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History Lessons on Torture: a reader cites precedents in the English and Inquisition experiences in Andrew Sullivan's"No Blood, No Foul," 8 November; Tim Burke calls out Alan Dershowitz's"ticking time-bomb scenerio" in"Future Special Constitutional Provisions, Dershowitz-Style," Easily Distracted, 8 November; and Evan Wallach,"Waterboarding Used to be a Crime," Washington Post, 4 November. Shame on those who offer"it depends on the what the meaning of ‘is' is" arguments when our national decency is at stake.
In case you'd forgotten to read the subject line lately, we were talking about War Crimes trials.
Now you seem to have narrowed the question again, this time to the judicial review of the evidentiary value of torture conducted overseas by US officials in US courts. (For the record, Alan Dershowitz has never carried much weight with me, as a legal or cultural authority, less and less as time goes by: he's an excellent advocate, by most accounts, but he demonstrates all the ethics and forethought which make lawyer jokes so much fun.)
The 24 Variant of the Nuremberg Defense, huh? Eventually, if we follow your logic, we'll end up with all the moral authority of the USSR, so you better hope the Bread and Circuses don't run out any time soon.
William Hopwood -
11/13/2007
Says Mr. Dresner:
"Anything the CIA does outside our borders is subject to the laws in effect where they happen to be at any given time."
What you say doesn't change the legal interpretations which indicate that interrogations conducted outside the U.S. are not controlled by laws governing interrogation methods done while in the U.S. If you have an argument with that it's with the lawyers, not with me
"You're shifting the goalposts, Mr. Hopwood. We were talking about the military, then you decide we're talking about the CIA."
No, you shifted the goal posts, not I. We had been discussing the waterboarding subject in general when you brought up the subject of restrictions applicable to the military. That brought up the question as to which U.S. agency was alleged to have been involved. According to the information I've seen, that eliminated the military from the activity, but not the CIA.
"...we're talking about what Americans can do under the color of authority, or without it...
Right. That includes the agencies (military and CIA) involved in activities which might expose them to such authority, or absence thereof. The goal posts have'nt been changed.
"The only "myth" in this argument is your belief that the US can dictate law and justice to to the world on its own convenience without being a tyrant and hypocrite."
Nonsense. What I do believe is that the jihad against is is real, and that moral platitudes and self-righteous piety are poor substitutes for action necessary to save American lives.
As for the legality of "waterboarding", Alan Dershowitz recently joined in with this opinion which, I believe, puts the issue well:
"...as a matter of constitutional law..the issue of "waterboarding" cannot be decided in the abstract. Under prevailing precedents...the
court must examine the nature of the governmental interest at stake, and the degree to which government actions at issue shock the conscience and then decide on a case-by-case basis. In several cases involving actions at least as severe as waterboarding, courts have found no violations of due process."
Jonathan Dresner -
11/12/2007
Thanks.
Jonathan Dresner -
11/12/2007
Oh, the Constitution doesn't mention the CIA, so they can do anything they want outside our borders?
Anything the CIA does outside our borders is subject to the laws in effect where they happen to be at any given time. They aren't even a law enforcement agency, with the authority that entails.
You're shifting the goalposts, Mr. Hopwood. We were talking about the military, then you decide we're talking about the CIA. No, we're talking about what Americans can do under the color of authority, or without it.
The only "myth" in this argument is your belief that the US can dictate law and justice to to the world on its own convenience without being a tyrant and hypocrite.
William Hopwood -
11/12/2007
Jonathan Dresner says:
"The Geneva Conventions are not the only rules pertaining to the use of force: the fallacy that "unlawful combatants" have no rights under law..."
By "the use of force" I presume you mean so-called "torture." Perhaps the domestic law attempting to restrict the means of interrogation to which you refer is the legislation authorizing the Military Commissions. However, the restrictions as to types of interrogation to be prohibited are generalized and IIRC reference to "waterboarding" per se does not even appear therein.
"..that the US military has no obligations or limitations on its conduct with regard to non-uniformed persons) is just silly.."
Well, granted that the military has restrictions with regard to interrogations, so what? That's irrelevant vis-a-vis "waterboarding" inasmuch as such interrogations, insofar as to the degree and extent to which they may have existed, were apparently conducted not by the military but by the CIA, not by the military. And since with regard to "unawful enemy combatants" the CIA is not subject to the laws of war under the Geneva Conventions nor to military law, nor to any other international law or U.S. treaties when it comes to interrogations of non-U.S. persons outside of the U.S., what, then was the unlawful action taken by the U.S. and exactly under what law, foreign or domestic, was it unlawful.
Some time ago The Washington Post carried a piece on the subject which noted that "...the Constitution does not robustly curtail the conduct of the CIA overseas, and relevant domestic laws contain numerous jurisdictional loopholes. Moreover, administration officials have previously told Congress that they do not consider CIA personnel operating outside the United States to be bound by legal prohibitions against “cruel, inhumane, or degrading treatment” under treaties to which the United States is party.?
Accordingly, the argument that the U.S. has ignored the "rule of law" insofar as treatment of unlawful enemy combatants appears to be based on a myth.
Andrew D. Todd -
11/12/2007
There's an interesting thread on Intel Dump, in which the old soldiers discuss "Torture and self-interest"
Here are some brief extracts from a more-or-less book length thread. One could not imagine any of these men ever being mistaken for William Hopwood, not in a million years. They are officers and gentlemen. Their language is of course rather stronger than is usually heard on HNN, but it is worth hearing on this occasion:
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"Dave"
"It's always beens simple for me. Torture - whether water boarding or thumbscrews - fails on two counts: (1)It's not effective. People tend to tell what you want to here, not what they know. And (2)it's wrong... All the hypotheticals in the world don't change the fact that intel from torture is bad intel. And it costs you whatever moral high-ground you may have held." (11.6.2007 11:37am)
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"FDChief" [long-service reserve NCO]:
"If there was ever a question that the bar for patriotism has been lowered so far that a limbless worm can crawl over it this editorial has answered it. I would hope that there was a time when this sort of treacherous bile would have been spoken only in secrecy for fear of the anger of honest citizens." (11.6.2007 2:37pm)
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"Publius" [Vietnam veteran, career army, I believe his MOS is Intelligence]
"Common thread here, folks. And it's this, expediency, and doing what the other kids do, just isn't good enough for the United States of America... We have forfeited our self-styled right to be viewed as the leader and exemplar for freedom-loving peoples... I am disgusted by the actions of certain segments of my government and by the attitudes expressed by some of my fellow citizens. I guess they were the ones who, as kids, were allowed to do anything just so long as the other kids' parents (all kids have tried this one, right?) allowed their kids to do it... And as for the general quoted [*], all I can say is, "Fuck him." He's an outlier and a renegade in the military. No general worth his salt in the history of this republic would have ever said such a thing." (11.6.2007 7:22pm)
*[LTG Russell Honore, advocated torture in a speech to a _middle school_]
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"PA NCO"
"How can this shit really be happening? We are steadily becoming what our enemy's propaganda has said we were for years... Jesus wept." (11.7.2007 9:49am)
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MSR Roadkill [I can't recall, but I believe he's Army Special Forces, in the process of being invalided out after having gotten fragged by an IED in Irag]:
"There are pragmatic, legal and foundational questions about us as a democracy that would make a patriot abhor torture, special renditions and other noxious policies." (11.7.2007 12:04pm) "If Israel, which routinely faces 'ticking timebomb' scenarios doesn't wish to sully itself with torture, then neither in the hypothetical dreamland of perfidious policies should we." (11.7.2007 5:30pm)
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"Aviator47" [retired colonel, Army Aviation, old Chinook pilot, 36 years total service, starting during Vietnam]:
"I can't even bring myself to dignify Herr Stephen's [**] word with anything other than, 'Tell us when you are finished peeing in your panties, Bret. We'll try to get you dry ones.'... If this is where our country is going, I want no part of it." (11.7.2007 11:28am)
[** Brett Stephens, author of an editorial in the Wall Street Journal praising torture]
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William Hopwood -
11/12/2007
"....That's pretty traitorous reasoning for a winger like yourself"
Tut, tut. I'm reminded of a quote once attributed to George Orwell:
"There are some ideas so nutty that only an intellectual can believe them."
"And, btw, distinguished or not, Thomas Sowell is not a professor."
Touche! How careless of me. I should have said "former professor," I should have realized what a big deal such a distinction might be to present and former academics whose principal sensitivities might be closely attuned to such matters. So, to set the record straight:
"THOMAS SOWELL:
Senior Fellow, Hoover Institution, Stanford University, September 1980 - present
Professor of Economics, U.C.L.A., July 1974 - June 1980."
Jonathan Dresner -
11/12/2007
The Geneva Conventions are not the only rules pertaining to the use of force: the fallacy that "unlawful combatants" have no rights under law (or conversely, that the US military has no obligations or limitations on its conduct with regard to non-uniformed persons) is just silly (technically, it's the "fallacy of the excluded middle," I believe), as is the repeated Queensbury/street-fight analogies. Analogies don't prove anything, it turns out, though they do give us a pretty good idea of how you're thinking.
Ralph E. Luker -
11/11/2007
By your reasoning, of course, there are no applications of international law that would penalize al Quaeda for its treatment of American, British, or other personnel who happen not to be in uniform. That's pretty traitorous reasoning for a winger like yourself. And, btw, distinguished or not, Thomas Sowell is not a professor.
William Hopwood -
11/11/2007
Mr. Luker:
Sorry if my reference to the Queensbury rules disturbed you. I seem to have been in good company, however. As pointed out in my response to Mr. Bray above, the distinguished professor, Thomas Sowell, thought the analogy intelligent enough to use. So, to those for whom the shoe fits, I rest my case.
As for your comment with regard to our nation's obligations under the Geneva Conventions, I don't disagree with what you say, but what you say happens to be irrelevant to this discussion.
According to recent Wall Street Journal articles by legal experts such as Messrs. David Rivkin and Lee Casey, former officials at the Department of Justice now writing a book on the legalites of war, and also by the newly confirmed U.S. Attorney General, Michael B. Mukasey (who was the trial judge in U.S.v.Abdel Rahman, the blind sheik), the U.S. is not bound by the Geneva Conventions in matters pertaining to "unlawful enemy combatants."
"Unlawful enemy combatants", to refresh memories here, are individuals not fighting in uniform and otherwise not meeting the requirements of the "laws of war" under the Geneva Conventions. As I recall the most noted among these beauties was one who helped plan 9/11 and who, under duress, revealed information which is said to have saved American lives.
Bottom line, it would appear that the argument by a few self-styled moralists who contend that the treatment of unlawful enemy combatants is "unlawful" under the Geneva Conventions, just doesn't hold water.
Ralph E. Luker -
11/11/2007
Commodor Hopwood, First, if you want to have an intelligent conversation, cut the crapola about "Marquis of Queensbury rules." No one will take you seriously, if you start there.
Second, keep in mind that we are talking about *torture*, not about the rules of engagement. The United States is a party to the Geneva Conventions that ban all use of torture of prisoners. Demand, if you must, that the United States withdraw from its adherence to the Geneva Conventions. If it does, it has no greater claim to adherence to agreed upon international law than does al Quaeda. Until it does, this administration's violation of international law makes its leadership subject to charges that it has committed criminal acts.
Jonathan Dresner -
11/11/2007
If a state of war exists, international conventions govern our conduct thereof, to which we are bound by the constitution and by our postitive assent. If a state of war doesn't exist, normal constitutional protections govern our conduct. Either way, there is law and it contains limits.
William Hopwood -
11/11/2007
Mr. Dresner:
I know of no domestic law which precludes the use of force in time of war. Do you? By definition, "war" itself, is the use of force. As for international law and the Geneva Conventions? What about when one's enemy is not a nation but a bunch of religious fanatics who ignore Geneva and know no law but that of the jungle?
Is it then your position that the Constitution contains "penumbras" which require us to self-destruct rather than compromise our peacetime moralities. Sorry, but I don't subscribe to the
naivety nor the ideology of that position.
There are certain war powers of the Executive which have been delineated in prior wartime Supreme Court decisions never reversed. Justice Frankfurter wrote in his concurring opinion in Korematsu v. U.S. (1944): "Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war...by those entrusted with the duty of conducting war as 'an unconstitutional order' is to suffuse a part of the Constitution with an atmosphere of unconstitutionality."
Carrying that thought further, the late Chief Justice Rehnquist wrote more recently, "It is neither desireable nor is it remotely likey that civil liberty will occupy as favored a position in wartime as it does in peacetime...The laws will thus not be silent in time of war, but they will speak with a somewhat different voice." [All the Law but One: Civil Liberties in Wartime."-Rehnquist--1998]
Jonathan Dresner -
11/11/2007
Mr. Sowell: either you believe in the rule of law, or you do not. There is law regarding the use of force in peacetime and in war. If you don't think the law is good law, then you have to make an argument for changing the law. But to deny that there is law, and that the behaviors you and yours advocate are currently and appropriately illegal under that law, is absurd.
The argument which I think you're making -- short term expedients shorten war -- is easily met by the argument that the long-term peace is better served by the rule of law in war. If our principles mean anything, then we should be prepared to sacrifice some of our pleasure, risk some of our person: I'm prepared to accept the risk that comes along with adhering to hard-and-fast principles of decency and humanity in war and security, because I believe in law, justice and the good judgement of history.
What do you believe in, Mr. Hopwood?
William Hopwood -
11/11/2007
More on the Marquis (or Marquess) if you prefer:
From "Suicidal Hand-Wringing"
by Thomas Sowell (September 19, 2006)
Summary: When you enter a boxing ring, you agree to abide by the rules of boxing. But when you are attacked from behind in a dark alley, you would be a fool to abide by the Marquis of Queensbury rules. If you do, you can end up being a dead fool.
Excerpts:
"...many in the media and in the government that is supposed to protect us have been preoccupied with whether we are being nice enough to the terrorists in our custody.
"The issue has been brought to a head by the efforts...to get us to apply the rules of the Geneva convention to cutthroats who respect no Geneva convention and are not covered by the Geneva convention....(by those) who want us to play by the Marquis of Queensbury rules while we are being kicked in the groin and slashed with knives...
"Does any sane adult believe that the cutthroats we are dealing with will respect the Geneva convention? Or that our extension of Geneva convention rights to them will be seen as anything other than another sign of weakness and confusion that will encourage them in their terrorism?
"The much larger question -- the question of survival -- is whether we have the clarity and the courage to go all-out in self-defense against those who are going all-out to destroy us, even at the cost of their own lives....
"There are too many signs that we do not and those signs are visible not only in our political and judicial institutions but throughout American society and western civilization.
"Sheltered for years from terrorist dangers that we so much feared after the September 11th attacks, many have come to act as if those dangers do not exist....
"Our only hope is to get advance information from those we capture as to where other terrorists are and how they operate.
"Squeamishness about how this is done is not a sign of higher morality but of irresponsibility in the face of mortal dangers."
Chris Bray -
11/10/2007
"Marquis of Queensbury Rules." Another flawless performance from William Hopwood, king of the straw man.
William Hopwood -
11/10/2007
Some thoughts on the Evan Wallach article "Waterboard Used to be a Crime," referenced above,
It was noted therein with regard to the Tokyo War Crimes Trials that
"the principal proof upon which their (the Japanese) torture convictions were based was conduct that we would now call waterboarding."
Although that statement fits nicely with the current "war should be fought by Marquis of Queensbury Rules" hysteria which seems to have now captivated some elements of our society, I disagree that the Tokyo War Crimes convictions were "primarily" based on waterboarding,
A review of the extensive book on the Tokyo trials by Arnold C. Brackman who covered the tribunal for the United Press [The Other Nuremberg-The Untold Story of the Tokyo War Crimes Trials--1987] reveals a litany of the most unspeakable kinds of torture and mass murder in which the Japanese engaged, However, I can find no mention of the "water treatment." Althouh I don't doubt that the Japanese used the method, in view of all of the other forms of torture they systematically used, "waterboarding" appears to have been only an afterthought at the bottom of the list.
On November 11, 1948, the Intenational Tribunal for the For East announced its findings on war crimes committed by the Japanese. The report, consisting of some 135 pages and listed many hundreds of crimes of revolting brutality (finding) that torture, rape, murder and other "cruelties of the most inhuman and barbarous character" were freely practiced by the Japanese armed services..."on a scale so vast and on so common a pattern that the only conclusion possible was that (such) atrocities were either secretly ordered or wilfully permitted by the Japanese Government..."
