Balkinization  

Friday, February 13, 2009

Obama Embraces Bush Policies on Secrecy, Rendition

Brian Tamanaha

It’s only been a month and already the Wall Street Journal is gloating:
The larger story here is that the anti-antiterror lobby is losing the man it thought was its strongest ally. During his campaign, Mr. Obama talked as if he really believed that the Bush Administration was uniquely wicked on national security. Joe Biden cosponsored Senate legislation that would have prevented the executive branch from making state-secrets claims to shelve lawsuits, rather than shielding individual evidence from judicial (and public) scrutiny.

Now it seems that the Bush Administration's antiterror architecture is gaining new legitimacy, just as Eisenhower validated Truman's Cold War framework. Mr. Obama claims to have banned coercive interrogation techniques, except in those cases where more extreme measures are necessary to save lives. He says he'll shut down Gitmo in a year or so, but his subordinates -- including Elena Kagan during her confirmation hearings for Solicitor General this week -- admit that indefinite detention will still be necessary for some terrorists. He walked back his wiretap absolutism even before he was elected. Now the Administration has endorsed the same secrecy posture that he once found so offensive, merely saying that it will be used less frequently. We'll see.

These are all laudable signs of Mr. Obama's antiterror progress. Perhaps some day he'll acknowledge his debt to his predecessor.

The WSJ might be right in suggesting that the Obama team, upon entering office, suddenly became convinced of the wisdom of Bush’s policies. But there are other ways to read these positions that are less flattering to the former Administration.

Take the state secrets privilege. Promising to invoke the privilege “less frequently” precisely identifies and rectifies what the Bush Administration did wrong: abusively invoke the privilege in unwarranted circumstances.

Take the closing of GITMO. Of course some of the detainees are dangerous (either because they were genuine terrorists beforehand or were converted by bitterness at their years in GITMO). The problem is that many are not, and they have been languishing for years in legal limbo. Of course it will be difficult to close. This was all Bush’s making. It is hardly an endorsement of Bush’s policies to struggle to clean up his disastrous mess.

Take the wiretap policies. The problem was not with wiretapping but with doing so outside the law.

Take torture. Obama plainly and unequivocally repudiated torture. The contrast with the ghoulish (belligerently defiant) public embrace of torture by Cheney, Yoo, and others, could not be starker.

A world of difference separates each of these positions. But the WSJ might be right. Time will tell.



Comments:

Time will indeed tell. Let's see what Congress does. Let's see if public pressure increases to look into these Bush policies. It's not only SCOTUS that follows the "iliction returns." The direction taken in Afghanistan by the Obama Administration may build up such public pressures, especially with the public's focus on the economy.
 

Brian:

So Obama is offering us "compassionate neo-conservatism?"

In reality, contrary to the WSJ contention (and Professor Griffin's contentions in a previous post), Obama is hardly ratifying Bush initiatives. Rather, Bush returned to long standing executive powers that Obama is largely continuing.

Electronic surveillance of enemies of the United States by the President without ratifying legislation has been going on since Civil War telegraph intercepts.

Capturing the enemy out of third countries is as old as warfare. The current iteration known as rendition was a Clinton, not a Bush, creation.

Using coercive interrogation on enemies who did not follow the laws of war and did not qualify for their protections is nothing new. Indeed, Lincoln's policy was to summarily execute them. Hell, coercively sweating suspects was a common practice among the civilian police until relatively recently.

Both Bush and Obama vociferously deny that they torture, so there is nothing new there.

BTW, Yoo hardly "publicly embraced torture." Yoo's memo reviewed the law and expressly declined to express a policy preference. That memo was top secret and was only made public by a felonious act.

The state secrets privilege is half a century old. The reason the privilege is invoked more often is that the United States is facing an unprecedented number of civil suits designed to disclose intelligence gathering to the enemy. If these suits continue, Mr. Obama will exercise the privilege just as often as Mr. Bush. The only way that Mr. Obama uses the privilege less is if the suits were actually Dem partisan harassment and disappear now that we have a Dem president. Time will tell.
 

Would like to hear what some of you think about this. What if Obama WANTS an adverse APPELLATE COURT RULING on state-secrets. That'd be a legal line in the sand that any future administration would hesitate to cross.

If, on the other hand, Obama simply ordered that the state-secrets argument be dropped, then the court wouldn't have to RULE. They'd dismiss that plank of the argument as moot, and the trial would go on back at the district court.

But some future administration could revert right back to abuse of state-secrets, and claim correctly that no court had ever ruled on it.

If the 9th Circuit rules against state-secrets as used by Bush, then Obama can say the court has made a wise decision. Obama could even admit this is what he hoped for, that he wanted a court to speak on it, as a permanent marker.

There isn't much of a risk if the court APPROVES Bush's use, first of all because I don't think they will, and second because Obama can then drop it voluntarily, and get a law passed by congress (already brewing) limiting state-secrets.

Now this would all be an EXTREMELY slick tactic by Obama and Holder. It may be my wishing for pie in the sky, because I'd feel rather betrayed if Obama is really taking Bush's position on this.

But I'll reserve judgment until the final bell rings on this one, because an adverse (to Bush) appellate court decision would be BETTER and STRONGER than Obama simply dropping the argument.

So is it within reason that Obama is fishing for an adverse ruling here?

B
 

whatsyourevidence-

We can only pray that's the case. I also hoped Pres. Obama would continue Bush's cases to the Supremes, and get rulings on habeas, detention, torture and wiretapping. They'd be, at best, 5-4, but you're right, a declaration of illegality is much better than something that can be glossed over as policy differences.

However, faith in the executive (or Kennedy) is not my strong suit. There's a lot of risk down this road too. But, Obama does know and seemingly respects the Constitution, and if I was president, this is the strategy I would pursue, though I would really prefer one more sure vote on the Supremes before I did.
 

So, your "best hope" is that Obama's DOJ is making a disengenuous legal argument?! Sounds like Marty's handiwork. LOL
 

I think they're just being cautious, and that they're VERY preoccupied with the economy right now.
 

This comment has been removed by the author.
 

One thing that strikes me as hilarious here is the WSJ's expression "anti-antiterror lobby".

The main reason I've worked for seven years in opposition to the Bush gang was the understanding that what they were doing was ineffective and counter-productive. They weren't anti-terror, they were terrorists themselves, and they were the best weapon that Al Qaeda had. The reality is that terroism is a much worse problem now than it was in 2000, and we are much more vulnerable now than we were then. We're just lucky that Al Qaeda isn't all that much smarter than the Bush gang was.

And these idiotic neo-fascists have no real understanding of the problem at all -- they are losing their pointless war on nothing in particular and everything in general. So far, I'm not much impressed with the new administration's approach either; it's an improvement, but as long as folks like Gates and Petraeus are around, it won't be much.

But Obama, unlike Bush, might be able to learn, and he can't do worse.
 

Brian, the WST is always "right" and quite often wrong, if YOO know what I mean.

And little Lisa's bro (who's alway "right" and mostly wrong) stated affirmatively as only he can:

"Both Bush and Obama vociferously deny that they torture, so there is nothing new there."

Bush was in control for 8 years and has obviously lied about torture in a torturous manner. Meanwhile, Obama has been in conrol for just short of 4 weeks and really hasn't had the opportunity to torture (not that he would). By lumping Bush with Obama in this incredible sentence, little Lisa's bro tries to put them in the same boat on torture. And that's torturing, once again demonstating that he's a NOAGN.
 

Whatsyourevidence:

I wish I could believe you were right, but given the deference the courts have shown to the state secrets privilege to date, it seems unlikley.
 

Shag from Brookline said...

BD: "Both Bush and Obama vociferously deny that they torture, so there is nothing new there."

Bush was in control for 8 years and has obviously lied about torture in a torturous manner. Meanwhile, Obama has been in con[t]rol for just short of 4 weeks and really hasn't had the opportunity to torture (not that he would).


And you know this how?

Please do not cite to his executive order. Obama can make an exception to the order in a moment with a phone call. Obama has already made about 17 exceptions to his order banning lobbyists during his first two weeks.

Obama's campaign promises are not worth the breath they took to make. We could spend all day listing the ones he has broken to date, including several in enacting the porkulus bill.
 

Those like Charles Gittings desparately HOPE that Obama cannot do worse than Bush. Wouldn't 20% unemployment and 6,000,000 dead Americans be "worse"?
 

desperately
 

ousymSame ol' horsepuckey we've heard a thousand times:

Using coercive interrogation on enemies who did not follow the laws of war and did not qualify for their protections is nothing new. Indeed, Lincoln's policy was to summarily execute them.

Ummmm .... dead men don't talk.

Of course, summary execution of brigands (if such indeed occurred, but we had this purported 'discussion' a while back) is different than interrogation of detainees.

I see that the art of dishonest argumentation, "red herrings", and made-up 'facts' lives on, despite the proprietors' pleas for a more rational and civil comment section.

Cheers,
 

Hell, coercively sweating suspects was a common practice among the civilian police until relatively recently.

Lynching blacks was a common practise until relatively recently. What's that got to do with the law as it stands?

Cheers,
 

Oh, yeah, Arne. Bartbuster's insisting on the "Broadband" thread that we are "bitter[] over getting your ass kicked in the last election" certainly does wonders for "a more rational and civil comment section." Give me a break.
 

Charles,

What a crock of steaming BS that is -- there's a difference between cause and effect and you blaming someone for something.

There's also a difference between my actual motivations and what you gratuitously suppose about other people.
 

OK, anyone know what a$$ this flew out of:

"Yoo's memo reviewed the law and expressly declined to express a policy preference. That memo was top secret and was only made public by a felonious act."

[link added by me]

Can we PLEASE!!! stop making sh*te up here, "Bart"?!?!?

Or can we prevail on you to delete your comments that are simply untruthful on their face?

Cheers,
 

Charles Gittings:

It's a simple hypothetical. Would 20% unemployment and 6,000,000 Americans killed by terrorist be better or "worse"?
 

For the record, you were the one who claimed (at 11:58 AM) that Obama "can't do worse" than Bush. I believe that "a more rational and civil comment section" includes an honest question about such a premise, not allegations that said question is "a crock of steaming BS." Your move.
 

It's a simple hypothetical. Would 20% unemployment and 6,000,000 Americans killed by terrorist be better or "worse"?

# posted by Charles : 12:57 PM



If the 6,000,000 are rightwingnut dead enders like you and Baghdad, I'd call it a net gain.
 

whatsyourevidence:

There isn't much of a risk if the court APPROVES Bush's use, first of all because I don't think they will, and second because Obama can then drop it voluntarily, and get a law passed by congress (already brewing) limiting state-secrets.

Perhaps a little "I agree with you, I want to do it, now make me do it"?

But I'm not so sanguine that this is what is happening. See, e.g., Greenwald's take and the comments there. I suspect that Obama -- the pragmatist -- thinks there's bigger fish to fry and doesn't want to jeopardise those projects for something not 'necessary' right now and of little impact to most Americans. And it can be 'fixed' later (and perhaps will be) through Congressional action, if that's what Obama wants in the end.

Cheers,
 

Fine, Bartbuster. Let's say all 6 million dead Americans are from nuclear blasts in the top 10 most-conservative U.S. cities. Is that better or "worse" than Bush?
 

Don't forget the global panic that would set in and 20% unemployment.
 

bush has admitted to ordering waterboarding, waterboarding is torture, bush has admitted to torture.

as for the invocation of states secrets, based on the incredulity of the judge and the scope of the claim, i think it likely that the claim gets rejected or modified. it would be nice to get a ruling on this.

one other benefit to pursuing this path in the hopes of getting an advantageous ruling, is that it allows obama to keep his hands clean, show some respect to the previous administration and save some political capital for other bruising fights to come.

let the courts do their job.
 

Top 10 Conservative U.S. Cities

10. Cincinnati, Ohio

9. Boise, Idaho

8. Mesa, Arizona

7. San Diego, California (taking out two of our aircraft carriers)

6. Wichita, Kansas

5. Colorado Springs, Colorado (taking out the Air Force Academy as well)

4. Abilene, Texas

3. Oklahoma City, Oklahoma

2. Plano, Texas

1. Provo, Utah
 

Fine, Bartbuster. Let's say all 6 million dead Americans are from nuclear blasts in the top 10 most-conservative U.S. cities. Is that better or "worse" than Bush?

# posted by Charles : 1:09 PM


You said 6 million dead. You didn't say anything about nukes.
 

Garth:

You haven't been reading many liberal blogs TRASHING Obama for pursuing this legal argument, have you? Try HuffingtonPost or ThinkProgress, for starters.
 

Bart"buster":

That would be the most efficient way. Besides, it's my hypothetical.
 

That would be the most efficient way. Besides, it's my hypothetical.

# posted by Charles : 1:17 PM


I'm hoping for a version of the Rapture that rids the country of scum like you.
 

What honest question?

The only way to solve problem is to understand it. In eight years, I never saw any evidence that George Bush had any real understanding of anything significant here. I actually have serious reservations about the Obama administration in this area, as keeping Gates and Petraeus in their jobs is a very serious mistake, but there are also many positives and I see absolutely nothing that would lead me to believe that they are as utterly clueless and deranged as Bush and Cheney were.

All I'm really saying here is that you can't do worse than letting a drunk drive. It's entirely possible that a drunk has a bad wreck where no one, including himself, gets hurt. It's equally possible that someone who's completely sober has to make a split-second decision because of some unpredictable hazard, guesses wrong, and causes a ten-car pile up that kills 20 people.

The bottom line very simple Charles: reality matters more than excuses and blame do.
 

What the Journal fails even to consider is the possibility that, to the extent Obama is following Bush positions, they might both be wrong.

It's the reasoning of a six year old that if you come to agree with me that means I was right all along. Adults learn that means nothing; it could be that now you've accepted my view, there are now two persons who are mistaken. Validation is when the facts agree. If Murdoch's Journal hasn't grasped this, more's the pity.
 

Does ANY liberal want to answer my hypothetical question?
 

Here it is (one last time): six million Americans killed by nuclear blasts in the top 10 most-conservative U.S. cities, global panic and rioting, and 20% unemployment to boot. Is that better or "worse" than Bush?
 

Charles,

i've read the chatter, even glenn greenwald's impassioned handwringing. the bottom line is that everything greenwald says on this point is true. this is a continuation of a particularly odious and expansive abuse of the state secret's doctrine as used by bush. it should not be allowed to stand.

however, if obama simply reversed course, no precedent is created. no legal marker to future generations as to the permissible scope of the privilege. a ruling, either way, defines the landscape.

obama may also have a duty to defend the powers of the presidency. his immediate predecessor went down this road, why not get a ruling on it so as to make it official.

by taking this stand, congress has been spurred to consider legislation defining the scope of the privilege. a useful addition to the debate.

so to all the handwringers, i say not only is it early, but there is more than one way to skin a cat.

let's see where we're at in a hundred days.
 

Arne:

1) Summarily executing unlawful enemy combatants is worse in my book than anything in the CIA coercive interrogation program or Appendix M of the Army interrogation manual.

2) The classified contents of the Yoo memo were feloniously disclosed prior to the ACLU lawsuit. Indeed, ACLU had no idea the memo existed until that disclosure.
 

Obama will do what we insist he does. Those who want us to acquiesce are pushing one way strongly - see WSJ article. We just need to keep insisting that Obama do the things we think he should do.
Best,
Ben
 

Garth:

Can you answer my question on April 30th then?
 

Anyone else want to debate whether Obama "can't do worse" than Bush?
 

6 million killed: worse than Bush?

I'm not a "liberal" but I'll answer your question for you: there is no sensible answer to your question because your question isn't sensible.

If you asked: would Obama be worse than Bush if Obama started 3 unprovoked wars, the answer would be yes, he'd be worse.

Or; would Obama be worse than Bush if Obama said he was proud to torture and loved to do it personally and was ordering all police departments in the U.S. to begin openly torturing suspects for confessions? The answer would be, yes.

If 20% unemployment because Obama instituted tax cuts without any other economic stimulus and gave all of the government jobs to his friends whether or not they were competent, then, yes, that might be worse than Bush.

Ask a sensible question, you'll get a sensible answer.
 

Sylvia:

That's not a responsive answer. If you had an honest query about the parameters of my SENSIBLE hypothetical, all you needed to do was ask.

Let's say that the conference bill "as is" was voted on by all the Dems, three Republicans, and signed into law. Job losses continue to 20%. In the meantime, Obama does nothing to prevent Iran from obtaining nuclear weapons. The total, combined metro population in the foregoing ten cities is almost 20 million:

Cincinnati (587,689)

Boise (2,133,678)

Mesa (4,179,427)

San Diego (3,146,274)

Wichita (476,026)

Colorado Springs (609,096)

Abilene (160,245)

Oklahoma City (1,262,027)

Plano (6,145,037)

Provo (493,306)

Nuclear blasts kill six million Americans, global chaos, etc.

Better or "worse" than Bush?
 

Getting back to the topic: should Obama have allowed "rendition" if it was the only way to prevent the deaths of those six million Americans?
 

Recall that the premise being challenged was: Obama "can't do worse" than Bush.
 

Maybe even Bart"buster" is learning?
 

Chucklehead, I learned long ago that you're an asshole.

And I answered your question. If the 6,000,000 dead are all scum like you, it's definitely a plus.
 

Here's a hypothetical for you:

If Moldavia gets nukes and 10 million people go up in smoke on the eastern seaboard of the U.S., is Obama worse than Bush?

If Obama could have stopped the death of 2 million Americans by holding an adorable 4-year-old girl in a glass jar and giving her horrible diseases while torturing her and having her repeatedly raped, but DIDN'T, is he worse than Bush?
 

Bart"buster":

That's not a responsive answer either (the nuclear blasts would not only kill Republicans) and you aren't even addressing the 20% unemployment and global chaos. Keep up the ad hominem personal attacks, though. Arne won't mind as long as it's directed toward Bart and me.
 

Sylvia:

I would be more than happy to answer you hypothetical(s) just as soon as you answer mine.
 

Chucklehead, I already told you that my hypothetical doesn't involve nukes.

You die, we all win.
 

"Bart" DePalma:

1) Summarily executing unlawful enemy combatants is worse in my book than anything in the CIA coercive interrogation program or Appendix M of the Army interrogation manual.

What does that have to do with the price of tea in Sri Lanka? First, we have no binary choice here; to suggest so is the "fallacy of bifurcation". Or alternatively, to suggest that something else is "worse" is the "tu quoque>" fallacy.

Then there's the factual basis for your claim: You may be of that opinion, but there's known cases of people begging to be put out of their misery; your own preferences are hardly dispositive.

Third, you haven't answered my objection to your claim that Lincoln had such a policy, nor my point that brigands are different from detainees and interrogation is different from execution.

2) The classified contents of the Yoo memo were feloniously disclosed prior to the ACLU lawsuit. Indeed, ACLU had no idea the memo existed until that disclosure.

Cites? And keep in mind that it is you that have made the claim "contents [...] were feloniously disclosed". You keep repeating the assertion, but you have yet to provide any facts to back this assertion up.

I was hoping that, with the latest chastening from Orin Kerr, and your acknowledgement:

With that in mind, I will try to keep in mind that I am posting on academic blogs and do my best to tone it down a bit.

that you might try to keep from reverting to old bad habits.

Cheers,
 

Bart"buster":

So, you admit that you never answered MY hypothetical? Are you lying now or were you lying at 2:28 PM?
 

Chucklehead, I anwered your idiotic question. It's not my fault that you failed to detail how the 6,000,000 would die.
 

I did "detail" it, to the extent said six million Americans were KILLED BY TERRORIST hands. I also added to the hypothetical after your initial non-responsive post, so you HAVEN'T answered that question, idiotic or not.
 

Since no one wants to actually MY hypothetical, let me give you the answer: it would make Obama WORSE than Bush.
 

anwered = answered
 

it would make Obama WORSE than Bush.

# posted by Charles : 3:14 PM


Why? 9/11 was the highlight of Dumbya's administration. Wouldn't an attack that kills 6,000,000 make Obama 2017 times better than Dumbya?
 

ChrisTS:

If you are lurking still, go ahead and join in. Don't worry, I won't hurt you.
 

Bart"buster":

Because, most Americans would say that 9/11 was the LOWLIGHT of the Bush Administration. So were December 7, 1941 for FDR and July 3, 1863 for Lincoln. The HIGHLIGHT was what each President did after those dates. Only a sworn enemy to America would delight in American deaths.
 

Even if the 6,000,000 American dead were all "scum" like me and Bart.
 

Because, most Americans would say that 9/11 was the LOWLIGHT of the Bush Administration.
# posted by Charles : 3:23 PM


They didn't act that way. They acted like he was some kind of hero on 9/11.
 

No, you are confusing 9/11 with 9/14 and thereafter.
 

For instance, FDR did not say "TODAY, December 7, 1941, a date which will live in infamy ..." nor did Lincoln lead the charge himself at Gettysburg.
 

Bart"buster":

Are you EVER going to answer my hypothetical question?
 

Are you EVER going to answer my hypothetical question?

# posted by Charles : 3:35 PM


I already answered it, numbnuts.
 

Well, the project of getting Prof. Tamanaha to quit allowing comments is going just fine, it looks like.

Thanks a lot for being part of the problem, guys.
 

If anyone else reads down this far, my pending hypothetical question can be found above at 1:31 PM.
 

Just turn the comments off already!
 

Anderson:

I simply tried to ask a couple honest hypothetical questions. I'm not the one calling people "scum" or "asshole".
 

Charles,

Please be advised that if you discover that you have contributed more than half of all comments on a thread, that your posts are frequently consecutive with no responses between them, and that most other commenters are trying to either ignore you or dismiss you, you are probably a troll.

Sorry.
 

ChrisTS (or SGEW now):

At least I'm not the one calling people "scum" or "asshole".
 

For the record, I have not contributed more than half of the posts on this thread, and I accept your apology.
 

I'm not part of the problem, I'm part of the solution.

If you don't moderate comments, and you allow your blog to be used by the likes of Bart for rightwingnut propaganda, or whatever the hell Chucklehead is doing, this is what you get.
 

Charles:

You are obviously an intelligent guy. Picking on fools simply because you can does not become you and will get the last of the open threads shut down. Please do not address them and do not respond to their flames unless is serves to make a point.

BTW, I am directing this towards you, not because you are more at fault, but because prior similar attempts at reasoning with arne, bb & company have been fruitless. Hopefully a word to the wise will be more successful.
 

I think it is very important to be wary of instant judgment before all the facts are in. Very few of the legal appointments the Administration has to submit to the Senate are yet confirmed and before one can start to say what the policies of the Administration will be, it might be prudent to wait for them to get their feet under the desks and start to turn ideas into policy directives.

Government legal services throughout the world have one thing in common with very large crude carriers - it takes a long time to bring them to a stop and reverse course.

Initially what one can say is that the tone of the discourse is changing. The Bush Administration seemed to want to provoke people into joining the ranks of terrorists while the Obama Administration seems to be aware of the need to address the root causes.

I do not expect the Administration to instantly abolish capital punishment and I don't for a moment imagine it will feel able to do everything else in the human rights field that a liberal like me would wish. Still progress is apparently being made and it's in the right direction: away from rather than back into the dark ages.

A few words about rendition. For me it is a term of art, it is the other face of the mirror to extradition. The requesting state applies to extradite, the sending state renders the accused into the custody of agents of the extraditing state.

It is "extraordinary rendition" which is neocon speak for "kidnapping, unlawful arrest, unlawful detention, etc" which is the problem area. In other words, unlawful conduct given a veneer of respectability with a circumlocution or a euphemism. Neoconservatism itself is in my book a euphemism for something nastier and its ancestors of the 1930's had their euphemisms too: "Die Endlösung" springs to mind.
 

Bart:

Thanks for the advice.
 

bartbuster-

i hate to tell you this, but you are part of the problem. Mr. DePalma does state his right wing beliefs, but he does so in a thoughtful (if not always honest) manner. People who debate him on the merits of his claims tend to win, and any objective observer can see that. But your insistence on "zingering" him as opposed to simply refuting his claims does not do anything productive. I mean, once in a while, maybe, but you seldom actually argue the point, instead you tend to resort to ad hominem.

And engaging Charles is simply pointless and counterproductive. Please, everybody, just ignore him, and hope he goes away. If Balkin is seeing if we can self police, Charles is the real test, not Mr. DePalma.
 

nerpzillicus:

NO ONE actually answered my hypothetical questions, let alone debated the merits of my claims, on this thread. And any objective observer can see that.
 

Edgar Bergen should stop throwing his voice and moving his dummy's lips, put the dummy back in the case, throw the case away and stop this torturous version of McCarthyism.
 

"Bart" finally, inadvertently, gets something right:

[P]rior similar attempts at reasoning with arne, bb & company have been fruitless.

Yes, indeed. Perhaps we ask a bit too much, but can you please answer my last post? If we can actually intelligently discuss some of the issues, it would make up for a lot of chaff. But that requires that you abide by Kerr's admonition, and try to restrain yourself from conclusory statements repeated ad nauseam oblivious to whatever anyone else says, in the guise of "reasoning".

I look forward to a more civilised and more productive discussion. Here's hoping....

Cheers,
 

Bart"buster":

I have to agree that you are part of the problem too.
 

nerpzillicus is correct about that much, at least.
 

Mr. DePalma does state his right wing beliefs, but he does so in a thoughtful (if not always honest) manner.

You are being very kind. He's a lying, propaganda spewing, scumbag. THAT is the problem.
 

Bart,

You suggested that Yoo has not embraced torture in public. I added a link to his recent WSJ Op-Ed which does precisely that (and which explicitly outs President Bush as well--three times!).

Bartbuster and Charles,

My strong desire is to keep the comments section open. I benefit from the feedback and often enjoy the discussion. And I like to think of us as a community of discourse of sorts.

Because this is Jack's blog and he has made clear his position about uncivil or worthless comments, however, I feel that I must close the comments section (now and in the future) if the comments become rude or veer into absurd and pointless exchanges of insults. I don't want the responsibility of screening individual comments (and I'm not sure how to do that anyway).

It's not hard to keep the discussion on point.

I address this to the two of you mainly because you are skirting the line. Please exercise restraint.

Thanks,

Brian
 

Professor Tamanaha:

Will do.

Bart:

You still have a good point about Yoo's memo not being PUBLIC until someone violated the law.

bluememe:

Do you still think I am a computer program?
 

I agree that it was a mistake for me to respond to Chucklehead. Sorry for that.
 

Getting back to the topic: should Obama have allowed "rendition" if it was the only way to prevent the deaths of six million Americans?
 

bartbuster-

Mr. DePalma does state his right wing beliefs, but he does so in a thoughtful (if not always honest) manner.

You are being very kind. He's a lying, propaganda spewing, scumbag. THAT is the problem.


When Mr. DePalma exceeds the bounds of truthful reality, he tends to get called on it. I don't think ad hominem attacks help in knocking down strawmen or misinformation. Rather, I think the standard murder's row of commentators take care of those things. If you catch him untruthing, then you should call him out on it with facts. Name-calling is not as effective, IMHO.

If he does exceed the bounds of courteous discourse, then feel free to point it out. But when he tells a story of his actions in Iraq, in which (IMO) he objectively acted in the manner of a responsible soldier (there are no good decisions in war, simply less bad ones), your attacks were unfair and pejorative for no reason. I appreciate his service, and accepting his account as true, applaud him for carefully considered and noble (considering the circumstances) conduct.

You, on the other hand, seem to, no matter what subject, tone, or substance of his comment may be, always attack in a zinger type fashion. I don't think it is necessary or convincing to accomplish your goals, the ends of which I agree with. It is your method that I call into question.
 

"Getting back to the topic: should Obama have allowed "rendition" if it was the only way to prevent the deaths of six million Americans?"

That isn't a topic or a question Charles, it's just an absurdly fallacious figment.

How could rendition possibly be the "only way" to do anything beyond sending some particular person to some particular place in exactly that particular way?

It's obviously not the only way, for the simple reason that there isn't anything you can do him in one place that you can't do to him in some other place, and equally, you can't prove that torturing someone anywhere is going to prevent anything.

You're just being silly, as usual.
 

Charles Gittings:

You seem to not understand the Socratic method.

Anyone else?
 

Brian:

Here is Yoo's statement you posted at the linked thread:

What is needed are the tools to gain vital intelligence, which is why, under President George W. Bush, the CIA could hold and interrogate high-value al Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)

As with his prior statements, Yoo argues what a President could do (which is damn near anything in his opinion), while studiously avoiding taking a position on what he should do.

You make a better point concerning Cheney (not to mention a number of CIA officers), who after the program was blown, publicly lauded the success of techniques like waterboarding in obtaining a substantial amount of our intelligence on al Qaeda and argued that they would do it again. However. Yoo has been far more coy all along the line.
 

Folks, can we PLEASE ignore Charles. His idea of serious debate is to make policy by positing lunatic hypotheticals. Let's ignore him and stick to the real world.
 

Oh I understand it just fine. The problem is that you don't understand logic.
 

Ouch! In the real world (at least law school) hypothetical questions were the norm to see where, if at all, you would draw the line. I'd venture to guess that 99% of Americans (outside the "real world" of Balkinization, I guess) would want secret rendition -- again, that is the thread topic -- if that were the only way to save the lives of SIX MILLION people.
 

Sorry, Charlie, but that last post was for "Enlightened" Layperson (who I thought was going to law school as well). I've been asked to ignore you.
 

Does anyone else want to discuss Jack Balkin's proposal for "regularizing" Supreme Court appointments and whether there are any parallels to FDR's proposals?
 

You can do so here https://www.blogger.com/comment.g?blogID=15518184&postID=5350902641792267247&pli=1 and the comments on my blog will NEVER be turned off.
 

I'm not the only "silly" one acknowledging the necessity of torture / rendition. Alan Dershowitz isn't some right-wing wacko, is he? Charles Krauthammer proposes, after presenting a ticking bomb case to prove sometimes torture is allowed, "However rare the cases, there are circumstances in which, by any rational moral calculus, torture not only would be permissible but would be required (to acquire life-saving information).

And (as someone else pointed out on another thread) once you've established the principle, to paraphrase George Bernard Shaw "all that's left to haggle about is the price."

Former CIA agent Reuel Marc Gerech offers a more plausible scenario, though, "[S]uppose . . . soldiers capture members of Al Qaeda and their computers, and learn that the group has advanced plans for striking American and European targets, but we don’t know specifically where or when." Reuel's argument is that torture will be used in a case like that, whether we admit it or not, so we are better off legalizing torture for extreme cases so we can control it instead of outsourcing torture to an Arab ally via rendition.
 

"Bart" DePalma:

Here is Yoo's statement you [Prof. Tamanaha] posted at the linked thread:

What is needed are the tools to gain vital intelligence, which is why, under President George W. Bush, the CIA could hold and interrogate high-value al Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)

As with his prior statements, Yoo argues what a President could do (which is damn near anything in his opinion), while studiously avoiding taking a position on what he should do.


This is being silly. Here, Yoo says that these "tools" are "needed" to gain "vital intelligence", and goes on to say what he think the preznit is allowed to do. There's not much point in saying something is allowed and maintaining that such is in fact needed [which Yoo unarguably did in the paragraph above] if you are of the opinion that such shouldn't be done. In fact, there's not much point in having something that one can do, if one shouldn't be doing it. Don't do this "Simon says" stuff with us; we see through it.

Cheers,
 

Bart:

Good luck trying to rationalize with people who contend that torture can never be justified. At least my 6:13 PM comments disproves that (and was finally "on topic" as well -- I hope that Professor Tamanaha can at least admit that much -- even if the rest of these people can't deal with it). Have a great weekend!
 

Once again, it's time for the Fat Lady to Sing. Brian, just pull the plug. Or should we call in Doctor Kevorkian to attend to the troll without 'rhoids, aka the perfect A--h--e. (And I'm not speaking hypothetically.)
 

Shag:

I think only you and I know about this "secret" part of the thread. Don't tell anyone.
 

Did anyone else see Stephen Colbert's brother, Ed, last night?
 

This comment has been removed by the author.
 

Lest anyone get carried away that the Obama regime represents the second coming of the Scoop Jackson hawks, it appears that Obama has:

1) Lifted sanctions against the Syrian and Iranian terror regimes, including a lifting of sanctions against companies that are assisting Iran in their quest for nuclear weapons;

2) Announced it is returning to the Clinton policy of appeasing North Korea for the appearance of abandoning its nuclear weapons program, but not destroying its current nukes;

3) Abandoning missile defense in Europe after Russia paid off Azerbaijan to shut down our primary supply route into Afghanistan.

This is the Carter foreign policy on valium.
 

Lest anyone get carried away that the Obama regime represents the second coming of the Scoop Jackson hawks, it appears that Obama has:

I'm pretty sure that you are the only person on the planet who thinks that Obama is the second coming of Scoop Jackson.
 

2) Announced it is returning to the Clinton policy of appeasing North Korea for the appearance of abandoning its nuclear weapons program, but not destroying its current nukes;

Actually, this is the Bush policy.
 

There is a recent USA Today/Gallup poll indicating that 62% of Americans want either a criminal investigation or an independent panel to investigate the Bush torture practices. This poll really shows that all the right-wing trolls lurking on the message boards, reader comment sections, and the blogosphere are failing. Their talking points, ticking time-bomb fantasies, and torture support are not enough to sway public opinion their way. The dam is breached.

And these dead-enders need to win the public opinion battle to keep the likes of Cheney, Addington, Rumsfeld, and Yoo out of court. It's all over if there are serious investigations and prosecutions for torture conspiracy under federal law. The evidence of torture already in the public domain is overwhelming and the federal legal definition of torture is clear and all-encompassing. Only a lawyer with absolutely no shame -- or future legal career -- would ever argue in court some of the nonsense the blogosphere trolls utter in places such as Balkinization.

If anyone is still worried about whether waterboarding is torture -- don't. U.S. government documents indicate that something like two dozen detainees were killed during interrogation. If waterboarding is torture -- and it is -- killing the person being interrogated surely is torture. George W. Bush's signed memos, as well as his and Dick Cheney's recent interviews with reporters, are going to easily place them at the center of a federal torture conspiracy.

Here's just one example of real torture that happened on Bush's watch: Chief Warrant Officer Lewis Welshover was convicted for smothering an Iraqi Major General to death during an approved "close-confinement" interrogation technique. Several other people involved were granted immunity. With that immunity none of those involved can plead the Fifth Amendment and can be compelled to testify how far up the chain of command the fruits of the interrogation went. Like maybe to Rumsfeld?

So the dead enders can drone on about "playing patti-cake with terrorists, the Constitution isn't a suicide pack, America love it-or-leave it" all they want. Most Americans already know that torture is a cancer that kills a democracy and are worried that Bush and his cohorts brought us very close to a tyrannical form of government.
 

Check out the editorial on this topic in today's LATimes at:

http://www.latimes.com/news/opinion/editorials/la-ed-rendition14-2009feb14,0,4433617.story

And Happy Valentine's Day.
 

There is a Chinese proverb that comes to mind when I think of the state of this blog's comments:

"The best fertilizer is the footsteps of the farmer"

Also, baseball could provide a helpful example in two beautifully succinct words:

YER OUT!!
 

Nick Jackson:

You really think Obama is going to prosecute Bush or Cheney?
 

Check out the Portfolio.com article "Slimed Online" by David Margolick, March 2009 issue, about cyber bullying. The print version runs 13 pages. The comments situation here is no where as bad as with the AutoAdmin website/blog that is the focus of the article.
 

Asking honest questions is nor "cyber bullying".
 

nor = not

Bart"buster" is an admitted cyberbully.
 

"ChrisTS (or SGEW now):

At least I'm not the one calling people "scum" or "asshole".

# posted by Charles : 3:42 PM"

I am ChrisTS on VC - best I could do - but I am not SGEW anywhere.
 

Having violated my own principle and acknowledged the troll, I beg Prof T's and everyone else's pardon.
 

Even assuming that I am a "troll" for the purpose of argument, the stalking and posts by Bartbuster is much closer to the behavior described in the Portfolio article on "cyber bullying". Bartbuster doesn't even think he is part of the problem.
 

2) Announced it is returning to the Clinton policy of appeasing North Korea for the appearance of abandoning its nuclear weapons program, but not destroying its current nukes;...

Isn't that a typo? Ought that be spelled "Israel"?

Cheers,
 

Back on the topic on "in house" torture vs. extraordinary rendition, I quoted Dershowitz, Krauthammer, and Geruch above. Are they all "trolls" too? No substantive rebuttals?
 

i think there could be an extreme event wherein torture might be instrumental ... the potential hypotheticals are endless ..

in such a case an individual actor might succeed ..and then rest his/her hopes on jury nulllification .. or a "no-bill" from a grand jury ..

but i don't see that extreme possibility as a basis for formulating a national policy ..

normally ..when we make law or policy .. we do so to cover the most common circumstances we expect to occur..

i know of no municipality anywhere .. even roswell nm. where laws against double parking fying saucers are on the books ..

i'd say the majority opinion on torture is well known .. and the laws as written mirror that opinion ..

for those .. in real time .. who have made the conscious informed decision to violate our laws against torture .. their recourse is to hope that once brought before the bar of justice to answer for their crimes .. that the jury .. or grand jury .. will hear their case and weigh the circumstances and come down on their side ..

in the meanwhile .. in the real world .. we have regulations ..laws ..and treaties which define the legal limits of interrogation and what we may do ..and not do .. to defenseless persons in our custody .. those laws .. have ..according to various reports been violated .. and the violators should be brought to justice for their acts .. maintaining the principle of our society that "no one is above the law" ..

but no citizen .. or official .. of our country should advocate the position that having knowingly violated our laws and treaty obligations they should get a pass for those illegal actions ..
 

As far as the repudiating torture goes, please remember that Bush also said "We do not torture." He was totally against torture. He was in favor of enhanced interrogation techniques.

What it comes down to is how the Obama Administration defines the term 'torture'. The truth is, this claim of executive privilege makes the Administration come off as a little contradictory, as the ACLU has pointed out.

Of course, as the ACLU has also pointed out, and as you have pointed out in this post, Obama's action are still a far cry away from that of his predecessor.

But, that does not mean that we shouldn't raise a red flag when Obama's Administration takes a position that makes it so that torture victims cannot have their day in court.
 

Needless to say, I will be glad if Obama does embrace Bush policies on secrecy, rendition.
 

Big surprise! Koppelman thinks DOMA is a "nasty" law. Good thing he closed comments so we can't tell him what we think copul(ating) men are.
 

A warning was issued. Query. Is the way to deal with a few abusers of discretion, the only way, to block all comments?

For instance, just for the sake of argument, let's say a commenter's very handle is anti someone else. This seems a bit tawdry and tending to lead to vituperative comments.

Let's say we have antoher (for the sake of argument) who crowds the comments with childish remarks and so forth amounts to a lot of posts. Are we to have comments turned off?

In grade school, such people might get a "time out" or something, but it appears there is a "toss the baby with the bathwater" requirement here. A few people, or noise that with some restraint (if some have the "time" to do it) could be handled, ruin it for everyone. A few act out, we all have to get detention.

The net result, to their pleasure I assume, various contributors here can post their at times dubious material without comment.
I don't see the value of having a "blog" to do that really.

I can handle people who don't add to the conversation, though it hurt it, but if the alternative is turning off comments, can't the contributors have some middle ground? Just how long would it really take? Is the alternative of no comments really ideal?

Is this how it's done on campus?
 

Censorship and academic intimidation is much worse on campus. Nonetheless, I was happy limiting my discussion to Obama embracing secrecy re: the need for torture in extreme situation. Those like Bartbuster wanted to take it to a personal level.
 

Joe: I agree with you, as I think many of us do. I would rather see individual people blocked - as much as I dislike it - than have all commenting disabled.
Perhaps Prof. T could persuade Jack to rethink this policy.
 

I don't want Bartbuster banned.
 

Perhaps Prof. T could persuade Jack to rethink this policy.

That is my hope. This blog is greatly diminished without comments.
 

I don't want mattski banned either.
 

To answer Professor Balkin's latest question (his comment threads are still turned "off"):

Yes, OLC sounds like a little like the Supreme Court and I think the Federalist Society and/or Heritage Foundation should sue to declare it un-Constitutional.

(I realize this seems "off topic" but OLC is the source of lots of "Secrecy and Rendition" problems -- including Yoo's torture memo -- besides, this is only my 61st post, so I'm still at less than half ; )
 

ChrisTS and/or S.G.E.W.:

Are you still around?
 

I'm curious about something. No, I am not trying to encourage Jack to reopen comments. Now, at age 78, I enjoy this Blog, especially with time on my hands in semi-retirement from the practice of law. In the salad days of my practice I would not have had the time to comment on this or other blogs. (Of course, in my heyday the Internet was either non-existent or in gestation.) Not all commenters at this Blog are practicing attorneys. But what I am curious about is where does a busy practitioner get the time to comment extensively at this Blog and other legal (or non-legal) blogs? Has the clamp down on comments at this Blog resulted in the production of more billable hours by such past commenters? Or did such commenters consider their comments as pro bono activity? Perhaps some commenters, including active practicing attorneys, considered this as more of a chat room. I would be further curious what time sheets (if such were to be maintained by commenters) for time spent on this Blog might reveal about them.

Over the past several years, I have enjoyed not only the posts but the comments. I thank Jack et al for letting me look in and comment. I shall continue to check in from time to time because so many of the posts are interesting. Between this Blog and Legal Theory Blog and Legal History Blog I get connected to interesting legal articles on SSRN; unfortunately, my aging eyes do not permit me to read all of the articles I print out. With the few years I may have left (with no need for "dressing" since my salad days are past), a few hundred more articles on originalism might just lead me to the Holy Grail of constitutional interpretation. Who knows, maybe the dancing of constitutional scholars on the head of the constitutional pin may take a break with a brand spanking new, updated Constitution, after Sandy's convention, of course.
 

Apropos of an earlier thread, I note the following posted by former Senator Hollings at the Huffington Post yesterday:

"Yesterday I read an article that it won't be long before charging President George W. Bush with war crimes for killing civilians in Pakistan with drones. Now the same charge could be made against President Obama."
 

Shag:

What a lovely post. As for me, as an a academic rather than a lawyer, the 'costs' of reading and posting come in the form of backed up grading. :-)
 

Back on topic (if I may): how do we know that "many" of the remaining GITMO detainees are not dangerous? Can we re-locate them all in your neighborhood?
 

re: comments ..

i agree this site is greatly diminished without the comments and i'm personally very disappointed by prof. balkins' decision to restrict the comments ..

while i'm sure the posters are quite satisfied with publication of ther own thoughts as they appear .. i learned much as a result of reading the exchanges in the comments section .. and the comments added much to the blog .. even with the predictable clashes between the warring factions .. it was very easy for me ..as a layman to ignore the very few who made up the core of the chaff commenters ..

losing the comments section here has caused me to simply not come to this blog ..

for ..even as interesting as the bloggers may presume themselves to be .. their work is diminished imo .. when i can't neasure it against the body of opinion in the former comments ..

it is a large loss and has .. imo ..greatly diminished the former value of what was an excellent venue .. warts and all ..

as it now stands it has all the appeal and cachet of a vanity press ..
 

how do we know that "many" of the remaining GITMO detainees are not dangerous?

What an interesting place for the burden of proof. How do we know they are a threat? The history does not suggest that being in Gitmo allows us to assume you're dangerous.

Can we re-locate them all in your neighborhood?

Certainly. Just keep that guy Orenthal Simpson out. My personal take is he's dangerous. Also that guy Dick Cheney; I don't want no war criminals in my neighborhood. Property values are taking a bad enough dive as it is.
 

I agree with Jkat's comment above, re the comments, and I am more than a bit staggered that JB et al are incapable of understanding this. Embarrassingly illiberal.
 

test
 

It looks like only Sandy Levinson threads are left.
 

This is actually only my 66th post on this thread (out of 140 now)still less than 1/2, and much fewer than the TOTAL posts by Arne or Bartbuster. Please don't confuse me with Charles Gittings.
 

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