Balkinization  

Wednesday, October 31, 2007

Mukasey, Giuliani, and the banality of evil

Sandy Levinson

It has been noted that Attorney General-designate Mukasey has been quite close to Giuliani over the years (enough so that he has apparently agreed to recuse himself in any matters that might involve Giuliani, such as his involvement with Bernard Kerick). So it is interesting to look at Giuliani's response last week to a question about waterboarding and torture (a response for which Sen. John McCain has commendably berated the former mayor). Thus the NY Times reports that in an Iowa debate on Oct. 25,

Mr. Giuliani said . . . that he favored “aggressive questioning” of terrorism suspects and using “means that are a little tougher” with terrorists but that the United States should not torture people. On the question of whether waterboarding is torture, however, Mr. Giuliani said he was unsure.

“It depends on how it’s done,” he said, adding that he was unsure whether descriptions of the practice by the “liberal media” were accurate. “It depends on the circumstances. It depends on who does it.”

This answer would be an F in any self-respecting first-year course in law or logic. There are those who defend the propriety of torture in extreme circumstances, but the point is that they recognize that they are DEFENDING TORTURE, not saying that if it is justified (because of ticking bombs or whatever) it is not really torture at all. For all of the criticism that Alan Dershowitz has received with regard to his proposal for "torture warrants," he never denies for an instant that what he is potentially defending is the infliction of torture. That cannot be said, of course, of the Administration or those, like Giuliani, who would like to succeed Mr. Bush in the White House. In any event, whether waterboarding is torture does not in the least “depend on the circumstances” or on “who does it,” unless one wishes to discuss the very particular circumstance of Americans who are waterboarded as part of their own training in potential methods of interrogation by (presumably unscrupulous) adversaries. As to this, every American(beginning with Mr. Mukasey) has a duty to read a remarkable posting by Malcolm Nance that should truly be the last word on the ontological status of waterboarding. And, of course, whatever else may be the case, the victims of such training know full well that they are not in fact going to be put to death by their fellow Americans. It is simply frivolous to say that there is an equivalence between “waterboarding by one’s comrades” and “waterboarding by one’s adversaries.”

By wait, alas, there’s more. “In his remarks in Iowa, Mr. Giuliani also criticized Democrats who call sleep deprivation torture. ‘They talk about sleep deprivation,’ he said. ‘I mean, on that theory, I’m getting tortured running for president of the United States. That’s plain silly. That’s silly.’

Anyone capable of saying this is more than silly. Indeed, there is something terminally unserious--dare I say even "evil"--about such a response. It represents, at best, a kind of casual arrogance that has no trouble endorsing evil because one quite literally doesn’t wish to become informed about what is under discussion. Hannah Arendt's phrase "the banality of evil" has sometimes been run into the ground, but I believe it's merited with regard to the former Mayor's (and would-be future President's) stupid comment. As Menachem Begin himself wrote of his own sleep deprivation at the hands of Soviet agents in the 1930s, sleep deprivation is perhaps the most severe form of torture with regard to actually breaking down the defenses of the object of the interrogation. Perhaps next Mr. Giuliani would like to brush off the use of castor oil by agents of Mussolini on the grounds that children, after all, are sometimes given castor oil as legitimate medical treatment. And so on.

Of all of the Republican candidates for the presidency, I fear Rudolph Giuliani most insoar as I believe he is the most truly authoritarian. I have no reason to believe that Mr. Mukasey shares that personality structure, but I do fear that he is as obtuse as his friend an political ally Mr. Giuliani in being able to recognize what is at stake with regard to giving a truthful assessment of waterboarding. I now believe it is vitally important that Mr. Mukasey's nomination be defeated. To let him become Attorney General is just to collaborate with the Orwellian obfuscation that has corrupted our language as well as our politics. I have far more respect for Alan Dershowitz, whose position I ultimately reject, than for those who say "the US does not torture" without being willing to confront what the US (and, of course, its allies in "renditions") are known to have done (and, for all we know, may be prepared to do in the future).

Since I suspect there are 51 votes to confirm (given the undoubted willingness of Joe Lieberman to support Mukasey), I think that it is now incumbent on the Democrats to filibuster the nomination, especially given the commendable willingness of all of the senators who are running for the presidency to draw a line in the sane. We are approaching a truly defining moment in our politics.

Comments:

Please join the Harvard Anti-Torture Coalition in protest.

This is the end of the line. When a nominee for Attorney General does not concede that waterboarding is illegal explicitly because he wishes to protect waterboarders from criminal liability, there is nothing left but shame and mourning.

We, a coalition of Harvard students against torture, call upon others to join us in our symbolic protest of Mukasey's tortured response by posting an entry in silent, drowning black. (See www.stop-torture.org)
 

"“It depends on how it’s done,” he said, adding that he was unsure whether descriptions of the practice by the “liberal media” were accurate."

I'm not happy with his answer, not at all, but I'm also not happy with the fact that the blasted NYT couldn't be bothered to report what he actually said, rather than insisting, as the media inevitably do, on paraphrasing part of it. Leaving you wondering how accurate the paraphrase was.

Part of the reason I think he IS right about not rationally being able to form an opinion based on news reports. One expects that as AG he'd get better briefings than clippings from the NYT.
 

Do you really believe that Mukasey is "obtuse"? I see three more likely possibilities: (1) he was offered the job on the condition that he support torture, (2) like Bush and Cheney, he enjoys torture because of his psychological makeup (is there any other explanation for why Bush and Cheney do it?), or (3) he identifies so strongly with authority that he will support anything that those in authority do. All three choices come down to his being evil. There comes a point where it is ludicrous to criticize these people's understanding of "law or logic."
 

This trope, much beloved of lefty law professors, that you are much smarter than your political adversaries, and can award them "F's," is very tiresome. Let us note that Rudy Giuliani isn't stupid; he was in fact a successful lawyer. Let us also note that we could round up any number of lawyers with higher LSAT scores than Prof. Levinson who would be happy to defend Mukasey, Giuliani etc. So although I realize the pleasure that people in Prof. Levinson's subculture get from sitting around pronouncing themselves smarter than everyone else, and theorizing that the world's problems would be solved if everything were run like a university with themselves as the professors, it just repels anyone who isn't a member of that subculture.
 

For the record, I have no reason to believe that I am smarter than Giuliani or Mukasey (for starters). What I said is that their response to the question as to the status of waterboarding would earn them an F, which is true. So the next question is why smart people would offer such stupid and obtuse responses. (One can ask the same questions, of course, with regard to our public discussion of tax policy, and most other issues of the day.) It would in fact be comforting to believe that Mukasey and Giuliani were merely stupid, so that the "cure" would be appointing smarter people. Alas, one of the things we know from the "Torture memorandum" is that very smart and able people like John Yoo are capable of making absolutely terrible arguments when they believe, for whatever reason, that it is "necessary" to defend what most people regard as indefensible.

I have never forgotten a conversation I had some 40 years ago with my mentor Robert McCloskey, who described one of his Harvard colleagues as a man "of great brilliance and no judgment." Smart people are in fact a dime a dozen. What we sorely need is that subset of people with first-rate judgment. There is, I suspect, no correlation at all between IQ and wisdom.
 

The thing that Sean finds repelling in a conversation about the legitimacy of torture is a professor accusing an attorney of poor logic. Imagine what you might find repelling if you were, say, a survivor of torture.
 

"...especially given the commendable willingness of all of the senators who are running for the presidency to draw a line in the sane."

That's a hell of a good typo there Sandy, and I agree with you: Mukasey should be denied a vote on his nomination. Reading his reply, it is apparent he's taking dictation from Mr. Addington. Note that although the MCA modified 18 USC 2441(c)(3), it did not modify 18 USC 2441(c)(1), and while the S. Ct. held in Hamdan that Geneva Common Article 3 was the minimum that would apply to detainees, they also said that it wasn't necessary in Hamdan to resolve whether the detainees were covered by CA3 (18 USC 2441(c)(3)) or CA2 (18 USC 2441(c)(1)), while the district court ruled (twice: Hamdan and In re Gunatanamo Detainee Cases) that they were covered by CA2. Then there is 18 USC 2441(c)(2), as it refers to Hague IV (1907) Annex art. 23.

Mukasey should be rejected.


PS:

As for the intelligence of Mukasey and Giulani, nothing will make someone stupid faster than dishonesty and ambition -- it's the intellectual equivalent of alcohol and sleeping pills.
 

I assume sean must not be a lawyer. No one who is could possibly believe that the LSAT defines anyone's intelligence.
 

Mukasey's job would be to enforece the law. It is said that he is not qualified for the job because he refuses to unequivocally say that waterboarding is torture. The Senate attempted to make a law stating that waterboarding is torture, but failed to pass it. It seems strange to say that he is unqualified to enforce the law because he cannot say for sure whether he will define torture the same way that a minority of the Senate defined it. This is very different from him taking the unwarranted position that the executive has the authority to waterboard even though the legislature has said otherwise. But that is not this case.
 

If Mr. Mukasey believes that waterboarding even might possibly be legal under American law, then, at the very least, he should say why he has that belief and admit that we have possibly legalized what practically everyone, including hardliners like Heather McDonald and Lindsay Graham (not to mention John McCain), regards as "torture." If he believes that's not the case, then he should say so unequivocally. What would he say about tearing one's tongue out of one's mouth or gouging one's eyes out? Would he say that he needs to read classified documents before he could express an opinion?
 

This is just not complicated: water-boarding *IS* torture, and torturing prisoners *IS* a crime against humanity pursuant to the IMT Charter / Nuremberg Principles. The possibility that the US Senate might actually vote to aid or abet such crimes (as the Nazi Reichstag did) merely reinforces my view that Mukasey should not be allowed a vote on his nomination.

This issue is non-negotiable: a government which will not obey its own laws is no government at all. We did not revolt against George III to permit a government modeled on the reign of Charles I.
 

It is remarkable, and worthy of study, how the definition of torture has become a partisan issue. Lieberman may well be the only Democrat on the Judiciary Committee to join the unanimous Republicans in support Mukasey's confirmation. One might think that, were judgments on torture made by deliberation, independent of the politicization of events such as these, the result of said judgment would not be on partisan lines. But if there were no such issue, then no one would think about it (except for a few philosophers). Moral judgments, it seems, are (most often) shaped by partisan concerns. If it had been a Democrat administration making the arguments the Bush administration is making, perhaps the respective judgments of each side might be reversed (although the issue was not so directly a matter of morals as this, Bush v. Gore might seem to offer evidence of partisan decisionmaking--on both sides the decision).

If such decisions are indeed formed by partisan concerns on a regular basis, it might have interesting implications for thinking about sources of moral judgments more broadly, and the impact on political development more generally.

And yet the result in this particular case is appalling. Having wisdom, along with the courage of convictions, it seems, is rare. And I suppose then Sandy is correct, intelligence is a more common trait than wisdom, and is apparently here being placed in the service of societally induced ends.
 

Professor Levinson:

On the question of whether waterboarding is torture, however, Mr. Giuliani said he was unsure.

“It depends on how it’s done,” he said, adding that he was unsure whether descriptions of the practice by the “liberal media” were accurate. “It depends on the circumstances. It depends on who does it.”

This answer would be an F in any self-respecting first-year course in law or logic...whether waterboarding is torture does not in the least “depend on the circumstances” or on “who does it”...


This is correct.

However, given that waterboarding most likely does not fall under the statutory definition of torture, then the questions of who are the interrogators and who are the interrogated become very important indeed.

Under the DTA, the military is forbidden from using coercive techniques, but the CIA is not.

POWs may not be subjected to coersive techniques, but unlawful enemy combatants are not so protected.

And, of course, whatever else may be the case, the victims of such training know full well that they are not in fact going to be put to death by their fellow Americans. It is simply frivolous to say that there is an equivalence between “waterboarding by one’s comrades” and “waterboarding by one’s adversaries.”

Waterboarding produces an involuntary gag reflex which simulates drowning and induces involuntary panic. The subjects of waterboarding are not intellectually weighing whether they believe their captives will in fact drown them. Consequently, if water boarding constitutes "torture" for the enemy, then we are similarly torturing our own troops.

By wait, alas, there’s more. “In his remarks in Iowa, Mr. Giuliani also criticized Democrats who call sleep deprivation torture. ‘They talk about sleep deprivation,’ he said. ‘I mean, on that theory, I’m getting tortured running for president of the United States. That’s plain silly. That’s silly.’

Anyone capable of saying this is more than silly. Indeed, there is something terminally unserious--dare I say even "evil"--about such a response. It represents, at best, a kind of casual arrogance that has no trouble endorsing evil because one quite literally doesn’t wish to become informed about what is under discussion.


Come on Sandy, are you actually arguing that imposing sleep deprivation is evil?

I am curious. If you were President, exactly what would be permitted during interrogations? Would prisoners be given naps if they were fatigued during interrogations?
 

Well, I'd certainly be willing to argue that imposing sleep deprivation, beyond some point, can be evil. Going 24 hours without sleep is unpleasant, but I've done it a number of times. Going a week without sleep can kill. Somewhere between it's got to make the leap from annoying to torture.
 

Actually, I agree with Bart that we do indeed "torture" our own troops in order to prepare them for possibilities should they be captured by evil regimes. But the point is that in the past it was presupposed that only evil regimes would engage in waterboarding, save for the "preparation for torture" that is conducted within a context where the person being tortured knows that the persons doing the torturing are not in fact enemies and, therefore, will presumably not kill him (even accidentally).

I have also been arguing for several years that we need to have extremely uncomfortable discussions in which we try to specify the difference between simply "coercive" methods of interrogation and then, "cruel, inhuman, and degrading" methods, and finally, "torture." I agree with Brett. 24 hours of sleep deprivation is probably not torture, if it recurrent, and there are only, say, 4-6 hours of sleep in between, then I think it probably is. I'd be extremely interested in knowing what kind of deprivation Menachem Begin was subjected to, since he unequivocally described it as "torture."
 

Sandy:

During combat operations, our troops are lucky to get 4 hours of sleep per night for days on end to go along with a constant threat of wounding or death.

This is not torture, it is war.

The reason we arrive at different conclusions about what is or is not torture is that we come from very different life experiences.

During the lead up to and during the combat operations of the Persian Gulf War, sleep deprivation was the norm for days on end. As a Bradley commander, I enjoyed "long time standing" in the turret for the better part of four days. My poor troops jammed in the Bradley with far more equipment than these vehicles were meant to carry enjoyed various "stress positions" for the same period of time.

Consequently, I just cannot muster up much sympathy when the CIA treats enemy terrorist leaders responsible for mass murder the same way the war which the enemy wages against us treats our soldiers.

Please keep this in mind before you categorically dismiss those of us who disagree with your viewpoint on this subject as "evil."
 

Sandy, I actually did spend a few months on a regimen of 4 hours of sleep per 24 hours, a couple years ago. (My wife was in Asia, the only time we could chat was during my usual sleep time.) While it's not the sort of thing you really want to do if you've got other options, I'd hardly describe THAT as torture. But it's clear that, as you reduce the amount of sleep somebody is allowed, eventually you DO cross a line. If only because the means you have to use to keep the person from sleeping get more extreme as the deprivation increases.

Don't make Bart's job easier than it has to be, by trying to draw that line at a point people frequently cross voluntarily.
 

Bart:

"Consequently, I just cannot muster up much sympathy when the CIA treats enemy terrorist leaders responsible for mass murder the same way the war which the enemy wages against us treats our soldiers."

So bad men deserve bad things to happen to them. Let's waterboard them, sleep deprive them, stress position, mock and actual rape them, sic dogs on them, etc. And since they do it, let's decapitate them too. Oops, maybe that is another way to not get good intelligence, or follow the law, or actually protect our country.
 

I appreciate Brett's observation. I have no confident opinions as to at what point sleep deprivation becomes torture. The one thing I'm confident of is that there IS such a point, and that we, as a society, should be discussing what that point is and if we're prepared to cross it and, if so, under what circumstances and with whose authorization.

As I've said before, we could begin by trying to find out what Menachem Begin was specifically referring to in his description of his own sleep deprivation on the part of Soviet agents.
 

I appreciate Brett's observation. I have no confident opinions as to at what point sleep deprivation becomes torture. The one thing I'm confident of is that there IS such a point, and that we, as a society, should be discussing what that point is and if we're prepared to cross it and, if so, under what circumstances and with whose authorization.

As I've said before, we could begin by trying to find out what Menachem Begin was specifically referring to in his description of his own sleep deprivation on the part of Soviet agents.
 

Chausovsky:

Lieberman may well be the only Democrat on the Judiciary Committee...

Lieberman is not a Democrat. He's the sole member and representative of the Lieberman for Lieberman Party.

Cheers,
 

Waterboarding produces an involuntary gag reflex which simulates drowning and induces involuntary panic. The subjects of waterboarding are not intellectually weighing whether they believe their captives will in fact drown them. Consequently, if water boarding constitutes "torture" for the enemy, then we are similarly torturing our own troops.

A man who kills another (who does not wish to die, at the very least) commits murder. A man who kills himself does not.

Cheers,
 

Prof. Levinson:

I appreciate Brett's observation. I have no confident opinions as to at what point sleep deprivation becomes torture. The one thing I'm confident of is that there IS such a point, and that we, as a society, should be discussing what that point is and if we're prepared to cross it and, if so, under what circumstances and with whose authorization.

Coercion is prohibited in many situations (for instance GC3 Art. 17). Period. There's a reason for this; we as humans generally agree (but see, e.g. "Bart" and some others less likely to win PMFs) that coercion is bad.

And to say that certain "ends" justify coercion when the same treatment absent this motive would be appalling just shows the evil inherent in it; the "ends" justifying (and "legitimising") the "means" has a very poor pedigree in human history.

Cheers,
 

I do not think that there is a bright clear line at what point sleep deprivation (or long time standing or stress position or hypothermia, etc) goes from merely uncomfortable to torture. It moves slowly and inexorably in that direction, with a large gray area.

It is also true that the distinction is not the same for all people. Some people have medical conditions that limit what they can physically endure. And psychological context also matters. There is a difference between what people voluntarily choose to subject themselves to and what is imposed on them by captors. That distiction is at the core of all issues of sexual abuse; it applies to physical abuse as well.
 

Sorry, one final point. When there is a wide gray area (as when sleep deprivation, stess positions, etc go from uncomfortable to torture) our response should be to draw the line well on the white side of the spectrum.
 

Sandy,

Someone asked me privately: "where do you draw the line?" My reply was...

Where I draw the line is:

a) IMT art. 6, which includes "ill-treatment" as a war crime and "other inhumane acts" as crimes against humanity.

b) Geneva III and IV, which prohibit coercive interrogations.

I've never put much reliance on the torture statute because I wanted to avoid getting bogged down in the constitutional issues of the US reservation to ICAT.

Abuse is abuse: 18 USC 2441 prohibits war crimes, 18 USC 113 prohibits assaults within the US maritime and territorial jurisdiction, and the UCMJ prohibits unlawful detentions and prisoner abuse. Hence the question of when abuse rises to the level of torture is beside the point to me.
 

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