... (0 comments)DougJ perfectly sums up where my head is at right now on the whole torture debate:
Don’t get me wrong. I don’t think Nancy Pelosi is a saint. I actually view her and Harry Reid with a huge dollop of suspicion. But when it comes to weighing my suspicion of Pelosi against the proven lie factory that was the Bush administration — it’s really no contest.At this point, it’s worth considering what the claims about [Pelosi] being briefed mean and where this is all going. My view is that the story that Pelosi was briefed on waterboarding is subterfuge, like the quilts and blankets in “Pulp Fiction“. It’s not about nailing Pelosi, it’s about having a sufficiently truthy line of bullshit for David Brooks et al. to repeat (Brooks spoke about torture on the Times yesterday, blasting Pelosi and everyone who wants investigations—these are his first comments on torture, to my knowledge). This probably won’t be fully investigated and, even if it is, the findings will probably be equivocal enough that Republicans can continue to scream “Pelosi knew about it” just as the nutosphere likely continues to trash Scott Beauchamp.
To me, though, the big take away here is that the right is losing the torture debate. It started with “Dick Cheney was just keeping us safe from teh terrorists, don’t you libtards watch ‘24’?”. Then it became “mistakes were made, but it was a difficult time.” And now it’s “okay, maybe the whole thing was fucked up, but Pelosi knew about it so it’s her fault.” It’s just another variation on “Clinton did it too” and it’s essentially a defensive posture.
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They are using the standard ploy of screaming charges and accusations instead of answering the questions.
I'm curious to read, what is your legal analysis of the EHI tactics? What statutes or treaties are implicated? What are the elements of torture as you understand them? What mens rea? Which officials' conduct appear to satisfy those elements? How does your analysis square with the principal of sovereign immunity or the Youngstown Steel / Curtiss-Wright pair of SCOTUS cases? Would the defendants have a risible defense of necessity?
Apologies if you've already blogged the analysis, I may have missed it. But is seems to me you're not so much interested in the crimes (or their prevention) as prosecutorial voyeurism; iow, instead of speculating about why Wingnuts "love torture", why not get into the nitty gritty of what are very difficult, and very serious, questions about national security and human rights law?
i've blogged a lot on the issue of torture. see the tag list for "Torture" at <a href="http://www.librarygrape.com/search/label/Torture” target=”_blank”>http://www.librarygrape.com/search/label/Torture .
if you're looking for a more in-depth analysis of the legal issues underpinning torture, i'd suggest also reading glenn greenwald at http://www.salon.com/opinion/greenwald/
Thanks for the links -- I do follow Greenwald and enjoy your periodic posts. So excuse the shout-out to Bill Lumbergh, but, yeah, no.
You've blogged allegations, conclusions, ad hominen ad nausuem. You've got an IRAC ratio of 5% ''F' and 95% 'C'. Torture has a certain meaning under U.S. statute; it has a different meaning under certain treaties; it has yet a different meaning per customary international law; it could have any number of meanings under the theory of jus cogens. What tactics constitute torture according to what standard? Nothing I've read or heard about U.S. actions are per se illegal under any relevant statute or SCOTUS case. Aside from moral indignation, what gives your side the better argument?
a fair enough point. for the finer legal points, I typically just rely on the analysis and conclusions of people who really know their stuff (e.g., Posner, Greenwald, Senate Intelligence Reports, etc.). even though I am a lawyer, I'm just of the transactional variety and wouldn't have much of a basis to launch into a series of in-depth constitutional/statutory construction/case law essays. i do, however, routinely post my thoughts on the controversy with posts such as <a href="http://www.librarygrape.com/2009/04/bush-administ…” target=”_blank”>http://www.librarygrape.com/2009/04/bush-administ… . sorry if my reporting on the legal analysis underpinning the controversy doesn't contain enough original material for you.
P.S. For an example of one of the posts I've written on some of the primary source material behind the torture allegations (in this case, the report from the Senate Armed Services Committee), see <a href="http://www.librarygrape.com/2009/04/we-tortured-s…” target=”_blank”>http://www.librarygrape.com/2009/04/we-tortured-s…
Seems to me, the folks daily advocating for prosecutions and truth commission (a costly and timely firebomb of an idea) bear the burden of demonstrating to the rest of us where the beef is. Otherwise, what you're doing looks alot like shouting "A witch! We've got a witch! Burn her!" in the town square.
Well, here's a simple question for you: Were you in favor of the Starr investigation of Bill Clinton on perjury charges or the calls from Congressional GOP leaders to investigate Bill Clinton for his Marc Rick pardon (see http://www.librarygrape.com/2009/04/breaking-top-… )?
I don't think I'm being much of a witch-hunter by suggesting that the alleged systematic torture of people in US custody is a wee bit more unsettling (and worthy of a fact-finding investigation) than a break-in at the Watergate hotel, perjury about a blowjob, or a questionable pardon.
P.S. Added to my question above, here's another simple thought experiment: What would your reaction be if mountains of credible evidence emerged that, during the start of the Iraq war, the Iraqi military was torturing captured U.S. soldiers? Or what if mountains of credible evidence emerged that Iran was torturing captured Israeli soldiers, citizens and/or journalists? Would your reaction be to shrug off accountability by saying that investigations are a "a costly and timely firebomb of an idea"? What if the new Iraqi/Iranian regime simply said "Whatever was done is done. Our bad. It's won't happen again."? Would that be good enough for you?
1. Iraqi military *did* torture U.S. soldiers;
2. Al-Qeuda terrorists violate the law of distinction and therefore are not entitled to protection under the laws of war or laws of nations;
3. Iran does torture Israeli soldiers (and Jewish civillians throughout the world);
4. We took care of the Iraqi regime that toturtured U.S. soldiers; see Freedom, Mission Iraqi
You need a sense of historical proportion. The U.S. did far worse to Quakers during WWI; up until the 1930s states practiced sterilization on its on citizens; local cops used firehoses on peaceful protesters in the '60s; it is currently legal in Illinois to bludgeon newborns and leave them to starve to death in dumpsters today. Thank you Obama. Do we need a truth commission for all of those things?
You came close to answering my questions. As to item 3, what to do about it? i assume you support no accountability for the iranians who conducted and approved of the torture of all those israelis around the world, right?
(con't)
5. Your thought experiment doesn't work. We're talking about political prosecutions, not violations between 2 states.
6. If the Ken Star -- Bill Clinton debacle was dumb, what makes you think this would turn any different?
7. Waterboarding is not illegal. Dems control Congress, they could pass a law tomorrow, they choose not too.
8. Re-read Obama's executive order. He reserves the right to use the same tactics if circustances warrant it.
9. I've read the torture memos. They make a plausible case.
10. On your side of the debate, I see a lot of hysteria, a lot of name calling, a lot of ungrounded accusations. I have yet to see anyone make an opposing case. Care to give it a try?
well, it looks like i won't get a straight answer from you on my counterfactuals above so there's no sense in continuing the engagement in this post.
as to your item #10, i post a lot of thoughts and commentary on this blog about the torture debate under the label "Torture", which, taken together, form the basis of my ever-evolving case against torture. a blog is not a law journal article. one post does not, on its own, comprise the complete and definitive position of someone on an issue. as more facts, thoughts and opinions come up, I will add to the record. i encourage you to follow what i have to say and comment on posts that interest you.
I thought my comment was directly responsive. Take 2:
-- On the Bill Clinton stuff, no, I didn't support it. The independent prosecutor statute was extra-constitutional and distrupted the federal structure of government. Impeachment is the way to deal with executive branch misconduct -- let the political (as opposed to the judicial) process work.
- On the Iran/Iraq/Israel stuff -- crimes between nations are not analogous to policy disputes. If there's an actual dispute between nations, a nation can resort to any legal means to rectify the offense -- sanctions (diplo, econ), embargo, military intervention, occupation. There's 2,000 years of case & treaty law governing this. Contra, there is no precedent in US history for a "truth commission" to investigate the prior administration for differences in policy.
(con't)
- "costly" -- i meant costly in terms of civic health & national morale, not necessarily $$. It is absolutely poisonous to criminalize policy differences.
- there are not "mountains of credible evidence". We are talking about 3 individuals over a period of 2 years. The rest of the stuff people blog about (Abu Gharib, flushing Korans, the 2009 Red Cross report) have been debuked.
you're still avoiding the central question of specifically why Iran torturing Israeli prisoners is BAD while the US doing it to detainees is NOT BAD.
my interest in continuing the thread here has waned. happy to continue this in later posts if you decide to produce an argument for the above question.
On a totally unrelated topic, I see with the Chrysler and GM negotiations Obama appears to have violated the Contracts, Bankruptcy, Bill of Attainder, and Appropriations clauses of the Constitution and the property rights protected by the Fourth and Fifth Amendments. And he has threatened individuals and institutions with reprisals for exercising their legal bargained-for contract rights. He has used the power of the federal government, including threats of IRS audits and DOJ investigations, to exhtort money from politically unpopular groups and reward special interests that contributed huge sums of money to his election campaign.
I suppose, for the sake of consistency, we should start laying the groundwork for a truth commission and prosecutions of Obama in '12 or '16? By your logic, the White House lawyers who briefed the President on these matters must face investigation disbarment, and imprisonment. Right?
Well, if the GOP leadership once Obama leaves office is anything like the GOP leadership after Bill Clinton left office, I'm sure they will be calling for investigations of all those things too (see <a href="http://www.librarygrape.com/2009/04/breaking-top-…” target=”_blank”>http://www.librarygrape.com/2009/04/breaking-top-… )
In my view, credible allegations of systematic torture are orders of magnitude more troubling than arguable violations of the contracts clause. That's not to say that your concerns aren't valid, but I don't have the time or patience to get into a "President Y did arguably bad stuff B thus we shouldn't investigate President X for doing arguably bad stuff A" discussion. If a respected, independent inquiry reveals evidence of wrongdoing or lawlessness (e.g. conspiracy to commit burglary, perjury, torture, etc.) on the part of a President that rises to a certain level of seriousness, then the DOJ and our elected leaders should decide where to go with that. Arguing for the squelching of any kind of fulsome investigation at this stage is putting the cart before the horse. Let all the facts come out and let's see what needs to happen.