Balkinization  

Thursday, September 07, 2006

An Alternative Set of Procedures

JB

It was terrible news. Several of our American soldiers were apprehended by terrorists and interrogated for hours on end. Al Qaeda operatives slapped them repeatedly in the face and the stomach to cause pain, then they shook them violently over and over again to disorient them. Then, after softening them up, they deprived the Americans of sleep and forced them to stand for over 40 hours at a time. Reports indicated that Al Qaeda regarded this technique as particularly effective in breaking down the Americans' will. Then, for those who had not already cracked, Al Qaeda stripped the Americans naked, put them in cold rooms kept at around 50 degrees and repeatedly doused them with cold water.

A few American soldiers wouldn't crack even under this treatment. For them Al Qaeda had a special technique: They strapped the Americans to a horizontal board with their heads tilted downward slightly. Then they covered the American soldiers' faces with cellophane and continuously poured water over them to make the Americans think they were drowning. This technique caused an unbearable gag reflex. The Al Qaeda interrogators were particularly impressed with how this quickly reduced even the bravest Americans into abject submission.

As soon as the White House found out about the interrogations, they were outraged at the abuse and mistreatement of American soldiers. They immediately protested in all the diplomatic and military channels they could think of. Eventually they got a response: These techniques were not torture. Al Qaeda insisted that it does not believe in torture and does not practice torture. That was just American propaganda. Rather, these techniques were an "alternative set of procedures" that were "designed to be safe," complied with the Geneva Conventions, and were far less painful than the American infidels deserved. Moreover, these techniques had been thoroughly vetted at the highest levels of Al Qaeda and by a number of highly trained legal scholars to ensure that they complied with international law and with basic standards of human decency. They were absolutely necessary if Al Qaeda was to get the intelligence it needed to win against the American imperialists.

The White House had no comment.


Comments:

"As soon as the White House found out about the interrogations, they were outraged at the abuse and mistreatement of American soldiers." I think they'd be astonished that Al Qaeda wasn't doing far worse.
 

What's your point? Of course al Qaeda would do that sort of thing to American soldiers.

I suppose if we had an administration composed of lib/lab law professors, they would think that the most effective response to the capture and mistreatment of American soldiers is a strong public protest. (If only someone had thought of stopping the Holocaust that way!) Fortunately, I don't think strong public protest is our number one method of self-defense.

There might be good arguments against mistreatment of al Quaeda detainees, but the PR argument isn't one. Furthermore, the whole passage reads a little like Bruce Ackerman, who always thinks that his arguments are so good that the only possible response is "[silence]." In fact, I am quite sure that John Yoo or Richard Posner could respond quite effectively, if you cared to have an actual debate rather an narcissistic echo chamber.
 

What's your point? Of course al Qaeda would do that sort of thing to American soldiers.

The (obvious) point is this: that's what makes us different from them. If we are NOT different from them, there's no reason to fight them. Torture is a grave moral wrong. The fact that someone else does it does not make it right for us to do it, it makes us right because we DON'T do it.

Another (obvious) reason is that we benefit by the ability to distinguish our conduct from theirs. Decent people around the world -- a class that does not include the Administration or some of its supporters -- are disgusted by such tactics. They refuse to support those who engage in them. Perhaps you think that winning over allies is not part of the plan....

As Lincoln said of slavery, "I hate it because it deprives the republican example of its just influence in the world -- enables the enemies of free institutions, with plausibility, to taunt us as hypocrites -- causes the real friends of freedom to doubt our sincerity."

I suppose if we had an administration composed of lib/lab law professors, they would think that the most effective response to the capture and mistreatment of American soldiers is a strong public protest. (If only someone had thought of stopping the Holocaust that way!)

And if we had an Administration composed of the loonier Bush supporters, they'd be conducting the Holocaust. There -- I one-upped you on Godwin. That's productive.

I am quite sure that John Yoo or Richard Posner could respond quite effectively

Perhaps they could convince Lieutenant General Kimmons, who yesterday said this:

"QUESTION: General and Mr. Stimson, some of the tactics that were used, in particular in Guantanamo Bay, that were considered by investigators to be abusive when used together are now prohibited, for example, the use of nudity, hooding, that sort of thing.

In looking at those particular tactics and now not being able to use them, does that limit the ability of interrogators to get information that could be very useful? In particular on one detainee in Guantanamo Bay, some of those tactics that are now prohibited were deemed to be very effective in getting to that information.
***

KIMMONS: Let me answer the first question. That is a good question. I think -- I am absolutely convinced -- the answer to your first question is no. No good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tell us that.

Moreover, any piece of intelligence which is obtained under duress, through the use of abusive techniques, would be of questionable credibility, and additionally it would do more harm than good when it inevitably became known that abusive practices were used. And we can't afford to go there.

Some of our most significant successes on the battlefield have been -- in fact, I would say all of them, almost categorically all of them, have accrued from expert interrogators using mixtures of authorized humane interrogation practices in clever ways, that you would hope Americans would use them, to push the envelope within the bookends of legal, moral and ethical, now as further refined by this field manual.

We don't need abusive practices in there. Nothing good will come from them." Emphasis added.
 

Sean asks what the point of the posting is. Well, if the tactics we have used on detainees were used on American soldiers, would you agree with our President that these "alternative" techniques (1) are not torture, (2) are perfectly legal under the Geneva Conventions, and (3) are humane? Note that these are three separate questions.
 

The tactics you mention, other than waterboarding, are not torture. Let me ask you, if we learn that a Hazbollah representative has slapped one of the kidnapped Israeli soldiers, will there be a worldwide wave of condemnation? Of course not.

I would have to know more about it to know if waterboarding is torture, but probably it is.

As far as I know, al Qaeda is not a party to the Geneva Conventions, so I don't understand your question. Does the Harper's magazine reprint of the Jyllands-Posten cartoons violate French law? Do New York City police practices comply with the Geneva Conventions? These questions are meaningless.

None of these practices is humane, but imprisoning people at all is inhumane, so I don't believe that humaneness is a criterion that can be applied to the treatment of people in custody.

Regarding Mark Field's comments, it is a perfectly good argument that slapping people is immoral and our soldiers should never do it under any circumstances. But that was not the argument of the original post; rather the original post appeared, to the extent I can follow its point, to be making an argument that Bush policies are bad public relations (oderint dum metuant, I say) or result in philosophical aporia (which isn't even true, provided you let both sides into the debate). I remain puzzled as to the point of the original post.
 

I remain puzzled as to the point of the original post.

That makes two of us. I understood it to be a condemnation of Al Qaeda. However, the images linked were all from Iraq and had no relation to Al Qaeda.
 

Dear Sean:

The President has represented that (1) we do not torture; (2) we treat all detainees humanely, and (3) that we have abided by the Geneva conventions.

By asking how we would feel if our enemies engaged in the same behavior that we have engaged in, we may be able to obtain a better sense of our views on these issues. In particular, we may be able to assess whether we agree with the President's public representations about U.S. policies, and whether we think he has been entirely honest with us in his public statements.

Although Al Qaeda is not a signatory to the Geneva Conventions, we are a signatory. Common Article III binds all signatories in their treatment of detainees, including detainees from non-signatory nations and entities. It provides the minimum levels of human decency required by the laws of war. The President and other members of the Administration have repeatedly insisted that we do and will abide by Geneva even though in the Administration's view we are not required to.

Once again, it may be helpful to think about how things would look to us if our enemies engaged in identical practices, not because they are signatories to Geneva, but because we are.

Moreover, if on reflection, we conclude that these practices are torture and inhumane when performed by our enemies, then perhaps they are equally torture and inhumane when performed by the CIA.

Note that the President's new bill purports to enforce Geneva, and yet it does not prohibit the CIA from waterboarding.

If you believe that waterboarding is torture, if it is inhumane, or if it is in violation of Common Article III, then perhaps you disagree with the President's public and repeated characterizations of what we have done. Perhaps you might also think that the President's lack of candor in this regard is more than just a public relations problem.

Do you have any views on these questions?
 

I'm so tired of these constant efforts to minimalize torture. We didn't simply slap one detainee in the face, so why pretend that Hezbollah slapping an Israeli prisoner in the face is an apt analogy?
 

I must admit that I'm rather puzzled by this post.

Why would the legal definition of "torture" turn on who was doing the torturing?

And who has suggested that if AQ and the US were doing the same thing, then it would by "torture" by AQ and "non-torture" by the US? I don't think anyone has made that point.

Furthermore, I don't see what's inconsistent by disliking poor treatment by AQ of US soldiers, while not believing that such conduct by the US against AQ would violate the law.

During World War II, many Americans were displeased by the fact that Nazi soldiers shot at GIs. But that in and of itself certainly would not prove that GIs shooting Nazis would be "illegal," or that American dislike of Nazis shooting GIs would itself justify the federal government prohibiting GIs from shooting Nazis.

At base, this post appears to be an attempt to inflame your readers' emotions, in order to convince them to share your legal conclusions. But can't we debate legal questions without trying to inflame the passions?
 

I would posit, though, in response to JB's subsequent comment, that if the same treatment were applied (1) to Khalid Sheikh Mohammed by the CIA, and (2) to US soldiers by Al Qaeda, then it's quite possible that it would be "humane" in the case of the former and inhumane in the case of the latter.

If the US had to resort to the tactics employed against KSM in order to prevent catastrophic acts of terrorism against innocent civilians, then I would conclude that such treatment was humane. (Indeed, I'd suggest that it would be inhumane to expose innocent civilians to catastrophic terrorism simply to protect KSM.)

But if Al Qaeda employed such tactics against US soldiers in order to further their aim of perpetrating catastrophic acts of terrorism against innocent civilians, then such conduct would, I'd say, be inhumane.

Wouldn't you?
 

Prof. Balkin: "By asking how we would feel if our enemies engaged in the same behavior that we have engaged in, we may be able to obtain a better sense of our views on these issues." But I think we would be happy if our enemies only behaved in this sort of behavior. Right now, our enemies don't hesitate at all to kill both captured soldiers and noncombatants in very painful ways.

Don't get me wrong--we should be held to standards far, far, far higher than the ones that would condemn al Qaeda. And maybe that means we should abandon our past rough interrogation tactics. But the how-would-we-feel-if-things-were-reversed question suggests that our behavior is at all comparable to our enemies' behavior, and that seems just uncontroversially incorrect to me.

Mark: "However, the images linked were all from Iraq and had no relation to Al Qaeda." That was my link, I think. I take it that the tactics on display in Fallujah reflect al Qaeda's behavior as well. See, e.g., here: "Posting proclamations in mosques and schools, the insurgent group al-Qaeda in Iraq vowed Thursday to take back the volatile western city of Fallujah.... Fallujah was a stronghold of both Iraqi and foreign insurgents until November 2004."
 

I take it that the tactics on display in Fallujah reflect al Qaeda's behavior as well. See, e.g., here: "Posting proclamations in mosques and schools, the insurgent group al-Qaeda in Iraq vowed Thursday to take back the volatile western city of Fallujah.... Fallujah was a stronghold of both Iraqi and foreign insurgents until November 2004."

Al Qaeda might very well behave the same way, but the link alone wouldn't prove that.

But the how-would-we-feel-if-things-were-reversed question suggests that our behavior is at all comparable to our enemies' behavior

I think it's a good test of whether we're applying a double standard.

Why would the legal definition of "torture" turn on who was doing the torturing?

As I understood the question, that was the point -- it would not. Thus, if we consider something "torture" when done to our soldiers, we must consider it "torture" if we do it.

who has suggested that if AQ and the US were doing the same thing, then it would by "torture" by AQ and "non-torture" by the US? I don't think anyone has made that point.

You do, in the two paragraphs which follow the one quoted.

During World War II, many Americans were displeased by the fact that Nazi soldiers shot at GIs. But that in and of itself certainly would not prove that GIs shooting Nazis would be "illegal"

Bans on mistreatment are often phrased using general words. Their exact application has to be worked out. If we took the position that "Nazis shooting US soldiers is illegal", then the well-known legal principle of "sauce for the goose" means that "US soldiers shooting Nazis" is illegal.

If the US had to resort to the tactics employed against KSM in order to prevent catastrophic acts of terrorism against innocent civilians, then I would conclude that such treatment was humane.

I'd conclude that the Administration spent too much time watching "24". Did you read the passage I quoted from General Kimmons?
 

"I think it's a good test of whether we're applying a double standard."

Well, yes, I suppose. But is he suggesting that his readers would actually be so foolish as to maintain that double-standard? I don't know anyone who would.

"You do, in the two paragraphs which follow the one quoted."

I don't suggest that "torture", a legal term, would have different definitions depending on which party is perpetrating it. I do suggest that the "humaneness" of the act would depend on the identity of the perpetrator. But, as JB notes, those are different questions.

"Bans on mistreatment are often phrased using general words. Their exact application has to be worked out. If we took the position that 'Nazis shooting US soldiers is illegal', then the well-known legal principle of 'sauce for the goose' means that 'US soldiers shooting Nazis" is illegal.'

Again, you're confusing the questions of legality and "humaneness." As I note, that the U.S. found the Nazis' actions displeasing (or, to use a better term, inhumane) does not make those actions illegal, and it does not make the Americans' comparable actions inhumane.

I think that your eagerness to gloss over the distinctions between "what is legal?" and "what is humane?" reflects a serious problem in the debate on torture.
 

As for your quote from Kimmons: His general statement appears to lose, in case of KSM, to specific facts. Waterboarding appears to have worked on him.

Second, you'll have to match up your definition of "abusive tactics" against Kimmons's before you can show that his statement supports your view.

Last, even if we assume that Kimmons and you agree, his statement is challengable on its face. He rejects abusive tactics on the ground that evidence derived from such tactics would be of "questionable credibility." Even if that's true, it doesn't solve the question. Using the most simplistic of risk analyses, we know that if the stakes are high enough, then even evidence of "questionable credibility" is valuable.
 

Professor Balkin's original post was an example of irony, a trope of reversal. Apparently some posters are so obsessed with logic that they are incapable of understanding irony when they see it. When an allegedly "law and order" leader claims that it is necessary to suspend the rule of law in the name of expediency; when an allegedly Christian leader embraces cruelty and torture - those, Sean, are instances of irony.

The place of passion in legal argument has a long history, from Athenian legal oration to the present. Asking "can't we debate legal questions without trying to inflame the passions?" is a way of ignoring the role played by passion in moral discernment and persuasion.

Passions, as Martha Nussbaum points out in *Upheavals of Thought*, are not simple psychological states; they have a cognitive as well as an affective basis. In this case, the relevant passion is compassion. Nussbaum argues that the cognitive requirement of compassion are (1)the belief or appraisal that the suffering of another person is serious, not trivial; (2) that it is undeserved; and (3) that such suffering might be visited upon the one who feels compassion. Those who quibble, like John Yoo, over how to define torture, have doubtless concluded that the suffering involved is insignificant, deserved, and unlikely to visted upon persons like themselves.
Seeing "waterboarding" as less than torture; thinking it deserved, and believing that those who suffer in such ways are different than ourselves demonstrates a chronic failure of moral imagination.
 

I strongly suggest that people who don't think that standing for up to 40 hours, in a stress position, shackled and unable to avoid urinating and defecating on yourself, in cold and disorientating conditions, is actually torture, try it for themselves. The muscle fatigue alone causes intolerable pain. I understand there are certain women who would help you with the experience for a fee.
 

Those who quibble, like John Yoo, over how to define torture, have doubtless concluded that the suffering involved is insignificant, deserved, and unlikely to visted upon persons like themselves.

It's like Lincoln said of Douglas: Douglas could put slavery in the territories to a vote because he didn't care. Some of us do care.

But is he suggesting that his readers would actually be so foolish as to maintain that double-standard? I don't know anyone who would.

The Administration is. It's bill provides retroactive immunity for acts the same bill treats as war crimes going forward (though it's careful not to specify, that is the practical effect).

I think that your eagerness to gloss over the distinctions between "what is legal?" and "what is humane?" reflects a serious problem in the debate on torture.

I think the Administration's eagerness to discuss "legality" instead of "morality" is the crux of the problem. See Douglas, Stephen.

His general statement appears to lose, in case of KSM, to specific facts. Waterboarding appears to have worked on him.

I'm prepared to assume General Kimmons is fully aware of that case and included it in his comments.

Second, you'll have to match up your definition of "abusive tactics" against Kimmons's before you can show that his statement supports your view.

The Army's new Manual bans most of the techniques at issue. Quoting from Marty Lederman's post below:

"The new Army Field Manual goes even further, providing numerous examples of techniques -- many of which Donald Rumsfeld and Jim Haynes had previously (and eroneously) approved as "legally available" -- that will will now be off limits for all detainess in DoD custody, including: forcing a detainee to be naked or perform sexual acts; using beatings and other forms of causing pain, including electric shocks; placing hoods over prisoners’ heads or tape on their eyes; mock executions; withholding food, water or medical care; using dogs against detainees; and waterboarding."

Using the most simplistic of risk analyses, we know that if the stakes are high enough, then even evidence of "questionable credibility" is valuable.

No, it isn't. In fact, it's in precisely such situations that it's LEAST valuable. And your logic proves too much: we should, according to the logic, not hesitate to use the rack and all other Medieval techniques.

But this is quibbling. The reason we don't torture is the reason we don't hold slaves. Again to quote Lincoln, "As I would not be a slave, so I would not be a master."
That's the rule for those who do care about the moral values involved. It's a question of character.
 

Wow. who would have thought that "Balkinization" would prove to be, for some, an irony free zone?

Please note that the same "tactics" and "techniques" used by the Bush Administration on prisoners are called "Torture" by the Bush Administration when used by other governments.
 

"The place of passion in legal argument has a long history, from Athenian legal oration to the present. Asking "can't we debate legal questions without trying to inflame the passions?" is a way of ignoring the role played by passion in moral discernment and persuasion. "

I see. So if, say, certain politicians could succeed in inflaming the public passions so thoroughly that the public supported running roughshod over, say, the legal protections of the Bill of Rights, then would you still be asserting that we should ignore the details of legal analysis?
 

Mark, you'll have to forgive me but I don't follow your version of the risk analysis. As the magnitude of harm of a given threat increases, the value of intelligence with lower likelihood of accuracy also increases. This is a pretty straightforward application of cost-benefit analysis, as applied in Posner's relatively new book, "Catastrophe." As the expected value of a threat increases, we should be willing to take one more and more costly efforts to prevent it. Among the more costly alternatives would be to employ tactics that are marginally less likely to achieve success. If the expected value of harm of an attack were 10 units, then we'd expend less effort preventing it then we would if it were 10,000 units.

Or to give a bit more concrete example: If the threat of harm from an explosive device in a cargo container were, say, $5,000, then no one in Congress would recommend that we search every container. The likeihood that the search of any one container would provide useful information is too small.

But say that (without changing the probability of attack) the threat is a nuclear device, with an expected harm of $500 billion. Wouldn't you want to check a few more containers?

In the end you point, and move to questions of morality. Which is fine, of course -- morality is an important consideration, one which we all seek to answer, in religion, or philosophy, or whatever. But rushing to invoke morality above all other concerns doesn't help solve the question, posed by JB, is the action "legal under the Geneva Conventions?". Indeed, it doesn't even answer the question, also posed by JB, "is it torture?", assuming that you're trying to define torture in a legally meaningful sense.
 

Sorry, I meant, "in the end you punt".
 

You are overlooking something Adam: permiting criminals like George Bush to operate outside the law is a sure thing.

That's why we revolted against the Crown and have the Constitution in the first place, remember?

You can agrue all the hypotheticals you want, but the clear facts remain: the Bush administration has been committing war crimes by policy in direct violation of US law since 2001, and they have been lying about the law, the politics, and the "military necessity" from day one until now.

Their arguments are irrational, deluded BS, to whatever extent they are simply fraud, and if you beleive otherwise then you are a FOOL.

Both the crimes and the lies are entirely obvious, as is the hypocrisy and/or stupidity of anyone who continues to support these contemptible gangsters. They aren't fighting a war against terrorism: they are practicing terrorism.

None of this nonsense was necessary, and nothing they are proposing in Congress is either necessary or Constitutional. They are trying to use the law to commit crimes, and that's all they are doing.
 

The obvious conclusion to be drawn from some responses here is that anything goes as long as it has the imprimatur of the United States. For shame.
 

Adam,
I apologize for this post if you are a teenager or a naive young pup but I don't think thats the case. I'm very impressed at the restraint practiced by other commentators on this thread. In response to your sophistry they've given you the benefit of the doubt and offered nothing but reasoned responses. But I think you should understand that your pretense of detachment and suspension of judgment is cowardly and immoral. Its obvious from your prose that you are decently educated so cut the bullshit. There is no good faith argument that the techniques admitted and defended by the administration do not constitute torture and you know that. Indeed, the government's stated defense---that these techniques aren't torture because they only cause "stress" and don't lead to organ failure---is ridiculous on its face. If you were a bolder partisan you might try to argue that torture under current circumstances is justified by some exigency. You would be wrong but at least you would be honest.
 

Waterboarding appears to have worked on him.

Adam, we could waterboard you and ask you your name, and I bet you'd tell it to us.

We could then announce that "waterboarding works!"

There might, however, have been a way to get that information from you *without* using torture.
 

But Anderson, how does that disprove my point that, contrary to others' assertions, the information gleaned from such tactics is insufficiently trustworthy?
 

Correction, "is not insufficiently trustworthy".
 

As the magnitude of harm of a given threat increases, the value of intelligence with lower likelihood of accuracy also increases.

This is just not true. It is true that we ought to pay greater costs to prevent catastrophes, but those costs have to relevant. It is NOT true that we ought to waste money just because want to prevent a catastrophe. Here's an example:

If we wanted to prevent fire damage in Rome, it would make sense to build the houses out of stone. It would make no sense at all to play the fiddle.

Torturing someone to get information is the equivalent of fiddling while Rome burns.

In the end you p[unt], and move to questions of morality. Which is fine, of course -- morality is an important consideration, one which we all seek to answer, in religion, or philosophy, or whatever. But rushing to invoke morality above all other concerns doesn't help solve the question, posed by JB, is the action "legal under the Geneva Conventions?".

Moving to questions of morality is not a punt. Morality IS the issue here; legality is a sham. Quoting Lincoln again:

"I suppose that the real difference between Judge Douglas and his friends, and the Republicans on the contrary, is, that the Judge is not in favor of making any difference between slavery and liberty; that he is in favor of eradicating, of pressing out of view, the questions of preference in this country for free or slave institutions; and consequently every sentiment he utters discards the idea that there is any wrong in slavery. Everything that emanates from him or his coadjutors in their course of policy carefully excludes the thought that there is anything wrong in slavery. All their arguments, if you will consider them, will be seen to exclude the thought that there is anything whatever wrong in slavery. If you will take the Judge's speeches, and select the short and pointed sentences expressed by him,--as his declaration that he "don't care whether slavery is voted up or down,"--you will see at once that this is perfectly logical, if you do not admit that slavery is wrong. If you do admit that it is wrong, Judge Douglas cannot logically say he don't care whether a wrong is voted up or voted down. Judge Douglas declares that if any community wants slavery they have a right to have it. He can say that logically, if he says that there is no wrong in slavery; but if you admit that there is a wrong in it, he cannot logically say that anybody has a right to do wrong."

Once you admit torture is wrong, the legal question settles itself.

Indeed, it doesn't even answer the question, also posed by JB, "is it torture?", assuming that you're trying to define torture in a legally meaningful sense.

You made a similar point above in trying to distinguish between "inhumane" and "illegal". I reject that distinction a priori, as I said above. Even if I accepted it, however, you'd still be wrong -- legality and humanity are the same issue in the relevant laws.

The Administration bill defines the prohibited acts in terms of "cruel or inhuman" conduct. For example, from p. 70 in the link Marty Lederman provided above:

"Any person who commits an act intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including severe physical abuse, upon another person within his custody or physical control shall be guilty of cruel or inhuman treatment and subject to whatever punishment the commission may direct, including, if death results to one or more of the victims, the penalty of death."

Common Article 3 begins, "Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely..."

The distinction you're trying to draw is wrong in principle, but it doesn't exist even in law.
 

"'... He can say that logically, if he says that there is no wrong in slavery; but if you admit that there is a wrong in it, he cannot logically say that anybody has a right to do wrong.'

"Once you admit torture is wrong, the legal question settles itself."

This is all getting a bit silly. I think that abortion is morally wrong. Does that mean that it's illegal for the President to enforce any law that protects a woman's right to choose?

And your reference to CA3's reference to "humane[]" treatment doesn't do the legal analysis justice. We need to figure out what the definition of "humane" is for the purposes of the treaty, before we can apply it as a matter of law.

You can't just assume that a legal document utilizes definitions that match up precisely with one's own informal definition. Just because I think something is "humane" in a general sense doesn't mean that I think it was what matches up to the definition of "humane" for the purposes of the treaty.

I may think that a particular act of homicide is "murder" in the conventional sense, but it doesn't mean that it's "murder" under a criminal statute, or even under the common law of crimes.

Likewise, I may think that a criminal punishment is "cruel" or, by reference to punishments afforded the same crime in other cases, "unusual," but that doesn't mean that the punishment is unconstitutional.

If we're not going to learn to separate (the Lincoln quote notwithstanding) questions of legal analysis from questions of morality and taste -- as JB notes, they are, in fact, separate questions -- I don't see the point in debating points of law.
 

This is all getting a bit silly. I think that abortion is morally wrong. Does that mean that it's illegal for the President to enforce any law that protects a woman's right to choose?
***
If we're not going to learn to separate (the Lincoln quote notwithstanding) questions of legal analysis from questions of morality and taste -- as JB notes, they are, in fact, separate questions -- I don't see the point in debating points of law.


You're missing Lincoln's point. It was simple: by focusing on a narrow legal issue, Douglas was hoping people would overlook his position on the fundamental moral issue, namely, whether slavery was wrong. Lincoln called him on that and forced the debate on the moral ground.

The Administration is behaving like Douglas and so are you. By harping on the fine details of statutes, you're hoping we don't notice that you are ducking the moral issue: is torture morally justified?

You have two choices. You can step up forthrightly and say that you think torture is moral and should be allowed for that reason, in which case we can debate the moral issue. Or you can continue to shuffle around and mumble about Chewbacca, in which case we'll just assume that your behavior indicates your belief that torture is moral.

Of course, you could also admit that torture is immoral and start discussing how to prevent it. In that case, we'll welcome you away from the dark side and treat your earlier posts as moot.

We need to figure out what the definition of "humane" is for the purposes of the treaty, before we can apply it as a matter of law.

You're changing the subject here. Your original point was "[the fact] that the U.S. found the Nazis' actions displeasing (or, to use a better term, inhumane) does not make those actions illegal". My quote from Common Article 3 demonstrates that yes, in fact, finding an action "inhumane" does make it illegal.

Now you're switching the discussion to defining the term "inhumane".
 

"Mumble about Chewbacca"?

I guess I don't see what's so hard about the moral questions: Torture is morally justified in some hypothetical cases, yet not in the great majority of other cases. Of course, we may disagree about the definition of torture, too?


Your last comment is odd: It accuses me of changing the subject, simply of the way you (incorrectly) frame the analysis. My point was that whether something is "humane" depends on the perpetrator, but that the question of whether something is "legal" does not. I stand by the comment. You accuse me of "changing the subject," but only because you're conflating the legal analysis (is something "humane" within the definition of the term as used in CA3) with the nonlegal question (is something "humane" in a nonlegal sense). Of course, as I demonstrated by my reference to discussions of "murder" or "cruel or unusual punishment," the legal and nonlegal definitions of terms are not equivalent.

As JB himself notes, the question of whether something is "legal" and the question of whether something is morally palatable are, in fact, two separate questions. I love Lincoln as much as the next guy (although I doubt you'd apply Lincoln's take on the power of the President to ignore Dred Scott to the power of the current President), but your eagerness to avoid substantive legal debate for the purposes of throwing about moralisms is a bit tiring.
 

But I am impressed by your apparent conclusion that those who try to convince people that abortion should be legal are, in fact, "hoping we don't notice that [they] are ducking the moral issue: is [abortion] morally justified?"

Of course, I'm relying on absurdity to illustrate the absurdity of your argument. To say that someone who debates legal points is someone who illegitimately cloaks his position on morality is particularly out of place on a blog devoted to legal debate. I'd never suggest that you (or Professor Balkin, or anyone else) who focuses on legal questions is in fact hiding from moral ones.
 

"Mumble about Chewbacca"?

From the TV show "South Park". http://en.wikipedia.org/wiki/Chewbacca_Defense

Torture is morally justified in some hypothetical cases, yet not in the great majority of other cases.

No, it's wrong in every case. Just like slavery. Since "South Park" is apparently not your forte, how about Brothers Karamozov:

"Imagine that you are creating a fabric of human destiny with the object of making men happy in the end, giving them peace and rest at last, but that it was essential and inevitable to torture to death only one tiny creature - that baby beating its breast with its fist, for instance - and to found that edifice on its unavenged tears, would you consent to be the architect on those conditions? Tell me, and tell the truth."

The answer, of course, was "no".

You can feel free to make your case for the morality of torture, but we're wasting time debating its legality. The answer is "no".

whether something is "humane" depends on the perpetrator, but that the question of whether something is "legal" does not.

Many things are legal if performed by one person but not another. A policeman exceeding the speed limit is an obvious example.

I'm dubious about your claim that humaneness depends on the perpetrator, but perhaps an example would make it clear.

you're conflating the legal analysis (is something "humane" within the definition of the term as used in CA3) with the nonlegal question (is something "humane" in a nonlegal sense)

I don't believe that was your original point, but if you say so. I do agree that there could be a distinction between a legal term and that term in common use. I'm not sure that distinction applies in this case, but I'm not familiar enough with the case law on CA3 to know for certain.

your eagerness to avoid substantive legal debate for the purposes of throwing about moralisms is a bit tiring.

I don't find it nearly as tiring as I do the moral blindness of an Administration which attempts to defend torture, or to distract attention from its crimes by petty legalisms. YMMV.

I am impressed by your apparent conclusion that those who try to convince people that abortion should be legal are, in fact, "hoping we don't notice that [they] are ducking the moral issue: is [abortion] morally justified?"

In my view, anyone who supports the right to choose should be prepared to justify that position morally. As a practical matter, I believe almost everyone does do this.
 

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