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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Don't ask me. I'm hardly an expert. But if we're going to authorize cruel treatment in violation of our treaty obligations, then at the very least the case for its effectiveness -- for its necessity -- would have to be established fairly conclusively in public debate (although I'd argue that such a showing is far from sufficient to justify such a momentous and horrific step).
That's the task the Preisdent set for himself in his speech yesterday -- to convince the public that without torture (oops, I mean "alternative techniques"), we can't obtain valuable information necessary to prevent future attacks. As I mentioned below, one inconvenient little problem is that the experts over at the Pentagon had just gotten through vociferously denying what the President was trying so hard to establish: "No good intelligence is going to come from abusive practices," Kimmons said. "I think history tells us that. I think the empirical evidence of the past five years, hard years, tells us that." More from Mark Benjamin on this Pentagon/White House Jekyll and Hyde routine here.
Marty, does the president describe the "alternative techniques" as "abusive"? Did the Pentagon describe them thus? I think you're simply adopting one reading over another, without any basis at all for the choice.
Torture arguably costs lives, if Zawahiri's and other pre-9/11 conspirators' experiences had anything to do with their radicalization, which led to the 9/11 attacks and subsequent warfare. Who knows how many seeds like Zawahiri we've sown over the last several years.
The military apparently thinks it puts our own soldiers at risk. From the Houston Chronicle:
"Testifying before a House panel, the service's judge advocate generals said the plan could violate treaty obligations and make U.S. troops vulnerable.
'While we seek that balance' of fairness and security, 'we also must remember the concept of reciprocity,' said Brig. Gen. James Walker, staff judge advocate for the Marine Corps. 'What we do and how we treat these individuals can, in the future, have a direct impact on our service men and women overseas.'"
I trust the guys who are at actual risk, not the ones who spend their time fantasizing that they're Jack Bauer.