hosts who espouse fairness refuse to simply CONSIDER the many discrepencies and omissions of the “official” 9/11 commission report. Why will no one interview the thousands of architects, engineers, scientists, pilots, and intelligence professionals that disagree with the official account?
Meanwhile, many individuals are making pretty good money on the war on terror…
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