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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.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 Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler 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 yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts How language works
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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.
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.
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.
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."
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.
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.
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