Balkinization: Dershowitz on Mukasey

Comments:

Perhaps political campaigns and confirmation hearings are not the appropriate fora in which to conduct subtle and difficult debates about tragic choices that a president or attorney general may face. But nor are they the appropriate settings for hypocritical public posturing by political figures who, in private, would almost certainly opt for torture if they believed it was necessary to save numerous American lives. What is needed is a recognition that government officials must strike an appropriate balance between the security of America and the rights of our enemies.

This observation is spot on.

Dem politicians and some of their GOP brethren cannot afford to be seen condoning "torture." However, they also know that waterboarding broke KSM and two others, leading to the roll up of much of al Qaeda.

Consequently, these politicians ignore the issue when they can, nodding and winking to the executive.

When pressured by their political supporters or when they see a partisan political advantage in tarring the President as a "torturer," the Dems will engage in a great deal of political theater, but will do nothing substantive.

The same politicians publicly bemoaning the use of waterboarding as torture enacted a statutory definition of torture which is vague to the point of being useless and almost certainly does not reach waterboarding, repeatedly declined to enact legislation expressly barring waterboarding, and why the Dem Senators vetting Mukasey ask pointed questions about waterbaording for which they accept non-answers.

# posted by

Bart DePalma : 12:52 PM

If Mukasey HAD agreed that waterboarding was torture, he'd have had to admit that it was unconstitutional, because he specifically said that "torture" was unconstitutional. Hence the "we don't torture" lie we hear so often from the Administration.

# posted by

Mark Field : 1:44 PM

However, they also know that waterboarding broke KSM and two others, leading to the roll up of much of al Qaeda.

You know, it's always difficult to know how exactly to respond to claims like this. On the one hand, I'm sure Mr. DePalma has no credible source for this statement. (That is, one that most rational people would find credible, not merely one whom he finds credible.) But to challenge that statement factually is to risk implicitly endorsing its premise -- i.e., that if true, it would be a justification for the practice.

Dershowitz, of course, adopts this premise explicitly, and then gives himself cover by asserting -- with no evidence, of course -- that the political figures criticizing Mukasey "would almost certainly opt for torture if they believed it was necessary to save numerous American lives." Well, not everyone is the moral coward that Dershowitz has become. Some people understand full well that we could always stop some more crime or save some lives by turning this country into a police state, but they think that would be a tragedy. They think that the sacrifice of some security is a fair price to pay for liberty.

Conservatives like Mr. DePalma used to believe this as well, or so I thought. They used to think that some principles are worth sacrificing for. I guess they have all become the sniveling, quaking cowards that Dershowitz has evolved into. Pathetic and sad, when you think about it.

# posted by

Anonymous : 2:04 PM

glennnyc said...

BD: However, they also know that waterboarding broke KSM and two others, leading to the roll up of much of al Qaeda.

You know, it's always difficult to know how exactly to respond to claims like this. On the one hand, I'm sure Mr. DePalma has no credible source for this statement.

I just answered this accusation over at the Volokh Conspiracy (11/7 3:10 pm post), where there is a parallel discussion. Seriously, do you folks even attempt to research the issue before you make these accusations? These reports have been widely disseminated for months now.

But to challenge that statement factually is to risk implicitly endorsing its premise -- i.e., that if true, it would be a justification for the practice.

To paraphrase a famous saying, are you really arguing "better 1000 people die than we waterboard one terrorist?"

# posted by

Bart DePalma : 3:42 PM

I just answered this accusation over at the Volokh Conspiracy (11/7 3:10 pm post)

You did nothing of the kind. You posted that CIA sources claimed that he started to talk. You provided ZERO evidence that he had anything interesting to say.

# posted by

Bartbuster : 3:54 PM

To paraphrase a famous saying, are you really arguing "better 1000 people die than we waterboard one terrorist?"

# posted by Bart DePalma : 3:42 PM

I'm far more concerned that we're torturing innocent people, and I doubt that torture has saved any lives. If I thought you were one of those people we tortured, I'd be ok with it, but I doubt that's the case.

# posted by

Bartbuster : 4:02 PM

Re Bart: Best to simply ignore a tissue of half-truths, evasions, misstatements and repetitive rumor-mongering than give credence to it.

As to this post, I understand the point but it is unclear to me if it is helpful. The GOP will cling to a semantic defense of the practice the way the South clung to "states' rights."

# posted by

sparky : 4:05 PM

http://blogs.abcnews.com/theblotter/2006/09/variety_of_inte.html
I remember the above when it was first published.

# posted by

LRalston : 4:17 PM

Prof. Levinson [from the post]:

He also argues that Mukasey was correct to say that he would need to know specific circumstances before offering a definitive opinion on whether waterboarding, or any other form of interrogation, was unconstitutional because, Dershowitz says, existing case law indicates that the Supreme Court offers quite ambiguous doctrine on the point, that what "shocks the conscience" may involve taking into account the purposes for which any given method is used.

Did I miss something? Do the laws on torture and CIDT give exceptions for using such as long as it's for approved "purposes"? Or is the exemption for such "purposes" implicit in the definition of what "shocks the conscience"? Or is "shocks the conscience" simply limited to the specifics of the actual acts performed, regardless of justifications given?

Cheers,

# posted by

Arne Langsetmo : 4:56 PM

re 12:52PM:

#14 and #27.

Cheers,

# posted by

Arne Langsetmo : 5:01 PM

glennnyc:

Dershowitz, of course, adopts this premise explicitly, and then gives himself cover by asserting -- with no evidence, of course -- that the political figures criticizing Mukasey "would almost certainly opt for torture if they believed it was necessary to save numerous American lives." Well, not everyone is the moral coward that Dershowitz has become. Some people understand full well that we could always stop some more crime or save some lives by turning this country into a police state, but they think that would be a tragedy. They think that the sacrifice of some security is a fair price to pay for liberty.

The answer is easy (or perhaps more difficult, but certainly different) when one considers that there's an implicit assumption here that gets elided by the likes of Derschowitz and "Bart": You may well feel that it's a good thing to torture under certain circumstances (or even -- accounting for the actual ambivalence shown by some that "Bart" misinterprets as tacit approval -- necessary even if distasteful or worse). But that's an entirely different question from whether such should be made legal (or even official public policy). Which is the question we raise when questioning Mukasey. "Torture can be just the ticket ... just keep it illegal, please."

I leave for another time whether it should be "just the ticket" and whether it actually works (a negative on which would [or at least should] decide the issue quickly both as to legality and desirability).

Cheers,

# posted by

Arne Langsetmo : 5:12 PM

This comment has been removed by the author.

# posted by

Benjamin Davis : 5:22 PM

On Dershowitz paper, Dershowitz is once again pitching his torture warrant idea.

On toughness, I fail to see how endorsing torture of people is a sign of toughness. As Senator Lindsey Graham said in the hearings, in the world you can always find people who are willing to waterboard people. What is hard to find is people interested in justice. I find this so called toughness is weakness. After all, beating on someone who is completely within your control is not toughness - it is sadism.

As to the utilitarian calculus (1 person tortured for 1000 saved lives) the question always for me is that the tortured person's evidence is unreliable and the torturer's touting of what they got in that evidence is unreliable.
Thus the KSM, Al Zubaydah and other tropes are impossible to verify as to whether they are true or not. I do not trust the torturer to tell me the truth and I do not trust the one tortured to tell me the truth. It is for me the conundrum of torture.

Now, Dershowitz switches the trope to the argument about French resistance people cracking under Nazi interrogation. Again, I can not know what is so easily stated by him as being true.

Can I get someone out here to just say, "torture is illegal"? Is that too hard to ask?

As to the Supreme Court precedents, this appears to be very hard for people to understand but the United States has freely entered international law obligations in treaties which ban torture in all circumstances (as well as cruel, inhuman and degrading treatment) as well as in customary international law.

So in looking at the Supreme Court jurisprudence, the cases cited are usually cases of internal domestic law where the interests of the international system are not even seen because not argued. The case we need to focus on is a foreigner who has the right of diplomatic protection by his government and whose state holds the United States to its international obligation. The Supreme Court has to analyze the "schocks the conscience" in that setting.

If, under the United States Constitution and statutory analysis, the Supreme Court decides to countenance waterboarding in some setting, all that really means is that one more branch of the United States government is perfectly willing to have the United States be in breach of its international obligations.

A Supreme Court that could countenance slavery and lots of awful things may be perfectly willing to interpret its doctrines in order to allow the United States President to torture with impunity. Folks should just hope that said time is not a time when you or one of your friends might be on the receiving end of that decision.

Dershowitz analysis is flawed and is not worthy of serious consideration. I do not know why he feels this need to defend torturing people like this (always in certain prescribed circumstances). I find it demeaning to his intellect.

I am avoiding making a moral or utilitarian argument here because those are manipulated. I am focusing in positive law.

Best,
Ben

# posted by

Benjamin Davis : 5:39 PM

"Bart": BD: However, they also know that waterboarding broke KSM and two others, leading to the roll up of much of al Qaeda.

[glennnyc]: You know, it's always difficult to know how exactly to respond to claims like this. On the one hand, I'm sure Mr. DePalma has no credible source for this statement.

["Bart"]: I just answered this accusation over at the Volokh Conspiracy (11/7 3:10 pm post), where there is a parallel discussion.

I suspect the scepticism arises in part from the claim that this "le[d] to the roll up of much of al Qaeda". Where's Osama? And isn't "Bart" constantly insisting that we're busy fighting (solely) "al Qaeda in Iraq" (six more dead in that effort yesterday).

But here's what KSM "confessed to" according to the Pentagon (which, I'd point out, is not quite the same as proving actual responsibility, or preventing actual attacks), along with commentary:

1. The 1993 bombing of the World Trade Center in New York City that killed six people and injured more than 1,000.

Well, that worked real good. Thanks to that, the WTC wasn't bombed. But I'd point out that Clinton apprehended and prosecuted the perps, and they were convicted.

2. The 11 September 2001 attacks on the World Trade Center and the Pentagon in Washington using four hijacked commercial airliners. Nearly 3,000 people were killed.

Ditto last comment, except the actual perps are dead (along with the 3000). Good job.

3. A failed "shoe bomber" operation to bring down two US commercial airliners.

Reid was apprehended by passengers on the plane not thanks to KSM's confession.

4. The October 2002 attack in Kuwait that killed two US soldiers.

And where are the actual perps?

5. The nightclub bombing in Bali, Indonesia that killed 202 people.

I've talked to some of the folks that did the investigation here, and KSM had nothing to do with rounding up the perps (although wiretapping did).

6. A plan for a "second wave" of attacks on major US landmarks after 9/11 attacks. Alleged targets included the Library Tower in Los Angeles, the Sears Tower in Chicago, the Plaza Bank building in Seattle and the Empire State Building in New York.

Jupiter was also fortunately prevented from falling into the Sun, causing massive solar flares that would have engulfed and fried the Earth.

7. Plots to attack oil tankers and US naval ships in the Straits of Hormuz, the Straits of Gibraltar and in Singapore.

<*snore*>

8. A plan to blow up the Panama Canal.

Wow. See #6.

9. Plans to assassinate former US presidents including Jimmy Carter.

See #7. FWIW, Carter decided to face down Sudanese warlords ... armed with nothing more than a very load voice [along with more moral capital than the entire maladministration could muster if they emptied all their pockets].

10. A plot to blow up suspension bridges in New York.

... with blowtorches.

11. A plan to destroy the Sears Tower in Chicago by burning fuel trucks beneath or around it.

... someone's been watching too much telly.

12. Plans to "destroy" Heathrow Airport, Canary Wharf and Big Ben in London.

Ditto #11.

13. A planned attack on "many" nightclubs in Thailand targeting US and British citizens.

Ditto #7.

14. A plot targeting the New York Stock Exchange and other US financial targets after 9/11.

Ditto #11.

15. A plan to destroy buildings in Elat, Israel, by using planes flying from Saudi Arabia.

Old dogs, new tricks....

16. Plans to destroy US embassies in Indonesia, Australia and Japan.

Wow. They're gonna win hands down if we have to build $50B embassies in all 170 or so countries.

17. Plots to destroy Israeli embassies in India, Azerbaijan, the Philippines and Australia.

Newsflash: Israeli embassies are potential targets..... Full story at 11.

18. Surveying and financing an attack on an Israeli El-Al flight from Bangkok.

Ditto #17.

19. Sending several "mujahideen" into Israel to survey "strategic targets" with the intention of attacking them.

Ditto #17.

20. The November 2002 suicide bombing of a hotel in Mombasa, Kenya, frequented by Israelis. At least 14 people were killed.

And the 14 are still dead. Ditto #1 and #2.

21. The failed attempt to shoot down an Israeli passenger jet leaving Mombasa airport with a surface-to-air missile on the same day as the hotel bombing.

Double-dipping on "plots", eh?

22. Plans to attack US targets in South Korea, such as US military bases and nightclubs frequented by US soldiers.

That's the job of the Koreans!!! (the attacks on the U.S. servicemen, that is).

23. Providing financial support for a plan to attack US, British and Jewish targets in Turkey.

24. Surveillance of US nuclear power plants in order to attack them.

Imagine. We had to torture KSM to get this nugget.....

25. A plot to attack Nato's headquarters in Europe.

26. Planning and surveillance in a 1995 plan (the "Bojinka Operation") to bomb 12 American passenger jets, most on trans-Pacific Ocean routes.

Ummm, that (the torture) was done by the Philippine authorities.

27. The planned assassination attempt against then-US President Bill Clinton during a mid-1990s trip to the Philippines.

28. "Shared responsibility" for a plot to kill Pope John Paul II while he visited the Philippines.

29. Plans to assassinate Pakistani President Pervez Musharraf.

30. An attempt to attack a US oil company in Sumatra, Indonesia, "owned by the Jewish former [US] Secretary of State Henry Kissinger".

31. The beheading of Wall Street Journal reporter Daniel Pearl, who was kidnapped in Pakistan in January 2002 while researching Islamist militancy.

KSM confessed to this. Did he do it? Good question, because if KSM confessed to all this, and we just take his word for it, job done, and no need to find out if there's another perp who might be culpable....

A mixed laundry list of bizarre plots, and ones that have already succeeded. Many of the ones "stopped" look pretty lame (not to mention there's no assurance they've actually been thwarted).

And we hardly need torture to find out about the existence of plots that have already occured. Hard to make the case for "exigent" circumstances here; no TTB and need for speed. What's needed is accuracy (which means good police work).

Cheers,

# posted by

Arne Langsetmo : 5:47 PM

benjamin davis said...

As to the utilitarian calculus (1 person tortured for 1000 saved lives) the question always for me is that the tortured person's evidence is unreliable and the torturer's touting of what they got in that evidence is unreliable.

I would agree with you if what we are seeking are admissions to past crimes. People will admit to anything under enough duress and it is often difficult to corroborate the admission. In any case, we cannot prevent past crimes.

However, what we are seeking is actionable intelligence on the location of other enemy personnel or property to prevent future mass murder attacks. This is easy to verify. When KSM gave up other al Qaeda cells, the intelligence was confirmed when we found the cells and their property where he said they would be.

The utilitarian calculus of preventing future mass murders is completely different than that of traditional law enforcement

In traditional law enforcement, the crime is already committed and we are weighing the utility of punishing the guilty against the mistakenly punishing the innocent. Thus, the question presented is: "Better to release 10 guilty men than to punish one innocent man?"

However, in intelligence gathering against an enemy bent on mass murder, the calculus is fundamentally altered. We are no longer weighing post facto punishment. Rather, we are weighing the lives which will be lost to future terror attacks against the means used to gather the information necessary to stop those attacks. Thus, the question can become: "Better to allow a thousand to die or to waterboard KSM?"

While men and women of good will can legitimately differ on the answer to this latter question, you cannot in good faith ignore the utilitarian calculus presented by the question for people will certainly die if we do not gain actionable intelligence to stop this enemy.

# posted by

Bart DePalma : 6:15 PM

[bengamin davis]: As to the utilitarian calculus (1 person tortured for 1000 saved lives) the question always for me is that the tortured person's evidence is unreliable and the torturer's touting of what they got in that evidence is unreliable.

["Bart" DePalma]: I would agree with you if what we are seeking are admissions to past crimes.

So we can write off at least half the "intelligence" scoops you were touting as support for torturing people, then?

But FWIW, I'd note that, at least in the case of previous crimes, there's more often actual evidence to check the story against and verify the story extracted, albeit torture to extract confessions of past crimes is universally repudiated by civilised society....

Cheers,

# posted by

Arne Langsetmo : 6:34 PM

This is easy to verify. When KSM gave up other al Qaeda cells, the intelligence was confirmed when we found the cells and their property where he said they would be.

Cites?

Cheers,

# posted by

Arne Langsetmo : 6:35 PM

The utilitarian calculus of preventing future mass murders is completely different than that of traditional law enforcement

In traditional law enforcement, the crime is already committed and we are weighing the utility of punishing the guilty against the mistakenly punishing the innocent. Thus, the question presented is: "Better to release 10 guilty men than to punish one innocent man?"

However, in intelligence gathering against an enemy bent on mass murder, the calculus is fundamentally altered. We are no longer weighing post facto punishment. Rather, we are weighing the lives which will be lost to future terror attacks against the means used to gather the information necessary to stop those attacks. Thus, the question can become: "Better to allow a thousand to die or to waterboard KSM?"

OK, tell me if I'm missing something. Is it that the trade-off is ten lives versus a thousand? Did I just get the price-point wrong?

But I'd still note that this "utilitarian" calculus affects the question of whether torture ought to be legal only peripherally if at all.

Cheers,

# posted by

Arne Langsetmo : 6:40 PM

arne langsetmo said...

"Bart": BD: However, they also know that waterboarding broke KSM and two others, leading to the roll up of much of al Qaeda.

[glennnyc]: You know, it's always difficult to know how exactly to respond to claims like this. On the one hand, I'm sure Mr. DePalma has no credible source for this statement.

["Bart"]: I just answered this accusation over at the Volokh Conspiracy (11/7 3:10 pm post), where there is a parallel discussion.

arne: I suspect the scepticism arises in part from the claim that this "le[d] to the roll up of much of al Qaeda". Where's Osama?

My linked sources were ABC, USA Today and the BBC, which are all highly critical of the Bush Administration and hardly supporters of the CIA using coercive techniques to break the likes of KSM.

The real reason for the skepticism is that many here simply do not want to accept that KSM was broken by waterboarding and gave up a great number of al Qaeda with which he was working. This is based on the false belief that what I call coercion and you call torture does not work. In fact, torture works or our enemies would not use it and we would not spend millions of dollars training in how to resist it.

With this in mind, we need to rationally address as a society is how much we are willing to allow to be done on our behalf to get actionable intelligence to stop terrorist mass murder.

And isn't "Bart" constantly insisting that we're busy fighting (solely) "al Qaeda in Iraq" (six more dead in that effort yesterday).

It appears that my contention that al Qaeda was behind or indirectly causing most of the violence in Iraq has been pretty well validated by the facts on the ground. It is getting difficult for our military to continue denying that they and the Iraqis have largely destroyed al Qaeda in Iraq and the military and civilian casualties have massively plunged as a direct result. Over at my blog, I have been extensively linking from a couple dozen posts oer the past couple months to the reports of al Qaeda's defeat in Iraq culminating today with the US commander of troops in Baghdad announcing that al Qaeda had been completely cleared from the capital.

# posted by

Bart DePalma : 6:40 PM

... you cannot in good faith ignore the utilitarian calculus presented by the question for people will certainly die if we do not gain actionable intelligence to stop this enemy.

Nor can we ignore the calculus presented by the question of whether making people eat two bowls of oatmeal a day will prevent the imminent collision of the Earth with a comet, wiping out all of civilisation and perhaps humanity itself. We ignore this at our peril ... and I submit that we have at least as much reason for concern here based on the evidence at hand.

Cheers,

# posted by

Arne Langsetmo : 6:44 PM

... In fact, torture works or our enemies would not use it...

Oh, my mistake. I thought they were just blood-thirsty fascist-wannabes incapable of reason (or was that in a totally intellectually divorced different "talking point" to be considered alone solely on its own merits?). Glad to see that al Qaeda has entered the scientific age.

Cheers,

# posted by

Arne Langsetmo : 6:47 PM

... the military and civilian casualties have massively plunged as a direct result....

Right....

Over at my blog, I have been extensively linking from a couple dozen posts over the past couple months to the reports of al Qaeda's defeat in Iraq culminating today with the US commander of troops in Baghdad announcing that al Qaeda had been completely cleared from the capital.

Why, it's no longer legal for any resident of Baghdad to belong to al Qadea. Violations are not tolerated.

But if you'd explained that over there on your blog, why not leave it there for people to peruse at their pleasure? I'm sure they'll traipse over if they don't want to miss anything important you might say there without your blogwhoring.

Cheers,

# posted by

Arne Langsetmo : 6:54 PM

In fact, torture works or our enemies would not use it

See, it's this thinly-veiled admiration for the Gestapo, KGB, etc. that distinguishes the true torture-lover. *They* got stuff done, didn't they? No liberal wah-wah about it!

And the Gestapo especially -- such cool uniforms! There are doubtless websites where you can order them in your size, Torture Fans -- or do you even need me to tell you that?

# posted by

Anderson : 6:55 PM

"In fact, torture works or our enemies would not use it."

This statement assumes that our enemies are rational and would not, like Bush, use it even though it doesn't work, or use it to get false confessions. Perhaps our enemies, like Bush, have "faith" that it works, or perhaps our enemies, like Bush when he mocked Karla Fay Tucker, are sadistic and engage in torture because they enjoy it.

# posted by

Henry : 7:41 PM

Bart,
Whether the torture is for evidence for actionable intelligence or for evidence for past crimes is not the line we can draw. My point is that whatever you are going to use the information for the information is unreliable and whatever the torture says about it is unreliable. Because it is torture I can not know whether either of these things is reliable. I trust neither because of the torture. It is also against the law. So no torture.

You can list a thousand things someone who has tortured has admitted to. I can show you pictures from the the Soviet show trials where people admit to doing all kinds of horrendous things. We simply can not judge the reliability of all that because they were tortured. Same with regard to KSM or anyone else who is tortured now.

People can tell me to believe them and trust them that this is really true, but why believe them? Why believe someone who has tortured when the history tells me that the state torturing is a very evil thing and states that tortured are absolutely not to be trusted?

That is the problem I have with all this crap.

Best,
Ben

# posted by

Benjamin Davis : 7:42 PM

Let's see if I've got this right:

Communism must work because otherwise the Soviets wouldn't have used it. Nazism must work; otherwise Hitler would have lost the war. Slavery must work, otherwise the South wouldn't have won the Civil War.

Doh!!!!

# posted by

Mark Field : 7:52 PM

Over at my blog, I have been extensively linking from a couple dozen posts over the past couple months to the reports of al Qaeda's defeat in Iraq culminating today with the US commander of troops in Baghdad announcing that al Qaeda had been completely cleared from the capital.

Does your blog have any information on how the WMD search is coming along? If torture worked, wouldn't we know where that WMD is hidden by now?

# posted by

Bartbuster : 8:54 PM

Baghdad, I just tried posting over at your blog and it appears that you still have that functionality shut off.

# posted by

Bartbuster : 9:11 PM

bartbuster said...

Baghdad, I just tried posting over at your blog and it appears that you still have that functionality shut off.

I will leave the censorship of opposing viewpoints by shutting down entire comment sections to Marty.

My blog is set for review of posts.

The cursing, name calling and non topical nonsense has been removed and will not be allowed in the future.

However, topical responses taking issue with any of my posts remain and are more than welcome in the future.

If your entire contribution is limited to the former, then look elsewhere to post like dailykos or Greenwald's blog.

# posted by

Bart DePalma : 9:27 PM

I will leave the censorship of opposing viewpoints by shutting down entire comment sections to Marty.

My posts on your blog were as on topic as any of the garbage you spew in here. You are nothing but a hypocritical coward.

# posted by

Bartbuster : 9:39 PM

It was not my purpose in writing my initial comment to provoke yet another debate on the morality of torture. I do find it significant, though, that everyone, including Bart, at least arguendo, is willing to concede that waterboarding constitutes torture. It was my principal purpose to suggest that recognition of that reality was a step forward and that Dershowitz, whatever one thinks of his general arguments, has never engaged in euphemism on this point. For me, that counts in his favor. (Obviously, even if Bart refuses to concede that waterboarding counts as torture, the structure of his utilitarian argument is to defend torture if one can reasonably believe it will save X innocent lives.)

# posted by

Sandy Levinson : 10:50 PM

http://news.bbc.co.uk/2/hi/americas/6452789.stm

link provided by bart to the laundry list of terroristic activities that KSM confessed to after apparently 2 and a half minutes (abc news) and proabably a longer period of more subtle psychological manipulation like stress positions, dousing with cold water, etc.

bart, how much value is there in a voluminous confession like that?

# posted by

Neil : 12:43 AM

Sandy:

I think that waterboarding gets very close to the line of what I would personally consider torture depending on how it is done. I do not consider all coercion to be torture. My personal pain threshold is higher than that.

My argument has been that the current statutory definition of torture was intentionally made vague to the point of being nearly useless for criminal enforcement and that, if you truly want to ban waterboarding, the statute needs to be amended to expressly say so.

On a practical level, we may want to keep the law vague and allow our elected representatives to work out informal guidelines based on the threat we are facing. The results are likely to be much more sober. Indeed, it appears that waterboarding was taken off the current menu under such an arrangement. However, if we end up capturing another leader with extensive knowledge of a terrorist network like KSM who does not break with normal interrogation, then we have the option of waterboarding.

However, if we make this into a heated public debates and votes, you should realize that the position of no coercive interrogation could very well lose with the electorate. One can make a very effective utilitarian argument (as I have been doing) that the use of coercive techniques in limited cases against terrorist leaders like KSM has saved hundreds if not thousands of lives. Even anti war screeds like the movie "Rendition" essentially concede this point. While you may want to stand on general principle regardless of the potential loss of life, the average Joe and Jill (who may be the lives lost) probably do not want to make that tradeoff.

# posted by

Bart DePalma : 9:11 AM

My personal pain threshold is higher than that.

Translated from RWAese into English:

"My balls are bigger."

Prove it.

Cheers,

# posted by

Arne Langsetmo : 1:12 PM

The cursing, name calling and non topical nonsense has been removed and will not be allowed in the future.

However, topical responses taking issue with any of my posts remain and are more than welcome in the future.

If your entire contribution is limited to the former, then look elsewhere to post like dailykos or Greenwald's blog.

"Bart", meet mirror. Mirror, meet "Bart"....

You might add to your list: "Any points I find uncomfortable, I will ignore."

Cheers,

# posted by

Arne Langsetmo : 1:15 PM

"Bart" DePalma:

My argument has been that the current statutory definition of torture was intentionally made vague to the point of being nearly useless for criminal enforcement and that, if you truly want to ban waterboarding, the statute needs to be amended to expressly say so.

You mean "assertion", not "argument".

As has been pointed out (and duly ignored), when "waterboarding" is banned, then we'll have "orangejuiceboarding"....

Criminal laws don't work that way. There are no separate laws for murder /w a knife, /w a gun, /w a bludgeon, etc.. It is the process and the result, not the means, that is prohibited. We call it murder when the heart (or brain) ceases working, regardless of modality. Similarly, the torture/CIDT laws focus on the state of the victim (and the intent of the torturer). There is no need for specific prohibitions of method.

Cheers,hgy

# posted by

Arne Langsetmo : 1:21 PM

The question isn’t whether torture ‘works’ or not, the question is whether or not we want to live as a people that puts torture to work.

It would be deeply disheartening if this debate about torture did not move beyond figurings of means-end calculus.

It is incidental to my position on torture that I think a regime which institutionalizes it is likely to create conditions in which it has many more enemies that it ‘needs’ to torture (and that therefore institutionalized torture, whatever its dubious efficacy in particular instances, does not ‘work’).

Some of us are apparently terrorized into believing that letting ‘terror suspects’ go untortured increases the risk we face of death-by-dirty-bomb. Still, scared to death as we might be, can we not ask whether there are values that might be worth not only living for, but (possibly) dying for also? It is not a common strength, but people die (and not necessarily kill) for deeply help principles often enough for us to be able to ask this question.

The efficacy of torture is not at issue, it is the morality of torturers that is at issue.

# posted by

Unknown : 7:51 PM

mi-uw:

The efficacy of torture is not at issue, it is the morality of torturers that is at issue.

More to the point, I think, is that the legality of torture is independent of the efficacy. We may choose any number of factors to consider in deciding whether torture ought to be legal, and I think we do, for the most part. Those that choose to use (mostly or solely) a "utilitarian" calculus show what is in my mind a very amoral bent, nonetheless one that they would surely soundly denounce if they were faced with an argument for a social regime based on "the greatest good for the greatest number of people". Such is the schizophrenia of the RWA contingent who pretend to libertarianism in economic matters.

We do not prevent torture by making it illegal any more than the problem of even such a universally condemned act as murder is not solved by making it per se illegal.

Beyond that, even the "utilitarian calculus" of torture is flawed by the "fallacy of bifurcation" presented by its proponents (that the choices are make legal and do it, or make it illegal and don't do it). The archetypical argument, the "ticking time bomb", presents the choice of one life ruined or lost through torture versus the thousands of lives lost (hypothetically, of course) if the torture is not done. But by failing to recognise that it is possible to keep torture illegal and still engage in torture nder such (very exceptional) occurrences, we don't see that we have a choice of two lives ruined or lost under those circumstances (that of the torturee and that of the torturer who must subsequently also pay for his acts), and we can do this without legalizing torture. Just as some soldiers, faced with a difficult and extreme situation, may choose to throw themselves on a grenade to save the lives of their colleagues, so the erstwhile torturer may choose to do what they deem necessary (and sacrifice themselves) "for the greater good".

The greater harm is to legalise torture per se, because then it becomes a commonplace, and can be used (and will be used) even when there are no such extreme circumstances as the hypothetical TTB (see, e.g. the beating deaths of various prisoners in Afghanistan and Iraq, and the Abu Ghraib and Guantanamo abuses).

Worse yet is that we should allow the executive the right to determine what procedures are permissible, on their own and without discussion and oversight. That way lies totalitarianism; where the executive gets to decide what the "utilitarian calculus" is to maximise the "common good"....

This is a no-brainer. Which means, of course, that the proponents of torture here will avoid this point like the plague.

Cheers,

# posted by

Arne Langsetmo : 12:24 PM

Well, yes, Arne, of course you're right here. I was thinking that the (i)legality of torture should follow from a consideration of its (i)morality. But clearly this doesn't follow.

In any case, I was also hoping that urging consideration of the 'absolute' moral value of torture might move us past the horribly irrelevant hypotheticals that the torturephilic seem so prone to serving up as support for their instrumental imperatives. As I posted elsewhere:

'We can dream up all manner of ingenious hypotheticals to find circumstances to justify the unjustifiable: just imagine that an evil genius has in his brilliant mind the code to defuse a bomb that will destroy London in thirty minutes. Knowing that he would be tortured if caught, he kept in his mouth a powerful anesthetic pill, which he duly bit, rendering him insensible to pain (not a poison pill, because he's so evil he wants to hang around to gloat over the ruins of London). So, no point in sticking pins under his nails, but ‘we’ happen to have his two year old son (and though he’s evil he’s got a soft spot for his littleun). ‘We’ need to torture said toddler before his daddy’s eyes in order to save London. Imperative, therefore, that ‘we’ pass a law allowing for such eventualities, because while, personally, ‘we’ find torture repugnant ‘we’ need to pass laws to keep our cities safe.

One could go on and on like this. We can compare the Nazis and the Republicans, and then shriek that such a comparison is outrageous. This is all horribly beside the point.

The point is do we want to live under a regime that has institutionalized torture?

If this is a ‘problem’ that you have to weigh up, you may just get the regime you deserve.'

# posted by

Unknown : 1:37 PM