Balkinization  

Thursday, April 24, 2008

torture and "obliteration"

Sandy Levinson

My previous post concerns Hillary Clinton's reminder that the United States could "obliterate" Iran and that she is prepared to order just that--with or without the consent of Congress is manifestly unclear--should Iran attack Israel (though why only Israel--why not threaten obliteration if Iran invades Iraq, or Saudi Arabia, etc.?). I believe that her close-to-glee--she is, after all, trying to portray Obama as a Chablis-drinking wimp who would forbear from picking up his guns--in threatening to "obliterate" millions of innocent Iranis because of the acts of their leaders underscores a certain anomaly in our debates about the conduct of warfare at the present time.

There is a widespread consensus, shared, at least rhetorically, by the Bush Administration itself, that "torture" is forbidden and indefensible. That is precisely why so much of the debate concerns what, precisely, counts as torture. (For the record, let me state that I regard waterboarding, as well as extended sleep deprivation and much else, as torture.) But, of course, there is also the additional debate, sparked by the Yoo memorandum, as to whether the President, under extreme conditions, has the authority to order torture.

But why isn't there more debate, not only among academics but among the general public, about a) the morality of any military strategy that depends on "obliterating" millions of innocent people simply because they have the bad luck to be living in a country run by terrible leaders and b) the propriety of a view of presidential power that makes it possible for an ostensibly serious candidate for our nation's highest office so casually to threaten such obliteration should another country engage in behavior that, though no immediate threat to American security, we deem sufficiently awful? As awful as torture is, it really isn't the most awful thing that regularly occurs in the world, starting with "collateral damage" to innocent civilians as the result of "justified" military attacks, and going onward to the "destruction" that is at the basis of nuclear deterrence strategy (under the rubric "Mutually Assured Destruction").

Deterrence through threats of obliteration has the "virtue" of minimizing risk to our own military personnel. The same logic explains the reliance on bombing by Bill Clinton in the War against Serbia that he initiated without the consent of Congress. No doubt he saved American lives that would have been lost in ground warfare, but at the cost of innocent Serbian lives.

Imagine that Herman Kahn had been a member of the Berkeley faculty who, while working for the Defense Department, advised the construction of a "doomsday machine" that would take the decision to engage in a nuclear response to an attack out of the human decision-making process at all. After all, we might find literally "incredible" the assertion, by Hillary Clinton nor any other decent and non-sociopathic human being, that he/she would be willing to "obliterate" millions or, indeed, threaten the maintenance of human society itself in order to demonstrate adequate political resolve. (During my youth, this was the "better dead than red" debate.) Thus the need for taking the "decision" away from human beings and giving it to an impersonal machine. (For details, see Kahn's classic On Thermonuclear War.) Should he have been threatened with the loss of tenure for offering such advice, or is it, like all deterrence theory, intellectually and morally "acceptable" in a way that countenancing the legitimacy of even one instance of torture under an extreme set of facts is not? (Indeed, Kahn can easily be read to have "advocated" such a machine, as against Yoo's own claims, sincere or not, that he never "advocated" torture but, rather, engaged "only" in good-faith interpretation of notably difficult language given the Senate's "reservation" concerning the definition of torture.)

Also for the record, I am not a pacifist, and I believe that deterrence can be an important aspect of military strategy--thus my willingness, whatever my opposition to many Israeli policies, to accept the propriety of Israel's possessing nuclear weapons and issuing, no doubt sotto voce, credible threats of a willingness to use them if attacked. (This is, frankly, one reason why I'm not so worried about the prospect of Iran's gaining nuclear weapons, because I do believe that Iranian leadership is rational enough not to be attracted by a Gotterdamarung strategy. ) And I think that one of the explanations for the present debate about intelligence-gathering methods is precisely the realization that classic deterrence models don't work when the enemy is not a state with a locatable "address," but, rather, multi-national organizations that may have access to certain kinds of weaponry that in the past was indeed confined to "Westphalian states" that were subject to the rational logic of deterrence. On this, see my colleague Philip Bobbitt's new book Terror and Consent .

It is obviously important to continue to ferret out the Bush Administration's policies on torture. But there are other things we should be talking about as well with regard to America's willingness to kill innocent people as part of one's military tactics or ultimate strategy.
Do we really want as president someone who so casually evokes the "obliteration" of Others (I use the capitalization advisedly) even if, by stipulation, she promises to honor the "absolute" ban on torture (see her letter to the American Freedom Campaign).

Comments:

Should [Kahn] have been threatened with the loss of tenure for offering such advice, or is it, like all deterrence theory, intellectually and morally "acceptable" in a way that countenancing the legitimacy of even one instance of torture under an extreme set of facts is not?

Of course not. Nor should Yoo or Dershowitz or anyone else lose tenure for advocating torture. Mere advocacy is not the issue, it's not why Berkeley should investigate Yoo, and it's not, best we can tell, the only thing Yoo did.
 

Sandy:

Mutually assured destruction is a defensive strategy which holds that, if you launch an attack on our population, we will respond in kind. It is a means of deterrence.

Whether to actually respond according to this strategy will be the President's decision alone because the response missiles will have to be launched in a very limited time period before the incoming missiles arrive to destroy our nuclear capability. Congress will not care as it will most likely be dead in short order.

You will have to ask God whether an eye for an eye nuclear strategy is moral. It works as a deterrent but is pure retribution in actual practice. If Iran should give a nuke to a terrorist group which then levels your city, do you think it immoral to then nuke Teheran?

In any case, I would suggest that it is unwise to use Hillary Clinton, a singularly unserious person, as an example for much of anything. The other candidates are not flitting around casually talking about obliterating countries.
 

I find it quite remarkable that a candidate for president would have this response to a pure hypothetical. A much more realistic question might be, "How would you respond if Israel used nuclear weapons against Iran?"

I'm quite sure the response, if any, would be substantially different...

Funny thing about MAD, Israel can't use those nukes against close-in enemies without the risk of substantial "fallout", in all senses of that word.
 

I remember having a similar argument with you when I was your student during a visit to HLS. I still think the only distinction between torture and collateral damage is the "control" element, but I am glad to see that you are willing to ask this extremely unpleasant question too. My blog for more, if anyone cares - http://wkitchen.blogspot.com/2008/04/torture.html
 

Clinton is not the first presidential candidate in memory who has casually talked about obliterating people. I vaguely remember something like "bomb them back to the stone age" by Curtis Lemay as a third party vice-presidential candidate at some point in the past (wasn't it in 1968 with Wallace?).

I think we should challenge candidates who cavalierly engage in saberwrattling like this if one is allowed a tough question in their forums. I vaguely remember several candidates relishing torture in the early debates but that has become muted.

And why not talk about war with the same force as some talk about torture. Sure we can do that. How about the folks trying to end the Iraq War and bring troops home. Don't they count?
 

One does not have to go to the extreme of considering doomsday scenarios to compare the CIA coercive interrogation to warfare. Your average day in combat inflicts far more physical and mental pain on the combatants and unlucky civilians than does the CIA's coercive interrogation.

Your average grunt is suffering from sleep deprivation, having only snatched a cat nap here and there over the prior two to three days. The enemy he is hunting down is in even worse shape because US offensive operations are relentless 24/7 affairs.

Your average grunt has probably marched several miles carrying over a hundred pounds of gear. His feet and other parts of his body are swollen, bloody and in pain.

Your average grunt is eating irregularly and skipping meals. He is hungry and losing weight from malnutrition and stress. The enemy is lucky if he is eating at all because we have cut off his supplies. He is most likely starving.

Your average grunt is scared he will be killed or even worse maimed by the enemy each time he turns a corner. The enemy is in far worse shape because he faces a near certainty of death or injury at the hands of our forces.

Your unlucky average grunt who gets hit is six times more likely to be wounded than to die and be free from pain. He can suffer gun shot wounds, burns, lacerations and dismemberment. Your average wounded in action will usually suffer Yoo's definition of severe pain. Depending on your viewpoint about death, the enemy lucks out here because he is far more likely to be killed outright than wounded and in pain. Our forces are far more lethal than his.

Multiply this day by thousands of men at war.

Then compare it to the worst you have heard reported about the CIA coercive interrogation program.

There is no comparison between the suffering inflicted in combat and the CIA interrogation program. Its not even close.
 

The enemy he is hunting down is in even worse shape because US offensive operations are relentless 24/7 affairs.

This is utterly absurd. When the "enemy" we are hunting gets tired, they crawl into their beds and get some sleep. They probably sleep a lot more soundly than their "hunters".
 

It's time to watch "Dr. Strangelove" again.

I wonder if General Petraeus agrees with Lisa's bro's description of the average grunt in combat. In sympathy little bro probably looks under his bed for terrorists before he goes to sleep at night. There are so many of us making great sacrifices compared to the few who may be tortured, like paying $4.00/gal for gas.
 

"One does not have to go to the extreme of considering doomsday scenarios to compare the CIA coercive interrogation to warfare. Your average day in combat inflicts far more physical and mental pain on the combatants and unlucky civilians than does the CIA's coercive interrogation."

"War is hell!" as someone famously said. And yes we can agree that life in the trenches in any war is horrific - I agree I agree I agree.

I do not see how the horror of war makes it ok to torture persons one has captured. That's too subtle a point for me.

Best,
Ben
 

The enemy is lucky if he is eating at all because we have cut off his supplies. He is most likely starving.

Those Iraqis must be pretty tough if they can survive 5+ years of starvation. How can we hope to defeat an enemy that doesn't have to eat for 5 years?
 

shag/bb:

I you care to educate yourselves on the subject of what life in combat is like for our soldiers and their enemies, I would suggest that you start reading the posts by our soldiers and those embedded with them at the so called miliblogs.

Start with Michael Yon's Online Magazine and his superb book "Moment of Truth." Yon is an former SF trooper who has been embedded with the troops for far longer than any group of reporters from any media provided you care to name.

Then go check out the Mudville Gazette, from which you can link to several other miliblogs.

You can also google "miliblogs" to find literally hundreds of others.

WARNING: You are likely to be highly offended reading the extremely low opinions expressed in very graphic terms our soldiers have of those who think they are broken, have lost the war and otherwise lie about their service. I am the epitome to civility and empathy compared to these guys and gals.

When I jump between here and the miliblogs, I truly dispair are the enormous cultural chasm there is between our war fighters and many civilians with no exposure at all to the military. It is scary.
 

The comparison of Kahn's situation to Yoo's is absurd to the point of offensiveness -- it doesn't bear even superficial examination. Torture has been recognized as a crime against humanity for centuries, and it appears that Yoo conspired with others to commit countless acts of torture. If there had been a comparable international consensus when Kahn was advising the US Government that it was a crime against humanity to employ a nuclear deterrent, and Kahn worked with others to violate that proscription, it would have been appropriate to take action. But there was no such consensus (and indeed there isn't one now).
 

benjamin davis said...

I do not see how the horror of war makes it ok to torture persons one has captured. That's too subtle a point for me.

Putting aside for a moment our disagreement over what constitutes "torture," as a combat veteran with kin in today's wars, I have no moral qualms over using interrogation techniques which inflict less discomfort than what my men and I have endured during war if it will lead to actionable intelligence allowing my men and I to win the war and get home in one piece sooner rather than later.

We grunts tend to have very simple moral calculuses during wartime.

Get the job done as quickly and with the fewest casualties possible.

We will extend all the rights of POWs to those who return the favor. However, when the enemy wages total war against us without any mercy, we find that our mercy for the enemy to be in very short supply. (See the Apache Wars and WWII against Japan.)

Under this moral calculus, the balance of waterboarding three officers of al Qaeda for a total of five minutes against uncovering much of the al Qaeda network and stopping several attacks which would have murdered hundreds if not thousands is simply a no brainer.

This logic is not subtle at all.
 

When I jump between here and the miliblogs, I truly dispair are the enormous cultural chasm there is between our war fighters and many civilians with no exposure at all to the military. It is scary.

# posted by Bart DePalma : 4:07 PM


I have no idea where you got the idea that I have no exposure to the military. I was just over at Westover for a meeting yesterday.

In any case, it is even more scary that clueless imbeciles like you are allowed to vote. Your impression of insurgents in Iraq is absurd. When insurgents are being chased they switch back into friendly civilian mode. Or, even more likely, they put their Iraq police/army uniforms back on. End of chase.
 

This logic is not subtle at all.

That is for sure. You are a war criminal (well, you would be if you had the balls to get into the fight), and you are proud of it. You would have been a fine Nazi.
 

i believe the topic of the original post was whether or not it is appropriate for a candidate for president to advocate "obliteration" of a country in an attempt to pander for votes. cutting through the chase, i think we can all agree that pandering for votes in this manner is offensive and inappropriate, no matter who the candidate or the party of the candidate.

moving on from that, i fail to see what is achieved by calling one of the posters here a "nazi", no matter how much we disagree with his posts (and i could not disagree with him more). as a person of jewish background, i find the indiscrimate name calling offensive and more suited to other areas on the net, if suited anywhere at all.

likewise, i fail to find the need to tout one's pedigree as a soldier compelling to the argument of the appropriateness of torture or any other aspect of the debate over the appropriateness of this war, even taking into account its' irrelevance to the central topic of the original post. we understand that some of you served, have family presently serving or both. those who know me know what my family connection is or isn't. so what? trotting out your particulars is tiresome, achieves nothing, and when used in this manner dishonors the memory of those who have been killed in this nonsensical action, as you don't need to be a soldier to know what's right and what's wrong.

finally, i would appreciate it greatly if those who continuously claim that being against this war dishonors the troops simply shut up. we all honor the troops, especially those of us who have family members serving. you can honor the troops and still be against the war.

i would note that those who make these claims yell and scream that the troops are there fighting for our freedoms -- like the first amendment's freedom of speech. to those who claim we are dishonoring our troops by our stating publicly that we are against this war, i respectfully submit that it is you who dishonor the troops in trying to quash the very freedom that you claim our troops are fighting for.
 

Fortunately Bart, not all soldiers are gangsters like you, who are undoubtedly the least serious person I know. And "moral calculus" my ass -- you're a degenerate bigot who thinks terrorism is just a good idea as long as you're the one dishing it out to people you consider inferior.

What damned fools you people are.
 

Bart,
I see your logic but of course what you are talking about would be a violation of the Uniform Code of Military Justice if done by you or your men to people who do not return the favor. So the moral calculus is that you break the US domestic law - let me leave to the side the Geneva Conventions and all that crazy international law. That is again too subtle for me to quite get.

What about that thing that your men have about not beating up someone who is hors de combat? Not shooting your prisoner? All those things?

Best,
Ben
 

What about that thing that your men have about not beating up someone who is hors de combat? Not shooting your prisoner? All those things?

Best,
Ben

# posted by Benjamin Davis : 4:58 PM


Baghdad has stated that he has no problem with killing unarmed prisoners, as long as it's us killing prisoners, and not the "enemy".
 

benjamin davis said...

Bart, I see your logic but of course what you are talking about would be a violation of the Uniform Code of Military Justice if done by you or your men to people who do not return the favor.

I was speaking generically discussing the moral question posed.

Officially, our soldiers will generally treat prisoners according to their orders. Those who do not are subject to and have been prosecuted. This is necessary to maintain discipline or the troops will run amok.

Unofficially, soldiers have their own code of conduct in the field. If the enemy is violating the laws of war and using all means fair and foul to kill the soldier, the soldier's default response will be to stop taking prisoners and simply kill the enemy on sight.

A good example of this is the Marine who was caught on videotape shooting and killing a wounded terrorist who was unlawfully fighting in civilian clothing from a mosque in Fallujah. In clearing Fallujah, the enemy had been pretending they were wounded or dead to draw in the Marines and then attempt to kill them. In response, if there was any doubt as to the enemy's intentions, the Marines simply stopped taking prisoners and shot the enemy until they were sure that they were dead.

Is this legal? Most probably not. However, when the enemy abuses our laws of wars to kill our soldiers, it is more than a little unreasonable to expect our soldiers to die carrying out these laws.

Lincoln observed that the Constitution is not a suicide pact. Neither is the UCMJ.

This falls under that well known legal dictum "Better tried by twelve than carried by six."
 

"Bart" DePalma:

We grunts tend to have very simple moral calculuses [sic] during wartime....

"... and when anytime is 'wartime', it's easy street for our prefrontal lobes. Nary a care in the world ... hey! ... who'ya talking to? ... you talking to me?!?..."

"Bart", clue fer ya: Telling people you checked your brain at the door is not seemly.

Cheers,
 

I presume Messr Levinson has always spoken out against the doctrine of "mutual assured destruction"?

http://en.wikipedia.org/wiki/Mutual_assured_destruction

Doctor Edward Rockstein
 

Bart,
I see the point, but that is the point - you are not sure the person is hors combat. I understand the practical code of survival.
Best,
Ben
 

Bart,

So far as I know, Lincoln never said that the Constitution was not a suicide pact. You're probably thinking of Lincoln's saying, "Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" He of course was speaking of the quaint tradition of habeas corpus, which some in the Bush Administration allegedly discussed suspending wholesale after 9/11.

The first person known to use the phrase "suicide pact" in this context (of saying the Constitution isn't one) was Justice Jackson specifically in reference to the Bill of Rights. The more direct quote is attributed to Justice Goldberg, in saying that Congress has far reaching powers to regulate military affairs -- just not so far reaching that Congress can punish someone with the loss of citizenship for draft evasion if the person is not first tried and convicted of the crime.

With regard to the "obliteration," in fairness to Sen. Clinton (who I devoutly wish would drop out of the race), this is part of a consistent pattern of "tough talk" on her part, and it is not an insane foreign policy strategy. She says she will not talk to Ahmadinejad unless he first meets certain conditions, and she says that a state attack on Israel would be treated like a state attack on the U.S. -- i.e., resulting in the near leveling of the nation that did it.

The big difference between Clinton's saying she wouldn't torture and saying she would "obliterate" is that if the latter statement works as intended, she'll never even have the option to obliterate because the statement will have deterred the attack on Israel. In contrast, the Bush Administration has tortured and the next Administration will have the opportunity to torture.

On a purely political gamesmanship ground, the Democrats are safe in saying no to torture without sounding wussy because McCain is the Republican nominee and has staked out being the pro-war, anti-torture guy. If Giuliani had pulled out his Florida miracle, the rhetoric would be far more contested and we'd be getting a constant refrain of the idiotic ticking time bomb scenario.

(Anyone know whether the torturing of the Al Qaeda figures we captured actually prevented a ticking time bomb from going off? It must have been ticking quite a while considering how long we had those guys in custody before we extracted information from them. It's obvious that many people, like Bart, will countenance torture in situations much more likely to arise than the ticking time bomb, so why bother discussing the implausible scenario except for the cheap debating points?)
 

Whatever happened to "speak softly and carry a big stick"? Statements like this are counterproductive to nonproliferation, and not presidential.
 

It's time to watch "Dr. Strangelove" again.

I wonder if General Petraeus agrees with Lisa's bro's description of the average grunt in combat. In sympathy little bro probably looks under his bed for terrorists before he goes to sleep at night. There are so many of us making great sacrifices compared to the few who may be tortured, like paying $4.00/gal for gas.

# posted by Shag from Brookline

Ya mean all that torture, and gas is still $4.00 per gallon!?

Then torture them harder! Or is there a shortage of water too, now?
 

Bart snaps-to in order to reveal to all us non-coms the harsh truths he learned in war (whether as one of "our soldiers" or "their enemies" is not clear) --

"shag/bb:

"I you care to educate yourselves on the subject of what life in combat is like for our soldiers and their enemies, I would suggest that you start reading the posts by our soldiers and those embedded with them at the so called miliblogs."

Now why on earth would "our soldiers" allow "their enemies" to be "embedded" with them? Is it some sort of top-secret strategy by the cunning veterans of war Bushit and Cheney?

"I am the epitome to civility and empathy compared to these guys and gals."

Must be some sort of encoded military-type message, because I don't see the meaning of that at all.
 

Bart's Bravado --

"Putting aside for a moment our disagreement over what constitutes "torture," as a combat veteran with kin in today's wars, I have no moral qualms over using interrogation techniques which inflict less discomfort than what my men and I have endured during war if it will lead to actionable intelligence allowing my men and I to win the war and get home in one piece sooner rather than later."

Yo, "hero" --

Putting aside the fact that all the non-Bartian experts on interrogation and torture report that torture doesn't produce intelligence of any value, you boasting of making of yourself "and my men" the equivalent of such as Stalin, Mao, Hitler, Tojo, and Saddam Hussein only impresses upon us readers yet again that your "tough guy" act isn't sufficent to either disguise or justify you're being a constant assh*le who rejects the rule of law.

"This logic is not subtle at all."

Oh, not to worry, Bart "Tough Guise" DePalma: We never would have accused you of logic, subtle or otherwise.
 

as a combat veteran

Where and when did you see combat, Bart?
 

Where and when did you see combat, Bart?

# posted by mattski : 8:00 AM


Baghdad Bart claims to have participated in Gulf War I as a Bradley commander.
 

"Baghdad Bart claims to have participated in Gulf War I as a Bradley commander.

"# posted by Bartbuster"

No, I take Bart to be much older than that. I suspect he served on an Alabama Senate campaign as drinking buddy to his pal and hero Bushit.
 

No, I take Bart to be much older than that. I suspect he served on an Alabama Senate campaign as drinking buddy to his pal and hero Bushit.

If that were the case he would probably be our current AG.

According to the info on his website, he graduated from Florida Atlantic University in 1987 with a BA in Business Management.
 

Bartbuster: --

No, I take Bart to be much older than that. I suspect he served on an Alabama Senate campaign as drinking buddy to his pal and hero Bushit.

"If that were the case he would probably be our current AG."

He's certainly qualified, in that he isn't qualified.

"According to the info on his website, he graduated from Florida Atlantic University in 1987 with a BA in Business Management."

On Bart's website? He has a BA in business managment? Has he succeeded in getting his no-bid contracts yet? Or is he not yet big enough to eat at the same trough as KBR and Halliburton?
 

Has he succeeded in getting his no-bid contracts yet?

Why would they bother to give him a contract when he's willing to carry their water for free?
 

A Google search on Bart Depalma is actually very entertaining. Over at ABC News he is trying to convince people that a recent Pentagon report which said there was no connection between Iraq and Al Qaeda actually said there was a connection between Iraq and Al Qaeda. On his own blog he recently posted that we have found evidence that the WMD was moved to Syria. It's pretty funny stuff.
 

Bart seems to play his 'grizzled combat vet' card with regularity. Not to minimize the sacrifice of those who gave their lives to preserve democracy in Kuwait, but let's face it- Gulf War I wasn't a particularly dangerous war to fight unless you were an Iraqi. American casulaties were significantly less than the single attack on the Marine barracks in Lebanon. The odds are low that Bart endured the prolonged danger and discomfort he alludes to and that our troops are currently experiencing in Iraq. Him repeatedly flagging his service most likely represents some kind of bizarre wishful thinking on his part.
My personal experience with cops and firefighters is that the ones who make the most noise before and after are the yahoos you probably would rather not depend on when shit happens. I suspect the same applies to soldiers.
 

To stop the speculation and get the thread back on topic, I served during Desert Storm as a Bradley infantry platoon leader in 3d Platoon, A Co., 1/7 Inf, 3d BDE of the 3d Infantry Division cross attached with the 1st Armored Division as their 1st Brigade.

My unit fought in four engagements during the ground campaign, the largest of which was nicknamed the Battle of Medina Ridge in which we destroyed a brigade plus of the Medina Tank Division.

Although we took tank, artillery and small arms fire, thankfully the brigade only lost one man and a dozen or so wounded. Thank heaven, no one in my platoon was KIA or WIA. My platoon sergeant's track was chewed up in an artillery barrage, but no one was hurt.

I do not claim to be a "grizzled vet" or some sort of a hero. The heros in my platoon were a couple enlisted guys - one who saved his vehicle by driving out of the artillery when his sergeant freaked out under fire and the other destroyed 15 enemy tanks and BMP infantry vehicles. Like the other 700,000 troops, I simply did my job. That is enough for me.

If you want to continue this conversation, do it over at my blog and not here.
 

Then quit bringing it up, Sarge.
The few times I've come to this blog I've heard alot more about your few weeks of service in Gulf War I than I have in over 50 years from my dad about Korea.
 

If you want to continue this conversation, do it over at my blog and not here.

# posted by Bart DePalma : 10:55 AM


I keep trying to post stuff on your blog, but nothing shows up.
 

Dear Professor Levinson,

You write: ”But why isn't there more debate, not only among academics but among the general public, about a) the morality of any military strategy that depends
on "obliterating" millions of
innocent people simply because they have the bad luck to be living in a country run by terrible leaders and b) the propriety of a view of presidential power that makes it possible for an ostensibly serious candidate for our nation's highest office so casually to threaten such obliteration should another country engage in behavior that, though no immediate threat to American security, we deem sufficiently awful?”


There is a very great deal of debate on these subjects going on in the world, the problem is the US exceptionalism which has resulted in the USA (and far too many of its academics, military leaders and politicians) assuming that whatever the USA determines to do is right and the views of the rest of the world are necessarily wrong.

Take, for example, the unconditional US support for the continued existence of the State of Israel as a specifically “Jewish” state.

The USA is of course unique in that it is the only Western country with a Jewish population greater than that of Israel itself. The late Aba Eban, the Israeli scholar, historian and former Israeli Foreign Minister, wrote in his book "My People" that there were only two episodes during history when the Jewish diaspora was treated justly, firstly in Muslim Andalusia and secondly, currently, in the United States of America.

However, that is not to say that the WASP elites of the USA did not discriminate against Jews just as their forebears in Europe had done - far from it - but the Jewish population of the United States of America has contributed greatly to US political life - out of all proportion to its numbers and as a result, the Jewish lobby is a phenomenon no US President, Senator or Congressman can afford to ignore.

However, even the Jewish lobby does not always succeed in attaining its objectives. At the end of 1945, there were about 250,000 displaced Jewish survivors of the Holocaust in Europe. There was fierce pressure from the Jewish lobby to clear them for immigration to the USA.

A remarkable document is preserved in the Truman Library recording a proposal put by Lessing J. Rosenwald, then the President of the American Council for Judaism, to US President Truman at a White House meeting on 4th December 1945 from which the following is an excerpt:
“The future of the displaced Jews in Europe continues in uncertainty. Their plight - with the rigors of winter ahead - remains desperately tragic. Meanwhile, conditions in Palestine have reached a stage alarming to the peace of the world. We have had sabre rattling, boycott, recriminations, rioting, bloodshed and threats of still more bloodshed….
We urge the following as a basis for fair and peaceful settlement:
1) There shall be a United Nations Declaration that Palestine shall not be a Moslem, Christian or Jewish state but shall be a country in which people of all faiths can play their full and equal part, sharing fully in the rights and responsibilities of citizenship.
2) All official declarations on Palestine in any way discriminating for or against a segment of the population shall be formally repudiated; in their place shall be a renewed pledge of full freedom of religious expression and equality for all in Palestine.
3) Palestine, as a ward of the civilized world, shall receive financial help for the expansion of its economy, and the enlargement of its immigration opportunities.
4) Immigration into Palestine shall be maintained on the basis of absorptive capacity and without privilege or discrimination.
5) Immigration procedures shall be controlled by representative bodies of all the inhabitants of Palestine, in association with properly instituted international commissions.
6) Institutions of home rule for Palestine shall be progressively and rapidly instituted under the aegis of an international commission.
7) The problem of the displaced Jews in Europe shall be treated separately, in the following way:
(a) The above policy on Palestine shall be made known to them.
(b) On the basis of such knowledge a poll shall be taken in which the displaced persons would list, in order of preference, the lands of their choice for their individual resettlement.
(c) Based on these findings, an International Displaced Persons Committee shall, with the cooperation of the United Nations bring about the resettlement of the displaced on a basis corresponding as nearly as possible to their preferences, with countries of the United Nations co-operating to take in a fair number of the displaced. Action by the United States Government to make available unused and current immigrant quotas, and the necessary consular and visa machinery for the immigration of displaced persons of all faiths, would set a high moral example to the rest of the world of our determination to contribute to the solution of world problems and would, in fact, bring about the rapid solution of the refugee problem.”


To his credit, President Truman did seek to obtain support for the opening of immigrant quotas to the USA for the displaced Jewish Holocaust survivors - but ran into rabid opposition from Republican WASPS, not least within the State Department, who viewed with horror the prospect of their nice, segregated suburbs and country clubs being pressured into admitting the Hassidim and other orthodox Jews into their “whites only” reservations.

Despite his inability to get his own people to accept substantial Jewish immigration from Europe, Truman was willing to put pressure on the British to accept massive Jewish immigration into Palestine (he was seeking permits for 100,000 displaced survivors in 1946), even though he knew that such immigration would create problems well beyond the resources of the British to control. The consequence was that we British, bankrupted by World War II (which we had fought alone from 1939 until Pearl Harbour) and faced with a deteriorating security situation in Palestine and no US support, decided to dump the whole problem into the lap of the United Nations.
The rest is history. The UN recommended partition, violence ensued, the Zionists proclaimed the State of Israel which Truman's USA recognised and there has been conflict ever since.

Neither we in Europe, nor I apprehend those in the USA, can every fully understand so complex and historic a conflict as the Arab-Jewish conflict over Israel-Palestine, let alone devise any "instant solution". There are issues of land, of water, of immigration and return of refugees, of human and civil rights, of religious extremism. In large measure, we Europeans played a large part in the creation of the conditions which gave rise to the problems at the origin of the conflict. What if the Crusaders had not sacked Jerusalem in 1099? What if the Christians of Europe had not systematically discriminated against and persecuted the Jewish minorities of the European diaspora - would Zionism have evolved as the potent force it eventually became? What if the Holocaust had not happened - would the guilt-ridden victors of World War II have permitted the Arab-Jewish conflict to develop in the way it did immediately after World War II ? What if the United States of America had taken up in 1945 the wise and humane proposal of the American Council for Judaism and thrown its might behind it?

In a moving stream, one can never immerse one's hand twice in the same water. "What if", is an idle speculation.

But ever since Truman's initial recognition of the State of Israel in 1948, US support for Israel has been unwavering and all too often unthinking - so much so that by now, the USA has created of the Jewish state the only serious military power in the Middle East - and the only one which has a serious arsenal of Weapons of Mass Destruction.

I have always believed that Zionism as a political philosophy was essentially flawed because it was fundamentally racist, but I had hoped that in the fullness of time the Israeli Labour Party ideals of democratic socialism and liberalism would prevail and that Israel would evolve into a human-rights respecting secular state able to live in peace with its neighbours in the region and in particular alongside a democratic human-rights respecting and secular Palestinian state.

Unfortunately, the nature of the Israeli state seems to have changed mightily over the last decades. Its occupation and continuing serious human rights abuses in the Palestinian Territories have shown that occupation and repression of one people by another corrupts the occupier as well as the occupied.

A very nasty form of virulent extremism which, not to put too fine a point on it, regards Arabs as "untermenschen" has lately taken hold in large swathes of Israeli society, in parts of the US Jewish Diaspora and has recently became manifest within influential parts of the US Administration.

By reason of influence of the Jewish and Christian Zionist lobbies in the USA, it has always been difficult for any US Administration to do anything effective to restrain Israel from some of its worst excesses. To make matters worse, the Bush Administration is in the thrall of the US Christian Zionists who played a large part in delivering his electoral victories for him.

Sooner or later, the USA and Israel will come to learn the lesson which other imperial governments have painfully learned (the UK in Palestine in 1948, then throughout the emergence of the present Commonwealth, the French in Indo China and Algeria, the Dutch in the Dutch East Indies, etc.) which is that insurgency terrorism (as opposed to ideology terrorism) cannot be defeated through military means alone. Every terrorist killed becomes a "shahid" and an example to emulate.

Muslims are internationalist in outlook. Just as Jews in the Diaspora have a special interest in Israeli matters, Muslims throughout the world regard the Palestinians as their "brothers and sisters". With the advent of satellite television, Muslims in the Arab world and elsewhere can see the plight of the Palestinian people played out in their homes every night. Commentators remind viewers that that the overwhelming military superiority of the State of Israel is assured by money and arms coming from the United States of America, that Israel has flouted many more UN Resolutions than did Saddam Hussein's Iraq, but that the US has consistently used its veto in the Security Council to protect its ally.

This translates into a conviction that the USA and its allies apply double standards: one standard for Israel and another for the Muslim world. It contributes towards grassroots support for salafist radicals and terrorists.

The latest piece of Clinton idiocy has to be seen in this light - as an absolute gift to the recruiters of terrorists.
 

The consequence was that we British, bankrupted by World War II (which we had fought alone from 1939 until Pearl Harbour)

Much as I admire the resolute British response to Hitler, I'm compelled to point out that Russia was in the War for 6 months before Pearl Harbor.
 

Mark - how right you are - and it is worth remembering that Russian casualties in WW2 dwarfed those of the UK or the USA
 

Gunter Frankenberg, Torture and Taboo: An Essay Comparing Paradigms of Organized Cruelty in LVI American Journal of Comparative Law 403 (2008) has a very interesting article that might be of interest to all.



His Epilogue



“This essay, predictably, does not end with a solution to the problem of torture. At least we may answer, if only tentatively, Niklas Luhmann’s theoretical question whether there are non-renounceable norms. From the discourse on anti-terrorism and torture we may infer that necessity knows no law. To be more precise: necessity knows no non-renounceable norms.

On a more practical note, touching upon the religious dimension of a taboo, one might want to add: whoever advocates “rescue torture” may claim to be more sensitive to the dilemma of police and military decisions in situations of extreme danger. He should be aware, however, that he is signing a pact with the devil.”

Best Ben
 

Just want to say that Bart drives me crazy many times but I really hate when we get into a "Nah Nah NahNah" kind of discussion.

I have deep respect for his service (I was just young enough and just old enough to get to the age of 52 without being drafted for Vietnam or in shape for anything else).

I disagree with him on the torture stuff (you can see a statement I put on my faculty website about how this drives me crazy) and probably many other things, but I just think that the arguments that pull apart his analyses are much more helpful to me and want to encourage people to do that.

Sorry if this is overbearing, which I fear it might appear to be. I am just trying to state what occurred to me in a way that was accurate. If I have overstated something, I apologize.

Best,
Ben
 

Benjamin Davis --

"I have deep respect for his service (I was just young enough and just old enough to get to the age of 52 without being drafted for Vietnam or in shape for anything else)."

On this point we disagree: I don't respect such "service" because I don't consider "service" for the wrong, and or illegal reasons, worthy of respect. I was faced with the Vietnam draft immediately after being graduated from high school. Howeverm before that, I'd read enough to know what US involvement there was actually about -- the cover lies of "freedom" and the like notwithstanding.

Most others had the same opportunity, but rejected or squandered it, believed the lies, and wnet. And then when they cam back, whined about not being treated in ways commensurate with the sense of entitlement for having "served" their country -- though they had other options.

How many times have I been confronted with one of those blame-everyone-else fools boasting of he he "defended" my rights which simultaneously attempting to assert his non-existent authority to determine that I may and may not speak about or say? Too many to count.

"I disagree with him on the torture stuff (you can see a statement I put on my faculty website about how this drives me crazy) and probably many other things, but I just think that the arguments that pull apart his analyses are much more helpful to me and want to encourage people to do that."

With this I agree - and I appreciate when refutations and analyses use wit to make it easier to deal with the tedious.

Bart is obviously a useful foil who brings out the worst in himself and thus brings out the best in others in shredding his conclusions which result from his rejection of the ethical frame "ends and means" and the law he simultaneously claims to defend.

I don't respect hypocrites, even when they are of the rank of such as Colin Powell who "served" in Vietnam, and chose ambition and career over deceny, character, and rule of law, when he was the first to "investigate" -- and cover-up -- the Mai Lai mass murder.

Rank is not a measure of character; and it is a spurious detail to the civilian population. I'm no more impressed by fruit salad than I am by fruit cakes.

"Sorry if this is overbearing, which I fear it might appear to be."

It isn't Benjamin. I for one would like to see you post more than you currently do.

"I am just trying to state what occurred to me in a way that was accurate. If I have overstated something, I apologize."

You said it accurately: Bart is a useful foil by means of which to get out the truth against even his best efforts to insult and disgrace his own country.
 

While I accept Professor Levinson’s twin propositions that we should consider (i) the morality of states having nuclear weapons at all and (ii) the fitness for high office of someone who announces casually that she is prepared to “obliterate” 71 million people, what I do not accept is that these matters have any relevance whatsoever to a discussion on the morality and legality of torture as an instrument of state policy.

Likewise I have a problem with Bart De Palma’s observations on the relative sufferings of the US military and those tortured by the CIA.

“One does not have to go to the extreme of considering doomsday scenarios to compare the CIA coercive interrogation to warfare. Your average day in combat inflicts far more physical and mental pain on the combatants and unlucky civilians than does the CIA's coercive interrogation.”

I have seen Mr De Palma hold himself out on this blog both as a “criminal defense attorney” and as a military veteran (whose total active service apparently consists of 4 engagements during the 1991 Gulf War). With every respect to Mr De Palma, he should well known that he is unqualified to express an expert opinion on the relative degree of pain and suffering arising from participation in combat and that arising from torture. His view is therefore wholly irrelevant.

There is, on the other hand, a simple proposition which I am sure Mr De Palma will have heard in his infancy from his parents and/or his nanny, from his training sergeants, from those who taught him law and from kindly judges on the benches before which he appears: “Two wrongs don’t make a right”.

Torture is absolutely wrong and unlawful in all circumstances. Other wrongs whether committed by others or by the victim of the torture do not make the torture morally right or lawful.

See: A & Ors v. Secretary of State for the Home Department [2005] UKHL 71, [2006] 2 AC 221, [2006] 1 All ER 575 – on line at http://www.bailii.org/uk/cases/UKHL/2005/71.html

If, as Lord Bingham demonstrates, the common law of England had prevailed over the Royal Prerogative and by 1640 had held torture by Royal Warrant unacceptable, I hardly think that even those who subscribe to the originalist heresy would be able in good conscience to argue that the common lawyers who framed the US constitution accidently vested in the new office of President a prerogative power of torture which poor King George III no longer possessed.

The judgment cited above is also important for its discussion of the impact of the Torture Convention and of the European Convention on Human Rights which prohibits also “inhuman and degrading treatment”.

I do not wish to make this post unduly long, but I understand that there is jurisprudence to the effect that the US Bill of Rights guarantees do not apply to non-citizens held by the USA outside the USA.

Our courts have held that that the European Convention on Human Rights does apply to persons held in the custody of British Forces in Iraq – this jurisprudence would be applicable also to all 46 other signatories of the Convention.

This is going to raise for the future very great difficulties for the participation of troops from any Council of Europe State in any joint military operation with US forces for so long as it is not clear beyond peradventure that the USA has ensured human rights protections under its laws equivalent to the ECHR guarantees for civilians or combatants of any kind who come into military or government custody wherever the military operations take place.

So until the USA aligns itself with the rest of the world, it had better not count on assembling future "Coalitions of the Willing" which include European contingents.
 

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