Balkinization  

Sunday, September 24, 2006

How language works

Sandy Levinson

For an article that Jack and I are completing, I had occasion to look up the entry for James Byrnes in the Oxford Companion to the Supreme Court. (One of the points of the article is that if Byrnes had not resigned in 1942, after one year on the Court, and had remained on the Court until, say, 1954, he could easily have dissented in Brown v. Board of Education, with presumptively disastrous consequences.) So I find it interesting to find the following sentences in the short entry on Byrnes: "In 1951 he was elected overwhelemingly governor of the Palmetto State [South Carolina]. As a Southern governor in the 1950s, Byrnes was a racial moderate: he supported segregation in schools and public facilities, but successfully pushed for a bill to suppress the Ku Klux Klan." Presumably "racial moderate" is meant to be (reasonably) complimentary: He was not an "extremist" like, say, George W. Wallace or Ross Barnett, and one should be grateful for that. That being said, he was certainly a racist who contributed to many years of continued backwardness in the Palmetto State, even if he was unwilling to support the Klan.

What is the relevance of this? I think that part of the war being waged with regard to the current legislation regarding torture and detainees rights is a struggle over public language (as well as the language of the statutes themselves). Anyone who opposes what many people throughout the world would easily call torture is being redescribed as an "extremist." To be a "moderate" on the issue is thought to be desirable, and that is the essential role being played by McCain, Graham, and Warner. They, like Byrnes, are too fastidious to support the roughest stuff, but they certainly are willing, as a matter of fact, to support the analogue to "segregation in schools and public facilities." (In the context of the 1950s, one might expect McCain, at least, to have supported anti-lynching laws, though it would still have been considered daring for South Carolina or Virginia senators to do so.).

I'm old enough--growing up in North Carolina also helps--to remember when respected pundits and politicians referred to the "extremists on both sides," one side being the Klan, the other being the NAACP or Martin Luther King. This is exactly how the torture debate is now being constructed, at least by the Administration. The Post and the Times are not yet on message, but how many operating politicians will be able to resist the lure of "moderation" and "reasonableness" rather than risk being identified with the ACLU (selected out for a dismissive reference by Sen. McCain in the transcript quoted in Marty's invaluable contribution)? To stick with the analogy, waterboarding is being treated as the equivalent of lynching, but other forms of formerly criminal abuse are being normalized as part of "the program."

A great American political figure once said that "extremism in the defense of liberty is no vice; moderation in the pursuit of justice is no virtue"? He was, of course, flailed for the very extremism of his comment. Of course the Bush corollary is that extremism in the defense of what it and it alone defines as "liberty" is no vice, but moderation in the pursuit of justice is close to an absolute virtue. Do we agree?

Comments:

Professor Levinson:

I agree that words have power and that power can be abused with inaccurate use of words.

For example, you freely use the term "torture" as a pejorative descriptor for interrogation techniques with which you disagree when, in fact, these coercive techniques are a walk in the park compared to real torture.

For a gruesome reminder of what real world torture is all about, I would recommend that you take a look at what al Qaeda does to our captured soldiers...

http://mypetjawa.mu.nu/archives/183865.php

I would also recommend that you read up on how the Gestapo, KGB, Red Chinese and the Chilean military interrogated their prisoners for more real world examples of torture.

Perhaps after reviewing these examples, you might reconsider your use of the term torture.
 

To Bart DePalma: a quick google of "detainees died" led to me a BBC report, dated Feb. 21, 2006, that nearly a hundred prisoners in Iraq and Afghanistan have died in U.S. custody. Of the 98 deaths, at least 34 were suspected or confirmed homicides. The others I suppose died of natural causes (I'm being sarcastic). Walks in the park must be getting dangerous.
 

So a question for bart depalma: Is waterboarding (which is essentially the drowning of an individual who is "saved" at literally the last second, and he is then threatned with a repetition of the experience) torture? Is extended placement in solitary confinement, without sleep and listening to loud music, torture? I agree it's not the cutting out of tongues, feeding to crocodiles, throwing out of planes, and other things that various regimes around the world are accused of doing. But is Mr. Depalma's argument that anything less that what Idi Amin, Papa Doc, or Saddam Hussein did to their political opponents is not "torture," but "merely" "cruel, inhuman, and degrading." I note for the record that John McCain presumably believes that waterboarding and hypothermia ARE "torture."

But, also for the record, I happen to agree with Mr. Depalma that the word "torture" is in fact a placeholder and must, for better and for worse, be filled in with specifics. This is because, as I have argued elsewhere, there really doesn't exist a "common conscience" even of Americans, let alone of "humankind," that actually agrees on precisely what counts once one gets beyond the paradigm cases given us by Amin, Papa Doc, and Saddam Hussein.
 

Re the main posting: "Moderate" has been moving to the right, along with the rest of the nation, ever since Reagan's election. There is no one on the Supreme Court like Douglas, Brennan, or Marshall, but the justices like Breyer who would have been called "moderates" in those days are called "liberals" today; justices like Kennedy who would have been called "conservatives" then are called "liberals" today; and right-wing radicals like Scalia and Thomas who would have been unthinkable then are called "conservatives" today.

Similarly, there are no senators like Al Gore Sr. or Fulbright now, but the gutless Democrats are called "liberals." (For those of you too young to remember, Gore and Fulbright opposed the war in Vietnam in terms that no Democratic senator dares do today with respect to Iraq.)

Finally, the war criminal serving as president today is making Nixon and Reagan seem moderate.
 

I meant, of course, that Kennedy is called a "moderate" today.
 

henry:

To Bart DePalma: a quick google of "detainees died" led to me a BBC report, dated Feb. 21, 2006, that nearly a hundred prisoners in Iraq and Afghanistan have died in U.S. custody. Of the 98 deaths, at least 34 were suspected or confirmed homicides. The others I suppose died of natural causes (I'm being sarcastic). Walks in the park must be getting dangerous.

Homicide is not an approved interrogation technique and has nothing to do with this conversation.

BTW, the reason you know about these alleged homicides is because the military investigated and on several occasions prosecuted them. However, under cross examination at courts martial, these homicide claims often fall apart.

For example, out here at Ft Carson, three soldiers were tried for murder after being accused by some Iraqis of drowning an enemy prisoner. There never was any body found and once these witnesses were cross examined cross examined, they were forced to admit that they did not actually see what they claimed.

The so called Haditha "cold blooded murders" also appears to be falling apart before charges have even been brought

Take all accusations without firm physical evidence which rely solely upon the claims of persons in enemy territory with a large grain of salt. The enemy lies for propaganda purposes.
 

Sandy Levinson said...

So a question for bart depalma: Is waterboarding (which is essentially the drowning of an individual who is "saved" at literally the last second, and he is then threatned with a repetition of the experience) torture?

As I posted in response to one of your prior posts on this subject, I am comfortable with the long standing US definition of torture as the intentional infliction of severe pain.

Good real life examples of torture under this definition would the beating of John McCain's broken leg and the intentional dislocation of his shoulders.

Using this as the bench mark, I do not believe the transient panic lasting a minute or two caused by a fear of drowning is the infliction of severe pain.

Is extended placement in solitary confinement, without sleep and listening to loud music, torture?

Most definitely not. Not even close.

I note for the record that John McCain presumably believes that waterboarding and hypothermia ARE "torture."

Those are interesting opinions considering the definition of torture to which he agreed.

With all due respect to Mr. McCain's war record, this politician has a history of betraying his "deeply held beliefs" when expedient. This debate is just such a case of expediency.

McCain thought he would burnish his "moderate" image by opposing these coercive interrogation techniques. However, Bush outmaneuvered him by announcing that we had rolled up much of the al Qaeda command structure using these techniques and then sent the most wanted al Qaeda for trial at Gitmo using evidence gained with these techniques. Mr. McCain's chances to run for President as a Republican would have evaporated if he blocked trials of the primary planners of 9/11 so McCain gave the President all he wanted and then went on TV to disingenuously claim that he had in fact won.

But, also for the record, I happen to agree with Mr. Depalma that the word "torture" is in fact a placeholder and must, for better and for worse, be filled in with specifics. This is because, as I have argued elsewhere, there really doesn't exist a "common conscience" even of Americans, let alone of "humankind," that actually agrees on precisely what counts once one gets beyond the paradigm cases given us by Amin, Papa Doc, and Saddam Hussein.

I would submit that everyone can agree that the intentional infliction of pain is torture and that "common conscience" should be the base definition of torture.

I think opponents of disputed techniques which do not rise to the level intentional infliction of pain harm their cause through the careless use of the term torture to include everything from standing for long periods to listening to heavy metal music. I don't think waitresses would be impressed with claiming standing for long periods is torture nor would the millions of fans of heavy metal music think much of equating their favorite tunes with torture.
 

"Take all accusations without firm physical evidence which rely solely upon the claims of persons in enemy territory with a large grain of salt. The enemy lies for propaganda purposes."

The problem with this is that all of Iraq is in effect "enemy territory," so that the logical implication of bart depalma's suggestion is that no Iraqi ought ever be believed unless there is (almost inevitably weak or nonexistent) knock-down forensic evidence. The problem with his second sentence is that this Administration lies through its teeth for propaganda purposes and, moreover, that there is within the military a "wall of silence" that leads "bands of brothers" to coverup for one another, with rare and honorable exceptions. I don't know how West Pointers behave in reality, but even if most members of the armed forces in fact do not lie, cheat, or steal themselves, I have no confidence that they do not "tolerate" those of their colleagues who do (and who do much worse). This is not an aspersion against the military, but, rather a statement about the sociology of almost all closely-knit organizations that view themselves, rightly or not, as basically misunderstood by callow "outsiders."
 

Bart DePalma: "Homicide is not an approved interrogation technique and has nothing to do with this conversation." It's not that simple. Bush has authorized torture, and has not limited it to specific types. Torture can, and has, resulted in death. These homicides were not premeditated murder, but were instances of torture that went too far. As I assume you know, although you do not acknowledge it in your posting, some of these cases have been described in detail in the media and do not constitute enemy propaganda. I'm not going to google for examples, but I recall a New York Times report of one victim in Afghanistan -- an innocent cab driver -- who died after his legs were beaten until they became pulp. More people will be tortured to death if Congress passes this bill, whether or not the bill technically authorizes homicide. It comes with the territory.
 

Those who seek to rationalize or excuse torture often cite the brutality/barbarity of techniques used by America's adversaries. By this rationale, in what other respects should our culture and/or government emulate Islamic radicals?

Should Americans kill unchaste female family members? What about polygyny? Osama Bin Laden, for example, has multiple wives. What about amputating the hands of thieves?

The differences between America and its enemies should be celebrated, not eliminated as the Party of Torture would have us do.
 

This kind of rhetoric goes back a way, as I discovered when writing a book about it. Indians who wanted full independence from Britain in the 19th century were branded "Extremists"; the ones who merely wanted a little more freedom to self-govern were called the "Moderates". These terms persist in historiography of the period.

I think one of the reasons why there can be a debate over whether "waterboarding" is torture, meanwhile, is because "waterboarding" is a deliberate euphemism, as I point out here.
 

Professor Levinson:

Bart: "Take all accusations without firm physical evidence which rely solely upon the claims of persons in enemy territory with a large grain of salt. The enemy lies for propaganda purposes."

The problem with this is that all of Iraq is in effect "enemy territory," so that the logical implication of bart depalma's suggestion is that no Iraqi ought ever be believed unless there is (almost inevitably weak or nonexistent) knock-down forensic evidence.


Actually, I am referring to the roughly 20% of the country afflicted by Baathist and al Qaeda terrorism which has recently been countered with radical Shia terror. The rest of the country is largely peaceful.

Professor, if a witness is under a death threat from the local terrorists or is a member of a family or clan supporting the terrorists, would you give a lot of credence to their testimony? As a criminal defense attorney, I would assume they are lying until I see some corroborating evidence.

The problem with his second sentence is that this Administration lies through its teeth for propaganda purposes and, moreover, that there is within the military a "wall of silence" that leads "bands of brothers" to coverup for one another, with rare and honorable exceptions.

Really? Perhaps you can give me your evidence of Administration lies to conceal war crimes.

Furthermore, all of the war crimes for which there is actual evidence like Abu Ghraib and the alleged rape and massacre of a family were all turned in by one of the military band of brothers. Those keeping silent were generally the perpetrators themselves.

The vast majority of officers and enlisted with which I served during my 7 years in the Army follow the code against lying, cheating and stealing and take others' violations of that code very seriously. If the prosecution can prove the actual guilt of an accused, then this veteran thinks the defendant should be hammered to the maximum extent permitted by law because he or she has not only committed the crime itself but has also placed his brother in arms in further danger by giving the enemy propaganda to recruit further terrorists.
 

The Post and the Times are not yet on message...

But the entire media machine portrayed the compromise as the last step in the process, even before anything has been released to the Democratic side. If something pushed by the Republicans is represented as compromise without pointing out between who and maybe why, isn't it more or less a setup, maybe so the media can write more dramatic headlines about anyone who objects or questions the details?
 

Turning back to the original post, the problem is that no one knows which way history will go, and which of today's "extremist" positions will be moderate tomorrow. If only some power would the giftie gie us, to see ourselves as the future will see us, we could save our great-grandchildren a lot of embarrassment.

I read a funny story, by an American evangelical Christian, being approached in 1985 by a Romanian Baptist seeking funds to print bibles in Romanian. The American pointed out that any distribution of the bibles would be illegal, so that it didn't seem like the best way to spend missionary dollars. The Romanian responded: "You don't understand. Communism is finished. The collapse could come any minute!" The American thought, as I am sure every Ivy League faculty member also would have thought, that the Romanian was crazy and declined to contribute. So history will mock us all, but hopefully mostly only after we are dead.
 

Thank you very much for this information.

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