an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Note to Juan Non-Volokh: A stray remark in a five-month old Amnesty International report is not "the issue at hand." Trust me, there's no need for you to "underline" your "ultimate position" that "not every mass murder is comparable to the Holocaust" and that "not every secret detention is comparable to the Gulag." We get it. And we agree! See also Kieran Healy.
It sounds to me as if you must be really eager to get in on the torture-related blogging. Come on aboard! But honest-to-goodness, there's no need to resort to recycling of ancient complaints about over-heated Amnesty International rhetoric that you already flogged to death five months ago. There are plenty of stories in the press every day now that would benefit from greater exposure, investigation and analysis in the blogosphere, including on your fine and widely read blog.
Just today, for instance:
-- There's this piece in the Washington Post about how Dick Cheney and David Addington continue to tenaciously fight . . . for the right . . . to waterboard, despite an attrition of their support in the Administration. They actually "recoil" from embracing the language of treaties such as the U.N. Convention Against Torture, because "the president needs nearly unfettered power to deal with terrorists to protect Americans," and "to preserve the president's flexibility, any measure that might impose constraints should be resisted."
-- Then there's this article about the Cheney efforts over in Newsweek, focusing on the once-secretive but now ubiquitous David Addington. I can vouch for the essential veracity of this bon mot: "If you threw the entire U.S. budget into the air, David Addington could read it and mark it up before it ever hit the ground." Amazing . . . but true!
-- And this story, too, about "disappeared" Yemeni detainees, one of whom claims to have been stripped and beaten with sticks by a ring of masked soldiers, made to walk like an animal, and trampled upon, with "their shoes in my mouth." (But don't get me wrong -- it's not as bad as the Gulag!)
-- Or perhaps you'd like to write about the notion, pressed by Pat Roberts yesterday, that we'd be better off jettisoning the rule of law altogether, because "success with detention and interrogation depends on the detainee's fear of the unknown," and actually passing a law setting a modest baseline beneath which we won't go -- namely cruel, inhuman and degrading treatment that would be unconstitutional if conducted here in the U.S. -- "would tell detainees too much about what to expect."
-- Or, best of all (seeing as how you're a law professor), maybe you'd be most helpful blogging about Jane Mayer's terrific piece just out in the New Yorker today, about why CIA murders will likely go unpunished. Among other things, Mayer reveals what I've been speculating for awhile -- namely, that John Yoo's OLC memo of March 14, 2003 "dismissed virtually all national and international laws regulating the treatment of prisoners, including war-crimes and assault statutes, and it was radical in its view that in wartime the President can fight enemies by whatever means he sees fit. According to the memo, Congress has no constitutional right to interfere with the President in his role as Commander-in-Chief, including making laws that limit the ways in which prisoners may be interrogated." What do you think of the merits of such an argument? And what about the Administration's continuing, scandalous refusal -- with no good reason -- to make that memo public, even though it apparently was the impetus for many of the atrocities that occurred between March and December of 2003? (See the tail ends of this post, and this one.)
And that's only what's been published in the past few hours!
Moreover, in case none of those stories interests you, we have over 120 posts on the subject collected here, and we've barely scratched the surface! We'd love follow-ups, or some feedback, or even criticism. Or, you can simply wait until tomorrow's newspapers, and sure enough, there will be plenty of other revelations worth blogging about. And, just to demonstrate that I'm fair-minded, and that I have this whole thing in perspective, I promise that if I come across any stories that mention the words "Dick Cheney" within 100 of "Pol Pot," I'll condemn the hyperbole forthwith, and bring it to your attention. Deal?
[Note to Brian Leiter: Now perhaps it's more understandable why JNV prefers to remain anonymous. (Don't get me wrong: I'm not opposed to -- and I understand the reasoning behind -- blogging anonymity. The problem is that the candor that such anonymity encourages often leads to posts such as the one at issue. On the other hand, perhaps it's better that such posts are published -- they probably reflect what some folks are saying around the proverbial "water cooler," and thereby gives us a glimpse of how a good number of people view this scandal . . . .)] Posted
by Marty Lederman [link]
Of all the arguments made by conservatives regarding executive power, the argument (apparently made by Yoo) that congressional constraint of interrogation practices is unconstitutional is by far the dumbest. Art I § 8 of the Constitution EXPRESSLY confers on CONGRESS the power to make rules for captures. It is a basic principle of statutory construction that this specific grant of power controls over the less specific appointment of the President as commander-in-chief of the military.
My theory is that the only reason that Bush partisans like Yoo are able to advance such arguments is because they are confident that no court will ever review them and shoot them down. Unfortunately, there are members of the bar out there with such a crabbed view of professional ethics that they are willing to advance even the most frivolous of arguments so long as no court is around to tell them they are wrong.
What is more sad is that one of the country's great law schools, the University of California at Berkeley, would hire such a man as a professor.
This whole question has got me jaded. The American people made a devil's bargain, and decided to support torture. For all things there are consequences, costs and benefits. You will accept both. There is no way around it. To say anything more is a waste of electrons.
If you want some even scarier arguments made by conservatives, see what NewsMax had to say in defense of the effectiveness of the CIA's methods:
McCain's claim that torture doesn't work is also contradicted by his own story.
In a 1973 account he gave "U.S. News & World Report," McCain recalled how his plane was shot down over North Vietnam, with the crash leaving him severely wounded.
After the North Vietnamese captured him, he said his captors slapped him around for "three or four days."
On the fourth day, McCain said he called for an officer and said, "O.K., I'll give you military information if you will take me to the hospital."
In his book, "Faith of My Fathers," McCain continued the story:
"Demands for military information were accompanied by threats to terminate my medical treatment if I did not cooperate. Eventually, I gave them my ship's name and squadron number, and confirmed that my target had been the power plant." http://www.newsmax.com/archives/ic/2005/11/6/113204.shtml
Subject: Where are the other secret torture chambers? To: email@example.com, firstname.lastname@example.org
The Minds Limit Today
In Jean Amery's, The Minds Limit, his capture and descent into torture by German Nazi's, starts by pointing out that his torturers showed no "banality of evil" in their faces. First there is the "laugh" and then the "first blow." The prisoner then realizes that they are "helpless". Lost is the "trust in the world." Certainly there is no "mutual aid in nature." No. It is time for the "business room." But before describing his own torture the author makes "good on a promise I gave." Not that they where not specialists in torture, but more so his conviction that "torture was the essence of Nationalist Socialism....more accurately stated, why it was precisely in torture that the Third Reich materialized in all the density of its being." I ask you dear citizens should we also "codify" that the detainees at Camp Xray can also be children as recently reported in the news? Not only does that sound slightly like the rule of anti-man but I do believe anti-child included. And if that is so then the rule practiced as such has "expressly established it as a princple." So just what else in "essence" does go on at Camp Xray? "Tricks"? Plead mercy, pray tell? And now comes Abu Graib. Refuse Himmlers offer for a Certificate of Maturity in History and stop those jet flights I would suggest, Mr. Cheney. Nay, to forsake the Constitution and be depraved of our humanity would be more painful in the end. Slavery to torture is all you will get. Go tell that to the Marines. Why Mr. Cheney haven't you already tendered your resignation? At least Hitler was restrained from jettisoning the Geneva Conventions even with his back against the wall in February of 1945. I smell now the chief prosecutor Jackson's closing arguments at the Nuremberg trials.