Balkinization: Memo to Judge Mukasey: Ask Director Mueller If It Is Torture

Comments:

With reference to the title of this posting -- "Memo to Judge Mukasey: Ask Director Mueller If It Is Torture" -- I quote Robert Cook in the 22nd comment to David Luban's posting immediately below this one: "That such a debate is ongoing at all is testament to how debased we have become as a society." We demean ourselves to treat Mukasey's support for torture as worthy of a response. It is worthy only of his rejection as AG nominee, and, if the Democrats don't recognize that, they will once again make themselves complicit in Bush's crimes.

# posted by

Henry : 9:50 AM

I agree that the Democrats must take a stand against torture by refusing to accept Judge Mukasey as the next AG. Any person, let alone the Attorney General of the United States, who would allow torture should not be allowed to be the chief Law Enforcement officer in the country.
Larry

# posted by

Unknown : 11:17 AM

Henry and Rafferty (commenting above) are absolutely right.

# posted by

Jamie Mayerfeld : 2:23 PM

Ah, but he doesn't know if it is 'torture.' But because he isn't a total Bush toady and won't be as blatantly partisan, he is deemed a credible choice.

I have a feeling here of a spouse of an addict, who really is upset that his/her spouse uses, is really concerned about it, but whatcha going to do, you know? After all, s/he promises to quit this time.

Such people tend to be pathetic specimens.

# posted by

Joe : 5:35 PM

LA Times: The FBI's efforts appear in part to be a hedge in case the commissions are ruled unconstitutional or never occur, or the U.S. military detention center at Guantanamo Bay is closed. Under those scenarios, authorities would have to free the detainees, transfer them to military custody elsewhere, send them to another country or have enough evidence gathered by law enforcement officials to charge them with terrorism in U.S. federal courts, some current and former counter-terrorism officials and legal experts said.

This is nonsense which reveals a fundamental misunderstanding of the nature of our conflict with al Qaeda and of the different roles of the CIA and FBI in that conflict.

WE ARE AT WAR. WE ARE AT WAR. WE ARE AT WAR.

The CIA's role is to gather timely and actionable intelligence to support military action against al Qaeda. Their interrogations were never meant to obtain admissible evidence for criminal prosecution of the enemy.

The role of the FBI is to gather evidence for criminal prosecutions. After al Qeada was largely destroyed by the military and the al Qaeda high value detainees had lost their use as intelligence sources, then the United States started ramping up the military commission process and called in the FBI to perform their function.

Criminal prosecution of war crimes is the prerogative of the victor in a war after the war is won. It is a luxury which the a product of winning wars and is always a secondary consideration until the war is won.

# posted by

Bart DePalma : 8:05 PM

Actually no, war crimes are prosecuted in the course of the war. Maybe there is a subtle point as regards - criminal prosecution as opposed to court-martial, but if it is that is just a very subtle point.

Think of all the court-martials of our troops that occurred in the theater during WWII, Korea, and Vietnam.

War crimes with regard to top level persons on the other side were post-war, but we can see from Quirin that prosecutions in military commissions during the war occur. To my memory this goes back to at least the Mexican-American War in 1848 also when the American general set up military commissions to try both U.S. and Mexicans in what was seen as an evenhanded manner as part of regaining the confidence of the locals.

Yes the CIA's role is to seek intelligence, but if we want to try people for war crimes we need evidence that is usable. Beyond that both the CIA and the FBI are part of the United States and are subject to our laws. Notwithstanding all the "family jewels" actions in flagrant violations of our law over the years, the CIA is not above the law.

The US has freely accepted treaty obligations that operate under the authority of the United States and painful customary international law that bans torture without a right of defense or excuse.

CIA cannot torture or CID. FBI cannot torture or CID. They do those things, those are crimes. We decide not to prosecute them or we decide not to extradite our people to places like Germany that would like to prosecute those folks - that is on us. That is just power, that is not law.

Best,
Ben

# posted by

Benjamin Davis : 8:31 PM

Bert De Planar... "WE ARE AT WAR. WE ARE AT WAR. WE ARE AT WAR."

No we ain't and Bert knows this but I think he really only served in the Salvation Army as a Santa. We are involved in LIC.

http://en.wikipedia.org/wiki/Low_intensity_conflict

# posted by

Anonymous : 12:48 AM

# posted by

Marty Lederman : 8:47 AM

ab:

Wikipedia is not exactly a reliable source for much of anything. You were good enough to post part of the army's definition of an LIC, but did you read it first?

Here is the definition in pertinent part:

... a political-military confrontation between contending states or groups below conventional war and above the routine, peaceful competition among states.

In plain English (which is not the military's normal mode of conversation), LIC covers everything between peace and full blown conventional war. Everything that is not peace is by definition war. Consequently, an LIC is most certainly a war.

Ask the soldiers who fight in an LIC.

# posted by

Bart DePalma : 8:53 AM

AB, et al.: Please, no ad hominems and, in general, if Bart is going off on a rant, *just ignore him.* The comments section isn't at all interesting or readable when it turns into the "Bart and his Detractors" show. Thanks

Professor Lederman, if you don't like Bart, it is certainly your prerogative to ask Professor Balkin to ban him. But blaming the rest of us for responding to him is just wrong. If Bart's assertions were left to stand uncontradicted, anyone visiting these threads would see a bunch of false claims about the state of US law made by a person with seeming authority. If you aren't allowing responses to Bart's "rants", you are as good as endorsing them.

# posted by

Dilan : 12:57 PM

Dilan: All due respect, but that's just wrong. If Bart's assertions are left to stand uncontradicted, anyone visiting these threads would see a bunch of wild claims about the state of US law made by a person with no apparent authority or expertise whatsoever. Let it go.

# posted by

Marty Lederman : 1:46 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 1:50 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 1:53 PM

benjamin davis:

To my memory this goes back to at least the Mexican-American War in 1848 also when the American general set up military commissions to try both U.S. and Mexicans in what was seen as an evenhanded manner as part of regaining the confidence of the locals.

Something that seems to have been overlooked or forgotten in Iraq ... which might explain why the "war" there is becoming unwinnable in any meaningful sense.

Cheers,

# posted by

Arne Langsetmo : 1:57 PM

Prof. Lederman:

Saw your note late and deleted my first comments. You're quite right; we've been there before. Sorry. I will do what I can here to keep comments fruitful ... and open.

I'd just point out that U.S. law makes no provision WRT torture/CID as to the purpose of the interrogation, be it "intelligence" or "prosecution". If we ever change that, then perhaps there will be something that a certain someone here could usefully add to a legal blog....

Cheers,

# posted by

Arne Langsetmo : 2:03 PM

I often disagree with Mr. DePalma's conclusions and find many of his arguments to depend on legal premises that I consider flawed. Nevertheless that doesn't excuse dismissing his posts out of hand.

One point on which I think he clearly has the better view than most commenters is the status of the war. While I fully agree that there is no "war on terror" as the Bush Administration likes to portray, there is clearly a legal state of armed conflict between the United States and those responsible for perpetrating the 9/11 attacks (al Qaeda) as well as those that aided and harbored them (the Taliban).

The United States post 9/11 right to use military force in self-defense was cited by two UN security counsel resolutions (1368 of Sep. 12, 2001 and 1373 of Sep. 28, 2001). Moreover treaty partners Australia and the Organization of American States both declared it an armed attack, while NATO authorized the deployment of military forces in response -- the first time in its history that it had recognized an attack on a member state. Most importantly from a U.S. constitutional perspective, Congress expressly authorized the use of military force in S. J. Res. 23, and the Supreme Court held that the United States was thereby entitled to apply both preventative detention (Hamdi) and law of war trials (Hamdan).

The Administration does nothing to help its case with overblown
"Global War on Terror" rhetoric but the legal existence of a more narrowly defined conflict seems indisputable.

# posted by

Dave Glazier : 3:18 PM

Oops! Make that UN Security "Council"

# posted by

Dave Glazier : 3:32 PM

Dave Glazier said...

I often disagree with Mr. DePalma's conclusions and find many of his arguments to depend on legal premises that I consider flawed. Nevertheless that doesn't excuse dismissing his posts out of hand.

Dismissing my posts out of hand is so much easier than defending one's own rather radical propositions.

If his comment sections here are any indication of his class discussions, then dissent from Professor Lederman's point of view by law students "with no apparent authority or expertise" must be similarly suppressed as "uninteresting."

Thankfully, my school of law used blind grading, so the Professors had to defend their points in class without the students fearing retribution. This was probably unnecessary given that most of my professors enjoyed the give and take of debate and were comfortable enough in their own positions to address challenges. Indeed, my very liberal Con Law professors and I enjoyed our discussions so much that they were gracious enough to coach me in Moot Court competitions.

Heaven help any of Professor Lederman's students who might be more conservative than say Ruth Bader Ginsberg or, Heaven forfend, may be actual Federalist Society members as I was.

If you give half a damn about what Professor Lederman considers "uninteresting," correspond with me or, worse still, agree with me at your own risk. Professor Lederman has no problem shutting down debate raising "uninteresting" (ie contrary) positions.

I, on the other hand, find Marty's self importance, insults and attempts at shunning me to be amusing. Credentials are no substitute for supported arguments and shunning only works if you feel the need of the society of the shunner.

# posted by

Bart DePalma : 4:18 PM

Credentials are no substitute for supported arguments

Speaking of no credentials and unsupported arguments, when are you posting another article on your blog?

# posted by

Bartbuster : 4:23 PM

Dave Glazier:

I often disagree with Mr. DePalma's conclusions and find many of his arguments to depend on legal premises that I consider flawed....

I find even his cites (when given) "flawed" (for instance, his claim, wrong but never corrected, on Brown, and The Pentagon Papers case ("Bart"'s repeated this nonsense a couple of times). I've corrected him enough times on even black-letter law so as to make it a good Vegas bet that he had help on his bar (or standards for the FL and/or CO bar exam are inexcusably lax ... or ... "Bart" puts forth sh*te here that he knows is sh*te but wouldn't dare do that in an actual court of law or on a bar exam). When asked to back up his assertions, he has often simply replied "Go find me some case that says the opposite". Hardly the mark of a legitimate legal argument.

... Nevertheless that doesn't excuse dismissing his posts out of hand.

No one is advocating "dismissing his posts out of hand" (although they should be taken for what they're worth, and when based on flawed cites, they should be dropped by "Bart" until such time as he finds legitimate cites to back up his assertions). But we've seen 'em all before, and there comes a time when perhaps the best reply is to link to the entrails from a previous evisceration on that very point and just say, "Objection, your Honour, 'asked and answered'...."

Cheers,

# posted by

Arne Langsetmo : 6:16 PM