Balkinization: Misplaced Priorities?

Comments:

What is meritworthy is the effort to protect the individual whose habeas is denuded and stun gunned. It is the same policy magnified that fails to grasp a diplomatic accommodation to wind down the explicit mass war. The conscience that will be shocked by the long time standing is the one that is prosecuting the war, and it is innured to the spectacle instead of seeking its own moral way to taper the unfortunate effect which is the armed war.

I thought the casualty statistics commonly posted on a news service I read have a proportionality usually of approximately 6 GIs dying, 18 GIs lying wounded, 30 insurgents deceased lumped in the same cipher as civilians or civilians unreported entirely. Now we see the civilian casualty figure beginning to emerge; word earlier was Iraqis themselves reported meagerly in their own media on their civilian deaths from the war. Finally there would be the civilian wounded number. It is worthwhile working on law to avert the scar which is armed conflict.

# posted by

JohnLopresti : 5:58 PM

Professor Lederman: my colleague Mike Seidman quite rightly questions why the bloggers on this site have been so focused on other, less momentous questions.

At the risk of tooting my own horn, the whole idea behind repeal-aumf.org is that by attacking the legislative embodiment of the fallacious "war" on "terror" we undercut all the evils which follow, from H.R. 3162 (the so called "patriot" act) to the unprovoked invasion and occupation of Iraq, to the MCA and all the rest. Sometimes we have to engage folks where they will let you, so I've spent a bit more time on more topical matters; but the focus remains the same.

# posted by

Robert Link : 7:58 PM

Well gee, I guess mine is a somewhat unique perspective here...

I'm not a lawyer, but it's nevertheless a fact that I read the 2001.11.13 Bush Presidential Military Order on Detentions etc ("PMO") the day it was issued and immediately resolved to do everything in my power to oppose it because I understood that its only purpose was to commit WAR CRIMES against prisoners. By February 2002 my concept of the project was explicity a criminal investigation pursuant to 18 USC 2441; I've been working on it as such ever since.

And I opposed the rape of Iraq from the start, understanding that it was a needless and fraudulent CRIME AGAINST PEACE.

But there is a problem... we don't have a statute for crimes against peace; all we have there is the IMT Charter and the Kellogg-Briand Pact. For war crimes, we have 18 USC 2441, and proof to a logical certainty on the strength of the administration's own public statements and documents.

So my attitude towards the administration's crimes in Iraq is simple: it will require a full investigation once they are out of office, and it will likely require an international tribunal to prosecute those crimes fully.

That's all been on my radar from the start, but their biggest crimes aren't the unlawful detentions, the torture, or even the wanton rape of places like Afghanistan and Iraq -- no, their *worst* crime is their systematic effort to subvert the law to criminal purposes and to appoint judges who would actively support their corrupt schemes.

That's their worst crime: attempting to subvert the Constitution and laws of the United States...

"Corruption is the worst crime -- worse than robbery, arson, mayhem, worse than rape and murder. By starving law enforcement, it feeds these other crimes; it is the progenitor of lawlessness. More: through its example, it debilitates the conscience. It poisons our society; it poisons our souls. * * * The litigant who uses influence to affect the outcome of a case, and the judge who bends to that influence, are our most heinous criminals. How can we respect the law when we find calculated injustice in our halls of justice? And without regard for justice, without respect for law (brother though not twin), our civilization cannot function. Anyone who tries to fix a traffic ticket is damaging all of us."

-- CHARLES REMBAR, The Law of the Land (NY 1980), page 299.

And here we are: Congress just passed a law -- The Military Commissions Act of 2006 -- that has no purpose except to aid and abet crimes.

This nonsense has been clear to me for five years: I mean to see them prosecuted and punished for their crimes or die trying.

Charly

# posted by

Charles Gittings : 8:39 PM

Well, if you wanted to keep up the lawyerly aspect, you could examine some of the instances where those civilians died and determine whether or not a war crime was committed.

The truth of the matter is that we write about not only that which we know of but also that which we believe affects us. In an attempt at defense there is a lot less information available about those events and people.

msftjn

# posted by

Pacanukeha : 9:31 PM

It's a legitimate question, I think, and a really important one. Here are a few answers:

My answer is that it would be so easy to fix this torture stuff that the opportunity to work towards fixing it is too good to pass up. This isn't like poverty or war or North Korea or global warming: those are legitimately hard problems in a lot of ways, but this just isn't: if we'd just flip a switch and go back to the rules we had in 2000, then the entire issue goes away. There aren't many issues like that, where a simple procedural change can just eliminate a problem, and do it at no cost (except politically). Actually, I can't think of a single problem with a solution as easy as this one (not invading Iraq would have been an easy "solution" to the violence there, but unless someone has a time machine, no policy option seems likely to fix it today).

Global warming is probably among the biggest issues of the next century, and also one of the hardest (reducing emissions per Kyoto wouldn't affect global temperatures much at this point, as I understand it). At this point, the situation in Iraq might be similar. If I'm right about all of this, then torture might actually be one of the best issues to address (or might reasonably seem that way). Keep in mind that Balkin was writing about Iraq when it was an "easy issue" in 2003.

So that's my answer. David Luban's answer (from his chapter in Karen Greenberg's The Torture Debate in America) is also pretty accurate, I think. He "justify" it in the sense that Seidman is looking for, but it's still relevant, because I think it goes a long way to explain it. The short version of his argument is that torture is unambiguously totalitarian in a way that death by bombing or poverty isn't. It's the essence of totalitarianism, really, which is why it figured so prominently in 1984. It's about breaking people, and it obliterates liberty (supposedly the quintessential American value) in a way that not even death doesn't. As a result, it's a greater threat to our moral identity as Americans (which is fundamentally based on opposition to tyranny) than ecological destruction, bombing, poverty, and so on regardless of the relative magnitudes of the destruction. Is that rational? Maybe not. But these sorts of issues play a huge role in all sorts of moral decisions. The psychological difference between flicking a switch (even when the switch is hooked up to a large bomb that annihilates a city block) on the one hand and personally making someone scream in pain and terror seems relevant, even when it isn't.

Lastly, the fact that it's much more likely to affect us personally (Padilla is an American citizen) probably plays a role, too. Again, that's hard to justify, but it probably does have an important effect on the way we think about these issues.

# posted by

Disenchanted Dave : 10:50 PM

I think this is an example of the people here focusing on their particular expertise.

This blog led me to a draft copy of "Torture and Postive Law: Jurisprudence for the White House" by Jeremy Waldron, which Dahlia Lithwick recently cited in one of her columns. An edited final version now published.

Waldron noted that rules against torture (and so forth) is "archetypal of a certain policy" that is basic to our law, a certain lack of brutality, a respect for the individual.

Such lack writ large results in us bemoaning (RIP) the death of a Yankee player in a tragic accident but being able to write off the hundred of thousands cited in the Lancet report. War is brutal, and in some true sense they are "other," not to be a matter of ultimate concern.

No respect for the individual. But like a character in the movie "The Core" noted, we cannot think about humanity writ large all the time. It is too huge. We have too think small, the well being of a few. They are representatives of a broader mass.

So, no, I understand the focus, and it is valid.

# posted by

Joe : 6:39 AM

Marty has taken Mike Seidman's comment as serious; my first reaction was that it must be tongue and cheek. But my experience is that Marty's invariably right, so I'll reassess. My reactions fall into three bins.

First, I don't think that respect for the rules alone would cure all of the problems the US faces in Iraq and Afghanistan. I think the major problems stem from tactical misassessments - and for the most part these are not the misassessments of the uniformed professionals who do this for a living, but of political appointees who approach everything with preconceptions and disregard the advice of the uniformed professionals. Following our own rules would help with morale and would help our image, and in a "hearts and minds" conflict, those two factors are very important.

Second, I'm a lawyer and I engage in discourse principally in areas that concern my profession. So my major engagement relating to the war on terror is legal policy issues.

Third, I believe that within the world of legal policy, the question of torture is extremely powerful. It's about much more than a few hundred (or even a few thousand) detainees being seriously mistreated - though in my book that's nothing to dismiss lightly. About a year ago, I was invited to a small meeting with former presidents of the Chilean and Argentinean bar associations, who were visiting in the US and who asked to meet with some bar association representatives working on the torture issue. A very distinguished Chilean told me "It is very important not to allow the subject of torture be dismissed as a technical question of efficient interrogation. We had long experience with this in the mid and late seventies. And after a short time it was clear to all of it that it had nothing to do with intelligence. It was all about leaders demonstrating that they are above the law and cannot be held to account. Torture is a kind of talisman this way. In opposing it, you are vindicating the rule of law, and that is what our profession is all about." His Argentine colleague said essentially the same thing. The more things unfold in the US, the more I see the wisdom of those words.

# posted by

Scott Horton : 8:26 AM

Professor Lederman:

We're collectively verging on 400 posts now about torture, Article II, electronic surveillance and the like, but we have spent far less time blogging, or complaining, about the enormous death tolls in Iraq, which are surely a far greater tragedy than all of the detention and interrogation abuses combined. Why is that?

Probably because you imagine that the former can be directed against you personally while you are far removed from the latter.

In contrast, my more hardline and supportive view of the former intelligence gathering and detention arises because I realize that the Islamic facist enemy against which these acts are directed are the ones who have perpetrated the latter terrible devastation in Iraq as well as in NYC, Madrid, London, Istanbul, Bali, Saudi, Yemen, Afghanistan, Pakistan, Indonesia, the Philippines and other places around the world.

When the enemy's mass murder of thousands of civilians is placed on one end of the scale, any concerns for their "rights" during intelligence gathering and detention on the other end are substantially outweighed.

# posted by

Bart DePalma : 12:37 PM

... one has to ask why so much attention has been paid to relatively small matters when much larger evils are right before our eyes ....

More Americans died in traffic accidents than in combat during the Vietnam War, therefore we shouldn't have been concerned with the war deaths?

How about time considerations? The 655 thousand Iraqi deaths are within a four-year span. The changes to our laws may deform the remaining history of our nation (present population 300 million), however long it lasts.

# posted by

Raven : 1:44 PM

One way to bring legal expertise to bear on the issue might be to answer the following question: If what we are doing in Iraq and to Iraqis were being done in America and to Americans, what laws and legal principles would we be citing in response to our ravaging?

# posted by

Vince Canzoneri : 2:11 PM

Bart:...any concerns for their "rights" during intelligence gathering and detention on the other end are substantially outweighed.

Yes, Bart, this time you are spot on. So long as you can imagine these methods are always and only used against a demonized other you will be for them. Not until it is you, or your brother, or some other falsely accused personal acquaintance, being subjected to these methods will you say "torture and kidnapping" instead of "intelligence gathering and detention". As a warrior you can be excused this myopia; as an attorney it is unpardonable.

# posted by

Robert Link : 3:16 PM

Robert Link:

Bart:...any concerns for their "rights" during intelligence gathering and detention on the other end are substantially outweighed.

Yes, Bart, this time you are spot on. So long as you can imagine these methods are always and only used against a demonized other you will be for them.

The enemy's actions speak for themselves. They are not the victims of "demonization."

Not until it is you, or your brother, or some other falsely accused personal acquaintance, being subjected to these methods will you say "torture and kidnapping" instead of "intelligence gathering and detention".

You need to give me a current example of this before I see a problem.

I opposed the Padilla detention as an enemy combatant as did many other conservatives like Scalia. Rather, Padilla should have been charged with treason and/or any other applicable criminal statute.

The Administration was wrong in this case and backed down. As a result, the MSA expressly distinguishes between citizens and alien enemy combatants. Furthermore, Justice has indicted the American al Qaeda propagandist, Adam Yahiye Gadahn, for treason in a civilian court.

This is how it should be.

As a warrior you can be excused this myopia; as an attorney it is unpardonable.

As a warrior and an attorney, I dare say that I have perspectives from both worlds that give me an advantage over one or the other in seeing the practical application of the laws of war.

# posted by

Bart DePalma : 4:59 PM

"I opposed the Padilla detention as an enemy combatant as did many other conservatives like Scalia."

Interestingly, when the actual ruling came to the SC, Scalia joined Rehnquist's five justice faux punt job.

Scalia dissented in Hamdi though the cynical would note it was a dissent after all. So, I'm unclear if Scalia actually did officially "oppose" Padilla's detention, esp. since the two are not really the same case.

# posted by

Joe : 8:02 PM

Bart: You need to give me a current example of this before I see a problem.

That's exactly what I am saying, and thank you for supporting my point: you are incapable of considering the ramifications of certain policies on the innocent. But you have also shown, in your partisan posturing, that I shouldn't waste any more of my time or our hosts' pixels on you. Peace, and out.

# posted by

Robert Link : 9:20 PM

As another blogger who has devoted considerable "ink" to the torture bill -- sample here -- I suspect that it has to do with our conception of what the US is really about. I've never had any illusions about the capacity of my country to commit violence, but I did think some of our principles were sacrosanct. Some individuals might violate them, but never with our official consent. The Military Commissions bill means we've consented to the shredding of some very basic rights.
That said, I've also posted some observations on the Hopkins study estimating 655,000 Iraqi deaths since we invaded. But as I sit here thinking about this, I find myself wondering why I am so much more appalled at the idea of 655,000 deaths than I was when the number was estimated at 30,000 or 50,000. Yes, it's a frighteningly high number, but if you assume, as I do, that the war was wrong to begin with, any number of deaths is unacceptable.

# posted by

Nancy Jane Moore : 5:29 PM