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Is Bush as Threatening As Al Qaeda?:
Perhaps I am misreading this post at Crooked Timber, but, if I'm not, it equates 1) terrorist plots to murder innocent people with 2) efforts to save the lives of those innocent people by seizing and interrogating suspected terrorists. The post isn't clear on the standard it is using to measure harm, but it appears make the claim that the two are "equally awful" and that equivalence may make the U.S. "a threat comparable to that of Al Qaeda."

  Hard to know where to begin if that's the claim. Am I misreading the post? I have enabled comments.

  UPDATE: I plan to blog more on this later today, but have two classes to teach shortly and may not get to it for a bit. In the meantime, check out this response at Moonage Political Webdream.

  ANOTHER UPDATE: A number of commenters have interpreted my post as saying that I think the so-called "extraordinary renditions" policy is A-OK. I have re-read my post a few times, and I can't figure out why some are reading it that way. My point was obviously relative, not absolute: I think it is quite odd to equate the intentional killing of innocent civilians with targeting terrorist suspects for interrogation in order to stop the intentional killing of innocent civilians.

  This doesn't mean that I approve of a particular set of efforts to stop the intentional killing of innocent civilians. I find the extraordinary renditions policy difficult to assess: it's easy to be an outsider to the policymaking process and denounce the U.S. government for being uncivilized, but I wonder how the choices must look to those with the incredibly burdensome task of deciding on whether to have or how to execute this policy. The risks of abuse are very real, and terribly worrisome. Absolutely. At the same time, so are the risks of taking no action at all. I'm not sure what the right answer is, and I'm certainly open to argument on this point. It seems to me, though, that too many people are taking the easy out of simply ignoring one half of the equation and jumping to condemn those who don't as "uncivilized" or the moral equivalent of terrorists. That seems plainly myopic to me.
bts (mail):
You're bringing a surprising additional axiom to Quiggin's argument: that vigilante justice is OK so long as they're our vigilantes. The innocents murdered by Al Qaeda were suspected of oppressing the Middle East. The suspected terrorists seized and tortured by our government should be presumed innocent. At least in the public press reports of these incidents, it appears that we are making an error akin to that of Al Qaeda: giving up on ordered, civilized ways of foiling our attackers and resorting to direct violence.
3.30.2005 9:30am
Gnome de plume:
Hm, in a strict risk assessment, the post may be correct - one's odds of being threatened by a terrorist may be about the same as being "rendered" by the U.S., statistically. Of course, much like being struck by lightning, there are things one can do in to increase the odds in both cases.

If I am correct, and the odds are similar, it does beg the question: are the extraordinary efforts worth it? I mean this on both sides: shipping possibly innocent people off to be tortured on the off chance that a vanishingly small risk may be averted is a horrific thing for a nation to do, and the procedural and moral damage done to the nation is something that I don't see the conspiracy seriously considering. At the same time, it would appear that Australia, at least, is engaged in a rather extreme bit of hand twisting over it.
3.30.2005 9:34am
Hei Lun Chan (mail) (www):
From reading comment 11 and Quiggin's reply in comment 13 of the post, it would seem that he means what you think he means.
3.30.2005 9:48am
Ian Spivey (mail):
That's definitely being implied, but I (and probably CT) rather take issue with your characterization of "2)." John's complaining about the false positives and the "extraordinary rendition," and with good reason. They should be complained about. Actually, that's a good starter question: do you, Orin, or others here, think that it's acceptable if the government picks up a terror suspect, holds him incognito for months/years? And, further, how about if he's sent off to another country to be tortured, as is now being alleged?

My biggest worry about that is when we make mistakes. "Sorry" doesn't really cut it. So what then? The hell are we supposed to do after we interrogated a guy for months while his family thought he just died in a ditch somewhere?

I don't know. I don't think preventing the government from seizing terror suspects clandestinely is going to solve any problems. But maybe we just need a little more disclosure here, like elsewhere in government -- do you think we're really fooling anyone when we magic a terror suspect away? If he's really involved in terrorist plots, wouldn't his co-conspirators assume he's been seized by the "bad guys," and take appropriate evasive action? Is all the secrecy really necessary?

CT's right in one respect -- kidnapping isn't any better just because the good guys do it. The implied broad-stroke comparison between Uncle Sam and AQ is silly and heavy-handed, though. And it makes it harder to take the rest of the post seriously.

His analysis of the POV of Australians, though, isn't ridiculous. If I were an Australian national of Arab descent, I'd be more afraid of getting mistaken for a terrorist while traveling and spirited away than being blown up by a terrorist. Maybe some full disclosure would alleviate some fears.
3.30.2005 9:48am
karl:
Protecting the innocent by torturing the innocent? Sounds more like the practices of Soviet Russia or a tinhorn dictatorship than a democratic republic. Extraordinary renidition is a threat to our values and is aa violation of international law, our treaty obligations, and is one of the reasons so many members of this administration will have "Kissinger" problems travelling abroad once their time in Washington is done.

For those interested, the details are spelled out in TORTURE BY PROXY:INTERNATIONAL AND DOMESTIC LAW APPLICABLE TO "EXTRAORDINARY RENDITIONS" by the Committee on International Human Rights of the Association of the Bar of the City of New York and The Center for Human Rights and Global Justice, New York University School of Law.

- k
3.30.2005 9:55am
Mike Anon:
I agree that what the U.S. government is not "equally awful". It's slightly less awful I suppose.

But your description of their position gives away your bias. This is not simply about "interrogating" suspected terrorists. It's about torture and murder, and an awful lot of the victims are innocent. That you cannot describe the facts honestly tells me you may be less comfortable with your position than you let on (or are willing to acknowledge in public, anyway).

Finally, there's a good case to be made that the U.S. is potentially as big a threat to freedom and liberty as Al Qaeda -- it's because the U.S. is a heckuva lot more powerful.
3.30.2005 9:57am
ggw (mail):
I would say your reading is correct, although I would disagree with your characterization of what the US has done. Aren't we supposed to be The Good Guys, who hold ourselves to a much higher standard than we do our enemies? Isn't that a big part of what has made America great? When did Due Process become a bad thing in the eyes of conservatives?
3.30.2005 10:11am
GMUSL 1L (mail):
Right. Torture of terrorists is EXACTLY the same as murdering innocent civilians, if not worse. CT always provides such cutting, hyperbole-free, analysis.

Hopefully, they'll publish a proof for 1=0 soon. I'd love to see that.
3.30.2005 10:38am
Goober (mail):
"Comparable," not equal. It looks like what he's literally saying is they're on the same order of magnitude. And it's a ... lamentable tendency among some very small minds (and one I wish you wouldn't share) to jump to the conclusion that critics of U.S. policy are somehow always saying that we're just as bad as they are. I can speak from experience, having made the terrible mistake of speculating about logistical military difficulties at a wedding in the South, and suddenly (literally the next moment) being accused of being a Howard Dean fan. (Jan and Dean, maybe.)

And I'll second the comments that if the U.S. is engaging in torture, directly or by proxy, that's a very bad thing. I think that notion stands alone, and needn't always be followed with pieties like, "But of course it's intended in the pursuit of good, and what they do is so much worse."

Further, I wonder about the implication in "efforts to save the lives of those innocent people" that motives are somehow of overwhelming importance (i.e., their importance is such as to overwhelm the practical effects). Not as a philosophical matter (tho' it's hardly irrelevant that a good portion of the world feels that the U.S.'s good intentions pose greater danger to them personally than do all the evil schemes of the world's villains), but just as the corrolary thought to my Holmesean bent that a proper lawyer ought to be concerned with consequences.

Just sayin'.
3.30.2005 10:48am
Mike Anon:
It's true: We're not as bad as people who chop the heads off of innocent civilians! Thus, by lowering the bar to an absurd degree, we've managed to seize the moral high ground. Congratulations to us...
3.30.2005 11:10am
Jeremy Pierce (mail) (www):
Quiggin clearly says the two are equally awful, but I take this to mean that they're morally as bad as each other, not that each is as much a threat to us as the other.

It would be worse if Quiggin really thought the U.S. government was as much a threat to the U.S. as al Qaeda, because that's completely indefensible, but I don't think that's what he's saying. He's just saying that they're morally equivalent.

I'd like to know how he got all this reliable information about all the things the government isn't releasing about all these goings-on, since you'd have to know a lot more than we know to make such a comparison. Maybe he can argue that there's reason to be extremely suspicious, but the claim he's making is much more than extreme suspicion. It's a claim to moral knowledge, which seems to me to require a lot more information than we have.
3.30.2005 11:11am
William Newman (mail):
I don't think that intent is particularly relevant to size of a threat, so while we have good intentions for the harmful things we do while terrorists are only out to cause harm for its own wicked sake (?) doesn't make the harmful things go away. But that's not what I wanted to respond to; let's think about how people measure harm from various threats.

In the twentieth century, out-of-control governments wiped out comfortably more than 50 million of their own subjects -- not counting casualties of war, just purges and exterminations and artificial famines and whatnot. (Stalin, Hitler, and Mao head the list; if you don't want to argue about all the smaller monsters in the long tail, just think about S&H&M and grant 25 million.) Out of a world population of 5 billion people, I make that a 1% chance per century of being wiped out by an out-of-control government, or 0.01% chance per year (or halving the risk if you only think of S&H&M).

Thus, in order for terrorists to pose the same risk of death to a US citizen as averagely-bad modern government, they'd need to kill some 30,000 US citizens per year (or 15k if we halve the estimate). That's not impossible -- one Hiroshima-level bombing every two years would do it, for example. But I don't think it's the most likely outcome in the foreseeable future, and I certainly don't think a worked-once trick for 3k people per 3 years proves its likelihood. On the other hand, I believe that removing restrictions on arbitrary secret arrest, torture, and death at the hands of the executive is a sizable step back from post-Magna-Carta political tech for controlling governments. (At a guess, allowing arbitrary abuse might move 20% of the way toward world-average levels of out-of-control government, while trashing the principle that relevant laws are to be obeyed is worth another 10%.) If you don't believe that, fine; but I don't think it's a particularly out-of-the-mainstream belief. And, realize that to people who do believe the old limits were important in keeping government under control, it is natural to conclude that the wannabe clear-eyed pragmatic realists are unrealistically ignoring a large threat; the threat is not the (secret, but agreed to be small) number of people currently imprisoned, tortured, or kill, but moving toward the dangers of weak control over government. In that worldview, there's naturally a strong whiff of "it can't happen here" impracticality mixed into the usual "it's OK because we're the good guys" moral indifference to deaths under interrogation in secrecy somewhere being excusable by accusations of suspected terrorism. (And as should be clear from the tone of my analysis, I don't think this worldview is particularly silly. I recognize, though, that VC is home to some strong views on validity of slippery sloping arguments, and perhaps they contradict mine.)
3.30.2005 11:38am
Katherine:
I think your finger slipped:

"efforts to save the lives of those (Western) innocent people by seizing and interrogating (and sending to Syria and Egypt to be tortured) suspected terrorists (several of whom turn out to be innocent)."

I don't think we're morally equivalent to Zarqawi, but come on. This post is actively misleading. For a group of alleged libertarians this blog is remarkably okay with state-sponsored torture.
3.30.2005 11:59am
Tony (mail):
I think it is a mistake to get wrapped up in the abstract labelling of countries/groups as "good" or "bad" in some absolute sense. The relvant question is, are we achieving our goals?

Perception of the United States as an agent of terrorism is justified by many known examples, the Abu Ghraib incident being only one of them, and is a significant problem to US foreign relations. The perception is probably more important than the actual number of innocent detainees or tortured-to-death suspects. And this perception is likely a barrier to achieving national security.

IMHO, I don't believe that the major motivation in the "war on terror" is eliminating international terrorism; it seems to be more about placating a reactionary American public. The risks of terrorism before 9/11 were well known, and generally not taken seriously. 9/11 was mostly a symbolic crime, not very significant in its physical impact but profound in its psychological impact. Similarly, it is the war of perception that the US must pursue, and this is a war that doesn't seem to be going very well at all. It doesn't matter how "good" or "bad" the US actually is; what matters is how good or bad the US appears.
3.30.2005 11:59am
Ian D-B (mail):
I think you've gotten it wrong. They're not upset because we're interrogating suspected terrorists. If that's all that we did then it wouldn't require rendition. The issue is that we take people who might possibly be guilty, but we can't prove it, and then have them tortured.

Your basic misreading comes from when you make replace their use of the term "extraordinary rendition" with your "seizing and interrogating suspected terrorists." Like I said, these two are simply not the same. They never said that the interrogation of suspects after say, 9/11, was the moral equivalent to what al Qaeda does. Their only point is that we now tacitly endorse torture, and apparently mainly in the cases where we have the weakest evidence, since in the cases where we do have evidence they'd love to put on a big public trial.
3.30.2005 1:00pm
flaime:
I think Crooked Timber's statement is a little extreme. But, by the same stance, the Bush administration's apparent stance that the end always justifies the means has created extremes in abuses that are as morally repugnant as terrorism: ghost prisoners who disappear to never be heard from again; turning people over for certain torture, even if we aren't doing the torturing ourselves; doing the torturing ourselves; kidnapping. None of these things should be acceptable in a nation of laws, yet our president and his administration have acted many times in a way that indicates they consider themselves above the law.
3.30.2005 1:02pm
Katherine (mail):
It's the omission of the possibility that these "interrogations" include torture in not just a few cases but in every single case that I know of, and the possibility that innocent people may be "rendered." It looks like a complete whitewash to me. And you're actually still doing it.

If you would genuinely like to see more information about the practice, I have a 42-page paper on the subject I can send you--email me at the address given in this post.

There was a time when it wasn't clear what to do to these detainees other than "render" them. This was the situation in 1995 when Clinton started the modern rendition policy. I think it was a terrible failure of leadership on his part, even then, but that it is beside the point. Now there is no question that there are alternatives. There is Guantanamo. There is detention and interrogation in the country where the suspect resides. There are secret CIA facilities. There is material witness detention. There is the military tribunal system. There is detention on immigration charges--if someone is granted deferral of removal under the Convention Against Torture &they're a threat to the community they can certainly be detained. It's no good to say that the ACLU disapproves of all of the rest of these too--they may,though not in all cases but the ACLU is not making policy here, and all of those options currently exist whether the ACLU approves of them or not. All of those options are preferable to sending someone to near-certain torture in Syria or Egypt. This is especially true because information obtained under torture is at worst worthless and at best includes a lot of false information with the true information. Having Egypt and Syria torture for us makes this even more difficult: we don't know if they confessed to this after sleep deprivation, or they fingerprinted a "confession" fabricated by intelligence officials after days of electric shocks. We don't know if they'll tell us everything. We don't know that they'll stop even when it's completely obvious that the suspect is innocent. And certainly the ticking time bomb hypothetical, never very plausible to begin with, cannot possibly apply here.

And in fact, we DON'T "render" the most important suspects any longer. By all accounts they are sent to the CIA facilities abroad. We render people when it's convenient, more or less.

Under Clinton it was mainly high-level people who I am almost sure are guilty. That's no longer true. I don't know how typical the Maher Arar case is, but more or less the only evidence against him seems to have been two other "confessions" coerced under torture in Syria from Canadian citizzens. They've also now both been released and not charged--this doesn't make their innocence clear, obviously, but Canadian police have said it's more likely than not.

It would be nice if you bothered to do even minimal research about this subject before justifying it. But it's not surprising.
3.30.2005 1:04pm
Ian Spivey (mail):
Response to the second update, and a clarification: I don't think most people here are accusing you of endorsing extraordinary rendition, torture, or anything like that. The more I think about it, the more I agree with you -- that's pretty much what he's doing.

It's just sad, because he makes a couple good points. I realize you're not saying his whole argument is crap (or at least you haven't so far), just that the comparison is crap. And that I can get on board with, especially after what Moonage pointed out about the source material.
3.30.2005 1:09pm
Ian Spivey (mail):
One more time -- looks like people are accusing you of endorsing torture after all, my bad. As much as Quiggin's comparison was stupid, it looks like you're characterizing extraordinary rendition as "efforts to save the lives of those innocent people by seizing and interrogating suspected terrorists." And it's a lot more than that, which you clearly appreciate. Just doesn't quite come across that way in your first two sentences.
3.30.2005 1:19pm
Katherine (mail):
I am. Denial of a proven human rights violation is a form of defending it. Characterizing extraordinary rendition as "efforts to save the lives of those innocent people by seizing and interrogating suspected terrorists" is a whitewash and a denial that should be explicitly corrected, not half-heartedly backed away from.
3.30.2005 1:22pm
Katherine (mail):
(Quiggin's comparison is still dumb, though--not least because it gets us into a useless argument about moral equivalence, rather than examining the U.S. policy on its own terms. To me it's obvious that we're not as bad as bin Laden or Zarqawi; it's equally obvious that "not as bad as Al Qaeda" is not the standard we measure this country by.)
3.30.2005 1:26pm
OrinKerr:
Katherine,

My apologies if you see my failure to describe the renditions policy accurately as mounting a defense and justification of those aspects that I fail to describe. As I hope my update makes clear, that was not my intent.
3.30.2005 1:29pm
Katherine (mail):
thanks.

I am probably a little tetchy about the subject from overexposure to it. I realize the details of the policy are not common knowledge. But they are all publicly available.
3.30.2005 1:35pm
OrinKerr:
Sounds like you need a blog!
3.30.2005 1:38pm
David T. Beito (www):
Atrocities of this type are almost inevitable when major powers go into the business of putting down insurgencies. For some of us, the best solution is to avoid these wars in the first place. For others, it is to indulge in comparisons about who is "more awful" or "less awful."



While such comparisons are not unimportant, they only impoverish the debate if they sidestep the broader institutional context including questions of whether it is proper for the U.S. to get into these situations (counterinsurgency, bringing "democracy" to benighted lands) in the first place.

3.30.2005 1:42pm
disinherited (mail):
I think the equivalence being drawn in the article (such as it is) reflects how "felt" the power of America is around the world as compared to terrorist groups, rather than the inherent "badness" of the people involved.

To the rest of the world, I think having Al Queda and the U.S. is kind of like having as houseguests a scorpion and an elephant. The little one lacks any charm at all, slinks about unseen, and can be lethal if you get in the way of its scorpion intentions -- but, by the by, we take precautions and grow used to it, and life goes on somewhat as normal. The big one, amiable though he often is, can be felt even when he is not in the room. He can kill you by accidentally sitting on you. Not much in the way of heavy work can be done without him. And heaven help us all if he ever goes ballistic.

With apologies to Aesop and perhaps George Orwell, I think that is what leads people to compare the US and Al Queda. It is not that Aussies or anyone else think Americans are as "bad" as Al Queda. It's just that we can kill you in so many more ways.

A final note - it is important to pursue the highest possible standards in the treatment of suspects, and we have historically pushed and pulled on the appropriate limits of state power in this respect. That power expanded rapidly on 9/11 when we faced a national emergency - a devastating blow from an unseen power with unknown abilities to inflict further harm. As the situation has stabilized a bit, and as details about the inevitable abuses come out, it is time to push back and limit that governmental power. National emergencies will be met the best way they can be met, and then you have to sort it out. That's not a good thing, but it's the way it is.
3.30.2005 1:46pm
Katherine (mail):
Had one. Most of the posts on the Arar case at Obsidian Wings, which Quiggin links to, I wrote. I've done more research since then, however.

I thought a law degree would be more useful in the long run.

David--I think this is an excellent point about the Iraq war, but while there are other issues about the treatment of detainees in Iraq to put it mildly, rendition is not really related to the Iraq war. It predates it by close to a decade, and there are no cases that I know of where someone was taken from Iraq. The struggle against Al Qaeda is not something we have much choice about.
3.30.2005 1:50pm
Chris Bertram (mail) (www):
I haven't been in touch with John about his post so this is just my take on this.

Your quotation from the original CT post is selective and misleading. You write:


that equivalence may make the U.S. "a threat comparable to that of Al Qaeda."



But in the original JQ wrote (emphasis added by me):



Australians are right to regard at least some aspects of US foreign policy as a threat comparable to that of Al Qaeda.



The "at least some aspects" is crucial here as is John's specification of what those aspects are:


An unknown number of people have been kidnapped, then shipped to torture chambers in unknown locations.... it's likely that in most cases, the victim simply disappears and is never seen again.



Since it is plausible that -- "terrorist suspects" or not -- many of the victims of extraordinary rendition are innocent persons, denied due process, tortured and perhaps killed, it hardly seems outrageous to suggest that this kidnapping, torture and killing carried out by a state is morally on a par with the very same acts perpetrated by non-state actors.

This judgement depends on it being true that "in most cases, the victim simply disappears and is never seen again." But if that were true -- and it may not be -- then I don't see that your indignation about "moral equivalence" is soundly based.
3.30.2005 1:55pm
Gary Imhoff (mail) (www):
A year ago, almost to the day, I wrote about Crooked Timber: "For the past few years, I've been reading a number of blogs, and I've noticed that several bloggers write with a combination of immaturity and arrogance for which I've finally settled on the perfect word: callow. Callow bloggers can be as crude as Atrios, as facile as Matthew Yglesias, or as sophisticated as several members of the Crooked Timber group blog, but they are all smug and condescending when they attack their intellectual betters, and smugness and condescension are important elements of being callow" (http://www.dcwatch.com/themail/2004/04-03-31.htm).

Crooked Timber writers are engaged in a perpetual quest to prove their superiority -- another element of callowness. They do it most frequently by attempting to display superior knowledge. ("You, of course have not read the complete À la recherche du temps perdu. Ah, you have? But not in French, surely? Ah, you have? In the handwritten manuscript? No? Gotcha.") But when they're being lazy they do it simply by parading anti-Americanism as a badge of superiority. Whether the writers are English or Irish near-Europeans, or provincial colonial Australian and American far-from-Europeans, they demonstrate that they are better than their fellow nationals by identifying with the attitudes of the more sophisticated, more cultured, more civilized peoples of the continent.

For example, the cowboy Bush is so primitive that he thinks he can make a clear distinction between good and evil, whereas we of the Crooked Timber are sophisticated enough to recognize that being a terrorist and fighting against terrorism are morally equivalent. And that crude Orin Kerr may be so simple as to read John Quiggin's post as drawing that moral equivalence, but isn't Quiggin's posting written cleverly enough merely to imply that equivalence without ever actually stating or endorsing it? And isn't that the game?
3.30.2005 2:08pm
OrinKerr:
Chris,

Just to be clear, is your point that my description is "selective and misleading," or that my description is essentially accurate but that the underlying claim is justified?

Assuming the latter, and that the issue is moral equivalence, I think there is a sound moral distinction between intentionally targeting innocent persons and accidentally doing so. You seem to bypass this distinction by claiming that it is "plausible" that "many" persons targeted in the latter case are actually innocent, and by then focusing exclusively on the subset of possible cases where error occurred. But I don't think that works. Unfortunately, every attempt to target guilty individuals has a non-zero error rate. Normally, however, we don't draw a moral equivalence between those efforts and the intentional targeting of innocent persons. What am I missing?
3.30.2005 2:12pm
Mike Anon:
Mr. Kerr, you speak of "the risks of taking no action at all." This is a straw man, as nobody is arguing that we should take no action at all.

For one, we have all the traditional tools available to law enforcement, such as legal techniques of interrogation that do not involve torture, and criminal prosecutions.

Advocates of torture often raise the "ticking-time-bomb" scenario, in which a failure to get quick answers from a suspect leads to a great loss of life. But there's a solution to this:

At common law, defendants could raise the defense of necessity, arguing that their actions were justified as a lesser evil. Unfortunately, the Supreme Court recently ruled in the Oakland Cannabis Buyers case that no such defense exists to federal criminal charges unless it appears in the statute. But Congress could put such a defense into the federal torture statutes, for starters.

That would not make torture legal. We could and should prosecute government officials for torture. But if they can convince a jury of their peers that they believed they were saving many lives, and the belief was objectively reasonable, then a jury could acquit them. (And if the defendant really did save many lives in doing so, what jury would convict them?)

That would be far better than giving government official free reign to torture, as we appear to be doing now.
3.30.2005 2:14pm
Chris Bertram (mail) (www):
Orin,

I think that's a perfectly sound distinction and you are right to say that I bypassed it. So if all of those targeted by extraordinary rendition are suspected AQ operatives then I'd concede without qualification. If, on the other hand, some of those kidnapped are people with a merely tangential relationship to AQ who are thought to have useful intel, then there's a problem. And by "tangential" I mean someone whose connection is sufficiently empheral that they ought to enjoy the normal immunities of noncombatants. If someone were kidnapped just because they happen to be the cousin or brother of a terrorist that wouldn't count as an "attempt to target guilty individuals".
3.30.2005 2:24pm
Glenn Bridgman (mail):
I think the elephant and the scorpion analogy is on target. Quiggin is (I hope) not contending that on some absolute moral scale the US is comparable to Al Qaeda. Despite the enormous evil which is "extraordinary rendition," ramming a airliner into a skyscraper full of innocent civilians is quite clearly worse. However, the US government is so much *larger* than Al Qaeda that smaller wrongs can easily beget greater evils. Even counting the extreme leverage modern technology can grant to a dedicated following, Al Qaeda's ultimate power is pretty limited. The US Government, in contrast, is enormously powerful; this is an institution which quite literally has the power to bring about Armageddon. So in terms of the *threat* posed by these respective organizations, America is a reasonable, even clear, choice. It seems that, as putative libertarians, this should be obvious to you.
3.30.2005 2:27pm
Kieran (mail) (www):

Whether the writers are English or Irish near-Europeans, or provincial colonial Australian and American far-from-Europeans, they demonstrate that they are better than their fellow nationals by identifying with the attitudes of the more sophisticated, more cultured, more civilized peoples of the continent


That's a new one on me: Self-hating semi- and non-Europeans!


("You, of course have not read the complete À la recherche du temps perdu. Ah, you have? But not in French, surely? Ah, you have? In the handwritten manuscript? No? Gotcha.")


I think I must have missed that CT post. Care to link to it? Or is excerpted from the Crooked Timber that exists only in your mind?
3.30.2005 2:54pm
rjh:
Most of my relevant comments have been made, but there is one aspect of the Australian response that has not been made. (Let me note that I am dealing with the Australian response and not the Crocked Timber commentary.) The Australians are aware that an Australian citizen was recently released without any charges after being kidnapped in Europe (likely by Americans), tortured, and turned over to the Americans. So that risk is quite apparent. The original polling question was one of risk, not morality, so I will limit my response to risks.

The unemphasized risk is one of proportionality of response. Is the US response proportional to the danger? Al Queda eliminated a military threat from the Port Authority and collocated CIA staff in the World Trade Center. Risking 50,000 bystanders to eliminate a couple hundred police who try to prevent smuggling and illegal immigration is not proportional. It shows the wildly disproportionate response typical of terrorists.

So how is the US response viewed for proportionality? Hundreds of innocent people are taken and tortured. (I limit it to hundreds of innocents by limiting it to those that are released as innocent by the US. The reality could be much higher.) A city of over 300,000 is leveled to eliminate a few thousand rebels. The litany can go on. Are these responses proportionate to the threat?

In contrast, Europe has dealt with terrorists from the IRA, Red Brigades, ETA, etc. They too have employed brutal police actions, but somehow have escaped leveling cities. They have employed security methods to find and capture their terrorists, but have avoided the absurdities of the US TSA and customs attitudes.

In the eyes of many (not all) Australians the US response is highly disproportionate to the danger. Now you add the elephant versus scorpion effect. Which is more worrisome, an elephant known for wild over reactions or a scorpion known for wild over reactions? Many people will consider the elephant more dangerous. They know how to protect themselves from the scorpion's excesses. They cannot protect themselves from the elephant's excesses.
3.30.2005 3:10pm
H:
You beg an important question when you write that extraordinary rendition consists of "targeting terrorist suspects for interrogation in order to stop the intentional killing of innocent civilians." The Red Cross estimated that 80-90% of the prisoners at Abu Ghraib are innocent, and many of the prisoners at Guantanamo are obviously innocent. Such a high percentage of innocent prisoners suggests that they are not even terrorist suspects, but are random victims who happened to be in the wrong place at the wrong time. 108 have reportedly died in U.S. custody; this includes the 26 that the U.S. Army has admitted killing (i.e., torturing to death), plus those that the CIA and other Americans have killed. The moral difference between Bush and Osama bin Laden is becoming less and less clear.
3.30.2005 3:23pm
Gary Imhoff (mail) (www):
Kieran Healy, in his 2:54 p.m. comment ot my 2:08 p.m. comment -- how self-referential blogs quickly become -- misreads me completely. Kieran seems to think that I am saying the members of the Crooked Timber troop are "self-hating," when the truth is exactly the opposite -- I believe they have an excessive amount of self-regard.

Kieran also pretends to believe that my parenthetical send-up of a Crooked Timber posting on Proust is meant as an actual quotation. To adopt a Crooked Timber tone: "That is a parody. Surely you have heard of parody?"
3.30.2005 3:29pm
richard (mail):
>>terrorist plots to murder innocent people with 2) efforts to save the lives of those innocent people by seizing and interrogating suspected terrorists>>

A somewhat tenditious phrasing. Consider (2) US plots to murder or torture presumptively innocent people based on little or no evidence of wrongdoing, thereby increasing worldwide terrorism and diminishing the moral authority of the US to achieve its objectives.
3.30.2005 3:44pm
John Quiggin (mail):

It was a mistake on my part to say "equally awful" since this gets us into pointless arguments about moral equivalence. But the practices are awful and contribute greatly to the fear of US foreign policy I referred to.
3.30.2005 4:05pm
Will Anon (mail):
From Richard:
>>"A somewhat tenditious phrasing. Consider (2) US plots to murder or torture presumptively innocent people based on little or no evidence of wrongdoing, thereby increasing worldwide terrorism and diminishing the moral authority of the US to achieve its objectives."

Hold on a second now. Aside from the questions over whether we ought to have a policy of rendition, which is a different issue, you are implying that our anti-terrorism forces are murdering and torturing clearly innocent people. What are you talking about? The people making the decisions with regards to implementing renditions are professionals. They are the people who had their hands tied in the days before 9/11 and are doing everything they can do to prevent it from happening again (Gorelick memo). What you are saying is that the US has a policy of intentionally murdering and torturing people they know are innocent ("US plots to murder or torture presumptively innocent people"). That is a heck of a claim. Where is the evidence behind this?
3.30.2005 4:21pm
karl (mail):
In many ways we may be a a bigger threat to liberty than al-Qaeda. Everyone is rightfully repulsed by al-Qaeda, with that said, al-Qaeda could never replace 200 years of liberty with a fear driven repressive regime that punishes dissent, permits Americans to be disappeared for weeks on end, to be held incommunicado, and to permit US taxpayer dollars to be used to torture those who would disagree with their government. The ultimate question is whether Americans have been rendered abroad, that has yet to be answered, although there are some limited press reports that YES they have. If true who is safe?

Al- Qaeda (aka human scum) can never conquers us and could never impose the deprivations of liberty we have seen recently. Only we can do it, and we have.

Liberty is at risk, and not by the hands of al-Qaeda.

- k
3.30.2005 4:22pm
Mike Anon:
"What you are saying is that the US has a policy of intentionally murdering and torturing people they know are innocent..."

Read his post carefully -- he said presumptively innocent. See, in this country, we presume someone is innocent until proven guilty. Or at least, we used to. Apparently, it is now acceptable to presume someone is guilty and then torture them.

Second, it is entirely foreseeable and inevitable that a policy designed to seize large numbers of persons based on flimsy evidence will also sweep up innocent persons. So yes, we know that at least some (probably many) of the people we're detaining and sending off for "interrogation" are innocent.
3.30.2005 4:31pm
Henry Farrell (mail) (www):
>>Kieran also pretends to believe that my parenthetical send-up of a Crooked Timber posting on Proust is meant as an actual quotation. To adopt a Crooked Timber tone: "That is a parody. Surely you have heard of parody?"

Parodies usually (a) are funny, and (b) parody something. Would you like to point us towards a post that even vaguely resembles your purported parody?
3.30.2005 4:31pm
John Bravenec (mail):
I think they phrase you may want to re-read is the one that ends with "at least some aspects of US foreign policy as a threat comparable to that of Al Qaeda."

He's definately saying there are similarities but not claiming equality.

The degree of similarity, I suppose, depends on how we define moreal equivalence
3.30.2005 4:51pm
Will Anon (mail):
Read his post carefully -- he said presumptively innocent. See, in this country, we presume someone is innocent until proven guilty. Or at least, we used to. Apparently, it is now acceptable to presume someone is guilty and then torture them.


Yeah, well, what happens when you can't convict them in a court of law—not because they aren't guilty, but because if you introduce the evidence against the terrorist into open court you are going to kill the CIA case officer (of which we have very few) that infiltrated the terrorist cell, or otherwise compromise intelligence assets. Look, I will readily admit that renditions are not perfect. But, is there a better solution. What do we do in the above case? After the recent Supreme Court decisions we can't hold these people as enemy combatants. I don't think military tribunals are legal for them (though my reading on this was last done a couple of years ago). What is the government supposed to do, leave them be? Not have them interrogated? Last time, we did that with Moussaoui and it didn't work.

There has to be a process set up for rendition where levels of guilt/innocence is evaluated before someone is sent packing. This policy will be tested in court, and the DOJ likely has set up procedural safeguards to prevent excesses. I think that is where the "presumptively" comes in. That being said, no system is perfect. However, an imperfect system is preferable to no system at all.


Second, it is entirely foreseeable and inevitable that a policy designed to seize large numbers of persons based on flimsy evidence will also sweep up innocent persons. So yes, we know that at least some (probably many) of the people we're detaining and sending off for "interrogation" are innocent.


As was said above, any system like this is going to wrongly implicate innocent people. People seem to have problems with the fact that the evidentiary standard for rendition is lower than that we accept for our domestic criminal courts (at the very least, the process is not public, though I would assume that the standard is not "beyond a reasonable doubt" in order for someone to suffer rendition). That being said, what is the policy trying to prevent? I would argue that the likely consequences of a murderer getting off are much less serious than those of allowing a terrorist to not suffer rendition. Thus, should the standard be lower? Yes, with safeguards (Congressional oversight?).

This, however, brings up what exactly rendition means. If we don't have very good, hard evidence that the person suffering rendition is in fact a terrorist or terrorist supporter, then I have a problem with sending him/her to a jail where very bad things can happen.

By the way, I still resent the remark that the government is intentionally plotting to murder presumptively innocent people based on little or no evidence of wrongdoing. Again, where is the evidence for this other than bias against the US anti-terrorism efforts? I doubt very much that people are suffering rendition based on "little or no evidence of wrongdoing," especially the "no evidence of wrongdoing" part. There are anti-terrorism agents who spend every day trying to both protect the American people and not go too far overboard in the process. They take their job very seriously, and don't want to put innocent people through rendition (much like judges used to agonize over criminal sentencings in the pre-Guidelines days). Implying that they do this based on little or no evidence without information backing you up is wrong.
3.30.2005 5:03pm
Ian Spivey (mail):
Will Anon, you're doing the same thing you're accusing Mike of doing -- you assert that "there are anti-terrorism agents who spend every day trying to both protect the American people and not go too far overboard in the process," when in fact the whole process surrounding extraordinary renderings is kept completely secret. The fact is, we don't ever know why these people are taken into custody, except for the vague assumption that they're involved in terrorism. And since we're supposed to be holding ourselves to a higher moral standard, I really don't think "it needs to be a secret so we don't give away our intelligence" cuts it. Maybe if we subject that claim to a judge's review, as clandestine government activity (at least against US citizens) used to be, before the PATRIOT act. I don't buy that our judges can't be bothered or trusted with that kind of information.
3.30.2005 5:27pm
Mike Anon:
" ...if you introduce the evidence against the terrorist into open court you are going to kill the CIA case officer (of which we have very few) that infiltrated the terrorist cell, or otherwise compromise intelligence assets."

I don't buy it. Courts look at evidence from anonymous confidential informants all the time in looking at warrant affidavits. If there's any doubt about the authenticity of the statements or reliability of the informant, the court looks at the evidence in camera and rules on it accordingly. Why couldn't the same thing be done in these sorts of cases?

"What is the government supposed to do, leave them be? Not have them interrogated? Last time, we did that with Moussaoui and it didn't work."

Last time I looked, the government is going to try Moussaoui in a criminal trial. If they lose, it's because they don't have the evidence, or they screwed up their own case by violating umpteen different laws in the course of it.

"an imperfect system is preferable to no system at all."

You still haven't explained why the usual system of criminal prosecution is the same as "no system at all".

"People seem to have problems with the fact that the evidentiary standard for rendition is lower than that we accept for our domestic criminal courts"

People also seem to have problems with the fact that this "fact", as you call it, is not backed up by any laws whatsoever, but is rather a system devised entirely by the executive branch in a unilateral assertion of power. What do you all have against the other two branches of government anyway? Whatever happened to checks and balances and separations of power? Does the Constitution mean anything at all anymore? Does it even enter into your argument at some point?

"There are anti-terrorism agents who spend every day trying to both protect the American people and not go too far overboard in the process."

But they've already demonstrated quite clearly that they are plenty capable of going too far. Witness Abu Ghraib. Witness the dozens of deaths occurring to persons in custody at Bagram Airbase. Witness cases like Maher Arar's. Do you not read the news?

I'm sorry, but any claim that the citizens of this country can simply put blind trust in this kind of "professionalism" was demonstrated to be utterly without merit a long time ago. And history has demonstrated time and again that when one element of a government acquires unchecked power, it tends towards the abuse of that power. That's why the Framers of our Constitution had the infinite wisdom to build checks and balances into all three branches of our government -- checks and balances that you now seem to want to ignore.

That's how the rule of law works in our system. The executive branch doesn't just get to run amuck, wartime or not. If you have a problem with this setup, amend the Constitution.
3.30.2005 6:31pm
Gary Imhoff (mail) (www):
Henry Farrell, the co-founder of Crooked Timber, has now (4:31 p.m.) responded to my reply (3:29 p.m.) to Crooked Timber contributor Kieran Healy's comment (2:54 p.m.) on my comment (2:08 p.m.) about Orin Kerr's posting. Enough. I promise never to add to this thread again, but I must say that if a third Crooked Timber contributor weighs in on what is admittedly a diversion from the main points of this discussion I shall have to conclude that the wrong blog has named itself a conspiracy.

Henry is not amused by my suggestion that Crooked Timber tends toward pretentiousness in its attempts at one-upsmanship, and wants me to search the lumber yard to find examples. Sorry, but I faithfully read your blog daily, and that's enough. I am cruel enough, however, to quote Henry's interests as he lists them on his personal blog, http://www.henryfarrell.net (click on "Personal"):

"My personal interests include the following, in no particular order.

"Literature: My taste in literature is shamelessly haphazard and eclectic, ranging from the erudite (Sir Thomas Browne, the early Beckett), to the vulgar (the mystery thrillers of Donald Westlake), and touching a variety of points in-between. I've a particular weakness for good speculative fiction - favourite authors include Gene Wolfe, John Crowley and China Mieville.

"Music: See above, under eclecticism. Includes, but is not limited to weird electronic experimentalism (Amon Tobin), psychedelic pop (the Boo Radleys), minimalist folk (Cat Power), down-home murder ballads (the Handsome Family, Johnny Cash)."

Judge for yourself.
3.30.2005 6:57pm
SMGalbraith (mail):
What has made the US efforts in the war on radical Islamic terrorism so enormously difficult - and has led to disturbing and unacceptable errors - is that the terrorists have violated all of the rules of conventional war. That the US has rounded up innocent people is largely, not exclusively admittedly, due to the fact that the terrorists do not use such things as identifiable uniforms or other signatures to distinguish them from the civilian populace. It seems to me that this half of the equation, as Orin Kerr notes, is being overlooked by those condemning - for the most part with some merit - US actions in this conflict.

Again, the US had made egregious and terrible decisions in the conduct of this war. But I believe - color me naive - most arise out sloppiness, fear or stupidity (factors that in the past, for example, led to the internment of more than 100,000 Japanese-Americans by FDR) engendered by the fact that the past rules of conduct do not apply here. This is an entirely different war that no modern nation has had to confront.

Let's be blunt here: if the US engaged in the types of tactics that the terrorists do - no uniforms or identifiable elements to distinguish them from non-combatants - and the enemy falsely arrested civilians or improperly treated those they arrested - it seems to me that at least some criticism would be directed at the US for engendering such responses. Am I wrong?

Yes, we should and must hold the US to a higher standard than the terrorists. But should we hold the terrorists to no standards at all? Are there actions at all responsible - in part - to some of these mistakes such as the US holding innocent Iraqs?

The equation being examined here seems incomplete to me.
3.30.2005 7:06pm
Katherine (mail):
It is ridiculous that bin Laden refers to the "war criminal Bush." There's an arguable case that Bush and Rumsfeld are war criminals; there is simply no question at all that Bin Laden is. But look--this is not new to the war on terrorism. Guerilla wars are not a new phenomenon. Terrorism is not all that new a phenomenon. And torturing innocents is a lousy way to defeat them, as well as utterly immoral in its own right.

There's got to be a way to do this without an utter betrayal of the best parts of two hundred years of our history. Military tribunals or court martials, with real protection for the innocent, and such emergency stopgaps as are necessary. If it's not legal--well, even now it's less clearly illegal than rendition. But if it's not legal let's make it legal.
3.30.2005 10:11pm
Doc Rampage (mail) (www):
I can't help but point out an absurdity that has occurred in two of these comments; they are just to annoying to pass by. The phrase "at least some aspects of US foreign policy are a threat comparable to that of Al Qaeda." is not less damning than to say that "the US is a threat comparable to Al Qaeda". It only needs for X to have one "aspect" that is as dangerous as Y to make X as dangerous as Y.

At least some aspects of tigers are as dangerous as bears. Oh, sure, tigers have the aspect of being pretty, and that aspect isn't as dangerous as a bear, but the teeth and claw aspects, now those are as dangerous as a bear. Consequently, the whole tiger --pretty stripes and all-- is as dangerous as a bear.
4.1.2005 2:43am