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
On Stalin's (Torturous) "Alternative Set of Procedures"
Robert Conquest, a leading historian on the Soviet Union, a vociferous anti-communist, and a favorite of conservatives, wrote the following in his recent book, The Dragons of Expectation (labeled "a frontal assault on the pieties of the left"):
A central characteristic, seldom actually omitted from nonjudgmental accounts of Stalinism, was indeed torture. It was applied on a huge scale to produce a totally false picture of terrorism, sabotage, and espionage.
Even the ostensibly nonphysical methods used in 1936 are described by victims as both mentally and physically devastating. One man arrested briefly told me that the comparatively mild-sounding stoika, when a prisoner was kept standing against a wall for days, was hardly bearable. Torture is, one might say, a worse crime against humanity than killing.
A central theme in Conquest's book (and in his earlier books) is to point out the shockingly immoral behavior of the Soviet leadership, which was unparalleled in the West--a difference that leftist intellectuals infatuated with communism lost sight of, he claims. In the above passage, Conquest presents Stalin's willingness to inflict torture as a prime example of this difference.
Given his moral condemnation of torture, Conquest no doubt was relieved to hear President Bush utter these strong words in his speech last week:
I want to be absolutely clear with our people, and the world: The United States does not torture. It's against our laws, and it's against our values. I have not authorized it--and I will not authorize it. Last year, my administration worked with Senator John McCain, and I signed into law the Detaineee Treatment Act, which established the legal standards for detaineess wherever they are held. I support this act.
Skeptics point out that the Bush Administration fought the bill, and inserted a signing statement which appeared to detract (at least potentially) from the bill. Skeptics also note that in the same speech Bush insisted on the necessity to utilize what he called a lawful "alternative set of procedures," which he failed to detail, but which skeptics surmise includes actions that many people would consider "torture."
Let's take President Bush at his word. His above assertions clear up any ambiguity that might have been raised by the signing statement: Bush supports the Act and his administration will live up to its requirements. Any government officials who violate the terms of the Act will do so without his authorization, contrary to his explicit desire.
Here's a simple way to determine whether any of the "alternative set of procedures" constitute "torture:" check if any of the techniques on the list--whether physical or mental--were also utlized under Stalinism. By this standard, the hours-on-end standing position, and other similar stress positions, constitute torture and must not be done. To help provide information or to resolve close calls, Bush can consult Conquest (who he awarded the Presidential Medal of Freedom last year). Conquest, no soft liberal, knows torture when he sees it.
As Bush's statement indicates, and as Conquest insists, a repudiation of torture is one of the factors that hitherto has distinguished our government from immoral regimes. Posted
by Brian Tamanaha [link]
Is this for real?
Are we going to apply The Stalin Test to all policies to determine their validity? (I heard that Stalin was a real stickler on prohibiting prayer in public schools. He had a thing for progressive taxation, too.)
When did legal analysis grow so coarse, so hamfisted?
Even taking The Stalin Test seriously would show how silly this mode of analysis is. Again, here's Professor Tamanaha's test:
Here's a simple way to determine whether any of the "alternative set of procedures" constitute "torture:" check if any of the techniques on the list--whether physical or mental--were also utlized under Stalinism.
If Stalin's regime utilized the questioning of prisoners without an attorney present, would that be illegitimate conduct in the global war on terror?
If Stalin's regime blindfolded prisoners, would that be illegitimate conduct?
If Stalin's regime held prisoners until the end of hostilities during times of war, would that be illegitimate conduct?
Quite simply, The Stalin Test fails because Stalin, as evil as he was, surely relied not only on reprehensible tactics, but also on completely legitimate ones. Asking "What Wouldn't Stalin Do" simply doesn't answer the question.
Then again, the New York Times praised Stalin more than they did Bush. Does that tell us anything about the legitimacy of the NYT?
Again, I can only shake my head and ask, when did legal analysis get so coarse, so hamfisted?
Anderson, I'd say that it's you, not me, who has responded in juvenile fashion. I didn't say that the post did advocate The Stalin Test for the evaluation of all policies -- instead, I asked, if The Stalin Test applies to one set of policies, then why not all?
Why would we choose Stalin's interrogation policies as the metric for determining whether a U.S. policy is moral, but not as the metric for evaluating other policies?
The fact is that comparing U.S. policies to Stalin's does nothing to answer whether an interrogation is just or unjust, moral or immoral. Why on earth do you need Josef Stalin to tell you what's right and wrong?
Anderson, you ask why "defending torture" is so important to me. I didn't know that it was. But now I'm curious: Why is comparing Bush to Stalin so important to you?
And again, I wonder, when did legal analysis grow so coarse?
But, again, why do you need to consult the Soviets' record first? You really can't figure out what's moral or immoral without reference to the Evil Empire?
If the Evil Empire is your reference point for interrogation, why not for other policies? Then again, I must admit, I don't see much need to consult the Soviets' record on *any* major policies. Why do you? Why are you less interested in looking to them for examples of bad tax policy than for bad interrogation policy?
I must continue to profess my confusion as to this new Stalin Test.