Professor Balkin:

If pressed, I assume the White House would also deny that the CIA's practices violate the prohibition against cruel, inhuman and degrading treatment. Indeed, that was the point of Bradbury's Torture Memo 3.0. But at this point, how can we really know whether the White House is telling the truth, at the very least until we see the memos?

Lying is an intentional misrepresentation of fact. What we are dealing with here are opinions, not facts. Therefore, no one here can be lying.

In any case, how do you propose to tell whether the President's opinion as to whether an interrogation technique is or is not torture, cruel or degrading is "right" or "wrong" by comparing it to the opinion of an OLC attorney? Who elected the OLC attorney as the arbiter of these matters?

The only opinions which matter in that determination are our own and how we express those opinions at the ballot box or by lobbying our representatives. We are free citizens. We can make up our own minds as to whether a particular interrogation technique should or should not be permissible. You do not need to invade the attorney client privilege to make your own determination of whether you agree or disagree with an elected representative's opinion.
 

"If there is one thing the Bush Administration has demonstrated in the past seven years, it is that without real oversight, its most loyal followers cannot be trusted to obey the law when it comes to detention and interrogation practices."

"Oversight" in any conventional sense is impossible under the system the administration has set up. That leaves impeachment.

Unless that's acknowledged, posts like this one are a waste of everyone's time, even the writer's.
Again, I urge and beg you: advocate impeachment now, while there's still a bit of time to do so and a bit of honor to salvage for the American legal profession.
 

The only opinions which matter in that determination are our own and how we express those opinions at the ballot box or by lobbying our representatives. We are free citizens. We can make up our own minds as to whether a particular interrogation technique should or should not be permissible.

Bart, you aren't entitled to take that position, because you have defended over and over the contention that the Administration shouldn't have to discuss specific interrogation techniques at all because that might give information away to "the enemy".

The fact is, there's two potential domestic ways to police the ban on torture. You can have the courts do it, or you can have the democratic process do it. But either way, we need to know what the interrogation tactics are in order to determine their legality.
 

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Test
 

Dilan said...

BD: The only opinions which matter in that determination are our own and how we express those opinions at the ballot box or by lobbying our representatives. We are free citizens. We can make up our own minds as to whether a particular interrogation technique should or should not be permissible.

Bart, you aren't entitled to take that position, because you have defended over and over the contention that the Administration shouldn't have to discuss specific interrogation techniques at all because that might give information away to "the enemy".

Unfortunately, most if not all of these techniques have been disclosed to the enemy. Now that they have been disclosed to the enemy, they are subject to public debate.

My preferred approach would have been for our representatives to review in closed session the full spectrum of possible interrogation techniques (those we use and those we do not) and include in the legislation all of those which they believe should be outlawed. We elected them to make these decisions.

The Congress does not need to disclose to the enemy whether the US is actually currently using a particular technique. Indeed, if we are only outlawing true torture which inflicts severe pain, then the vast majority if not all of the outlawed techniques will be those which we are not currently using. Therefore, the enemy still has no real idea what we are doing.
 

There are acts that have been done with certain intent. We have mens rea and actus reus. Those are crimes not opinions those are crimes. The idea of all this being opinions is absurd. That is like saying that when someone is charged with murder the prosecutor is stating an opinion and the defendant is stating an opinion. Then, when the person is convicted, that is an opinion of the jury. It's absurd. The facts of what happened are known some where in the bodies of the people who have been subject to the treatment. The persons who did those things are known. The persons who ordered them to do those things are known. The persons who wrote the memos trying to say those things were right are known. These are all facts. And there is enough here to select people as persons of interest so as an investigation could happen. And those investigations could lead to a grand jury that would decide to indict some of these persons. And those indicted could have their day in court. And if the evidence is there, those persons will be convicted and sentenced. And if the evidence is not there they will be acquitted. And if they are convicted, the President will have to decide whether or not to pardon them. And if the line goes up to the President, after he leaves office, the next President would decide about prosecuting this President for violating the law. That's all there is. All the rest is just obfuscation trying to throw more smoke in our eyes.
Best,
Ben
 

Therefore, no one here can be lying.

You've become more interesting today, Mr. DePalma. Earlier, you posted about the subjectivity surrounding the notion of what constitutes torture or cruel/degrading/inhumane treatment. You recognized that each person has their own take on what those categories would include, therefore, you conclude that there should be a discussion about whether specific techniques are legally sanctioned or not.

The phrase that particularly stood out was this one:

Absent objective definitions, the OLC's opinions as to what these terms mean are just as valid as anyone else's opinions.

Of course, that equality means anyone else's opinion is just as valid as the OLC's opinion. So,in that case, you should agree that yes, prolonged standing is at least cruel and degrading treatment, if not torture. If you won't agree to that yourself, surely you'll agree that anyone who says that it is cruel treatment has a valid opinion--one equally as valid as the OLC's.

This is where it gets interesting. If you agree that the standards for what constitutes cruel treatment is subjective in the absence of objective facts, then the statement posited by Jack's "what-if" question ("we do not subject our prisoners to cruel treatment") is a very soft statement. It means "we don't think what we do constitutes cruel treatment."

Now, unless we want to rely upon the model of a dimwit executive branch with equally dim legal counsel, we can posit the likelihood that the subjectivity of the opinion is understood and known; given the public controversy over such things, it might be impossible for such people to NOT know about the disconnect between their opinions and those of other people.

Now, if you know that the opinion is subjective, you agree that other opinions are equally valid, and you are aware that opposing opinions exist (that is, that there is no consensus), then making the statement "we do not violate prohibitions against cruel, inhuman, and degrading treatment" rather than "we do not believe what we do constitutes cruel, etc. treatment" requires an intentional misrepresentation of the actual legal context.

And that's a lie.

(Still, congratulations on rediscovering postmodernism.) ;)
 

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Professor Balkin, I have a question. Do the signing statements make a difference? It seems the Executive branch has made secret memos, and has convinced itself of their legality. In its view, it has the inherent authority to decide what is permitted, and how to define what is permitted. What difference then does it make it the exec branch publicizes its view of its inherent authority? Under this persective, the signing statements are a sort of a gift; they are a warning to those not in the executive branch about how the exec branch plans to interpret, but are by no means required. We should be glad they have taken the consideration to let us know.

I do think such a perspective on exec power is abhorrent, but the question then is whether it is also a feature of the Constitutional separation of powers, when executive privilege can be asserted to the extent of such extreme secrecy. If so, then it is another constitutional stupidity.
 

Professor Balkin, I join that question. I think the abuse of signing statements is yet another impeachable offense. But regardless, executive privilege trumped up to the level of concealing reversals of duly passed and signed law is itself impeachable. Or should be.

Please: until you commit to the remedy that's needed, no more handwringing about their offenses, or vague calls for oversight, or post titles like this one -- of course they would lie to us, they do it over and over again. Posts like this one do more to resign us to that fate than to fight it.

Hit the nail on the head. Call for impeachment.
 

Is there any possibility that the next administration will make public the information which is currently being kept secret for no good reason?

It seems that in order to repudiate the past practices, the new administration would need to draft new public OLC memos which state that the old memos were no longer valid, and release the old memos. If the old memos reflect illegal activities, releasing them wouldn't endanger national security.

And if these memos are released, could any action be taken against those advocating for them? At least impeachment after the fact?
 

Professor Balkin states: "The White House has lost all credibility on this issue."

True, but not comprehensive enough: this administration has lost all credibility, period.

That anyone gives the faintest credence at this late date to this administration's statements, good faith, or honest intentions, that anyone can accept any claims made by or for the White House as being other than distortions, propaganda, or outright lies, is as astonishing as the notion that anyone can doubt we have transgressed in our treatment of our captives, can deny that we have degraded the captives and ourselves by subjecting them to cruel and inhuman treatment.
 

Bart writes: Lying is an intentional misrepresentation of fact. What we are dealing with here are opinions, not facts. Therefore, no one here can be lying.


Redefining terms doesn't absolve anyone of anything.
 

"Lying is an intentional misrepresentation of fact."

This is too narrow a definition (eg, see dictionary.com meaning 2).

The essence of a lie is the intent to cause the hearer to believe something that isn't true. Hence, the technique - mastered by this administration - of saying something arguably true in a way intended to cause the hearer to believe something that is untrue must be considered to be "lying".

A classic example is the treatment of "I voted for it before I voted against it." Anyone familiar with the circumstances knew that the two votes were motivated by different considerations, so to call them "flip-flopping" was to suggest a change of mind that did not occur and to count on the hearer's assuming that it did. Kerry's inept handling of the situation added credibility to the accusation, but that doesn't alter the fact that those making the accusation knew exactly what they were doing - lying, per the broader definition.

Similarly, when one says "we don't torture" and knows full well that many hearers will assume a definition of "torture" that is broader than the administration's rather narrow "opinion" on the matter, that person is lying, at least with respect to those hearers.

(HT: this is really just a less erudite - but perhaps slightly easier to follow - version of what PMS Chicago said above.)

- Charles
 

OT:

In posting comments here, I typically have to enter the random spam-stopper sequence several times after I have finished previewing and editing (I am very careful, so I don't think it's typos). Do others have that problem, or is it perhaps my old OS (Windows 98) or not-quite-up-to-date IE version (6.0.2)?

Thanks - c
 

ctw,

I think that the validation check generates a new verification code periodically, and if you have not entered it by the end of the refresh period when you click submit, it will prompt you with the "new" one. I usually only get one, unless I hit preview, and then I get a second retry.

I know some people write up comments in a word processing program, then only open up the post comment screen when they are done polishing their post.
 

FG:

Thanks.

-c