Balkinization  

Tuesday, April 26, 2005

Waldron/Yoo Debate on Torture

Marty Lederman

Last Thursday, the Columbia Law School chapters of the American Constitution Society and Federalist Society co-sponsored a debate on torture featuring University Professor Jeremy Waldron, of Columbia, and John Yoo, of the Boalt Law School (formerly of OLC). Professor Waldron is the author of the forthcoming article Torture and Positive Law: Jurisprudence for the White House, to be published in the Columbia Law Review.

The Columbia ACS has now posted a video of the hour-long debate here. I strongly encourage all those interested in this issue to take the time to view it. Professor Waldron's presentation is perhaps the most powerful and cogent account I have recently seen on this subject. But don't take my word for it: I also strongly recommend this defense of Professor Waldron by the pseudonymous Columbia Federalist Society blogger "T. More."

A couple of especially provocative comments from Professor Yoo:

Upon noting that Professor Waldron is a distinguished Kantian philosopher: "I think it would be very difficult to be a Kantian and to have any responsibility in the government."

And, in response to a question about the broad assertions in the OLC memos of the President's alleged authority as Commander-in-Chief to ignore statutory limitations—such as the argument in the August 2002 torture opinion (which I discuss briefly here) that Congress is powerless to restrict the President’s decisions concerning "what methods to use to best prevail against the enemy"—Professor Yoo explains that Congress cannot criminalize any "legitimate exercise" of conduct that "falls within" the President's Commander-in-Chief power. What Professor Yoo apparently means by this is that if the President may engage in particular conduct in the absence of statutory limitation, Congress is foreclosed from restricting that conduct by statute. Thus, for example, Professor Yoo shockingly asserts that Congress could not enact a law prohibiting the President from ordering the use of nuclear weapons or from sending troops to Europe.

Perhaps the most interesting exchange occurred toward the end of the debate, when "Ex Post" asked Professor Yoo to engage Professor Waldron on the moral questions raised by the Administration's legal manipulations of the words of the torture statute and the Geneva Conventions. Yoo explained that such moral considerations are for the policymakers, not the lawyers: "In [writing] the legal memos, what’s the function of a lawyer? I view the function of a lawyer in those cases as to interpret the Geneva Conventions or the torture statute and not to interject my own moral views into what the government should do. . . . [The moral arguments] are the kinds of things that ought to be considered in an analysis that’s separate from the legal analysis."

To which Waldron responded as follows:

"I think with regard to some law, you can do the strict separation between the letter of the law and the moral spirit that Professor Yoo has indicated. [W]ith regard to much human rights law, and much international law, and much constitutional law, sometimes you cannot do that; you cannot understand the human rights provisions without understanding—at least in some sense—the moral ideas that inform it, imbue it, give it its coherence, shape its concepts, give us our sense of its importance. I believe that’s true of human rights provisions prohibiting torture. I believe it’s true also of the scheme of protection laid down in the Geneva Conventions. You need to understand this not as a strange set of runes which we will look at as if we’ve never seen them before, and have no idea what they’re trying to do, but [will] try to figure out what the text requires. In some sense, that’s obtuse lawyering, as well as obtuse morally.

Now, Professor Yoo is exactly right that that doesn’t mean we intersperse our own moral or ethical or religious preferences into the matter. But these are provisions that have what Gerry Neumann [of Columbia Law School] calls a ‘supra-positive aspect.’ You cannot understand them without understanding that they embody certain moral ideas—and that [understanding] affects what you can do in the way of manipulating them or limiting them or restricting them out of existence."

I think Professor Waldron is absolutely correct that it is "obtuse" to attempt to construe the torture statute and the Geneva Conventions without giving serious regard to the moral and practical objectives that obviously embue those laws. And as many of my earlier posts here have demonstrated, I'm certainly no defender of the legal analysis in the August 2002 OLC torture memorandum, which did not even acknowledge those moral and practical objectives. Nevertheless, having been an OLC attorney for eight years, I can attest that it is often much easier said than done to incorporate the "supra-positive" aspect of such laws into one's legal analysis; or, more to the point, it's extremely difficult to persuade policymakers to act in accord with such "supra-positive" aspects of the laws, when the actual words of the laws contain evident gaps, limitations, and ambiguities—some of which were inserted intentionally by the lawmakers who negotiated, drafted, and ratified such enactments. I'd be very interested in hearing others' views on this question.
_

Comments:

Marty-

Great post -- thanks for sharing these excerpts from the discussion at Columbia, and for providing your characteristically insightful analysis.

The moral dimensions of the OLC lawyering have troubled me for some time. Here's what I wrote in June 2004 after the first torture memos surfaced:

"Cooking Up Excuses With the Pentagon -- How to torture alleged terrorists and get away with it."
Slate, June 10, 2004

"Of course, it's not the lawyers we should be worried about. The lawyers who drafted this memo face little risk of prosecution, and they're not the ones in harm's way. We ought to be concerned about the soldiers and spooks charged with executing these missions, though, especially when they're asked to act on the basis of such shoddy legal advice. The Bush administration has created an atmosphere of legal ambiguity where the laws of armed conflict are concerned. This laissez faire attitude toward the law of war has filtered down to the lowest levels of command, where tactical decisions about taking detainees and targeting artillery are conducted. Before the events of 9/11 and America's global war on terrorism, soldiers and spooks had at least a few bright-line rules: Never target civilians; never beat prisoners; never violate the Geneva Conventions. Those rules have now been blurred by bad legal advice from the top lawyers of the Bush administration, with predictable results. Case in point: American soldiers training on how to beat recalcitrant al-Qaida detainees learned their craft so well, they put one of their own brethren, an American soldier, out of the service with permanent brain damage. The great moral hazard of bad legal advice is not that it will corrupt the lawyers offering it, but that it will engender criminal behavior by those who follow it in the belief that their lawyers are right.

"Law" and "war" may seem like the ultimate oxymoronic pairing, but until now, the United States has led the world in trying to harmonize the two. Until recently, American soldiers and diplomats could rightly claim that no other nation integrated the law into its conduct of war more than we do. Today, America's ambassadors abroad can no longer make that statement. That, in turn, undermines our ability to force other nations to adhere to international law, since we no longer lead by example. More practically, our soldiers used to take comfort in the principle of reciprocity where the laws of war are concerned; now they have to worry about reciprocity from our enemies. We must return to the old bright-line rules which used to govern our conduct in war, both because it's the right thing to do and because it's in our interest to do so.


Fred Kaplan has some eloquent thoughts on this in Slate today that I think are also on point, regarding the inherent tension between America's interests and its ideals/ Notwithstanding his argument, I think there remains a great deal of convergence between our interests and our ideals. As Michael Walzer says, justice has indeed become a military necessity. When we abandon our ideals to nakedly pursue our interests, I think we make our work much tougher.
 

Great post, but is it possible to post the video somewhere as well. I can't access the Columbia Page.
 

Hi,

I found this new software:
http://www.best-blog-link-generator.com

This is perfect for free traffic, high ranking, backlinks etc.

Check it out!
You don't want to miss this one.
 

Keep it up. I enjoy your nice blog. check out my los angeles lawyer site. It pretty much covers los angeles lawyer related stuff.
 

GOOD content thats what i like and just surfing around on blogs and finding good content is good feeling i am so glued to those blogs dont stop making good content keep it up i am not a pro on making pages but i see if you can visit my site maybe its something that you will like!!Easy internet money
 

Vous avez un blog très agréable et je l'aime, je vais placer un lien de retour à lui dans un de mon blogs qui égale votre contenu. Il peut prendre quelques jours mais je ferai besure pour poster un nouveau commentaire avec le lien arrière.

Merci pour est un bon blogger.
 

Hi,

I'm sorry for being intrusive in to your blog. But I am Melissa and I am a mother of two that is just trying to get out of an incredible financial debt. See my hubby is away in Iraq trying to protect this great country that we live in, and I am at home with our two kids telling bill collectors please be patiant. When my husband returns from war we will beable to catch up on our payments. We have already had are 2001 Ford repossessed from the bank, and are now down to a 83 buick that is rusted from front to back and the heater don't work, and tire tax is due in November.

I'm not asking for your pitty because we got our ownselfs into this mess but we would love you and thank you in our prayers if you would just keep this link on your blog for others to view.

God Bless You.

Melissa K. W.
To see my family view this page. My Family


Learn How To Create Your Own Custom Income Generating System.

Welcome to AdWordEqualizer / Ad Word Equalizer Finds The Most Profitable Search Terms And Products For You!

Get Paid to Take Online Surveys!
 

Hi,

I'm sorry for being intrusive in to your blog. But I am Melissa and I am a mother of two that is just trying to get out of an incredible financial debt. See my hubby is away in Iraq trying to protect this great country that we live in, and I am at home with our two kids telling bill collectors please be patiant. When my husband returns from war we will beable to catch up on our payments. We have already had are 2001 Ford repossessed from the bank, and are now down to a 83 buick that is rusted from front to back and the heater don't work, and tire tax is due in November.

I'm not asking for your pitty because we got our ownselfs into this mess but we would love you and thank you in our prayers if you would just keep this link on your blog for others to view.

God Bless You.

Melissa K. W.
To see my family view this page. My Family

Full Software Download - Get full access to thousands of applications!

Restore, Fix & Clean Up Your Registry Files and Errors in Windows. Does your PC crash, is your system running slow or are you receiving regular error messages? This program will scan your system registry and hard drive for invalid file and system references for free. These invalid references cause system instability, PC errors, constant crashes, and general system slowdowns.

XoftSpy - The Latest in Anti-Spyware & Adware Technology
 

I love your information on Legal Advice I bookmarked your blog and will be back soon. If you want, check out my blog on Legal Advice Exposed - please come by
 

This Is The Way SMART Real Estate Investors Make Their Money..... And It's NOT With "UGLY HOUSE" Rhabs Or Foreclosues And Short Sales

Click Here For More
Information


carleton h. sheets
 

Real Estate Investors........Learn What The Popular, So Called, Real Estate "GURUS" Don't Tell You Or Don't Know

Click Here For More
Information


janegarvey
 

Real Estate Investors........Learn What The Popular, So Called, Real Estate "GURUS" Don't Tell You Or Don't Know

Click Here For More
Information


short sale
 

Real Estate Investors......You Are Shortchanging Yourself If You Are Just Doing "Fix And Flips", Foreclosures Or Renting Properties And All Of The Other Things That The Popular "GURUS" Are Telling You To Do.

Let Me Explain Why......

Click Here For More
Information


Rental
 

I really enjoyed you contest cooking website. I also have a site about contest cooking Please take a look. I hope you will find it interesting
 

Hi :)

You have a great blog! I'll make sure to bookmark it and visit regularly. Keep up the great work!

Please visit my site if you get some time: Resell Rights eBooks
 

Hi,
Do think you could get a banker's desire to force money into your laps?

ultram mortgage enligtens about ultram mortgage
 

Nice blog! I have a free guaranteed internet lead marketing no site I thought you and your visitors might like.

Click on free guaranteed internet lead marketing no to check it out. free guaranteed internet lead marketing no
 

Hey, you have a great blog here! I'm definitely going to bookmark you!

I have a advantage exchange marketing mynetsuccesscenter.com traffic traffic site. It pretty much covers advantage exchange marketing mynetsuccesscenter.com traffic traffic related stuff.

Come and check it out if you get time :-)
 

System Of A Down and Michael Moore Join Forces for "BOOM!" Video
source: SOAD newsletter, March 2003

If ever there were a time in our young country's history when System of a Down's song "BOOM!" was appropriate, it's right now, today, with America and the world on the brink of war. System of a Down has joined forces with director Michael Moore and the crew from "Bowling for Columbine" to make the video for "BOOM!"

"The strangest thing about this impending war is that the people -- the REAL majority who make up the population of this country and the world -- do not truly want to go to war," said Michael Moore. "Watching the news, you would never know that millions have been out there proposing a different solution -- one that does not involve the slaughter of innocents. It is these people whom we will give voice to in 'BOOM!'"

Much of "BOOM!" was shot by independent media activists and local guerilla filmmakers at the various marches that took place across the globe over the weekend of February 15 - Presidents' Day weekend - Berlin, Cape Town, Rome, Paris, Tokyo, Washington, D.C., London, Chicago, Oslo, Rio de Janeiro, Croatia, St. Louis, Los Angeles - and Iraq - to mention just a few of the 40+ locales where footage was incorporated from. The video opens with a blistering array of images that show just how massive and overwhelming the desire for peace is throughout America and the world. Testimonies from marchers - fathers, brothers, sisters, mothers, children, aunts and uncles, grandparents - are heard: "We don't believe the lies that are being fed through the media," or "I don't understand why dropping bombs on children is the best way to achieve peace."

The video "BOOM!" is a life-affirming video that rallies people to visualize, and then create, the world they want to live in. "BOOM!" looks to empower people with the knowledge that war is ultimately their choice, not the media's nor the government's.

"The possibility of the U.S. going to war with Iraq is an extremely personal issue for me because I have family who live there," said System of a Down's guitarist Daron Malakian. "I visited Iraq when I was a teenager, and I can tell you first-hand that the people who I met there are really nice, ordinary people who don't want war with us or with anyone. So, we'd like to have the 'BOOM!' video help change the way people think about the solution to our global problems. We want to make the idea of dropping bombs, of waging war seem as antiquated and ridiculous as it is today for an Afro-American to have to sit at the back of the bus."

"We'd like the 'BOOM!' video to represent the importance and the beauty of humanity, the desire people have to live in a world without fear, without war or the rumours of war," explained Serj Tankian, vocalist for System.

The members of System of a Down - Serj Tankian, Daron Malakian, Shavo Odadjian, and John Dolmayan - armed with their own digital cameras, were filmed at the Los Angeles pro-peace march. Satirical animation that features George W. Bush, Saddam Hussein, Prime Minister Tony Blair, and Osama bin Laden riding rockets over a city has also been incorporated into the video.

"Like Woody Guthrie or Bob Dylan," added Moore, "System of a Down has crafted a true protest song for the new millennium with 'BOOM!' I think it will be a powerful, moving music video that will speak to the desires of the millions who will see it -- and it will let them know that they, the people of peace, are not alone."

Download New Music By System Of A Down
 

Hi :)

You have a great blog! Keep up the good work! I'll be sure to visit regularly.

Please visit my site if you get some time: Shia
 

Everyone is trying to find a way to make money that is legit. This blog about **keyword** helps with ideas. Take a look at Traffnic.com Review of The Rich Jerk for some more great ideas. Best to all.
 

Cool blog you have. I have a make money online business related site. Check it out if you get a chance. The URL is make money online business
 

I just came across your blog about forex training and wanted to drop you a
note telling you how impressed I was with the information you have posted here.
I have a forex training site. It pretty much covers forex training related stuff.
so I know what I'm talking about when I say your site is top-notch! Keep up the great work, you are providing a great resource
on the Internet here!

Thanks,
Phill
 

Great blog you have! I really enjoyed it. I heard of a great site that is giving away a free set of Nike Golf Clubs. I think your readers will enjoy it. Just click the link below and enter your Zip Code to see if you qualify!
Free Nike Golf Clubs!
 

Hey, you have a great blog here! I'm definitely going to bookmark you!

I have a from home make money opportunity site. It pretty much covers from home make money opportunity related stuff.

Come and check it out if you get time :-)
 

Hey, you have a great blog here! I'm definitely going to bookmark you!

I have a work at home job listings
site/blog. It pretty much covers work at home job listings
related stuff.

Come and check it out if you get time :-)
 

Weird. I always thought the Rettop Method was the best for generating traffic. I am going to book mark this blog, nice topics discussed

By the way... I have a air traffic control site. It pretty much covers Traffic related stuff.

Come and check it out if you get time :-)
 

 Hi: Just came across your blog. Interesting post and good looking site. We are webmasters for a number of California lawyers, Las Vegas lawyers, and Houston lawyers. So, to say we know lawyers websites/Blogs is an understatement. We recently set up a website offering totally free blog and website awards for sites with legal & legal related exceptional content. Just this week we also added a web site award program for non-legal sites. No, we are NOT directly selling anything. If you would like to enhance your blog/web site, visit our web site award program web site. blog/website with one of our classy website award graphics! If you are interested, here is the link: http://www.web-site-award-winning.com
 

See your Successes
by: make money being online

It is important to have an understanding of money.
Keep a journal where you can see your successes when
it comes to saving money. This is a difficult task
and takes time to learn but worth it. By keeping a
list of the situations or ways you have saved money
in front of you, you will be encouraged to keep going.
These successes can be small or large. For example,
if you normally buy your lunch, costing you from $5.00
to $7.00 per day and one week straight you packed your
own lunch for $3.00 per day that is a success. If you
wanted to buy a new dress but held off until it went on
sale, saving 50%, that is another success.

make money being online
 

I discuss this topic daily myself. I also have a website that talks about earn extra money working from home related things. Go check it out if you get a chance.
 

This is a great site and i would highly recommend link in Ass Traffic and AssTraffic - Free pics and movies! - GiveMePink
 

The blog is interesting and keeps me pondering on several aspects of society. I know a organization in India which carries out Free Heart Surgery of Kids. There are several other such organisations. Internet has become a way of life for many. Everything can be found on Internet nowdays from free classifieds to real estate and rentals , from jobs to dating.and from religion to health.Google adsense is providing a lot of opportunity for internet publishers to earn over net. Everyday new inventions are taking place, like one of my friend showed me this site which allows to shorten url. And many such free tools are available on the net today. Even Internet domains are a very sought after thing today.
 

Welcome to earn123.
What are the world's Best affiliate Programs.
How to Get Free Traffic to your Website.
How to Earn Money at Home from Internet.

Learn to earn 90000$/Month
Here

free games

Digitalize your Products Here

free Study Database

Never seen Gadgets can be found here
 

Hi,
My school project is to look for blogs that have a woman work from home subject. So far I have found http://www.dxinoneusa.com and others. I just thought I would post a comment on your site because I read some other comments that can help me out.
 

I like and just surfing around on blogs and finding good content is good feeling i am so glued to those blogs dont stop making good content keep it up.
Florida Real Estate License School
 

Post a Comment

Older Posts
Newer Posts
Home