Balkinization  

Wednesday, February 06, 2008

White House Admits It Committed War Crimes; May Commit More in Future

JB

Today the White House admitted that it violated the anti-torture statute and the War Crimes Act and that it may seek to do so in the future.

What? Did it really say that?

The catch is that the White House admitted it was waterboarding but didn't admit that it was either torture or a war crime. The Associated Press reports:
The White House on Wednesday defended the use of the interrogation technique known as waterboarding, saying it is legal — not torture as critics argue — and has saved American lives.

President Bush could authorize waterboarding for future terrorism suspects if certain criteria are met, a spokesman said.

A day earlier, the Bush administration acknowledged publicly for the first time that the tactic was used by U.S. government questioners on three terror suspects. Testifying before Congress, CIA Director Michael Hayden said Khalid Sheikh Mohammed, Abu Zubayda and Abd al-Rahim al-Nashiri were waterboarded in 2002 and 2003. . . .

Hayden banned the technique in 2006 for CIA interrogations, the Pentagon has banned its employees from using it, and FBI Director Robert Mueller said his investigators do not use coercive tactics in interviewing terror suspects.

Bush personally authorized Hayden's testimony, White House deputy spokesman Tony Fratto said.

"There's been a lot written out there — newspaper, magazine articles, some of it misinformation," Fratto said. "And so the consensus was that on this one particular technique that these officials would have the opportunity to address them — in not just a public setting, but in a setting in front of members of Congress, and to be very clear about how those techniques were used and what the benefits were of them."

Fratto said CIA interrogators could use waterboarding again, but would need the president's approval to do so. That approval would "depend on the circumstances," with one important factor being "belief that an attack might be imminent," Fratto said. Appropriate members of Congress would be notified in such a case, he said. . . .

Fratto said waterboarding's use in the past was also approved by the attorney general, meaning it was legal and not torture.

Officials fear calling waterboarding torture or illegal could expose government employees to criminal or civil charges or even international war crimes charges.

Actually, it violates the law whether or not you call it illegal. Generally speaking, war criminals don't usually admit that they have engaged in war crimes. They usually say they were justified in acting as they did.

But as we've argued on this blog many times, the statutes (and the Geneva Conventions) do not support the White House's strained interpretation. Waterboarding is torture. And torture is a war crime. If the White House has admitted to waterboarding, it has admitted to both.

President Bush used to say that we don't torture and refused to say what exactly we were doing, on the grounds that it might assist our enemies. Now he is happy to admit it.

This is what the United States has come to under this Administration.

Comments:

Assuming that this Administration never does anything without a political reason, what could motivate this disclosure?
Super Tuesday?
Pending FISA legislation?
A background for the fall election campaign?
An oblique attack on McCain as front-runner?
A setup for pre-emptive pardons/immunity claims for the entire Executive?

I don't expect much political traction in the US, so I suppose the relevant legal issue will be what, if anything, the international community has to say about this.
 

Jack wrote: Actually, it violates the law whether or not you call it illegal. Generally speaking, war criminals don't usually admit that they have engaged in war crimes. They usually say they were justified in acting as they did.

Often that's even the case when they have lost power and are facing some sort of come-uppance. But to think a sitting world leader would make such a concession is absurd.

The question remains, what can we do about it. I still don't like the available options.
 

Push for a Special Prosecutor:

Ask your representative on the House Judiciary Committee to press Attorney General Mukasey to support the appointment of a special prosecutor to investigate the CIA's admitted waterboarding of three detainees. The Committee will hold an oversight hearing with Mukasey this Thursday, February 7, 2008 at 10A.M. For Massachussetts, all those in the 10th District, contact Representative Bill Delahunt. For New York, all those in the 8th District (much of Manhattan and Brooklyn), contact Representative Jerrold Nadler, and all those in the 9th District (much of Brooklyn and Queens), contact Representative Anthony Weiner.

Many other states are represented on the House Judiciary Committee.

See a list of House Judiciary Committee members here.

Find out your complete postal code here.

Find out who is your Congressperson here.
 

sparky said...

Assuming that this Administration never does anything without a political reason, what could motivate this disclosure?

I would hazard a guess that this is part of the public relations counter offensive following the CIA tapes destruction story.

It started with Ex CIA agent John Kiriakou painting a heroic picture for ABC of the capture and breaking of Zubaydah as the CIA was leaking to the press that it had briefed Congress about the CIA interrogation program from the beginning.

Hayden's recent "admission" to Congress identifying the high ranking al Qaeda officers broken by waterboarding merely reinforces the CIA's argument that waterboarding is reserved for the worst of the worst terrorists in order to save lives. Among Joe and Jill Public, you won't find many people who will feel sorry for KSM and his crew of merry mass murderers.

The response of Sen. Dick Durbin (D - IL) was illustrative of Congress' tacit approval to waterboarding. Rather than either calling waterboarding unlawful as do Jack and Marty or calling for an amendment to the torture statute to expressly outlaw waterboarding, Durbin instead called for a DOJ investigation of whether waterboarding was conducted under circumstances which were unlawful.
 

I like Bart's analysis; basically it's all timed to effectuate a variation on the "A Vote for Dems [or a Special Prosector, or whatever] is a vote for Terror," only this time Rove is smart enough not to let Dick actually speak anywhere near a mic.
 

just a word of caution here regarding the Geneva convention, the one thing everybody is so quick to mention when the hint of torture crops up.

The Geneva Convention states in regards to POW's that they are protected from abuse and torture PROVIDED they are in uniform. All others are considered 'illegal combatants' and may be summarily executed. Yes, that's correct, executed. Go look it up....I believe in either section 6 or 7.
 

arctic:

The GC states that a captor may not use coercive techniques against privileged enemy POWs and may not torture any captive including unlawful / unprivileged captives like al Qaeda.

Thus, if waterboarding is merely coercive, the GC permits it against unlawful enemy combatants but not against lawful and privileged combatants. This is the distinction that AG Mukasey is implying when he states that waterboarding may be illegal depending upon the circumstances.

On the other hand, if waterbording falls under the definition of torture, it is flatly unlawful under the GC and domestic statute whether applied to privileged or unlawful enemy combatants. However, this does not appear to be the understanding of either the Executive or Congress.
 

Bart: "...if waterbording falls under the definition of torture, it is flatly unlawful under the GC and domestic statute whether applied to privileged or unlawful enemy combatants."

Precisely. Now, the thing is, neither the Executive nor the Legislature nor even our own Court is the final word on the matter, right? Who enforces the GC? How?
 

Look forget Mukasey, he seems OK on some level, but he took a job of AG willingly, knowing full well that meant assuming responsibilities of a legal consiglieri to Cheney/Bush administration. No way he will do anything here. He has to wade in the same ethically brackish waters the rest of them do.

Recall his last testimony, not only a disappointment but a major disaster, willingly dragging this country good image through the mud again on behalf of his principals.

In a sense he was perfectly suited for a job, US federal judges sit alone in those mediaeval "chambers" of their, overflowing with self perceived importance, too haughty to talk to anybody, concocting various legal theories out of arrogance sometimes boredom and having nobody to bounce them off to see if they make any sense, intellectually, ethically or otherwise. It's alone at the top, and being alone for too long leads to various anomalies as any competent shrink will tell you.

In his case it took Sen. Biden to tell him that his stand amounted to moral relativism of the worst kind, ends justify means as WaPo put it, a stand so repugnant most civilized people have hard time confronting it in other people, as was amply evident in those hearings.

Mukasey stepped out of his dark chambers into a bright daylight of open democratic society for the first time in his life probably so it is not surprising that he doesn't see very well.
 

robert link said...

Bart: "...if waterbording falls under the definition of torture, it is flatly unlawful under the GC and domestic statute whether applied to privileged or unlawful enemy combatants."

Precisely. Now, the thing is, neither the Executive nor the Legislature nor even our own Court is the final word on the matter, right? Who enforces the GC? How?


The reality is that the GC and all "international law of war" are just aspirations whose only real enforcement is by the victors in wars.

The only enforceable law are our own statutes. However, for the reasons I have given before, the statutory definition of torture is probably too vague to enforce and has been expressly interpreted by DOJ and implicitly if not expressly by Congress as to not reach waterboarding.

A useful comparison would be our obscenity laws. Torture appears to be like obscenity, one cannot objectively define it, but everyone claims they know it when they see it.

If the DA interprets an obscenity statute not to reach a certain sex act, then the DA usually has the final word on criminal prosecution, even if you personally believe that the sex act is obscene. If the legislature does not clarify the definition of obscenity to expressly include that sex act, then the DA's interpretation stands.

Similarly, DOJ has interpreted our statutory definition of torture not to include waterboarding and a program of other coercive interrogation techniques. Even though you may disagree, DOJ makes the final prosecuting decision. Congress has the power and has had years of opportunity to clarify this vague definition of torture to expressly include waterboarding or any of the other CIA techniques. However, they have refused to do so. Thus, DOJ's interpretation stands.
 

Mr. Link, treaties are like other laws: they are enforced by sovereigns. (Indeed, that is kind of tautological, because law is the command of the sovereign.) So the Geneva Convention is most certain enforceable by the instrumentalities of American sovereignty, i.e., our executive and judiciary (the legislature has no role in law enforcement). Indeed, with respect to persons on American soil, the Geneva Convention cannot be enforced by anyone else, because no other instrumentality is permitted to exercise sovereign power on American soil.

Your tone implies that you expect some other answer, but what I saw above is Jurisprudence 101.
 

-wg- "US federal judges * * * concoct[]various legal theories out of arrogance sometimes boredom and having nobody to bounce them off to see if they make any sense, intellectually, ethically or otherwise."

You know where this rings so terribly, terribly true? Washington v. Davis. Worst. Decision. Ever. An ever-expanding, loathsome doctrine which has crept into every imaginable DP sphere. Shrill, hubris-ridden, excremental screed by geriatric right wing ideologues; utterly bereft of *any* semblance of intellectual honesty.
 

"Bart" DePalma:

Hayden's recent "admission" to Congress identifying the high ranking al Qaeda officers broken by waterboarding merely reinforces the CIA's argument that waterboarding is reserved for the worst of the worst terrorists in order to save lives.

So we're supposed to feel good that it's reserved for the "worst of the worst"?!?!? Strangely enough, I didn't see any exceptions for the "worst of the worst" in the CAT, the Geneva Conventions, or in the U.S. Code.

Not to mention, concentrating on waterboarding just takes focus off other "enhanced interrogation procedures", a fact I've noted here.

I have a full (and growing) discussion of this, (including this crapola about "saving lives") over on my blog; "Bartesque" discussion is invited to hie itself yon over there.

Cheers,
 

artic_front:

just a word of caution here regarding the Geneva convention, the one thing everybody is so quick to mention when the hint of torture crops up.

The Geneva Convention states in regards to POW's that they are protected from abuse and torture PROVIDED they are in uniform. All others are considered 'illegal combatants' and may be summarily executed. Yes, that's correct, executed. Go look it up....I believe in either section 6 or 7.


Oh, BS. You won't find the term "illegal combatant" anywhere in the Geneva Conventions.

As for allowing anyone to be "summarily executed", that's further hallucination on your part.

Stop making sh*te up. If you want to pretend you know something, at the very least quote from your authorities to show they say what you clam they say.

Cheers,
 

"Torture appears to be like obscenity, one cannot objectively define it, but everyone claims they know it when they see it."

Someone here is clueless, and apparently doesn't realise that Potter Stewart's rather infamous 'formulation' is more the butt of jokes than a real formulation of an obscenity definition by the Supreme Court ("prurient", "no artistic or scientific value", "contemporary community standards", yaknow...)

Cheers,
 

If the DA interprets an obscenity statute not to reach a certain sex act, then the DA usually has the final word on criminal prosecution, even if you personally believe that the sex act is obscene. If the legislature does not clarify the definition of obscenity to expressly include that sex act, then the DA's interpretation stands.

Similarly, DOJ has interpreted our statutory definition of torture not to include waterboarding and a program of other coercive interrogation techniques. Even though you may disagree, DOJ makes the final prosecuting decision.


The flaw in this analogy, of course, is that it is not the Administration producing obscenity.

Imagine, if you will, a future adminstration that needed revenue but did not want to raise taxes, so it decided to start producing and selling pornography, figuring they could generate a lot of revenue that way. Now imagine that one and the same President is urging the Treasury Department to crank you the most outrageous pornography possible and is also in charge of the Justice Department that decides what can be prosecuted as obscene.

I see a definite conflict of interest there.
 

I see a definite conflict of interest there.

Hey, not bad for a layperson. I am impressed. Have you thought of law school?
 

Anyone who claims that the Geneva Conventions permits waterboarding against anyone under any circumstances is either a liar or an idiot. Prisoner abuse is a war crime, PERIOD.
 

enlightened layperson said...

I see a definite conflict of interest there.

Given that both DOJ and CIA are subordinate to the President, there could very well be a conflict of interest.

However, our Constitution has a solution to the conflict of interest called impeachment.

Now, let us substitute Congress for the DOJ in my demonstration.

Congress has the power and has had years of opportunity to either interpret the current torture statute to include waterboarding and impeach the President or to clarify this vague definition of torture to expressly include waterboarding or any of the other CIA techniques. However, Congress has refused to do either. Thus, Congress in its law enforcement role against the Executive has effectively determined that the current torture statute does not include waterboarding.

The point is that a vague law which can be interpreted either way gives the law enforcement agency (whether that be DOJ or Congress) discretion in enforcement unless the legislature clarifies the law to such that it cannot have multiple interpretations.
 

"Waterboarding is torture. And torture is a war crime. If the White House has admitted to waterboarding, it has admitted to both."

Hmm. Some illicit substitution inside an intensional context going on here. 'A admitted to X' plus 'X=Y' doesn't imply 'A admitted to Y.' Admitting something is like intending something. 'Oedipus intended to marry Jocasta' plus 'Jocasta is Oedipus's mother' doesn't imply 'Oedipus intended to marry his mother.' 'The 14A framers intended to require civil equality' plus 'school desegregation is a component of civil equality' doesn't imply 'the 14A framers intended to require school desegregation.' See here, or Weiss's Scope, Mistake, and Impossibility: The Philosophy of Language and Problems of Mens Rea, 83 Colum. L. Rev. 1029 (1983). Or Larry Solum ("A sentence is an intensional context if its truth value is sensitive to the substitution of referentially equivalent descriptions."). Or see here, with a nice picture of the Lone Ranger! Or Frege, but I'm not sure I've yet succeeded in getting any actual law people to read him who don't know his work already.

To the extent that the bit in the original post about admitting to war crimes was just a joke, of course, I hereby incorporate its irony by reference.
 

Here's a Clark Kent-Superman one, with "admits": "Clark Kent admits he's Clark Kent" plus "Clark Kent is Superman" doesn't imply "Clark Kent admits he's Superman."
 

Regarding what the Geneva Conventions do or do not say, and thanks to the search features both at web sites and the "cntrl-F" feature of PCs, may a humble international law librarian direct folks to http://www.icrc.org/ihl.nsf/CONVPRES?OpenView at the official site of the International Committee of the Red Cross- treaties and commentary are in full text there. One finds no mention of unlawful combatants but a clear trend over the categories that were at the top of minds at the end of WWII, and that trend is: torture is a clear violation of humanitarian law, and attempts are made in the treaty to put a stop to it in every instance of POW or partisan capture then known or contemplated.
GTownLawLibr
 

'Oedipus intended to marry Jocasta' plus 'Jocasta is Oedipus's mother' doesn't imply 'Oedipus intended to marry his mother.'

This is not analogous because Oedipus didn't know that Jocasta was his mother, whereas the Bush administration knows that waterboarding is torture and is illegal, its denials notwithstanding.
 

Henry: "This is not analogous because Oedipus didn't know that Jocasta was his mother, whereas the Bush administration knows that waterboarding is torture and is illegal, its denials notwithstanding."

First, that's not Balkin's argument. He doesn't claim that the administration knows that it's wrong (not here, anyway); instead he commits a straightforwardly improper substitution of identicals in an intensional context. Further, knowing the relevant identity still doesn't make the implication go through for admissions. Clark Kent knows that he's Superman, but he still isn't admitting that he is, even though he's admitting to being Clark Kent.
 

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Chris: The Clark Kent analogy doesn't work because no one besides Clark Kent knows that he is Superman, whereas everyone knows that waterboarding is torture and is illegal. The Bush administration's failure to admit it is thus merely a matter of form, not of reality. It would be analogous to my stating in this posting that I do not post comments on Balkinization.
 

@Charles: Anyone who claims that the Geneva Conventions permits waterboarding against anyone under any circumstances is either a liar or an idiot. Prisoner abuse is a war crime, PERIOD.

Right, agreed. But the realpolitik analysis of who will enforce such, and how, is non-trivial. We, you and me in the body of our (duly?) elected officials, have committed these war crimes. Who is going to try us in the body of those elected officials? The officials themselves or their ilk? Not hardly. Absent sufficient internal pressure, which I fear our mtv-and-fox-news-sated electorate is incapable of creating, or an external pressure, such as meaningful membership in a community which can impose sanctions for proscribed behavior, absent those forces the exercise is academic, despite our moral outrage.

So, I repeat my rather defeatist sounding question: Who enforces the GC and how? I fear the answer is not far from Bart's: we either enforce it ourselves (highly unlikely) or it is enforced upon us by a sufficiently powerful outside force (stipulating that our membership in a global community of nations is, at best, purely for show.)

Peace.
 

Henry: "The Clark Kent analogy doesn't work because no one besides Clark Kent knows that he is Superman, whereas everyone knows that waterboarding is torture and is illegal."

Sorry, not following you. It's an intensional context, and you just can't substitute co-referring expressions in them. (Well, you could do it, but it would be wrong.) Even if everyone knew that Superman was Clark Kent, but he didn't admit it, that wouldn't make the admission that he's Clark Kent into an admission that he's Superman. Put it this way: has the administration admitted that waterboarding is torture? On your theory, they have, since everybody knows it already! Can't be right.
 

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Chris: We're both right; we're just using different definitions of "admit." You are being more literal than I am. I agree that the Bush administration did not explicitly admit to torturing. But they uttered words that make it clear to all rational people that they tortured, and I am giving them the benefit of the doubt and assuming that they are rational people and know that they tortured. One can lie in such a bald-faced manner (as when Bush says, "We do not torture") that it does not truly constitute a lie, in the sense that it attempts to deceive anyone, but rather it serves some other purpose.
 

Professor Green, aka "Chris", wrote: Admitting something is like intending something.

Uh, respectfully, are you high? I can certainly stipulate contexts in which that sentence might parse as a true description of matters, but categorically? Feh. Go easy on that "is of identity", ok?

Since you seem to have stumbled on the word admitted, lets see if a more apt reformulation can be found, one which avoids words that confuse you.

Ego Xed. (Fred ran.)
X is Y. (Running is moving your legs in a particular manner.)
therefor
Ego Yed. (Fred moved his legs in a particular manner.)
likewise
Ego admitted Xing therefor Ego admitted Ying. (Fred admitted running therefor admitted moving his legs in a particular manner.)

If there is a flaw in, "Waterboarding is torture. And torture is a war crime. If the White House has admitted to waterboarding, it has admitted to both.", such a flaw would have to be in the equating of X with Y, the equating of waterboarding with torture. The most plausible undermining of the waterboarding-is-torture premise is that we can legislate as we choose, just as we can, in theory, pass statutes making Pi equal to 3.

I would be delighted to look at your Frege references, but maybe as a student in a correspondence law school I wouldn't suffice to create a counter example to your complaint. Meanwhile, I offer Schopenhauer's "The Art Of Controversy" as a standard for discussion of rhetoric, not because it is comprehensive, but because it lends itself nicely to statements such as, "The associate professor's argument seems to qualify as numbers 4, 9, 15, 24, 28 and 36 on the TAOC list." (Admittedly, this comment of mine scores a couple of TAOC hits too.)

Looking forward to your reply.
 

Robert:

No, I'm not high, and my name really is Chris!

Your running-is-moving-legs example is an extensional context, and it is OK to substitute co-referring expressions in extensional contexts. But it's not intensional ones. I'm only saying intending and admitting are similar in that they are both intensional contexts.

Schopenhauer might be great, but he's no substitute for a little clearheaded philosophy of language. I'm not sure I'd start with Frege himself. The Lone Ranger link is the shortest, but the Weiss article is quite accessible.
 

Chris quite urbanely offered: I'm only saying intending and admitting are similar in that they are both intensional contexts.

But in the context of your statement, "...it is OK to substitute co-referring expressions in extensional contexts. But it's not intensional ones" I have to ask, haven't you tried to do that which you advise against when you offer to substitute "admit" for "intend"? The universe of situations in which "I intend X" and "I admit X" are synonymous is pretty small compared with the universe of situations in which they aren't, agreed? I maintain my position that you've offered a tremendously inapt substitution. Similarly, we all agree that "admit" and "intend" are more prone to intensional rather than extensional definition, that is, being more susceptible to definition by other words than by tangible verifiable external events. That is much less the case with both "torture" and "waterboarding." The universe in which "I tortured him" and "I waterboarded him" are synonymous is much, much larger than in the admit/intend example, yes? And both torture and waterboarding are much more easily exemplified by tangible verifiable external events, right?

As for Schopenhauer, all I really know about him is that David Hume could out-consume him. Maybe you would be interested in joining me in a wikiproject to create a definitive list of fallacies to which we could refer? (No, really, that could be a blast if you're game.)

Peace.
 

I am insufficiently sophisticated to grasp Chris's point.

Bush says, "hey, I had sex with some stranger last night while she was passed out."

Balkin says, "Bush has admitted to rape!"

Chris says, "no, no, he didn't say that."

The inference that Bush's conduct was raped is a missing term, but it's too blindingly obvious to cavil about.

Waterboarding is torture. It is a violation of the War Crimes Act. By admitting to waterboarding, Bush has admitted to torture.
 

@Anderson: it's too blindingly obvious to cavil about.

Not if you're a defense attorney. I can think of a few other jobs where it would be seen as your duty to so cavil. (Y'just don't hear that word often enough these days; thanks!)

As for the assumed sophistication of Chris's argument, it's mostly irrelevant, and he commits in spades the error he complains of. You're right on track.
 

Robert: "[H]aven't you tried to do that which you advise against when you offer to substitute 'admit' for 'intend'?"

No! I'm not saying that the two terms are ever synonymous. I'm only making the claim--utterly uncontroversial among people who know a little philosophy of language--that substituting co-referring expressions sometimes doesn't maintain truth values. Those are called intensional contexts, and "admitting" is one, as the Clark Kent example shows.

Anderson: The rape example would indeed be analogous, if the president had an unorthodox view on what counts as rape. And the administration obviously has a different view from Balkin on what counts as torture. Again, I commend the Weiss article as a nice, accessible introduction.
 

"Not if you're a defense attorney."

Suppose that you were approached by a CIA interrogator and asked to defend him against charges that he violated the torture statute and the GC by waterboarding a detainee. Who here believes that it would be sanctionable conduct to defend this client on the grounds that waterboarding is not torture? Who believes that the argument is so weak that, even if not sanctionable, you would not be ethically required to raise it as a defense? (A related but different question is whether you would raise the defense of reliance on the OLC opinion)
 

Congress has the power and has had years of opportunity to either interpret the current torture statute to include waterboarding and impeach the President or to clarify this vague definition of torture to expressly include waterboarding or any of the other CIA techniques. However, Congress has refused to do either. Thus, Congress in its law enforcement role against the Executive has effectively determined that the current torture statute does not include waterboarding.

Aside from the fact that you can't fairly read inaction or lack of enforcement to negate a law except under the most extreme situations (and noting as many have that waterboarding has been treated as a crime by the United States historically), it's even more absurd to claim that Congressional inaction in the face of an obstructionist Republican contingent and a preznitential veto (requiring a two-thirds override) means that Congress has implicitly passed some 'positive law' to the effect that waterboarding is not torture.

Further noted is the fact that people voting against bills specifically naming waterboarding as torture may do so for a number of reasons, a perceived lack of necessity in doing so because it is a "given" being one such possibility, so that any claims that such bills didn't pass because some supposed majority of Congress implicitly was 'passing' a bill stating the opposite is ... to be blunt ... sheer nonsense.

Cheers,
 

Chris:

Your running-is-moving-legs example is an extensional context, and it is OK to substitute co-referring expressions in extensional contexts. But it's not intensional ones. I'm only saying intending and admitting are similar in that they are both intensional contexts.

Robert is right; the real problem (if any) is in the 'equating' of "waterboarding" to "torture". Aside from any substantive disagreements with this implication concerning the actual acts (it's an implication: "IF waterboarding THEN torture", not the equation "IF AND ONLY IF"), it is true that a mens rea requirement for "torture" that specifies that the accused intends to do some prohibited act might make the implication false as well; if the waterboarder only intended to waterboard but not to "torture" or to "cause extreme pain or suffering" (or whatever torture requires as to intent), then it may be that some waterboarding is not legally "torture", and that someone admitting to waterboarding didn't cimmit the crime of torture.

Because of the various types of "intent" that can be present under law (some crimes require only the intent to do the act, and others require scienter that the act was illegal; still others a bad "motive" (e.g., "to unjustly gain" or "with intent to deprive"), it's not clear whether the requisite intent was present when first we set out to waterboard. But the problem is not in the intentional aspects of the waterboarding; rather it is in the intentional requirements of the crime of torture (it is that crime that is alleged, and it is that crime for which the intentional requsites are specified). Waterboarding is just the physical act. If the intentional requirement of "torture" is simply to voluntarilty do the act itself, then the admission would be an admission of a crime (provided that waterboarding is physically considered torture; the "X=Y" assumption).

Cheers,
 

Suppose that you were approached by a CIA interrogator and asked to defend him against charges that he violated the torture statute and the GC by waterboarding a detainee. Who here believes that it would be sanctionable conduct to defend this client on the grounds that waterboarding is not torture?

Raises hand.

Who believes that the argument is so weak that, even if not sanctionable, you would not be ethically required to raise it as a defense?

Raises hand again.
 

MLS:

(A related but different question is whether you would raise the defense of reliance on the OLC opinion)

I'm not sure that "reliance" is a concept that migrates from the civil sphere to the criminal one. Is there really any caselaw that says that "reliance" on some opinion from someone is a defence to a criminal charge (outside of this being evidence [but not dispositive evidence] of an actual absence of malice or ignorance of the law in such cases where such scienter is an element of the charge)?

Cheers,
 

Chris: I'm not saying that the two terms are ever synonymous. I'm only making the claim--utterly uncontroversial among people who know a little philosophy of language--that substituting co-referring expressions sometimes doesn't maintain truth values.

A) OK, I seem to have misunderstood what you meant with "admit" and "intend". You weren't offering intend as a substitute for admit, but only saying both exemplify contexts of intensional definition, right?

B) "...sometimes doesn't..." is really only relevant if you mean "...this time does not..." If you mean "...this time does not..." then we disagree.

C) It's possible for folks who know more than "a little" philosophy of language to talk right past each other under the best of circumstances...which blog comments certainly are not. ;)

Peace.
 

Herbert Packer, MENS REA AND THE SUPREME COURT, 1962 Sup. Ct. Rev. 107 (1962).

Richard Singer and Douglas Husak, OF INNOCENCE AND INNOCENTS: THE SUPREME COURT AND MENS REA SINCE HERBERT PACKER, 2 Buff. Crim. L. Rev. 859 (1999).
 

Robert: "You weren't offering intend as a substitute for admit, but only saying both exemplify contexts of intensional definition, right?"

I think that's right, but I would say just "intensional contexts," not "contexts of intensional definition."

Robert: "'...sometimes doesn't...' is really only relevant if you mean '...this time does not...' If you mean '...this time does not...' then we disagree."

Balkin's argument only works if it is generally legitimate to reason the way that he has reasoned, which is by substituting inside the "admits that ____" context. But it's not generally legitimate to substitute inside intensional contexts, and it's very plain that "admits that ____" is an intensional context. I'm not sure what you mean by suggesting that "this time," substituting inside an intensional context has in fact preserved truth value. Even if the argument has stumbled on a conclusion that happens to be true, it's still a bad argument.

Arne: "If the intentional requirement of 'torture' is simply to voluntarilty do the act itself, then the admission would be an admission of a crime (provided that waterboarding is physically considered torture; the 'X=Y' assumption)."

Yes, that's right. If waterboarding is, in fact, a crime, then admitting to waterboarding is admitting to what is, in fact, a crime. And people who admit to conduct that is in fact a crime will usually be in a heap of legal trouble.

All I'm saying is that when an admission comes from someone who contests what counts as a crime, then the admission is different from the admission, "I have committed a crime." Admission of behavior that in fact constitutes a crime is different from the admission that one has committed a crime.
 

MLS, you are missing the point. Americans are entitled to have the Executive interpret the laws as they are reasonably construed, not as if trying to save its own sorry ass from jail.

If I were trying to keep my CIA boy out of jail, I wouldn't insult the court's intelligence with "waterboarding isn't torture"; my brief would be all Nuremberg, Nuremberg, Nuremberg, trying to make the court reluctant to send my boy up the river for what smug suits in the White House told him to do.
 

Good heavens, Chris, it's so 20th-century to make fun of analytic philosophy, but you're really tempting us here.

Balkin's rhetoric was perfectly evident before you started pettifogging it, and he certainly didn't rely on his rhetoric -- he provided evidence for why, in fact, waterboarding *is* torture.

Cites to the literature are not going to get around the fact that you are displaying all the analytical acumen of Amelia Bedelia.
 

Anderson: "[Balkin] provided evidence for why, in fact, waterboarding *is* torture."

Eh? I never denied that. I only denied--with a very explicit note saying that I understood that Balkin might be joking!--that the administration had admitted that it tortured. Or more precisely, I denied that Balkin's argument to that effect, if it was intended as an argument, was cogent. And your response at 10:51, pointing to the existence of extensional contexts in which substitution preserves truth value, certainly didn't seem to me to treat Balkin's statements as a joke. Maybe I misread you, though.
 

anderson said...

If I were trying to keep my CIA boy out of jail, I wouldn't insult the court's intelligence with "waterboarding isn't torture"; my brief would be all Nuremberg, Nuremberg, Nuremberg, trying to make the court reluctant to send my boy up the river for what smug suits in the White House told him to do.

A competent defense attorney would not even let this get to a court.

It would not take much to remind DOJ that they interpreted the torture statute not to reach waterboarding and approved the CIA interrogation program. Do you think that they want me parading their attorneys in front of the court testifying on behalf of my clients?

Then there is the political dimension. The next President and AG sure as hell does not want to start off their administration prosecuting the CIA heroes who broke the architect of 9/11 and rolled up al Qaeda.

I am confident DOJ would reconsider any idea they had of issuing indictments.
 

It would not take much to remind DOJ that they interpreted the torture statute not to reach waterboarding and approved the CIA interrogation program. Do you think that they want me parading their attorneys in front of the court testifying on behalf of my clients?

The response assumes that DOJ is a consistent entity, rather than one which is likely to have new directors come January 2009.
 

Chris: ...I understood that Balkin might be joking!

Not only might be but clearly was. In no way shape or form was our host saying the WH in actuality admitted to torture or war crimes. Instead the whole point was that, common sense notwithstanding, the WH had confirmed it did authorize certain acts and that it is a strange turn of events that currently such confirmation is not an admission of the crime for which those acts are the component elements. To use the rape example offered, if the elements of rape were still under dispute then that would be a relevant example. But because the legal elements of torture are currently being debated, hotly, we can't take "we ordered waterboarding" and soundly reach "we ordered torture/war crimes."

Unless, of course, the current hot debate about the legal elements of torture is as illegitimate as we all know it to be.

Peace.
 

Robert: "Not only might be but clearly was." [i.e., Balkin clearly was joking.]

Then you shouldn't've taken my own comment seriously--after all, I said I was incorporating any of Balkin's irony by reference. I'm just making the silly point that, taken seriously, the argument contains a philosophy-of-language howler. To which one proper response might be, "Tee-hee, tee-hee, yes, of course the administration didn't admit that it tortured, but it did admit doing something that is, in fact, torture, and your philosophy of language talk is distracting us from an important issue of the day." But that wasn't the response--several commenters started saying that I was actually wrong. I'm fine if you want to revert back to the "you didn't get the joke" line at this point, though.

"In no way shape or form was our host saying the WH in actuality admitted to torture or war crimes."

Eh? The title says the very thing. It might've said it ironically, but it does say "White House Admits It Committed War Crimes."
 

Chris,

I hope I'm tracking closer to your point. Might it be fair to posit here different flavors of truth-value, say legal, connotative, denotative? Currently I think most of us here agree that it is only in some legalistic sense that one could reasonably say of "WH admitted waterboarding" that substituting "torture" for "waterboarding" might possibly yield a changed truthvalue. In most other contexts admission of the elements of the crime suffices for admission of the crime, agreed?

You said, "I'm fine if you want to revert back to the "you didn't get the joke" line at this point, though."

Yup. Totally missed where you were coming from. Learned a little on the way too, which is always nice. I also stand caught red-handed on the "no way shape or form" bit.

I'll be looking forward to your future posts, to keep me on my toes.

Peace.
 

Chris:

Admission of behavior that in fact constitutes a crime is different from the admission that one has committed a crime.

True, but not the whole story. If the simple voluntary commission of the specific acts suffices to satisfy any intentional elements of the crime, then this is sufficient as an admission of guilt.

In the case of torture, this is the intent required:

specific[] intend[] to inflict severe physical or mental pain or suffering

There is no requirement that there be an intent to violate the law, nor any requirement that the person know about the law.

Intent to cause the above may be inferred from what a reasonable person would (or should) know about the procedure.

The only "question" here is whether waterboarding would reasonably be seen to "inflict severe physical or mental pain or suffering."

Most rational people say "yes". Dubya sycophants and maladmnistration defenders say "no" ... when they're not busy saying, "well it depends on who is doing the torturing ... and we had to do it; whatcha want, the Terra-ists to win?"

Cheers,
 

Arne: "True, but not the whole story."

That's all I'm after. I wasn't trying to tell the whole story.

Robert: I'm not sure different flavors of truth value are the best way to put it; I think Balkin's just being a little silly. And I think philosophers of language are trying to be clear and careful, not "legalistic." But I'll let it be.
 

arne langsetmo said...

MLS: A related but different question is whether you would raise the defense of reliance on the OLC opinion

I'm not sure that "reliance" is a concept that migrates from the civil sphere to the criminal one. Is there really any caselaw that says that "reliance" on some opinion from someone is a defence to a criminal charge (outside of this being evidence [but not dispositive evidence] of an actual absence of malice or ignorance of the law in such cases where such scienter is an element of the charge)?


Good faith reliance upon the advice of counsel is in fact a long time defense to specific intent crimes. See e.g. United States v. Urfer, 287 F.3d 663, 665-666 (7th Cir. 2002); Rea v. Wichita Mortgage Corp., 747 F.2d 567, 576 (10th Cir. 1984); United States v. Civella, 666 F.2d 1122, 1126 (8th Cir. 1981); United States v. McLennan, 563 F.2d 943, 946 (9th Cir. 1977); United States v. Diamond, 430 F.2d 688, 694-95 (5th Cir. 1970).

Indeed, the government considered this defense in its analysis of the interrogation issue.
 

This comment has been removed by the author.
 

The point, of course, is that there is no credible argument that one could in good faith rely on opinions that waterboarding isn't torture even were Congress to pass a law saying "We categorically legalize waterboarding." Even after so "legalizing" waterboarding, it would still be torture and a war crime. Good faith means more than hearing from your toady that which you wish to hear. The best word on that is probably still Scott Horton's "When Lawyers are War Criminals".
 

"Bart" DePalma:

[MLS]: A related but different question is whether you would raise the defense of reliance on the OLC opinion

[Arne]: I'm not sure that "reliance" is a concept that migrates from the civil sphere to the criminal one. Is there really any caselaw that says that "reliance" on some opinion from someone is a defence to a criminal charge (outside of this being evidence [but not dispositive evidence] of an actual absence of malice or ignorance of the law in such cases where such scienter is an element of the charge)?

Good faith reliance upon the advice of counsel is in fact a long time defense to specific intent crimes. See e.g. United States v. Urfer, 287 F.3d 663, 665-666 (7th Cir. 2002); Rea v. Wichita Mortgage Corp., 747 F.2d 567, 576 (10th Cir. 1984); United States v. Civella, 666 F.2d 1122, 1126 (8th Cir. 1981); United States v. McLennan, 563 F.2d 943, 946 (9th Cir. 1977); United States v. Diamond, 430 F.2d 688, 694-95 (5th Cir. 1970).


Indeed, the government considered this defense in its analysis of the interrogation issue.


So, all I need is a good consigliere that is paid to tell me that what I'm doing is OK, then? Wow, a "get out of jail free" card: I get off because I relied on this in "good faith", and he gets off with maybe a reprimand or a Rule 11 sanction for practising bad law. What a deal.

But not so fast, "Bartster"; the law is not such an a$$. The page you linked to cites to Ratzlaf, where a footnote indicates that "'[S]pecific intent to commit the crime[s]' described in 31 U.S.C. 5313, 5314, and 5316 might be negated by, e.g., proof that defendant relied in good faith on advice of counsel." This applies to crimes requiring a "wilfull" commission of a crime, that is: knowing that the acts constitute a crime (which is a bit of a problem for some financial acts where the public cannot be reasonably expected to know a specific act is wrong; such laws tend to require a "wilfull" culpability, not just "specific intent" to perform the acts in question). For such, evidence that a lawyer told him it was not illegal might suffice as proof that he didn't have the requisite intent to wilfully break the law.

As to your cites:

U.S. v. Ulfer hardly helps your case: "There is no such thing as an
"advice of counsel" defense." Did you even read it?!?!?

And just for good measure, what was the full context of that quote I just gave you:

The only error committed at trial was in the defendants' favor. No advice of counsel instruction should have been given. There is no such thing as an "advice of counsel" defense. United States v. Benson, supra, 941 F.2d at 614; Markowski v. SEC, 34 F.3d 99, 104-05 (2d Cir. 1994); Rea v. Wichita Mortgage Corp., 747 F.2d 567, 576 (10th Cir. 1984); United States v. Civella, 666 F.2d 1122, 1126 (8th Cir. 1981); United States v. Conforte, 624 F.2d 869, 876 (9th Cir. 1980). What is true, as the cases that we have just cited explain, is that if a criminal statute requires proof that the defendant knew he was violating the statute in order to be criminally liable for the violation, and it is unclear whether the statute forbade his conduct, the fact that he was acting on the advice of counsel is relevant because it bears on whether he knew that he was violating the statute.

Any of those cites in that quote above look familiar?

Are you a freakin' moron, "Bart"?!?!?

But most statutes are not of the type requiring "wilfullness" in breaking the law; requiring that you both know about the law and believe that you're violating it. The torture statute is one such.

As to your link to the "Torture Papers" and the claimed defence of a "good faith" belief that one wasn't going to cause the prohibited acts so as to negate the "specific intent" requirement: They suggest that one could "show that he had acted in good faith by taking such steps as surveying professional literature, consulting with experts, or reviewing evidence gained from past experience", so as to prove the lack of a "specific intent" to cause the prohibited acts through his actions. But let's take them one by one: The prohibited acts are to "inflict severe physical or mental pain or suffering". The definition of this is not a legal one (the legal one is in the statute), but a psychological and medical one. Asking one freakin' lawyer is not "surveying professional literature" or "consulting with experts". Lawyers are not (or should not be) experts in pain. And if someone wanted to draw from "past experience", how could one avoid looking at the traditinal classification of waterboarding as torture?!?!?

And because this "good faith" belief is a defence as to an element of the crime, it is a factual matter for a jury to decide; there's no automatic "out" as a matter of law becasue you have a lawyer's signed opinion. The prosecution can just as well introduce evidence that waterboarding works because it causes severe pain, that you not only should have known this but did know this, and in fact, that's why you used it....

But getting back to "reliance". There is no such doctrine of "reliance" in criminal law; such reliance only enters into the picture in as much as it might be evidence of your state of mind (and then, only as one piece of evidence).

Cheers,
 

More on Mukasey's views here.

Cheers,
 

robert link said...

Good faith means more than hearing from your toady that which you wish to hear. The best word on that is probably still Scott Horton's "When Lawyers are War Criminals".

Think for maybe a millisecond about the practical application of your argument.

How is a DOJ prosecutor going to argue with a straight face to a Court that CIA officers cannot in good faith rely upon a DOJ's own interpretation of the torture statute. The implications of this argument are two fold.

First, if CIA officers cannot in good faith rely upon a DOJ's own interpretation of the torture statute, then the Court also cannot rely upon the DOJ interpretation of the statute to prosecute the CIA officers.

Further, the fact that DOJ has more than one take on the statute only confirms that the statute is vague. If the DOJ could not get the interpretation of the statute right, how could non expert CIA officers ever hope to?
 

Bart,

Presumably you were once aware that the DOJ is a creature of the Executive Branch, and thus "the court" would not properly look to it for such guidance. The rest of your analysis is of similar quality.

But I violate my own good advice in engaging you. Reckon I'll have to put my blinders back on and stop reading your nonsense.
 

arne langsetmo said...

So, all I need is a good consigliere that is paid to tell me that what I'm doing is OK, then? Wow, a "get out of jail free" card: I get off because I relied on this in "good faith", and he gets off with maybe a reprimand or a Rule 11 sanction for practising bad law. What a deal....

And because this "good faith" belief is a defence as to an element of the crime, it is a factual matter for a jury to decide; there's no automatic "out" as a matter of law becasue you have a lawyer's signed opinion.


This is correct. No one has said otherwise.

U.S. v. Ulfer hardly helps your case: "There is no such thing as an "advice of counsel" defense." Did you even read it?!?!? And just for good measure, what was the full context of that quote I just gave you:

"The only error committed at trial was in the defendants' favor. No advice of counsel instruction should have been given. There is no such thing as an "advice of counsel" defense. United States v. Benson, supra, 941 F.2d at 614; Markowski v. SEC, 34 F.3d 99, 104-05 (2d Cir. 1994); Rea v. Wichita Mortgage Corp., 747 F.2d 567, 576 (10th Cir. 1984); United States v. Civella, 666 F.2d 1122, 1126 (8th Cir. 1981); United States v. Conforte, 624 F.2d 869, 876 (9th Cir. 1980). What is true, as the cases that we have just cited explain, is that if a criminal statute requires proof that the defendant knew he was violating the statute in order to be criminally liable for the violation, and it is unclear whether the statute forbade his conduct, the fact that he was acting on the advice of counsel is relevant because it bears on whether he knew that he was violating the statute.


I cited the case for the general proposition bolded above. This particular court prefers to call good faith reliance on an attorney's advice a factual argument rather than a defense. Other courts have called it a defense. This is a semantic distinction with no real practical difference. In either case, this evidence can be used to defeat a claim of specific intent.

BTW, the situation postulated by the Court above is a perfect description of the torture statute - a specific intent element in an unclear statute.

But most statutes are not of the type requiring "wilfullness" in breaking the law; requiring that you both know about the law and believe that you're violating it. The torture statute is one such.

Specific intent crime: Crime in which defendant must not only intend the act charged but also intend to violate law. U.S. v. Birkenstock, C.A.Wis., 823 F.2d 1026, 1028. One in which a particular intent is a necessary element of the crime itself. Russell v. State, Fla.App., 373 So.2d 97, 98. See also Mens rea; Specific intent.

SOURCE: Black's Law Dictionary, Sixth Edition

We do not have to guess whether torture is a specific intent crime as you do with provisions of the federal code having to do with finances. The Torture Statute flat out tells you:

18 USC § 2340(1):

“[T]orture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control...
 

robert link said...

Bart, Presumably you were once aware that the DOJ is a creature of the Executive Branch, and thus "the court" would not properly look to it for such guidance. The rest of your analysis is of similar quality.

Judges cannot even hope to be experts in the full panoply of the law which comes before them and usually do not have the time or resources to conduct in depth research. Consequently, judges rely heavily upon the arguments of the counsel and the fact that the counsel will be checking up on each other. If your credibility with the judge is shot by taking contradictory positions, good luck in making your legal arguments stick.
 

Mukasey gets it.

House Judiciary Chairman John Conyers, D-Mich. asked Mukasey point-blank if he would “start a criminal investigation into whether this confirmed use of waterboarding by U.S. agents was illegal.”

“No, I am not,” Mukasey answered bluntly.

He said the Justice Department could not investigate or prosecute people for actions that it had earlier authorized.

 

Bart, the relevant difference is between "intent to torture" (for which advice of counsel would be relevant, tho not IMHO dispositive) ...

... and "intent to cause severe physical or mental pain or suffering." A lawyer cannot advise me that waterboarding does not actually cause severe physical/mental pain/suffering.
 

"Bartesque" discussion, which, as a courtesy to the proprietors, ought to be taken elsewhere (I've offered by blog):

How is a DOJ prosecutor going to argue with a straight face to a Court that CIA officers cannot in good faith rely upon a DOJ's own interpretation of the torture statute.

By citing Nürnberg. I raise this on my blog.

Cheers,
 

"Bart":

I really think you shoukld take it elsewhere. But:

[Arne]: U.S. v. Ulfer hardly helps your case: "There is no such thing as an "advice of counsel" defense." Did you even read it?!?!? And just for good measure, what was the full context of that quote I just gave you:

"The only error committed at trial was in the defendants' favor. No advice of counsel instruction should have been given. There is no such thing as an "advice of counsel" defense. United States v. Benson, supra, 941 F.2d at 614; Markowski v. SEC, 34 F.3d 99, 104-05 (2d Cir. 1994); Rea v. Wichita Mortgage Corp., 747 F.2d 567, 576 (10th Cir. 1984); United States v. Civella, 666 F.2d 1122, 1126 (8th Cir. 1981); United States v. Conforte, 624 F.2d 869, 876 (9th Cir. 1980). What is true, as the cases that we have just cited explain, is that if a criminal statute requires proof that the defendant knew he was violating the statute in order to be criminally liable for the violation, and it is unclear whether the statute forbade his conduct, the fact that he was acting on the advice of counsel is relevant BECAUSE it bears on whether he knew that he was violating the statute.

["Bart"]: I cited the case for the general proposition bolded above....


As I said, it's "relevant" only insofar as it affects a person's requisite knowlegde as to the illegality of the act where such knowledge of the illegality of the act is one requisite element of the crime. But it is hardly dispositive, and is a matter of fact to be decided at trial by a jury (the belief), not of law, as Mukasey seems to think (see my post). That's exactly what I said.

But furthermore, this particular law (torture) doesn't even require knowledge that the act is illegal, only intent that the prohibited results will pertain.

... This particular court prefers to call good faith reliance on an attorney's advice a factual argument rather than a defense.

That particular court laughed the defendant's reliance on their lawyersright out of court!!!

... Other courts have called it a defense. This is a semantic distinction with no real practical difference. In either case, this evidence can be used to defeat a claim of specific intent.

See the rest of my post for where I destroy your idea that a legal opinion is relevant -- in any way, shape, or form -- here.

My initial post on "reliance" is still the most concise and accurate description of this s-called "defence".

Cheers,
 

"Bart" DePalma:


But most statutes are not of the type requiring "wilfullness" in breaking the law; requiring that you both know about the law and believe that you're violating it. The torture statute is one such.

Specific intent crime: Crime in which defendant must not only intend the act charged but also intend to violate law. U.S. v. Birkenstock, C.A.Wis., 823 F.2d 1026, 1028. One in which a particular intent is a necessary element of the crime itself. Russell v. State, Fla.App., 373 So.2d 97, 98. See also Mens rea; Specific intent.

SOURCE: Black's Law Dictionary, Sixth Edition

We do not have to guess whether torture is a specific intent crime as you do with provisions of the federal code having to do with finances. The Torture Statute flat out tells you:...


As I pointed out, and you keep ignoring (or are too stoopid to understand), the cases where there was a nod to "reliance" on legal opinion were for laws that require that the accused know that his actions are prohibited by law and intend to break that law. They explained this in the Ratzlaf case cited, and at good length. This happens for crimes that are malum prohibitum, generally, as opposed to crimes that are malum et se, where the accused should have had some kind of clue that their actions were bad. If causing severe pain to a prisoner is not cause for thought and reflection, I don't know what is ... unless you happen to be a sadist, a Nazi or sumptin' like that ... and that's hardly a defence either.

Yes, torture is a crime of "specific intent". I even quoted the intent required above (and linked to the statute). The intent is not an intent to break the law, but rather the intent to "inflict severe physical or mental pain or suffering". Therefore, knowledge as to whether there is a law, or the intent to break any law, is irrelevant. What is relevant is whether they intended to cause "severe pain" (or such), and for that, a lawyer's opinion ain't really worth more than that of some man on the street.

When we get lawyers (or bureaucrats) deciding what constitutes "sever pain", we get travesties such as this; doctors not treating their patients properly because some gummint snoops are looking at their controlled substances prescriptions too closely and threatening prosecution of sanctions....

Cheers,


Cheers,
 

Judges cannot even hope to be experts in the full panoply of the law which comes before them and usually do not have the time or resources to conduct in depth research....

... so they ought just defer to the DoJ. Wow. Would save a lot of court time, I'll bet.

Cheers,
 

"Bart" DePalma:

Mukasey gets it.

House Judiciary Chairman John Conyers, D-Mich. asked Mukasey point-blank if he would “start a criminal investigation into whether this confirmed use of waterboarding by U.S. agents was illegal.”

“No, I am not,” Mukasey answered bluntly.

He said the Justice Department could not investigate or prosecute people for actions that it had earlier authorized.


Already covered, if you read my links, or went to my web page.

Here's more from TPM Muckracker:

"Justified reliance," Mukasey answered, "could not be the subject of a prosecution." Simple as that. "Immunity connotes culpability,” he added, so it wasn't immunity, exactly, but the effect was the same.

Delahunt (much like Sen. Joe Biden (D-DE) in the last hearing) proclaimed himself baffled. This was a "new legal doctrine" for him. He'd thought "the law is the law." What if there was a mistake? he wanted to know. What happened then?

That made no difference, Mukasey said. If a later legal opinion came to a different conclusion about whether something was lawful, the person who relied on the earlier, erroneous interpretation was still protected.

Delahunt, still baffled, wanted to know if there was a "legal precedent" for this view of the Office of Legal Counsel's power.

Mukasey replied that it was a "practical consideration."

When Delahunt asked again, Mukasey admitted, "I can't sit here and cite a case."


Cheers,
 

There could only be a case if DOJ has ever prosecuted someone who had relied (or claimed to have relied) on a prior DOJ opinion that their conduct was lawful. Has it ever done so?
 

Even if there were such a case, and even if the court had found that relying on DOJ's opinion was a defense, it wouldn't serve as a precedent for a crime by the PRESIDENT, because he is in a position to tell DOJ what opinion to give him.
 

Posted without comment:

"Hayden's recent "admission" to Congress identifying the high ranking al Qaeda officers broken by waterboarding merely reinforces the CIA's argument that waterboarding is reserved for the worst of the worst terrorists in order to save lives."

"“The Central Committee of the VKP(b) explains that the application of methods of physical pressure in NKVD practice was made permissible in 1937 … It is known that all bourgeois intelligence services use methods of physical influence against the representatives of the socialist proletariat and they use them in the most scandalous forms. The question arises as to why the socialist intelligence service should be more humane against the fanatical agents of the bourgeoisie, against the deadly enemies of the working class and the kolholz peasants. The Central Committee considers that physical pressure should still be used unconditionally, as an appropriate and justifiable method, in exceptional cases against known and obstinate enemies of the people.”
-Secret telegram sent by the Central Committee to all party and NKVD units from district
level up, 10 January 1939 (Khlevnuik 2003, 31)."
 

Lovely!

One of the unfortunate consequences of the disappearance of the old Soviet block (which otherwise couldn't have come sooner) was a removal of restrains. Both sides in the Cold War used to viciously compete for the status of the most humane, most just, most peaceful system. Needless to say all that was more or less cynical propaganda on both sides but at least publicly claiming torture was OK, that Geneva Conventions were quaint or that Nuremberg defense was even remotely acceptable was unthinkable. Shed a tear or two for sad old times.
 

@Chris:

On the heels of yesterday's conversation, I took some time this morning to look up some introductory material on Frege at The Stanford Encyclopedia of Philosophy, from which I quote:

"So the puzzle Frege discovered is: how do we account for the difference in cognitive significance between 'a=b' and 'a=a' when they are true?"

Korzybski's answer, which is not entirely without merit, is that a=b is not true in natural language, however much we may rely on it in manufactured languages such as algebra. For me, I'd be more prone to say that where a and b are references, then "a=b" could be true if it unpacks to something like "a and b both refer to the same thing". But because the divide between text and context is arbitrary and every reference is also a referent, it can be the case that "a=b" is patently false, which was a main theme in Korzybski's work, railing against what he saw as the insanity of the "'is' of identity".

The easy answer, then, to Frege's puzzle, above, is that they aren't always true. Rejecting absolutism with respect to truth value of natural language seems to me a) much more elegant, b) much more reality based an answer to such conundrums.

In the context of Balkin's "White House Admits..." headline, I would say that rather than arguing about "illicit substitution in the context of 'admit'" we cut to the chase and explicate the variability of the truth value in "waterboarding is torture." As referents they are clearly different. As references to specific physical practices applied to specific creatures one is largely, but not quite entirely subsumed by the other. With respect to legal judgments and the ramifications thereof, ah, there's the rub, for the ramifications flow from the people making the judgments and those judgments are oft based on expedience rather than anything like truth, reason or justice.

For some of us it shocks the conscience that anyone would try to rig the legal judgments when the physical referents are so clear. Are you one such?
 

MLS:

[Arne, quoting news article]: When Delahunt asked again, Mukasey admitted, "I can't sit here and cite a case."

[MLS]: There could only be a case if DOJ has ever prosecuted someone who had relied (or claimed to have relied) on a prior DOJ opinion that their conduct was lawful. Has it ever done so?


Don't know why you should limit it to "a prior DOJ opinion". AFAIK, there's no statutory or caselaw authority for the opinions of DOJ or OLC as being in a different class than the opinions of any other lawyers (other than the 'argument' that one preznit made a while back).

If you want caselaw as to whether "advice of consiglie.... -- umm, 'counsel'" works, check the Ulfer case. Worked real good for them, which made me wonder why the eedjit "Bart" cited it....

Yes, there is caselaw that is relevant, but I'm afraid it doesn't support Mukasey's "new legal doctrine"....

Cheers,
 

So, I repeat my rather defeatist sounding question: Who enforces the GC and how? I fear the answer is not far from Bart's: we either enforce it ourselves (highly unlikely) or it is enforced upon us by a sufficiently powerful outside force (stipulating that our membership in a global community of nations is, at best, purely for show.)

Isn't this why Henry Kissinger can't travel to certain countries?
 

In the headline and opening sentences Balkin makes a claim which we all know to be highly contentious, then he calls attention to it with a rhetorical, "Did it really say that?" But he concludes with a repetition of the claim implied in the opening: the administration affirmatively stated it ordered acts which fulfill the elements of a historically infamous crime of torture and should be held accountable for same.

Chris's claim of illicit substitution in intensional contexts is misplaced, and the perpetrators of these war crimes are served by folks, perhaps inadvertently, seeming to thus legitimize the administration's unreasonable claims. The intensionality (or extensionality) of a context, at least with respect to the Oedipus, Clemens and Superman examples, depends on whether or not the actor is in possession of facts which we in the analyzer's chair know well. If Oedipus does not know Jocasta is his mother, if Lois and Jimmy don't know what Clark does with his nights, if John doesn't know Clemens wrote under a "Signature Second", then the substitutions discussed are made in intensional contexts. But where, like us, the actors are in full possession of the facts then those contexts are extensional. So the licit- or illicitness of a substitution comes to rest on the ignorance of the actor described by the propositional attitude report, an ignorance no one in the administration can reasonably claim about the elements of this historically infamous crime of torture.

Also, admit probably isn't a proper member of the set of propositional attitude reports which sometimes give rise to intensional contexts, which moots Chris's whole point. That's pretty funny, since my first response to his post was to deny it's legitimacy based on the inaptness of the claim "Admitting something is like intending something."
 

Chris: Here's a Clark Kent-Superman one, with "admits": "Clark Kent admits he's Clark Kent" plus "Clark Kent is Superman" doesn't imply "Clark Kent admits he's Superman."

This example seems to have been the rough spot for folks, for much the reason that "Have you quit beating your wife yet?" stumps so many of us. The only logically consistent answer for most of us is, "No, I have not quit beating my wife yet---because I never beat her in the first place (or I don't have a wife, or &c)." But if folks feel constrained to answer with a simple "yes or no" few have the moxie to just answer "no," fearing, perhaps rightfully, that too many in the audience will fail to understand what has, and hasn't, actually been said.

"Clark Kent is Superman" plus "Clark Kent admitted he is Clark Kent" absolutely and positively does conclusively imply "Clark Kent admitted he is Superman" whether Jimmy and Lois know it or not! That may seem a bit counter-intuitive, but no matter, that's part of the art of controversy, abusing common sense to achieve one's ends. When Oedipus intends to marry Jocasta he absolutely and positively does intend to marry his mother, whether he knows it or not! And when John believes Mark Twain wrote Huck Finn he also believes Samuel Clemens wrote Huck Finn, whether he knows it or not!

Don't be fooled by the fact that, in ignorance of the relationship between Sam Clemens and Mark Twain, John might think he believes Mark Twain wrote Huck Finn and Sam Clemens didn't. John might think he believes that, but only because we don't often accurately denote the difference between believes, knows, and believes-in-error. Failure to parse the various functions subsumed by the symbol "believe" is what gives rise to what Frege calls intensional contexts, but, again, the more fruitful analysis is probably to work at the roots and be more precise with our verbs.

The White House stated affirmatively that it ordered acts which fulfill the elements for a historically infamous crime of torture. It should be held accountable for same.
 

Robert: "[T]he perpetrators of these war crimes are served by folks, perhaps inadvertently, seeming to thus legitimize the administration's unreasonable claims."

Remember, I'm not defending any of the administration's claims; I'm only criticizing Balkin's claim, if it is a real claim, that the administration has admitted it committed war crimes.

Robert: "The intensionality (or extensionality) of a context, at least with respect to the Oedipus, Clemens and Superman examples, depends on whether or not the actor is in possession of facts which we in the analyzer's chair know well. ... [W]here, like us, the actors are in full possession of the facts then those contexts are extensional."

That doesn't seem right. "Admits" is an intensional context, so we can't just substitute within it, unless we have additional premises.

Now, what the administration knows will certainly be relevant in assessing what we can do inside a "knows that ___" context. For instance, if the administration knows that p, and knows that p implies q, we can plausibly say that the administration at least is in a position to know that q. Epistemologists have long, long disputes about the exact form of a proper closure principle like this, though. Fritz Warfield and Marian David have a long, long forthcoming paper on it, unfortunately not online as far as I know. But it's cited on Fritz's site.

But similarly, we have to look at what the administration admits in assessing what we can do inside the "admits that ___" context. If the administration admits that p, and knows, but doesn't admit, that p implies q, then it doesn't make sense to say, without more, that the administration has admitted that q.

"[A]dmit probably isn't a proper member of the set of propositional attitude reports which sometimes give rise to intensional contexts, which moots Chris's whole point."

Eh? Admitting that p is an attitude toward a proposition, and you can't freely substitute within it without additional premises. That's all you need for an intensional context.

"'Clark Kent is Superman' plus 'Clark Kent admitted he is Clark Kent' absolutely and positively does conclusively imply 'Clark Kent admitted he is Superman' whether Jimmy and Lois know it or not! That may seem a bit counter-intuitive, but no matter, that's part of the art of controversy, abusing common sense to achieve one's ends. When Oedipus intends to marry Jocasta he absolutely and positively does intend to marry his mother, whether he knows it or not! And when John believes Mark Twain wrote Huck Finn he also believes Samuel Clemens wrote Huck Finn, whether he knows it or not!"

I'm sorry, but all of these claims just seem obviously false. On this theory, Mark Felt admitted he was Deep Throat every time he answered the phone, "Hello, this is Mark Felt." We're perhaps not quite to a proposition than which no less plausible can be conceived, but we're certainly in the neighborhood.
 

Chris: Remember, I'm not defending any of the administration's claims; I'm only criticizing Balkin's claim, if it is a real claim, that the administration has admitted it committed war crimes.

This feels ever more like the strategem of "Conceal Your Game". Would it be too much to ask at this point for a short, simple, declarative statement as to whether or not you think the administration has ordered acts which fulfill the elements of a historically infamous crime of torture? And we'll defer questions of whether or not, if your answer is "yes", you think the administration should be held accountable for same.

Chris: On this theory, Mark Felt admitted he was Deep Throat every time he answered the phone, "Hello, this is Mark Felt."

Yup, that's exactly what I'm saying. And?

Chris: Admitting that p is an attitude toward a proposition...

I think you mean something like "'I admit P' is a statement of attitude toward proposition 'P'".

Anyway, that's what you keep asserting, that "admit" states an attitude toward a proposition, but it remains to be proved. Also, at the risk of failing to kneel to authority, this tool of analysis you call "intensional contexts" just doesn't work as well as does a sharper parsing of the varied meanings of our verbs, as I argued above when I distinguished "believe, know, and believe-falesly," all of which can be spelled b-e-l-i-e-v-e. Would a refresher on Homonyms help?

The Homonymy. - This trick is to extend a proposition to something which has little or nothing in common with the matter in question but the similarity of the word; then to refute it triumphantly, and so claim credit for having refuted the original statement.

It may be noted here that synonyms are two words for the same conception; homonyms, two conceptions which are covered by the same word. (See Aristotle, Topica, bk. i., c. 13.) "Deep," "cutting," "high," used at one moment of bodies, at another of tones, are homonyms; "honourable" and "honest" are synonyms.


You confuse yourself with homonyms of admit, or maybe only seek to confuse others, and your focus on Frege does little to help anyone.

Peace.
 

Robert: "Would it be too much to ask at this point for a short, simple, declarative statement as to whether or not you think the administration has ordered acts which fulfill the elements of a historically infamous crime of torture?"

I'll go with maybe. Some good reason to think yes.

Robert: "[T]his tool of analysis you call 'intensional contexts' just doesn't work as well as does a sharper parsing of the varied meanings of our verbs, as I argued above when I distinguished 'believe, know, and believe-falesly,' all of which can be spelled b-e-l-i-e-v-e."

All of those contexts--"believe that ___," "know that ___," and "believe falsely that ____"--are intensional, not extensional. Can't subsitute freely in any of them.

Paying attention to the philosophy of language "doesn't work as well"? Depends on what you're trying to do. I'm trying to explain why Balkin's argument doesn't work. Paying attention to acknowledged fallacies, as recognized by people who point them out for a living, is a good way to figure out which arguments work.
 

Chris, no law saying we have to agree, and given your level of scholarship I can understand your preference to roll with Authority.

Peace.
 

Going back to Chris' original comment:

Hmm. Some illicit substitution inside an intensional context going on here. 'A admitted to X' plus 'X=Y' doesn't imply 'A admitted to Y.'

The problem here is your insistence that it's an intensional context. If Jack had said something along the lines of...

The administration waterboarded prisoners. Waterboarding is a war crime. The administration committed a war crime.

...then we wouldn't be having this very torturous discussion about language because he would have avoided intensional operators.

Unless, of course, your real objection is that "waterboarding," "torture technique," and "war crime" aren't co-referential terms. In which case, you must temporarily move away from lecturing on the philosophy of language and take up the matter of law. Most people here--and obviously Jack--would argue that they are co-referential terms, and certainly have the ability to provide support to that effect.

Regardless of the extension vs. intension discussion, Jack's meaning is clear; what is gained by attempting to hold people to such robotic language? I understand the drive for clear and consistent logic, but this preoccupation with intentionality strikes me about as helpful as spell-checking other participants' comments: technically correct, perhaps, but usually unwelcome and probably unnecessary.
 

PMS: I didn't mean to start a big discussion about this--I thought that Balkin might well have been joking, since it is pretty obvious that the administration hasn't actually admitted that it committed war crimes. (A little like pointing out that the Supreme Court needs to spend more attention to scope restrictions on universal quantifiers; see here and here (my comment near the end).) I was just pointing out exactly why Balkin's little argument, if taken seriously (which maybe we shouldn't!), doesn't work. But then people started saying that I was wrong, so I defended the point. Obviously whether the administration has committed war crimes is a much more important question than whether it has admitted that it committed war crimes. I didn't mean for my little digression into philosophy of language to distract anyone from the main show. I'm just someone who happens to be interested in philosophy of language, and who happens to read the blog, so I made my little point and explained it a few times to people who didn't see what I was getting at.

"Unless, of course, your real objection is that 'waterboarding,' 'torture technique,' and 'war crime' aren't co-referential terms. In which case, you must temporarily move away from lecturing on the philosophy of language and take up the matter of law."

Not my objection at all. I'm happy to leave the discussion of what counts as "torture" to those who've thought about it much more than I have. Talking about the law happens to be my day job, but I try not to say things too publicly that I haven't thought too much about.
 

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