Balkinization  

Wednesday, October 11, 2006

Misplaced Priorities?

Marty Lederman

In a comment to my post below about the terrible devastation in Iraq, my colleague Mike Seidman quite rightly questions why the bloggers on this site have been so focused on other, less momentous questions. Mike writes:
Marty and Scott are right about this, but it's not just the media that have things out of proportion. Consider the tremendous amount of ink spilled by bloggers on this and other sites (well, actually "ink" is not quite the right word) on the issue of torture and detainee mistreatment. Yes, Bush administration policies on these matters are disgraceful, but perhaps several dozen people have been "coercively interrogated," while over half a million have been killed in a completely senseless war. Of course, the existence of a monstrous crime does not excuse lesser crimes, and the destruction produced by the overall war does not justify individual acts of brutality. Still, one has to ask why so much attention has been paid to relatively small matters when much larger evils are right before our eyes. Worse, the focus on torture coupled with silence about the overall slaughter in Iraq implicitly sends a very disturbing message: that things would be just fine if only the war were "sanitized" by, e.g., obeying the Geneva Conventions. Well, they would not be just fine, and we need to say so.
Mike has, quite rightly, been pressing me and others on this point for well over a year now. Indeed, he has asked the same question of himself, since he has written very carefully and powerfully in the past two years on the question of torture.

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?

I don't have time right now to offer a full, or satisfying, response. I'd be curious to hear from my fellow bloggers on the question. A modest beginning of an answer would be this: I don't have very much of value to add to the public discussion on the wisdom or morality of the Iraq war, or on questions of what we should do now that we're there; but I hope that I've been able to add something of value to the "torture debates," by virtue of my understanding of Executive lawyering and my study of the statutory and international-law issues on detention, interrogation, Geneva, etc. This doesn't make the torture question nearly as important as the question of whether we should have gone to war in Iraq (and the question of what we should do now that we've decimated the country). But I hope that it explains, in part, why I've limited my blogging to some topics rather than others.

Still, that doesn't quite explain why the torture question has captured our attention in a way that greater atrocities have not. For historical and contextual reasons, the notion that torture has become official U.S. policy -- after the U.S. had taken the lead for more than 200 years in the effort to eradicate and universally condemn at least this one discrete barbaric practice -- has had a powerful pull on many of us, despite the fact that in terms of sheer terror and devastation and tragedy, torture is barely a blip compared to what the U.S. and its allies and enemies have unleashed in Iraq.

Is Mike right? Are we too obsessed with process norms, and with compliance with long-established laws of war? Have we unduly fetishized Geneva? (Does international law generally paper over the horrors of war by pretending to bring it within manageable legal structures?) Does our "focus on torture coupled with silence about the overall slaughter in Iraq implicitly send a very disturbing message that things would be just fine if only the war were 'sanitized'"?

Comments:

I completely fail to grasp Seidman's objection. Y'all are lawyers, not soldiers or military theorists.

I guess that you should figure out The Most Evil Thing in the World Today, and then write about nothing else. The utilitarian calculus permits no other answer.

Or better yet, let's emulate the Cultural Revolution and send you guys out into the countryside to dig sewage ditches, ignoring your bourgeois job specializations.

Personally, I would rather you continued doing what you do so well and are so expert at.
 

I don't think there's anything to feel bad about -- you're interested in whatever you are interested in.

Should all the entomologists stop their research because people are dying in Iraq? Should people stop writing about Iraq because things may be worse somewhere else in the world?
 

The rule of law - habeas corpus and the outlawing of torture - is the stardard of civilization against tyranny since roughly 1215 in England. Its abolition is no small matter (it is not just in Iraq that the occupation or Abu Ghraib is "worse than Saddam" as Bush's puppet Iyad Allawi said; the distance between where we are today in comparison to 2000 and a Saddam-like police state is unfortunately no longer hard to imagine). No one need feel guilty about discussing what a supine Congress has idly tossed aside....

The criminal Osama Bin Laden could not have done this to us. The administration, the Republican party and Democratic enablers did it to ourselves.

If America becomes a complete tyranny (and it is not very far, the vote of an 86 year old man on the Supreme Court, I am afraid), it will make the costs of protest in America even harsher. I can imagine here
people like Helmuth James von Moltke whom Scott conjured for us. It is worth every effort to stop this descent.

In the case of acts of aggression in Vietnam (in violation of the 1954 Geneva Accords) or in Iraq (in violation of Article 2 Section 4 of the UN charter), the greatest military power in the world can rain down casualties on nearly defenseless people. This is surely an even greater crime. But whether we Americans can stop the move toward tyranny at home (as with Nixon and Watergate) is also a profound question - one linked to whether our increasing anger and protest about the policies abroad will make a difference. Surely we can all speak out against the injustices abroad and the concomitant threats to the rule of law at home. In fact, pointing to international "enemies" and committing great crimes abroad is what gives rise to what I have called "anti-democratic feedback" at home (see Gilbert, Must Global Poltiics Constrain Democracy? Princeton, 1999). To speak of these crimes is to speak of something profoundly interrelated.

Alan Gilbert
 

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.
 

Legalizing torture and eliminating habeas corpus takes us back almost 800 years. Killing hundreds of thousands of people in a foreign country takes us back only 30-40 years, so it is less shocking. Ever since the U.S. invaded Iraq, it has seemed to me that it was payback against protesters of the Vietnam war. Just as Bush may have taken out Saddam to show up his father, he and Cheney and Rumsfeld may have wanted to pick up where Nixon and Kissinger left off when they gave in to the protesters. Take this speculation for what it is worth; I obviously cannot prove it.
 

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.
 

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
 

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
 

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.
 

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.
 

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.
 

He right only if the two issues are not connected. But they are connected. The link is excessive executive power along with the deception that goes with it.

Torture is worth all the attention it can get. As Jeremy Waldron points out, it's not just one issue among others;it's archetypal. It establishes the line between barabarism and tyranny, civilizaiton and the rule of law.

War crimes and presidential dictatorship, these days, seem to form a seamless web
 

Speaking as a non-lawyer and as one of the very many whose opinions may not be able to change these events right now, the smaller and closer issues are to private morality which the TTB challenges, somehow the more accessible they are (hence apparent misplaced prioities).

The greater picture of the Iraq war clearly does overshaddow these priorities,(and should for those who have the power of change) but it is somehow out of reach for me, (how can I form a view when the evidence is obscured by my representives and I am so open to deceit?), whereas there are certain things on which I know I will not be duped so easily.
 

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.
 

... 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.
 

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?
 

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.
 

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.
 

"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."

I had thought it was our civilised values that were at stake here? You can call this quote above many things, but 'civilised' it surely ain't?
 

"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.
 

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.
 

This blog provides a quality service in monitoring and analyzing the legal manuveurs of the Bush administration in its efforts to reorient and restructure our domestic political organization. In this service, it is the best, if not the best, and I am thankful for it. Obviously, Bush administration efforts to utilize torture extra-legally, and then its efforts to incorporate torture into our legal fabric, are not only significant in many dimensions, but the very effort reveals a certain quality about this administration that requires witness, and this blog has peformed superbly in recording this history.

As for casualties in Iraq, and the illegality or immorality or utter tragedy or the strategic stupidity of the war, many bloggers (and others) have been writing about these topics conscientiously since 2003. I'm not sure this blog, given its resources, can or should take it upon itself to add anything to what has been reviewed and said elsewhere.

This is not to say that the two phenomena are not related. To the contrary, they are intimately related. My premise has been all along that the Bush administration has deliberately created an environment of Perpetual War so as to control and dominate domestic politics. This would have happened with or without 9-11. With 9-11, the administration just constructed its narrative a bit differently.

Therefore, in my analysis, torture has little to do with the TTB, or with "terrorism;" it has everything to do with the domestic population, the coarsening of our national character, the environment of fear,the "crisis narrative," and the surrender of our sovereignty and our national traditions to those whose "job" it is "to protect the American people."

This helps explain why the administration has pushed so hard, even relentlessly, and why it has constructed such tortuous legal reasoning and justifications, for authorization or acceptance of procedures of minimal tactical usefulness. It is the inevitable product of its underlying ideology, to which it will sacrifice literally anything (whether it be our legal traditions, the nation's fiscal integrity, or 600,000 civilian casualties in Iraq).
 

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.
 

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