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Marty Lederman on the McCain Amendment:
Marty Lederman, recovering from ankle surgery (feel better, Marty!), offers a four-part reaction to the McCain amendment banning torture. Here is Marty's summary of what the law will be, and then there are three posts of analysis: The Good, The (Potentially) Bad, and The Ugly. All very much worth reading. The gist:
  For all of the very substantial virtues of the McCain Amendment, there remains a serious risk that the Administration will apply it in a very narrow fashion that could materially undercut Senator McCain's intent. There are potential pitfalls with respect to both of the Amendment's two substantive provisions — and there remains the lurking spectre of a Commander-in-Chief override.
  Check it out.
Nicole Black (mail) (www):
If there are loopholes in the law,there's no doubt in my mind that the administration will find them and apply them to narrow the restrictions on torture.
12.17.2005 8:28am
Medis:
Nicole,

Unfortunately, you may well be right. But perhaps the Administration will be sufficiently fearful of further legislation.
12.17.2005 9:01am
amn (mail):
I think that it's too difficult to define, and thus outlaw, torture. The ammendment's greatest strength is political. If the administration is again caught using torture or torture-like techniques it will be very obvious that they are doing so against the wishes of Congress. Even if they can get around the law, the political consequences will be much more costly.
12.17.2005 11:10am
Tom Dunson (mail) (www):
To the extent that the administration can find loopholes in this abominable law, that's an unambiguously good thing. The preening moralizing of this bill's supporters has been disgusting, and demonstrates that they care more about sticking it to the administration and the military than about protecting American lives. The fact that these people -- including McCain -- feel no need to distinguish between cutting off the gentials of a suspect, versus and keeping his jail cell cold or confronting him with fake menstrual blood, really tells you all you need to know. Of course, the fact that the President would show his trademark lack of spine in caving in to McCain's dangerous demands is equally telling.
12.17.2005 11:18am
John Jenkins (mail):
Torture (real, honest to God torture) is already illegal and punishable under federal law (or the UCMJ depending on the perpetrator). This is just an homage to McCain's considerable ego and perhaps another piece in his "I want to be president" puzzle.
12.17.2005 11:53am
Eric:
Thanks Tom for that check. Confinement by infidels is humilitating. Must be torture.

Huge difference between broken bones and broken egos. Decapitation vs humiliation. Tough choice. At least I haven't heard complaints over no cable television. RIP Stockdale, perspective, and stoicism.
12.17.2005 11:56am
Eric:
Huge respect for McCain, but I wish he'd address the interpretations of torture that include anything outside requests for name, rank, serial number...
12.17.2005 11:59am
Huggy (mail):
McCain is bad luck. Everything he touches that I know about was bad for him and all involved:

-Aircraft Carrier explosions
-Captured on airstrike he demanded he be included on
-So called "campain finace reform
-Leader of the gang of 14

He's a Rino through and through. The Mancurian candidate should have been about him. His ammendment means the next German Goober will be dumped in the ocean after they determine he's nothing.
12.17.2005 12:29pm
Medis:
As we discussed elsewhere, the McCain Amendment, like the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, also prohibits cruel, inhumane, or degrading treatment or punishment that does not amount to torture (as, in fact, the name of the Convention explicitly states).

So, it is a red herring to argue that some of the prohibited treatment would not amount to torture.
12.17.2005 12:50pm
Frank Drackmann (mail):
Liberals and RINOs always end up making things worse for the people they want to help. All thats gonna happen is the captured terrorists will get tortured in a 3rd country so that its technically ok. Personally although I'm a nice guy, I'd volunteer to jank out Osamas fingernails and stick sharp needles in his eyes even if he does talk.
12.17.2005 1:07pm
Huck (mail):
I hope these torture fan guys posting here are trolls. Really.

Otherwise, the US are way down the slippery slope.

Europe lives with terrorist lunatics for around 40 years now and had more innocent victims killed than the US.

They even dried up many of the lunatic groups, making the background ideology unbelievable to the supporting environment of these groups (Action Directe, Baader-Meinhaf, IRA).

All without torture. Au contraire.
12.17.2005 1:15pm
John Jenkins (mail):
Medis, what is the point of what you wrote? Is anyone arguing that the McCain bill doesn't cover actual torture? I thought the argument is that it is too broad and covers interrogation techniques well below what one would consider torture. Here again, the argument is over definitions (i.e. what is torture?) rather than anything substantive, but oooohhh how the pro-McCain side has painted anyone who questioned them with the pro-torture brush.

Huck, you might want to look into the activities of some of those Eurpoean intelligence services whom you believe succeeded without torture (and you might want to look at why most Eurpoean terrorist groups ceased to exist: follow the money, as they say).

I started to read the Lederman "analysis" in good faith, but as soon as we got to the "these people are pro-torture" part aimed at people who had unequivocally stated they did not approve torture, but who disagree with him on the definition, I just stopped; knowing there's no point to reading the rest of it if he's going to be unfair to his interlocutors and misrepresent the actual disagreement. I'm not sure what happened to philosophic charity in disputes, but I'm damn sure something did.

This is the upshot of the argument against the McCain amendment, for those who actually care:

(1) Torture is certainly wrong (though there may be times when the defense of necessity should come into play, think "ticking time bomb," but that doesn't make it less wrong, just excusable in the extreme situation).

(2) Physical and psychogical interrogation methods short of torture (smacking around, yelling, threatening) can be effective tools.

(3) We want to ban (1) torture, but still be able to use effective, non-lethal, not-permanently harmful methods from (2).

I would submit that McCain fails because it is too broad and overinclusive. It may well be that is the best rule we can come up with is overinclusive. But the debate surrounding the McCain amendment has been fraught with mischaraterizations of where the problem actually is, with one side arguing that the other side is pro-torture (which is largely untrue) and the other side arguing that its opponents are pro terrorist(which is largely untrue). I say largely because there may well be people who *are* pro torture and pro terrorist, but they are outliers.

McCain may well do exactly what its opponents believe it will: hamstring our investigative efforts. It may not. My opinion is that most of the people we capture are just putzes without a clue who have no useful information to give us so the effect will be marginal at best, but in those marginal cases, the effect might be huge. Of course, now McCain is a fait accompli, but the next time there is a terrorist attack and the military or intelligence services are faulted for failing to predict it, will there be anyone asking whether it might have been prevented but for the McCain Amendment?
12.17.2005 1:38pm
Fishbane (mail):
Wow, the armchair torture fans are think and plenty here. And it is odd that I am repeatedly called a liberal for wanting bright line rules on practices perfected by the Soviets.

Suppose the McCain Amendemdment does go too far: so what? The most effective interrogation methods are still available. Perhaps we get a reputation for treating captives well. (!) Perhaps we don't get incorrect intelligence that leads us to war. Is that so truly awful?
12.17.2005 2:30pm
John Jenkins (mail):
Wow, the armchair torture fans are think [sic] and plenty here.

Are you out to prove my point for me?

And it is odd that I am repeatedly called a liberal for wanting bright line rules on practices perfected by the Soviets.

Talk about non-responsive. The divison is pro-McCain and anti-McCain, not pro-torture &anti-torture, or pro-terrorist &anti-terrorist, or even liberal &conservative. (Given, however, that most of the Soviet fellow-travelers in the West were "liberals," I think this would be an example of irony if it were true.)

Suppose the McCain Amendemdment does go too far: so what?

I've already responded to this: it might hamstring our investigation efforts. It might not. Some debate on the point might be useful, rather than a cacophany of TORTURER!! and TERRORIST LOVER!! (or armchair torture fan)

The most effective interrogation methods are still available.

What might those be? Why do you believe they are most effective?

Perhaps we get a reputation for treating captives well. (!)

So you're saying either we (1) don't have such a reputation now, or we (2)don't treat captives well. Except in the outliers, (2) is not true. I'm not sure that (1) is even true, but if it were that is good. It's much better to have a reputation for harsh treatment of prisoners than it is to actually have to do it. Perhaps the fear will motivate some people. In any event, a better reputation with whom would be an appropriate question.

Perhaps we don't get incorrect intelligence that leads us to war.

So you're saying that intelligence gatered pre-Iraq War was gathered through torture, or what you believe is torture? Has anyone actually made that claim?

Is that so truly awful?

No, probably not, but you've presented a false dilemma so it's not really relevant.
12.17.2005 2:57pm
Roger (mail):
To all the true Patriots and veterans out there, are you signing the petition to revoke McCain's veterans status, because of his hatred of America and the military and his love of the Democrats ?
12.17.2005 3:14pm
Eric:
Good points by John. My educated guess is that prisoners in most countries would prefer US custody.

I agree that threat of pain and bodily harm does not lead to credible info, but I'm not so sure about threat of humiliation.

I agree with Sen McCain that our interests are not served by allowing torture as practiced in the Hanoi Hilton, but I fear that PC interpretations of torture are too broad. We shouldn't forget to openly distinguish between systematic and intolerable practices, and between psychological coercion and permanent physical injury. I suppose I'm pro-torture for the attempt to make such distintions though.
12.17.2005 3:46pm
Huck (mail):
My educated guess is that prisoners in most countries would prefer US custody.

Over what? Russian, Chinese or Arab Custody? Agreed.

But I am quite sure I would - as a prisoner suspected of being a terrorist - prefere being in Swedish or Swiss custody over the US alternative.

Very much.
12.17.2005 3:51pm
Huck (mail):
@John Jenkins

What might those be? Why do you believe they are most effective?

We have decades of experience about that. It is condensed in the Army Field Manual (the old, not classified, version).
12.17.2005 4:06pm
Fishbane (mail):
John -

I just lost a fairly long response to a browser goof, and I don't have the time to recreate it.

Summary:
- Attempting to reframe the discussion away from torture is hilarious, but not what I'm talking about.
- Practicing interrogators will tell you that building trust, manipulating information and keeping the target talking works much better than, say, suffocating and beating someone to death. Of course, it depends on the goal - if your goal is intimidation, then by all means, Soviet methods are great.
- Finally:

So you're saying that intelligence gatered pre-Iraq War was gathered through torture, or what you believe is torture? Has anyone actually made that claim?
Yes.
12.17.2005 4:45pm
PersonFromPorlock:
Huck,

The Baader-Meinhof gang exited the scene via three separate-but-simultaneous suicides whilst immured in a high-security German prison. Doubtlessly, they only did it to annoy.
12.17.2005 4:45pm
Huck (mail):
The Baader-Meinhof gang exited the scene via three separate-but-simultaneous suicides whilst immured in a high-security German prison. Doubtlessly, they only did it to annoy.

The Baader-Meinhof gang killed their last victim more than 13 years after the deaths of Baader and Meinhof.
12.17.2005 4:50pm
Fishbane (mail):
Oh, one thing I forgot to include there: John - you seemed to take my "armchair torturer" comment rather personally. Please note that I was responding to several posts, not you personally. I do intend it as provocative rhetoric - I believe in a bright line rule here, and frankly have trouble understanding the moral basis of those who would equivocate. (Eugene's qualified support for torture is at least based on a process of law - I still completely disagree with it, but that approach is at least distinguishable from legalizing "enhanced" methods to be used wholesale against people who cannot appeal to a legal framework or whose treatment is subject to oversight and review by a civil authority.)

Honestly, I simply don't understand those like Krauthammer.
12.17.2005 5:01pm
David Berke:
I'd like to know the grounds upon which we can justify different treatment of suspected terrorists (remembering that we can be certain that some number of those who are arrested, are in fact not guilty) from other criminals, such as serial killers, and those who are involved in plotting future criminal actions (robberies, kidnappings, etc.) ? Is it merely the amount of possible harm? If so, might not some who are labeled as terrorists be less likely to cause harm than certain criminals?

I'm certain that someone will say citizenship, but that will not always be applicable, and may suggest surprising treatment of other non-citizens.

This is a legitimate question. Hopefully I will not be assailed as an uber-liberal terrorist loving commie, but I'm not holding my breath.
12.17.2005 6:32pm
Thomas (mail):
Fishbane, if you believe in "bright line rules", you can't favor the McCain amendment. The language is, as might be expected, unusually capacious. If one were a government agent looking for direction, one would need to consult a lawyer, not the text of the law.

The terrifying thing, to me, is that it seems pretty clear that we've punted this to the courts, and that the courts are stocked with idiots. The inevitable result of this legislation (and recent litigation) is that the government will kill more suspected terrorists rather than capturing them. And, of course, we'll have litigation about whether a particular target was, prior to his untimely death, already under the "control of" the US, and thus that his death (and, in particular, his apprehension of his death) is a legal wrong.
12.17.2005 7:00pm
PersonFromPorlock:
The Baader-Meinhof gang killed their last victim more than 13 years after the deaths of Baader and Meinhof.

OK, sloppy history on my part but it doesn't invalidate my point, which was that far from being kinder and gentler, European authorities were, at the very least, remarkably careless about the survival of terrorists they captured.

Given the number of Bader-Meinhof deaths in custody (Meinhof also committed suicide in a high security prison), I suspect your line "All without torture. Au contraire" may be a little optimistic.
12.17.2005 7:00pm
Humble Law Student:
David,

You Uber 3lite COMMIE. Just kidding!

Good question. I know my and other's rationale, however, I'm not sure if SCOTUS has directly addressed your point. I direct you to Ex Parte Quirin. It isn't entirely on point, but I think the court's holding is instructive. Basically, we can treat them differntely because by engaging in warfare against the United States they both abrogate any citizenship rights they otherwise would have and also place themselves outside of the protections normally given to state vs. state combatants.
12.17.2005 7:16pm
Humble Law Student:
Also, by those individuals fighting against the US they automatically disqualify themselves from a normal criminal persecution (at least in that particular case), while they also fail to meet the requirements for a normal POW. Hence, the "unlawful combatant" term.
12.17.2005 7:18pm
Robert Schwartz (mail):
"there remains a serious risk that the Administration will apply it in a very narrow fashion that could materially undercut Senator McCain's intent."

First good news I have had all week. McCain is a man of exquisitely bad judgment, I would sooner vote for a talking duck for President, than for him.
12.17.2005 7:19pm
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12.17.2005 7:23pm
Fishbane (mail):
Fishbane, if you believe in "bright line rules", you can't favor the McCain amendment. The language is, as might be expected, unusually capacious. If one were a government agent looking for direction, one would need to consult a lawyer, not the text of the law.

I don't see that as an argument against it. The best may well be the enemy of the good, and given the rather expansive view of executive priviledge demonstrated by this administration, I will take what I can get, even if I wished for more. Thankfully, even a supermajority of the President's own party agreed. (Putting aside the redefinition of the Army Field Manual - that isn't McCain's fault, that's dirty poker.)

The terrifying thing, to me, is that it seems pretty clear that we've punted this to the courts, and that the courts are stocked with idiots. The inevitable result of this legislation (and recent litigation) is that the government will kill more suspected terrorists rather than capturing them. And, of course, we'll have litigation about whether a particular target was, prior to his untimely death, already under the "control of" the US, and thus that his death (and, in particular, his apprehension of his death) is a legal wrong.

That's an interesting viewpoint. As I see it, all channels of government are stocked with idiots. How can it be otherwise, unless one believes we have a remarkable array of elected officials that rise above our historic average? If I'm right on that, then we're left to muddle through. I, personally, would rather delegate the janitorial dutys of law to those who carefully reflect upon the law and implications, rather than an executive who, via job description, must act quickly. If you remove the review of courts, I don't see how one ends up with anything other than the executive being, for all practical purposes, above the law. Make no mistake - the law is an ass. That is both the best, and worst, thing one can say about it. And it is how we historically have distinguished ourselves from other nations.

Finally, I don't see how not being able to torture means that more "suspected terrorists" will die. Unless I'm misunderstanding you, you mean that, since we can't torture, they are worth less as intelligence assets, so we'll just kill them. If I do understand correctly, that misapprehends so many things that it is difficult to sort out. For starters, the "suspected terrorists" we've dealt with in Iraq were, by the Pentagon's own figures, ~90% innocent of any wrongdoing. If you're argument is that it is more moral to torture them rather than kill them, allow me to suggest that those aren't the only two options on our menu. That a "suspected terrorist" can mean everything from an Iraqi cab driver to Padilla just muddles things so much that it is impossible to talk about what is going on.

Again, I won't speak for others, but what I want is a bright line rule, oversight, and accountability. How is it that people who consider themselves conservative are against these things? That bastion of liberal radicalism Bainbridge talks about this more eloquently that I can at the moment.
12.17.2005 8:31pm
davod (mail):
Huck:

You are mistaken. Europe has not lived with terrorism for 40 years without resorting to torture. You just do not here about it in the MSM and blabbed by the politicians. You may want to research the history of France in its own country, not just the dominions.

Additionally, the Euoropeans became expert at double talk. Talking tough while releasing terrorists to achieve a level of false security. Just look at the Germans after the Munich massacre and the Italians after the Achilo? Lauro.

You also forget. With the exception of waterboarding (which I consider borderline) we are not talking about physical torture but psychological coercion.

The end result of the legislation will be to give enemy non umiformed combatents and terrorists the same rights as common criminal defendants in the USA. Non uniformed combatents and terrorists have never had these protections and do not deserve them now.

There were originally two reasons for the protections given under the Geneva Conventions. Uniformed combatants and the protection of civilians.

We always think of the protections to the uniformed combatants. What is lost, or hidden from discussion of even the most qualified legal talent, is why the strict requirement about uniformed combatants being covered.

Non-uniformed combatants operate cover of the civilian population leading to the real chance that civilians will be killed during military operations. The conventions make the distinctions in protection to stop this happening.

Over the past years the international community has watered down provisions to include not only physical torture but any form of coercion. Playing loud music, temperature variations, lying, improper handling of the Koran (without white gloves).

War is not pretty., and fighting terrorists is even harder. No matter how hard the lawyers try there is no answer for every occasion.

The more you try to quantify the treatment of non-uniformed combatants and terrorists the less chance we have of winning this war.
12.17.2005 8:52pm
Rock (mail) (www):
Charles Krauthammer's objections to McCain's amendment were right on the money, in my opinion.

McCain was quoted in a news magazine saying, when asked about a "ticking time bomb" scenario, that "You do what you have to do." In other words, McCain was suggesting that his amendment is designed to give people a warm fuzzy feeling about how the United States of America prosecutes the war on terror, but it isn't meant to be obeyed in all circumstances.

We need to replace people like McCain with people who take the role of a legislator seriously. A serious legislator would be clear about what treatment is banned and what treatment is allowed. Instead McCain just gave the country more legal confusion.

Further, McCain has stated that torture doesn't generate useful information. But then McCain tells the news magazine that "you do what you have to do" when a ticking time bomb scenario presents itself.

McCain can't have it both ways. If torture doesn't generate useful information, why make an exception under a ticking time bomb scenario?
12.17.2005 9:19pm
Medis:
John,

My point was just that McCain's Amendment intentionally and explicitly tracks the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by prohibiting more than just acts that amount to torture.

I agree that those who talk about this issue solely in terms of torture are over-simplifying. So, on the one hand, it is not necessarily the case that those who oppose this Amendment are "pro-torture." But, on the other hand, it is wrong to say that McCain somehow has an absurd definition of torture, or cannot distinguish between torture and other acts, simply because his Amendment prohibits more than just torture. And again, that is because it intentionally prohibits more than just acts amounting to torture.

By the way, I might note that you specifically argued that because it went beyond prohibiting torture, which is already illegal, this Amendment was merely "an homage to McCain's considerable ego." But the United States has in fact signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. However, we did so with a Reservation that its prohibitions would not be self-executing. So, McCain's Amendment is executing our treaty obligations under the Convention, as required by our Reservation.

Of course, I realize some people think that we should withdraw from the Convention. But obviously McCain and a sufficient number of lawmakers disagree with that proposition.
12.17.2005 9:29pm
Medis:
Rock,

You seem to discount the important of "giving people a warm fuzzy feeling about how the United States of America prosecutes the war on terror." But don't you think that is a pretty important consideration?
12.17.2005 9:33pm
CrazyTrain (mail):
So you're saying that intelligence gatered pre-Iraq War was gathered through torture, or what you believe is torture? Has anyone actually made that claim?

And John Jenkins shows us all that his only newssource for the last three years has been Glenn Reynolds, NRO, Rush Limbaugh, etc. FYI: People have not only made the accusation, it has been pretty much proven. Go look up the case of al-Libi. But you don't care, you like disastrous wars based on bad intelligence. Unless of course you had to fight. John Jenkins=chicken-hawk. Squak. Squak. Squak. Chickenhawk.

And save me the red-herrings that we are not "really" torturing. Almost drounding someone, and freezing someone for several days and dousing cold water on them while they have to stand for several days is torture. But hey, at least we are better than the Saddam Hussein and Yasser Arafat, as those are the right-wing's people who we should measure ourselves against. . . . .

12.17.2005 9:36pm
Rock (mail) (www):
Medis,

The problem with McCain's method is that it is deceptive. He says "You do what you got to do" but pretends that torture never works.

I think we should be willing to face up to the challenge that the war on terror poses. We should be willing to openly say that we will use tough methods to gain intelligence but that some methods will be prohibited.

McCain's amendment doesn't accomplish that.
12.17.2005 9:36pm
Medis:
Rock,

What if "openly" declaring an exception for torture in certain extreme (and unlikely) circumstances would do a great deal of harm to our war effort? Do you still support "openess" in that case, if that is the price you would pay for your honesty?

And incidentally, why should anything be off limits? What if murdering someone's innocent babies was the only way of stopping the destruction of all human life. Would you be willing to do it?

And do you think we should codify an exception to our laws prohibiting the murder of innocent babies? Would being "open" about our willingness to murder babies in certain extreme circumstances would be a good idea?
12.17.2005 9:52pm
Michelle Dulak Thomson (mail):
Rock, I doubt that you're reading McCain correctly. I don't think he was likely saying that torture suddenly becomes legal whenever you happen to need it. I think he was saying that if the alternatives before you are "torture the prisoner, and take the punishment due for having done so," and "see a few hundred thousand people incinerated," people will torture and take the consequences, even if they know that torture isn't especially likely to produce truthful results, and even if they know they'll suffer for it personally. You cannot outlaw torture in these circumstances — or rather, of course you can, but unless you want to legalize torture yourself, you can't hope to deter it.

But this is the sort of thing that belongs permanently outside the law. That is, it should be illegal, and no one should do it for reasons for which s/he wouldn't willingly suffer stiff penalties, by which I mean penalties like death or life imprisonment. There is no excuse for this but saving a great many lives, and if that's the stakes, you have got to be prepared to give up your own; if you aren't, then things aren't urgent enough for you to turn yourself into a torturer.
12.17.2005 9:54pm
Medis:
Michelle,

Although I agree with your post in theory, I do think there is a problem in practice. The reality is that if someone committed an illegal act of torture and saved a great many lives as a result, that person would probably not be severely punished (eg, through jury nullification, or a pardon). So, to be fair to Rock, there is some truth to the claim that in practice our society would treat some circumstances as a defense to a prosecution for torture, even if the law in theory did not allow such a defense.

But I don't think we can successfully codify this sort of possibility--and even trying would likely do a great deal of harm. So, we are left having to accept this possibility of some "dishonesty" in our law, in the sense that we know the law as written may, in very limited circumstances, not be enforced.
12.17.2005 10:03pm
CrazyTrain (mail):
So, we are left having to accept this possibility of some "dishonesty" in our law, in the sense that we know the law as written may, in very limited circumstances, not be enforced.

And more examples of conservatives living in fantasy-land. . . . Are you not aware that this goes on all the time. Some times crimes are committed and there is no prosecution, i.e. they are not enforced. And usually the reason for that is that someone is connected. E.g. Noel Bush and her little drug problem -- no prosecution, gee I wonder why? But now conservatives are soooo concerned about "honesty" in the law, and enforcement of the law. Reading Instahack today, though, I see that no conservatives care about the fact that Bush was blatantly violating clear, unequivocal federal statutes by spying on US citizens in the US without a warrant. No problem not complying with the letter of the law here. The problem with the McCain amendment is that it does not go far enough. We all know that the Bushies will violate unequivocal laws, so they are obviously going to violate this.

One day in the not-so-distant future, people are going to look back at these times and wonder how 50 percent of the population didn't see what was going on in this country with this admittedly criminal administartion. People like Orin Kerr, Glenny-boy Reynolds and others are going to be ashamed of themselves and going to be sent to the dustbin of history, just like the apologists for McCarthy in his day.

12.17.2005 10:19pm
Fishbane (mail):
Medis is correct. Ban the practice, and let the execs sort it out, after there has been an event which violated law.


We are not Leninists. I would hope than many would agree here, but apparently that is incorect - conservatives, as they Identify themselves, apparently disagree. I'm sad, as are most other convervatives.
12.17.2005 10:29pm
Fishbane (mail):
One day in the not-so-distant future, people are going to look back at these times and wonder how 50 percent of the population didn't see what was going on in this country with this admittedly criminal administartion. People like Orin Kerr, Glenny-boy Reynolds and others are going to be ashamed of themselves and going to be sent to the dustbin of history, just like the apologists for McCarthy in his day

Just a response. I don't hold these notions, me, personally. I hope that nobody fair will attribute them to me. Even while I disagree with Orin or Eugene, I respect them. Rather, a lot.
12.17.2005 10:34pm
Michelle Dulak Thomson (mail):
Medis,

I agree with you. Someone who got out of someone by torture the location of the proverbial "ticking bomb" would be popularly acclaimed a hero, and the chance that s/he would be sentenced to anything is, oh, zero.

Someone who tortured someone and didn't get any useful evidence, on the other hand . . . see, this is just what I said: the only circumstances under which you can even consider doing such a thing are circumstances where you really think there's something hanging in the balance compared with which your own life isn't worth anything. You just do not do this unless it's your only hope, and you have to believe it's your last option strongly enough that you would willingly die for it.

I would go further and make torture (I'm not talking "humiliation," but severe, deliberately-induced physical pain) the only capital offense, and I'd enforce that even when the results, intelligence-wise, were indisputably good. Frankly, if I had to torture someone to prevent a massacre, I'd want to die anyway. There are necessary deeds that are still too grim for human beings.
12.17.2005 11:12pm
Lemonjello:
People like Orin Kerr, Glenny-boy Reynolds and others are going to be ashamed of themselves and going to be sent to the dustbin of history, just like the apologists for McCarthy in his day.

I thought McCarthy's apologists were vindicted when the Soviet archives were opened and those that McCarthy accused of being communist were shown to be actual communists. Silly me.
12.17.2005 11:40pm
Humble Law Student:
CrazyTrain,

I am not going to defend the extent of McCarhty's pogrom. However, you heard of something called Venona? and the various other projects that uncovered the breadth and depth of the Communist infiltration. I'm guessing you still think Alger Hiss and the Rosenburgs were innocent. But, I digress.

Maybe you weren't aware that the NSA already have the authority to listen in on international communications relating to terror? So, lets see. Someone in America with terrorist connections + communiation to someone outside of America = International communication subject to NSA eavesdropping. I'm not saying I completely agree with it, but it is a far cry from how you are trying to paint it.
12.17.2005 11:52pm
Humble Law Student:
Medis,

I think many people's problem with McCain's position is that it just cries out hypocrisy. I understand that you don't want to codify "torture." But, maybe there is someway to specify when it would be allowed, without starting us down the slippery road?

Or, do we really have to put it all on the poor CIA agent who faced with a decision whether or not to torture some "ticking time bomb." Is it really fair or just to say, "Well, its illegal, but we still expect you to do it when necessary?" "And just so you know, if you mess it up, your whole career and life is over."

Hardly loyalty inspiring. I realize it is supposed to be a tough job, and that there are tough choices that have to be faced. But, it seems that as a society we are making the easy choice and shirking our responsibility.
12.17.2005 11:56pm
Medis:
HLS,

Yes, I think it is fair. The law cannot explicitly address every hypothetical exception to its rules ex ante, and in many cases to attempt to do so would undermine the efficacy of the primary rule. Moreover, in this case the mere codification of an exception would itself have significant harmful effects, even if in fact the rule was never violated.

And as others have suggested, this is hardly a unique situation in the law.
12.18.2005 12:17am
Michelle Dulak Thomson (mail):
Humble Law Student,

Or, do we really have to put it all on the poor CIA agent who faced with a decision whether or not to torture some "ticking time bomb." Is it really fair or just to say, "Well, its illegal, but we still expect you to do it when necessary?" "And just so you know, if you mess it up, your whole career and life is over."

Damn straight. As I already said, you do not do this unless you think it's your only way to save many lives, and if you are in law enforcement you'd damn well better be prepared to die to do that. So, you torture only when you'd willingly be executed for doing it.
12.18.2005 12:25am
Humble Law Student:
Ouch, well, i guess I'll have to tell the CIA "no."

So, from what I understand from the arguments, instead of providing a criminal "justification" for the action, would it be more along the lines of an "excuse"? (trying to tie it into my crim law) Like under necessity?
12.18.2005 12:41am
Medis:
HLS,

I would actually say this is a Dudley and Stephens situation--the law should not recognize a defense, but commutation might be warranted.
12.18.2005 12:56am
Eric:
Damn straight. As I already said, you do not do this unless you think it's your only way to save many lives, and if you are in law enforcement you'd damn well better be prepared to die to do that. So, you torture only when you'd willingly be executed for doing it.
Seems like the kind of thinking that kills initiative and encourages Senators and other leaders to blame those at the operational level for being forced to interpret vague rules or figure out exceptions/defenses on the spot, under fire, with limited legal training. Thankfully LE will always attract bold types, but we're all better served when law makers share some of the heat by making the rules as clear as possible. If LE makes a good guess within the grey zone and happens to be wrong, they should not burn, especially if they've only tortured someone's feelings. And I don't think there needs to be a grey zone. No physical permanent injury in any circumstance. Temporary distress if good reason (immediate threat), and document for oversight. Anyone who's gone through military training has been "tortured" by some of the thin skin definitions I've seen in the media. Most of this stuff is reaction to broken rules, not followed rules. Tacit approval is a real problem that only gets worse if law-makers distance themselves more from reality. Guidance gets more cryptic, more winking or exception clauses, and more pressure is put on the operators to not only do their jobs but guess congresses intentions.
12.18.2005 2:21am
Kate1999 (mail):
People like Orin Kerr, Glenny-boy Reynolds and others are going to be ashamed of themselves and going to be sent to the dustbin of history, just like the apologists for McCarthy in his day.

What did our host Orin Kerr do? He urged us to read Lederman; is that like being an apologist for Bush? I don't get it.
12.18.2005 2:33am
David Berke:
Humble Law Student,

The problem with your assertion is that it assumes its truth - that they are indeed engaged in such plotting. Some will be innocent; faced with torture, some of the innocent may well confess to crimes they did not commit.

Furthermore, it seems that the definition of terrorist isn't quite what it used to be. My recollection is that the definition has somewhat broadened beyond what we really consider terrorism. Any thoughts on that, anyone?
12.18.2005 2:57am
John Jenkins (mail):
- Attempting to reframe the discussion away from torture is hilarious, but not what I'm talking about.

It's not funny, but that's what you're doing. You are unable or unwilling to articulate what is torture. I *want* to have that discussion, so that we can agree on what we're talking about. When you use the word torture, it seems to mean something different from what I understand it to mean.

So long as that chasm exists, no discussion can be productive. You're proving the definitional problem that pervades the debate and when I want to discuss that, you act as though I am changing the subject when what I am trying to do is *narrow* it. Until we agree on definitions, everything else is a waste of time.
12.18.2005 3:31am
Visitor Again:
LemonJello said:

I thought McCarthy's apologists were vindicted when the Soviet archives were opened and those that McCarthy accused of being communist were shown to be actual communists. Silly me.


What, the McCarthy who said I hsve here a list of names of 100 card-carrying Communist Party members employed in the State Department--and then revealed not a single name?

Or the McCarthy who recklessly called everyone he disagreed with Communists--so many that he was bound to be right about one or two?

McCarthy and his kind ruined the careers of thousands on thousands of decent men and women, put their families into destitution, destroyed their lives and reputations, drove many into exile and some into such despair that they committed suicide. He was a vile and vicious bully parading as a drunken political hack; he, indeed, had no decency, at first or at last. He and his apologists never have been and never will be vindicated. Yes, you're right, silly you.
12.18.2005 4:26am
Medis:
Eric,

That was the point of the Amendment's reference to the Army Field Manual. It provides a list of approved (and effective) techniques for interrogation, and so anyone could simply refer to the Manual and know what things they could do.

Of course, as Lederman points out, if the Administration does push for some sort of special situation, classified portion, to the Field Manual, it then ruins the clarity McCain's reference to the Field Manual was intended to provide. So for just the reasons you give, I hope these efforts to amend the Field Manual in such a way are abandoned.
12.18.2005 9:22am
Humble Law Student:
David,

Sorry, I didn't state my thoughts clearly enough. The system of upheld in Ex Parte Quirin and that currently exists, classified individuals based upon the decision of the CIC or his duly appointed intermediaries, usually the military. That determination is what decides whether they are an unlawful combatant or not. It is the equivalent legal mechanism to the determinations made in criminal courts about someone's status (guilty or not). So, no, I'm not assuming what I am trying to prove.

Unless you are arguing that the determination itself assumes what it is trying to prove. In which case argument is useless, because then you can logically apply it to almost any system in which decisions are made about an individuals status, namely the criminal justice system. And that will lead us nowhere.
12.18.2005 10:00am
Medis:
HLS,

Of course, the Administration making such determinations without judicial review is not really "equivalent" to a determination in criminal court. Indeed, the very idea of such court proceedings is that the executive has to satisfy its burdens of pleading and proof before a neutral tribunal.

By the way, this intitial question of status was not actually an issue in Ex Parte Quirin because the petitioners stipulated to all the necessary facts. There, the only question was whether given their status, they could be tried by a military court.
12.18.2005 10:59am
Humble Law Student:
Medis,

Fair enough, not equivalent, how about "corresponding legal mechanism" for making such determinations?

In Ex Parte Quirin, yes the petitioners did agree to the facts. But, the opinion also explained the process - the military tribunals which were the extension of the CIC's authority to make such determinations. If I remember correctly, the court specifically said there wasn't a requirement for judicial review because the President had the authority to make such decisions under his war powers and his authority as CIC.
12.18.2005 11:44am
Tom Holsinger (mail):
The leading feature of the McCain amendment is how vague and nebulous it is. While that, among other things, leads to absurd results like Miranda rights for foreign terrorists, it in particular leads to a new judicial role in regulating the conduct of war abroad - new in that it is intended to take place while the war is on-going.

You may recall arguments as to whether the war on terror should be a criminal justice or a military process. The McCain amendment is most definitely an attempt to make it a criminal justice process.

It is also intended to let Congress claim the credit for doing something while avoiding potential blame for doing it wrong - vague rules are like that.

Which is one of the reasons the Constitution explicitly made the President the Commander-in-Chief of the armed forces - to give a single person the responsibility, the duty, and the power to wage war.

President Bush has been derelict in his duty of defending the core power of the Executive Branch - war - from encroachment by the other branches of government. This has happened because he has abdicated his responsibility to lead concerning the legal changes required by the first major enemy attack on American soil - a leader he isn't in all sorts of ways.

But there is also enormous institutional inertia and overt resistance to formal change in American legal institutions, which would make it difficult for President Bush to institute necessary changes even if he had the desire to do so.

It has been obvious for four years that existing intelligence and legal institutions are inadequate to deal with the war on terror, but note how there have been zero, zip, nada, overt formal changes in them to do so.
Because they don' wanna go there.

The McCain amendment is another expression of the need for such changes, and it cannot be safely implemented without truly vast overt formal changes in our intelligence and legal institutions such as a national security court allowed to hold secret hearings so it can review classified information (warning, Will Robinson, Warning! Warning! - some government agencies have issues with sharing!)

Many lawyers who have published articles on legal issues raised by the war on terror agree that some form of secret court is necessary. Nothing like that has happened in four years because of institutional inertia as well as lack of leadership by President Bush.
12.18.2005 12:12pm
Tom Holsinger (mail):
Oops, posted before I was finished.

The McCain amendment doesn't give terrorists any greater protection against torture than already exists under federal law. What it does instead is define torture upward as conduct prohibited to regular state and local police questioning American citizens who are arrested on normal criminal charges.
12.18.2005 12:14pm
Markusha:
I think everyone who thinks that we are on a high moral ground when justifying the use of techniques that fall just short of torture should read this peace by Vladimir Bukovsky, a Soviet dissident who had first-hand experience of such techniques.

Bukovsky
12.18.2005 3:16pm
Tom Holsinger (mail):
Markusha,

The problem is that the McCain bill doesn't stop there - it goes on to give terorists all the protection against interrogation of American citizens arrested for ordinary criminal offenses, to the point of absurdity where interrogators are required to give them Miranda rights, and stop asking questions when the terrorists demand attorneys.

If one good thing in the McCain amendment justifies everything else, would that justify a billion dollar appropriation to the Republican Natonal Committee?
12.18.2005 3:37pm
Jack John (mail):
Practicing interrogators will tell you that building trust, manipulating information and keeping the target talking works much better than, say, suffocating and beating someone to death.

Those techniques sound time-consuming. Time-consuming techniques are ineffective in the ticking-time-bomb scenario, in which there is little and limited time.

So, you torture only when you'd willingly be executed for doing it.

This is problematic. The risk of execution is a function of the prosecutor's exercise of discretion to indict, which is a function of the prosecutor's sensitivity to the political climate. If the political climate is rife with politicians clamoring for the head of the torturer, the prosecutor might be likelier to indict and a jury might be likelier to convict. But it is impossible for a potential torturer to foresee what the political climate will be like prior to committing an act of torture. And since your standard is based on the presumption that torturers should be risk-averse, they would vastly underestimate the value of torturing in a given situation (i.e., they would vastly overestimate the likelihood of political fallout after the fact). The result would be less torture than would be optimal from the perspective of maximizing intelligence-transfer from captives to military officials so as to prevent attacks.

In other words, if we adopted your standard, a bomb would go off killing thousands of Americans while terrorists who possess information that could be used to stop that lethal attack were sitting in jail while interrogators ask them questions about that impending attack and they politely declined to answer.

Because the people who would be in a position to torture a terrorist in military custody never want that to happen, they are unlikely to be risk-averse persons like yourself who would prefer to die than to torture a terrorist who produces information that averts a jidahist massacre. They are likely to be people who just want to do their job properly, and whose priorities are in sync with their duty to protect Americans. In which case executing them simply punishes them for doing their duty to protect Americans. Why would you punish someone for taking action to save your life? That seems ungracious at best. At worst, it is a facetious argument, a fallacious argument, and an unpatriotic one.
12.18.2005 4:49pm
Barry:
Visitor Again:

I think reasonable people can disagree about whether McCarthy overreached or not. However, knowing what we do now about the strong support for Communism which infected the Democratic Party, the State Department and came damn well near turning the United States into a left wing gulag, McCarthy has been vindicated.
Surely you concede that the genocidal lies told in the left wing New York Times (e.g., Walter Duranty covering up the deaths of millions at the hands of the left in the 20s and 30s, the Sulzbergers covering up the genocide of Jews perpetrated by the left wing German Socialists during the early 1940s) were far worse than anything that McCarthy or his acolytes ever did.
History will eventually show (maybe it will take another thirty years for all the 70s radicals to die off) that McCarthy was spot on, and that the American left nearly destroyed this country. Similarly, history will eventually show that the far right in this country is basically right about the danger posed by the Caliphate.
12.18.2005 4:54pm
Owen Hutchins (mail):

So, you torture only when you'd willingly be executed for doing it.



You know, I'll go for this one. If it is so important that even torture is reasonable, then you should be ready and willing to die for it if you are wrong.
12.18.2005 5:38pm
Jack John (mail):
If it is so important that even torture is reasonable, then you should be ready and willing to die for it if you are wrong.

You're missing the jurisprudential point that such a law would not be valid law, as compliance with it is impossible. You cannot determine before the fact whether the torturee will have worthwhile information after the fact. It is therefore impossible to avoid punishment without never engaging in torture -- except never engaging in torture means letting thousands of Americans die in the rare situation when torture would produce good outcomes. Such a law is ipso facto arbitrary and capricious. If you think arbitrary and capricious laws are a good idea, you call your credibility on this matter into question.
12.18.2005 5:50pm
Jack John (mail):
Sorry, I meant "impossible to avoid punishment with certainty".
12.18.2005 5:54pm
Jack John (mail):
Let me put it this way: why do you value the lives of our military officers less than the bodily integrity of terrorists? Does that sound patriotic to you?
12.18.2005 5:55pm
Medis:
Jack John,

Actually, torture is generally considered to take longer than many other techniques, if it works at all. The problem is that people can just lie to you, and by the time you find out the lie it is too late. So, you need time to verify, come back, and torture again, verify and come back again, and so on, until they give up lying. This can take an extremely long time, and some people never really break.

So, your best bet in a very short time frame is usually going to be some sort of trickery. Torture most likely won't work, and indeed is counterproductive because it sends a signal that there is still something at stake which is making you desperate, which indicates that lying will be worthwhile.

Incidentally, one of the problems with torture is that people tend to resort to it when they are angry, fearful, or otherwise not acting rationally. So generally there is not going to be an overdeterrence problem with torture, even if the penalty is severe. Indeed, you need a severe penalty to keep people from reacting to high stress situations in what is almost always a counterproductive way.
12.18.2005 6:10pm
Michelle Dulak Thomson (mail):
Jack John,

Because the people who would be in a position to torture a terrorist in military custody never want [a terrorist attack] to happen, they are unlikely to be risk-averse persons like yourself who would prefer to die than to torture a terrorist who produces information that averts a jidahist massacre. They are likely to be people who just want to do their job properly, and whose priorities are in sync with their duty to protect Americans. In which case executing them simply punishes them for doing their duty to protect Americans. Why would you punish someone for taking action to save your life? That seems ungracious at best. At worst, it is a facetious argument, a fallacious argument, and an unpatriotic one.

You misunderstand me. What I was trying to get across is that the only circumstance in which I would be willing to torture someone is one in which I'd gladly lay down my own life. I can imagine such circumstances, and I don't see anything "risk-averse" about certain death.

I don't think you quite understand what we're talking about here. Suppose the only way to get the guy who's about to flood the New York subway system with nerve gas to tell you how to stop it is to bring in his wife and kids, douse them with gasoline, and put a match to them one by one until he talks? I can imagine a desperate but decent person doing even that, but long, long past the point at which he would have sacrificed his own life to avert the disaster.
12.18.2005 6:31pm
Michelle Dulak Thomson (mail):
Jack John,

You're missing the jurisprudential point that such a law would not be valid law, as compliance with it is impossible. You cannot determine before the fact whether the torturee will have worthwhile information after the fact. It is therefore impossible to avoid punishment without never engaging in torture -- except never engaging in torture means letting thousands of Americans die in the rare situation when torture would produce good outcomes. Such a law is ipso facto arbitrary and capricious. If you think arbitrary and capricious laws are a good idea, you call your credibility on this matter into question.

What's "arbitrary and capricious" about it? You torture, you die, whether the "result" is useful or not. Or if you'd rather not bring in the death penalty, you torture, you get locked up for life. (I only mentioned the death penalty because I was trying to stress that you should only torture when you'd sacrifice all you had to stop something happening.) I assume you're arguing that if the torture "works," the sentence wouldn't be carried out. Very likely so; but so what? The idea is to make torture a really desperate measure, something you do only when you have no other options and something much bigger than yourself is at stake.
12.18.2005 6:48pm
Medis:
Jack Johns,

Out of curiousity, have you read Dudley and Stephens? You might want to check it out.
12.18.2005 6:56pm
Jack John (mail):
I assume you're arguing that if the torture "works," the sentence wouldn't be carried out.

Your assumption is obviously wrong. Please re-read my first post. I did not argue that if the torture works the sentence won't be carried out. I argued that whether the sentence is carried out depends on the political climate. What is arbitrary and capricious is that whether the prosecution is sought is dependent on factors that are unforeseeable when the torturer makes his decision. He is not being evaluated on his decision-making, he is being punished if people don't like what he did, regardless of whether the outcome had net positive effects to society.


The idea is to make torture a really desperate measure, something you do only when you have no other options and something much bigger than yourself is at stake.

Please re-read my first post. What you are arguing is that potential torturers should be risk-averse, which is the obviously wrong.
12.18.2005 7:00pm
Jack John (mail):
Actually, torture is generally considered to take longer than many other techniques, if it works at all.

This is false. Waterboarding takes seconds to minutes. Khalid Sheikh Mohammed gave in to it within 3 minutes and gave up info on Padilla, if I recall correctly.
12.18.2005 7:02pm
Jack John (mail):
I don't think you quite understand what we're talking about here.

I don't think you know any people serving in the military.
12.18.2005 7:04pm
Jack John (mail):
(I only mentioned the death penalty because I was trying to stress that you should only torture when you'd sacrifice all you had to stop something happening.)

I don't think you know what risk-averse means.
12.18.2005 7:13pm
Jack John (mail):
Suppose the only way to get the guy who's about to flood the New York subway system with nerve gas to tell you how to stop it is to bring in his wife and kids, douse them with gasoline, and put a match to them one by one until he talks?

This is an irrelevant straw-man.
12.18.2005 7:17pm
vic:
I think all you lawyer types are suffering from a fallacy.

the fallacy is that our laws /constitution / legal principles etc were somehow handed down from heaven and are immutable no matter what.

I ( a non lawyer) take the position that laws are simply rules that allow society and social institutions function with order and predictability. there is nothing godgiven or immutable about them. Ipso facto, if the material situation on the ground ( war against isalmofascists) changes dramatically, we need to alter/ modify our strategies including legal ones in dealing with the new reality.

When you are at war aginst a nation state, it is reasonable to have rules of conduct in a war ( geneva convention etc), as it implies an implicit cose of conduct on the other side as well. So we dont torture the nazi pows to ensure that they dont do the samer to our pows.

We are now dealing with a different adversary, who is a) a non state actor. b) not constrained by any rules of conduct as we define them. So when our guys get captured they get a video taped public beheading. And you guys want us to put their guy in airconditioned cell w cable tv.

A more practical point. in the psycholgy of interrogation, if the detainee knows exactly what our rules of conduct are he has no incentive to talk. However not knowing/ being able to,predict what comes next is probabely an important element in breaking down someones psycholgical resistance.

War " is politics by other means" and it is a dirty business. No doubt. The antics of the chattering class in this country denotes a unfortunate and inexcapable fact. That this nations elites have gotten their minds and fundamental reasoning capabilities so addled by the PC culture that they are largely incapable of startegic thinking. The Mccain amendment is mostly populist hogwash, whose only possible aim can be to allow some to indulge in pious grandstanding. The NYT story about NSA evesdropping on the other hand is frankly treasonous.

BTW as long as we are at it: is there any intellegent articulate and reasonable well read person here who ACTUALLY believes that we went into IRAQ for WMD, and that WMD were not just an unfortunate fig leaf to cover broader and correct geopolitical reasons for going in. Without saying more, the behaviour of the house of saud ( wrt to their domestic jihadists) has taken a subtle and not oft mentioned 180 turn since we went in. could/should we have handled the occupation better- probabely. BUT gosh oh gosh WMD were not wjhat we went in for, and neither is democracy in the islamic world.

And for the Bush=liar crowd, let me just remind you that Statecraft cannot function in an environment of complete transparency. That is probabely why we have a a system of electing representatives ( congress / president etc) and dont indulge in direct democracy too much.

Let me ask you all a question (and be derided as a fascist after that) do you really want to be ruled by the wishes of joe 6 pack ( ie the lowest commen denominator) all the time.
So there are times when secrecy is esenmtial, and there are times when breaking that secrecy is treasonous.

So I for one would like to see some public hangings of some of the NYT crowd- just kidding!
12.18.2005 7:41pm
Michelle Dulak Thomson (mail):
Jack John,

Oh, my.

What is arbitrary and capricious is that whether the prosecution is sought is dependent on factors that are unforeseeable when the torturer makes his decision. He is not being evaluated on his decision-making, he is being punished if people don't like what he did, regardless of whether the outcome had net positive effects to society.

You could say that about a great many laws. Police brutality is probably the nearest parallel. Do we decline to outlaw it because it's likely to be prosecuted more vigorously in some "political climates" than in others? Or when inflicted on X rather than Y?

Risk-averseness: Yes, I know what the word means. I just can't imagine anyone worrying about the state of his own butt if there's a large bomb about to go off somewhere. The point is to limit torture to situations where there really is a large bomb about to go off somewhere, rather than let it spread to cases where it would be really convenient to know something soon, and conventional interrogation is taking time, so what say we break a finger or two?

I don't think you know any people serving in the military.

Not currently, unless you count "knowing" people via their blogs. But my Dad served in the Navy, and my two closest co-workers both served in WWII. Your point?

As for my "irrelevant straw-man," I don't think it's irrelevant at all. We are talking, it seems to me, about what we'd be willing to do to avert a very great catastrophe. If you'd be willing to torture someone to stop a chemical weapon that would kill tens of thousands going off, I assume you'd also be willing to kill. If you'd be willing to kill, and also willing to torture, I assume you'd be willing to torture someone to death as a means of torturing someone else into talking. If not, why not?

Sorry, Eugene. We have gotten rather far afield and not a little personal. If you want me to cease this conversation, I will.
12.18.2005 7:57pm
Humble Law Student:
Vic,

You poor sod. You have just unleashed the dogs of war. I'd run for cover if I were you. Let me help inoculate you a little. Within a few hours, you will have several particular individuals accuse you of being a facist, the next Hitler, and many other choice pejoratives.

You can refer to this threat http://www.volokh.com/posts/1134704543.shtml to get a taste of my treatment if you like.

But, I love your point - I made almost the exact same points in that thread I mentioned above.
12.18.2005 8:11pm
SlimAndSlam:
Waterboarding takes seconds to minutes. Khalid Sheikh Mohammed gave in to it within 3 minutes and gave up info on Padilla, if I recall correctly.


Um, Jack John, I think you may have reinforced Medis' point rather than refuting it. KSM gave up "info" on Padilla after 3 minutes, and it seems to have taken US authorities 3 years to realize (or, at any rate, acknowledge) that Padilla wasn't involved in a dirty-bomb plot, or whatever they were waterboarding KSM about.

In other words, KSM threw the US a straw with just enough credibility to waste everyone's time.

Verficiation is essential.
12.18.2005 8:21pm
Jack John (mail):
KSM gave up "info" on Padilla after 3 minutes, and it seems to have taken US authorities 3 years to realize (or, at any rate, acknowledge) that Padilla wasn't involved in a dirty-bomb plot

That isn't true. Padilla had trained with al-Qaeda and was coming here to complete a dirty bomb plot. He simply hadn't started it yet because he was arrested at the airport upon landing. So how was the information bad? KSM gave up information about an Al-Qaeda operative who was coming here from an Al-Qaeda training camp to carry out an Al-Qaeda mission. You're disputing the quality of the intelligence by saying we can never prove the attack was going to happen BECAUSE the attack was prevented?

That is categorically absurd.
12.18.2005 8:44pm
Visitor Again:
History will eventually show (maybe it will take another thirty years for all the 70s radicals to die off) that McCarthy was spot on, and that the American left nearly destroyed this country.

Since I'm one of those radicals whose deaths you await, I will not be around for the day when you think you will be able to rewrite history. Let me assure you, however, that your efforts will be unsuccessful.
12.18.2005 8:45pm
Jack John (mail):
I just can't imagine anyone worrying about the state of his own butt if there's a large bomb about to go off somewhere.

Someone would under the scheme created by your ridiculous law.
12.18.2005 8:47pm
Humble Law Student:
This whole McCarthy line really is off the point, but for all of your "70s radicals" etc, you might want to read up on the Venona and the other programs which have uncovered the breadth and depth of the Communist infiltration during the Cold War. Unless of course the KGB archives are all part of the Imperialist Yankee McCarthite plot as well...

McCarthy was in idiot, its unfortunate he did what he did. Becuase without him, the "radicals" would have no cover at all.
12.18.2005 8:49pm
Medis:
Jack John,

That is not my recollection of what happened with KSM. I think you are combining two things: that some have claimed he reacted quickly to waterboarding, and that some have claimed that he eventually gave us useful intelligence. But that he actually gave us useful intelligence immediately after being waterboarded is not something I have read.

In general, we interrogated KSM over a very long period of time. So, the fact that he may have eventually yield useful intelligence, and the fact that we may have tortured him as part of this long process of interrogation, does not show that torture would actually work quickly.
12.18.2005 8:51pm
Jack John (mail):
Do we decline to outlaw it because it's likely to be prosecuted more vigorously in some "political climates" than in others?

Actually, yes, we do. We give police officers all sorts of immunities from prosecution precisely for that reason -- you, on the other hand, are arguing that there should be no immunity to prosecution or to punishment for potential torturers. Given the competing considerations, that is like arguing there should be no self-defense justification for murder. Great. If you defend yourself, you're executed. If you don't, the murderer kills you. What a rational law. Worse, You have set up a criminal law without any mens rea requirement (or at least without a concurrence requirement), because there is no link between the quality of the decision you make at the time that you make it and what you do at the time that you do it. It would discourage good-decision making by punishing it for no reason. It would encourage bad decision-making by discouraging good-decision making. You have proposed a bad law. Got it? Why don't you go back to my original post and actually respond to it. But throwing up straw-men and mischaracterizing the terms I have used is simply non-responsive. I did not do that to you. I took your argument seriously. And, seriously, it is a repugnant one.
12.18.2005 8:55pm
Jack John (mail):
That is not my recollection of what happened with KSM.

That is convenient for you, but it is false. He gave us actionable intel immediately after waterboarding. And al-Liri (I think, here I am foggy) upon seeing KSM captured and broken down, broke down and cried and gave up actionable intel. So, torture has good secondary effects as well.
12.18.2005 8:58pm
Humble Law Student:
Maybe we can shift the focus a bit. I don't think we are going to get anywhere on figuring out whether certain types of "torture" provide intelligence or not.

So, let me bring up drugs. I attended a lecture by a former Army intelligence officer named Bauer. He was the lead interrogator for the 3rd armored division in Desert Storm and has been one of the main trainers for army interrogators throughout the 90s. He is strongly against torture and loves the McCain amendment.

However, he argues that any realistic treatment of the issue must deal with the issue of drugs. He says that drugs like Sodium Penathol (?) in conjuction with skilled interrogators allow for fantastic results. He himself has been administered the drug and can attest to its ability. He says that this is something that should be considered. Bauer claims that there are several drugs out there that would be effective without harming the individual, but that we are barred against using them against captives because of some statute or treaty obligations.

Any thoughts?
12.18.2005 9:00pm
Jack John (mail):
Why don't we kill the families of any interrogator who uses drugs on a captive, regardless of the effectiveness of the technique or the number of deaths averted? I am sure Michelle could get behind that one.
12.18.2005 9:07pm
Medis:
Jack John,

If you can provide a link supporting your claim that KSM gave up Padilla immediately after being waterboarded, I'd be interested in seeing it. Although I would again note that to actually contradict my original claim, this would have to happen at the beginning of his interrogation, not after lengthy prior interrogation.
12.18.2005 9:14pm
Medis:
Humble Law Student,

I don't really know much about the efficacy of drugs for use in extracting information provided that the interrogator is sufficiently "skillful". But I do know there is a general suggestability problem, meaning that people under the influence of such drugs also tend to relate back whatever interrogator suggests (consciously or otherwise), which means that confessions in particular under the influence of such drugs are generally unreliable. But maybe this problem is avoidable.
12.18.2005 9:19pm
Owen Hutchins (mail):

You're missing the jurisprudential point that such a law would not be valid law, as compliance with it is impossible. You cannot determine before the fact whether the torturee will have worthwhile information after the fact. It is therefore impossible to avoid punishment without never engaging in torture -- except never engaging in torture means letting thousands of Americans die in the rare situation when torture would produce good outcomes. Such a law is ipso facto arbitrary and capricious. If you think arbitrary and capricious laws are a good idea, you call your credibility on this matter into question.

Well gee, then. Maybe they ought not torture anyone!
12.18.2005 9:24pm
Jack John (mail):
Although I would again note that to actually contradict my original claim, this would have to happen at the beginning of his interrogation, not after lengthy prior interrogation.

You're the one making the controversial claim. You have the burden of proof. Go find your own link proving it was at the end of his interrogation.
12.18.2005 9:35pm
Jack John (mail):
Well gee, then. Maybe they ought not torture anyone!

Maybe people shouldn't kill, either. But that generally valid proposition has little force in the case of self-defense or defense of others.
12.18.2005 9:37pm
Medis:
Jack John,

I don't think there is anything "controversial" about the claim that torture generally takes a long time to work, if it works at all. But if you need independent verification, google "Colonel John Rothrock", or look up any of the other extended discussions of torture by experienced military interrogators like Rothrock.

As for KSM, you were trying to refute my argument by example. So, your example at least needs to fit the scenario: someone has to have given up true information in a very short time frame as a result of torture. And obviously I don't have the "burden of proof" on whether your example fits that scenario--just the opposite.
12.18.2005 9:59pm
Humble Law Student:
Medis,

Thanks for your input.

Is there anyone who knows more about the efficacy of drugs as a tool of interrogation? (i'm referring to non-lethal drugs such as sodium penathol, etc.)
12.18.2005 10:29pm
Jack John (mail):
I don't think there is anything "controversial" about the claim that torture generally takes a long time to work, if it works at all. But if you need independent verification, google "Colonel John Rothrock", or look up any of the other extended discussions of torture by experienced military interrogators like Rothrock.

Attention to anyone who is reading this thread. This is obviously a dodge. The controversial claim was that KSM had not broken within 3 minutes of waterboarding.

Medis claimed that KSM only divulged actionable info at the end of his interrogation because he broke after prolonged interrogation, i.e., he did not break early in his detention and divulge actionable information almost immediately after he was waterboarded (within 3 minutes). When I asked him to go find a source that proves KSM did not break within 3 minutes early in his detention, i.e., find a source that said what he claimed: that KSM broke only after prolonged interrogation, Medis pretended (above in italics) that all he claimed was that in general torture takes a long time to work. In that case, his statement had no application to KSM, so there is nothing for me to respond to.

By the by, ABC news cited CIA sources that claimed KSM broke within 2 to 2 and 1/2 minutes.
12.18.2005 10:41pm
Medis:
Jack John,

I also urge people to read above--but I will excerpt it below for their convenience. What they will see is that you attempted to distort what I actually said, apparently simply because I asked you to back up one of your claims. I leave it to others to judge what that says about your credibility.

What I originally said is this:

"Jack John,

Actually, torture is generally considered to take longer than many other techniques, if it works at all. The problem is that people can just lie to you, and by the time you find out the lie it is too late. So, you need time to verify, come back, and torture again, verify and come back again, and so on, until they give up lying. This can take an extremely long time, and some people never really break."

In reply to this statement, you said:

"This is false. Waterboarding takes seconds to minutes. Khalid Sheikh Mohammed gave in to it within 3 minutes and gave up info on Padilla, if I recall correctly."

And then I said:

"Jack John,

That is not my recollection of what happened with KSM. I think you are combining two things: that some have claimed he reacted quickly to waterboarding, and that some have claimed that he eventually gave us useful intelligence. But that he actually gave us useful intelligence immediately after being waterboarded is not something I have read.

In general, we interrogated KSM over a very long period of time. So, the fact that he may have eventually yield useful intelligence, and the fact that we may have tortured him as part of this long process of interrogation, does not show that torture would actually work quickly."

You replied:

"That is convenient for you, but it is false. He gave us actionable intel immediately after waterboarding."

I replied:

"Jack John,

If you can provide a link supporting your claim that KSM gave up Padilla immediately after being waterboarded, I'd be interested in seeing it. Although I would again note that to actually contradict my original claim, this would have to happen at the beginning of his interrogation, not after lengthy prior interrogation."

You replied:

"You're the one making the controversial claim. You have the burden of proof. Go find your own link proving it was at the end of his interrogation."

I replied:

"Jack John,

I don't think there is anything 'controversial' about the claim that torture generally takes a long time to work, if it works at all. But if you need independent verification, google 'Colonel John Rothrock', or look up any of the other extended discussions of torture by experienced military interrogators like Rothrock.

As for KSM, you were trying to refute my argument by example. So, your example at least needs to fit the scenario: someone has to have given up true information in a very short time frame as a result of torture. And obviously I don't have the 'burden of proof' on whether your example fits that scenario--just the opposite."
12.18.2005 10:55pm
vic:
HLS

"Vic,

You poor sod. You have just unleashed the dogs of war. I'd run for cover if I were you. Let me help inoculate you a little. Within a few hours, you will have several particular individuals accuse you of being a facist, the next Hitler, and many other choice pejoratives.

You can refer to this threat http://www.volokh.com/posts/1134704543.shtml to get a taste of my treatment if you like.

But, I love your point - I made almost the exact same points in that thread I mentioned above."

Looked at your post- and you are correct our points are essentially simillar, LAW is not canonical, it is utilitarian. I think if you are a lawyer esp an academic, and a good one you have spent your whole life building avery logical edifice based on the a priori assumption of axioms. You have taken those axioms to be beyond reproach or question for so long that to question them is like sacrilege.

ergo, an inability to adapt the law or even the thinking of our countries elites to changing circumstances. But isn'tadaptability is the hallmark of intellegence?

So we have this hackneyed churning out of meaningless phraseology, the kind which is replete in the mccain amendment and in the MSM.

I find the complete divorce from reality in the thinking and articulations of the elites of our country profoundly disturbing. Is this the first sign of the defeat/decline of our civillization. I would argue that the inability of a country's elites to be rational actors would be the first step in that direction. And yes, my concern goes way beyond the silly little amendment.
12.19.2005 12:16am
Humble Law Student:
Medis and Jack John,

I'm not purposefully trying to take the "moderate" position, but it seems that you two are talking right past each other.
12.19.2005 1:09am
Medis:
HLS,

Perhaps. Like I said, one can read what Rothrock and others have to say on this subject.
12.19.2005 6:23am
Richard Aubrey (mail):
The McCain business doesn't seem to have a "bright line" in it.

References to the Army's manual don't help, either.

What is "degrading" treatment? Do we ask the prisoner if he feels degraded? Do we ask an American apologist for the prisoner's cause if the prisoner felt or should have felt degraded?

"Cruel"? How do we sell that to anybody who's done pre-season football practice in the Southwest? Or Ranger School? It's a slope, slippery or otherwise, not in any way a bright line.

The reason this may lead to more dead almost-prisoners is that the extremely unbright line means somebody who has a prisoner on his hands may, rightly, think that nothing he does or doesn't do can protect him from prosecution under this law. The ACLU, a wacky judge, a disgruntled subordinate (see Pantano), a reporter trying to look good to his neighbors who uniformly suffer from BDS....
The arbitrary and capricious issues here will be in the decisions to prosecute.
Simpler to shoot the guy.
Or, as Wretchard of Belmont Club observes, turn him over to his countrymen who are unlikely to be worried about McCain.
12.19.2005 9:46am
Medis:
Richard,

The same objections you raise apply to every part of the criminal law. There are many issues that require interpretation and application of the law by courts and juries, and potentially that could encourage people to overreact. For example, the law of self-defense requires the person to have used only "proportionate force", to have had a "reasonable belief" that force was necessary, and the threat must be "immediate". Are any of those elements "bright line" rules? Of course not.

And so might a few people just overreact, making sure the assailant is dead even where deadly force was not needed and then hiding the body? Maybe. But that's cant be a reason not to have a law of self-defense at all (or not law of murder at all, which is what would really be analogous).
12.19.2005 10:20am
Jack John (mail):
WASHINGTON - Sen. John McCain (news, bio, voting record), who pushed the White House to support a ban on torture, suggested Sunday that harsh treatment of a terrorism suspect who knew of an imminent attack would not violate international standards.

The Arizona Republican said legislation before Congress would establish in U.S. law the international standard banning any treatment of prisoners that "shocks the conscience."

That would include, McCain said, mock executions and the controversial technique known as "water boarding," in which a subject is made to think he is drowning.

Asked on ABC's "This Week" whether such treatment of a terrorism suspect who could reveal information that could stop a terrorist operation would shock the conscience, McCain said it would not.

"In that million-to-one situation, then the president of the United States would authorize it and take responsibility for it," McCain said.
12.19.2005 11:24am
Jack John (mail):
Should we execute the President for doing so? Would that be a good law, Medis and Michelle?
12.19.2005 11:24am
strategichamlet (mail):
Vic- "The antics of the chattering class in this country denotes a unfortunate and inexcapable fact. That this nations elites have gotten their minds and fundamental reasoning capabilities so addled by the PC culture that they are largely incapable of startegic thinking. The Mccain amendment is mostly populist hogwash, whose only possible aim can be to allow some to indulge in pious grandstanding."

I find this to be rather insulting. I am an elite, if you mean someone who went to a ivy league university. I suppose I am a member of the "chattering class" since I am a graduate student although I study a hard science. I do not, however, consider myself incapable of strategic thinking. My strategic thinking was deepened and honed by my studies at college where we read and discussed Sun Tzu, Clausewitz, Machiavelli, Fuller, Corbet, Mahan, Hart, Guderian, Jomini, Napoleon, the histories of Thucydides and Livy, and many others. Please give me the name of the great stratgic thinker who will improve my understanding and was overlooked by my professors.
I find it particularly amusing that you end by asking if we really want to be ruled by joe sixpack. From the tone of your question I assume that you do not, however your hatred for "elites" is quite obvious, so I can't help but wonder who do you want to rule?
And yes I have many friends in the military, both active duty and reserve, officer and enlisted.
12.19.2005 11:25am
Richard Aubrey (mail):
Medis.
Okay. There are no bright lines. So people should stop talking about them as if they exist and, especially, as if the McCain business provides one.

But, if things gradually slide from one to another, it follows that some lines are grayer than others. My point is that the McCain stuff and what it will eventually come to in regulations is far grayer than most lines we are used to observing.

The self-defense example you pose is, IMO, stark and gleaming compared to the torture issue. The assailant is either dead or injured or he is not. The defender can claim he was in his home, or, being old, did not think he could flee faster than the perp could pursue. Some variation of this is sufficient and very little else is. I gather that in Florida there is no requirement to flee even in a public space.

Lt. Pantano's career was ruined by a disgruntled subordinate. Hard to see how there is a self-defense analogy.

At this point, a lapel-grab is at least potentially actionable, but how do you get a prisoner whose hands are bound to stand up or get into a truck?
Suppose one of the MPs is female and the POW is dragged out of the truck by her? Degrading? Probably not, but the point is that under McCain it could go to court. To paraphrase Wellington, the next worst thing to a courtmartial lost is a courtmartial won. There is no civilian analogy to being tainted forever in one's career for being found not guilty.



In the battle
12.19.2005 11:29am
Jack John (mail):
In reply to me asserting that torture works in a ticking-time bomb scenario, Medis said: "[To the contrary], your best bet in a very short time frame is usually going to be some sort of trickery." It was after that assertion that I said: "[That torture categorically cannot work quickly] is false. Waterboarding takes seconds to minutes. Khalid Sheikh Mohammed gave in to it within 3 minutes and gave up info on Padilla, if I recall correctly." Afterward, Medis challenged that KSM had broken so quickly. So, as I stated above, "The controversial claim was that KSM had not broken within 3 minutes of waterboarding." Medis, however he wants to slice it, was wrong.
12.19.2005 11:32am
Jack John (mail):
HLS,

Medis knows full well that he is wrong about KSM breaking within 3 minutes. He is just jamming up the thread with nonsense to drive readers away from my points because he disagrees with them politically but cannot invalidate them with reasons. What Colonel Rothrock has to say is wholly irrelevant to the fact that KSM broke within 3 minutes, as reported by ABC news citing CIA sources.
12.19.2005 11:36am
Remus Talborn (mail):
Medis: [T]o actually contradict my original claim, this would have to happen at the beginning of his interrogation, not after lengthy prior interrogation.

Jack John: You're the one making the controversial claim. You have the burden of proof. Go find your own link proving it was at the end of his interrogation.

I think this proves that JJ was not lying. While the two were arguing over who has the burden, they were specifically arguing over whether KSM broke at the beginning or end of the interrogation, i.e., under 3 minutes or after, e.g., ten months.
12.19.2005 11:42am
SlimAndSlam:
Jack John:

KSM broke within 3 minutes, as reported by ABC news citing CIA sources.


Link, please?
12.19.2005 11:45am
Medis:
Remus,

Actually, as that quote makes clear I was just specifying the elements Jack John's proposed example would have to contain in order to count as a counter-example to my claim. I have never claimed that I know when in the process of his interrogation KSM was waterboarded--I have no idea--and Jack John is just making up the idea that I ever asserted such a thing.

And incidentally, all I ever asked from Jack John before was a link supporting his claim that KSM gave up Padilla immediately after being waterboarded. It was after I asked for that link that he started distorting my claims. If that claim about Padilla was a misstatement on his part, that is fine. But I can't help but see all this as an attempt on his part to avoid issuing a retraction.
12.19.2005 12:04pm
Medis:
Richard,

The rule is "bright" in the sense that the prohibited behavior is never allowed, nowhere in the world. That amount of additional clarity is quite welcome.

And I might note that McCain's definition of cruel, inhuman, and degrading treatment or punishment specifically draws on preexisting criminal law under the 5th, 8th, and 14th Amendments. So, his standard is certainly no more unclear than the standard in these other areas of criminal law.

In all seriousness, I think this is a complete red herring. This issue (a lack of perfectly precise definitions) appears throughout criminal law. In practice, that means close questions on these issues are ultimately determined by the trier of fact (such as the jury). But the mere fact that some issues in the criminal law become jury issues is not a reason to abandon the rule of law.
12.19.2005 12:13pm
Richard Aubrey (mail):
Medis.

Can you find, anyplace, where I suggested abandoning the rule of law? Take your time, I've got stuff to do.

I know that there are gray areas in law, but the law of gray areas says that there is a gray area in the law of gray areas and some gray areas are grayer than others.

My point is that this is so gray as to be counterproductive--increasing killing and informal rendition--when it need not be.


I have read the Constitution and I don't recall a reference to a lapel grab or a belly slap, so telling me the McCain amendment and associated bumf refer back to the Constitution does not add specificity.

Nor does anything discussed so far address the special circumstances that being courtmartialed and found not guilty is a career-ender in the military and noplace else.

IMO, the purpose of this, whatever McCain thinks, is to put US soldiers at risk of courtmartial at the convenience of the lefties. Its arbitrary and capricious and ambiguous definitions are not bugs. They're features.
12.19.2005 2:43pm
Medis:
Richard,

Right, the 5th, 8th, and 14th already apply to the ordinary criminal justice system, and yet they do not clearly define what, for example, counts as "cruel and unusual punishment". So, the courts have been forced to consider and apply these constitutional standards as cases arise.

And over time, much of the law is actually clear--many things you certainly can do under the 8th, and many things you certainly cannot do. But if you come up with some new punishment, and it isn't clearly like what has been considered before, and the issue is close, then maybe it will lead to a new case under the 8th Amendment.

So, how does McCain's Amendment, or our Reservation in the CAT (which uses the same definitional device), make this a "grayer" area than what already exists in the criminal law under the 5th, 8th, and 14th? It seems to me that it is pretty much exactly the same amount of gray, precisely because McCain's Amendment adopts the exact same standard of conduct.

I think what you are really arguing is that the standard should be even LESS gray than in the criminal law because it will sometimes apply to those in the military, and the military is accustomed to more precision. And again, I think McCain addresses that by restricting those in the military to techniques authorized by the Army Field Manual. That isn't perfectly precise either, but it is obviously precise to the point ordinarily required by the military.

But maybe you want the standard even MORE precise than the criminal law, and even MORE precise than the Army Field Manual. I don't see any reason to think this is such a special problem that we need such an extraordinary level of precision.
12.19.2005 3:55pm
Michelle Dulak Thomson (mail):
Jack John,

Why don't we kill the families of any interrogator who uses drugs on a captive, regardless of the effectiveness of the technique or the number of deaths averted? I am sure Michelle could get behind that one.

Dude, what the f are you talking about? I suggest that an interrogator driven to torture a man's family to death because he absolutely needs information damn well better be prepared to die for it, because it's the sort of act no decent person would commit if there were any alternative, including death. The JJ version of this is that I want the families of people who use sodium pentothal on prisoners massacred. Um, no.
12.19.2005 4:11pm
Logan Yarrow (mail):
Listen, I lurk here all the time and I dislike this John Jack character immensely. But you'd think by now someone who was interested in his argument -- instead of grandstanding because he himself has no argument, Medis -- would simply google "ABC news" and "CIA sources" or "2 to 2 and 1/2 minutes" and "Khalid" or some variant thereof to find multiple links to the info. It's not hard to do. It turns out the dude was right.
12.19.2005 5:30pm
Logan Yarrow (mail):
And I don't think Jack-off was distorting your claims or MDT's, either. I think he was right on the money. You're both nuts, and as that news article above proves, not even John McCain agrees with y'all.
12.19.2005 5:33pm
Michelle Dulak Thomson (mail):
Logan Yarrow, I'm assuming I'm "MDT," and I should like to know what my "claims" were, because so far as "waterboarding" goes I haven't said anything at all about it, and I really don't care whether John McCain agrees with me or not. I wasn't talking about "waterboarding." I was talking about serious torture, mental and physical, and the moment I do that, Jack John says I've set up an "irrelevant straw-man." OK, dude, whatever. Just explain on what grounds one ought to be able to use torture, and what "torture" means in that context.
12.19.2005 6:03pm
Justin (mail):
If anyone isn't well aware that Logan Yarrow IS Jack John, you don't know how that troll operates.
12.19.2005 6:24pm
Medis:
Justin,

Although I thought Jack John was a productive participant in this conversation, at least until I asked him for a link on his claim that KSM gave up Padilla immediately after being waterboarded.
12.19.2005 7:41pm
Richard Aubrey (mail):
Medis. I guess I should have gotten to this earlier:

The number and variety of criminal investigations and prosecutions, and their varying jurisdictions are infinitely different from the military issues we are discussing here. The military is so out front, compared to civilian law enforcement, that it may as well be a completely different issue.

This issue is not necessarily about the treatment of prisoners as it is the use to which faux outrage is put. Remember the Gitmo Koran issue? Hell, people died over that and it didn't even happen.
A Marine referred to a tough fight in Fallujah, I believe, and, once a building was burning, a reporter who had tried to bond with the troops reported one thing and one thing only. When one Marine--whom the others thought too slow to be in the line--yelled something about letitburn, the reporter made sure that got out. As if the entire town wasn't smoking. But, and here is the key, the unit was investigated for arson. In the middle of a burning town.
The left howls when it sees an opportunity, they hyperventilate over something until the unwary think the something is especially horrible, and the command thinks it needs to C its A by hanging some poor schmuck who did nothing out of the ordinary.


That is only one example. There is more to this than solely the treatment of prisoners. And that, combined with the grayness, will, I predict, cause worse things to happen.

My father's platoon had an SOP with German prisoners--depending on how long it had been since they'd found a comrade dead and mutilated--in which the guy was intimidated by a loud noise--source unspecified for this discussion. They talked. We won the war and remained a beacon of wonderfulness.

The Geneva Convention requires the POW to get adequate food. Since the line guys in Europe rarely had adequate food themselves, feeding the Kraut what they had until they could get him back to the rear (not easy what with artillery and snipers and so forth) would certainly cause the ACLU to have a coronary today. And somebody would be hung out to dry.

Anybody who thinks this is solely, or even primarily about the treatment of prisoners is....nonexistent. Everybody knows what this is about.
12.19.2005 10:51pm
Justin (mail):
Is that the same Jack John calling for executions of whistleblowers (but not Rove or Libby) over on the other thread?
12.20.2005 1:04am
Medis:
Richard,

You seem to think this is about playing "gotcha" with the military. I really don't think so. In fact, I think it is just the opposite: McCain wants to protect people serving in the military from people in the Administration who have distorted, muddled, and otherwise undermined what used to be a clear and honorable policy of detainee treatment, as embodied by the Army Field Manual. I think McCain believes, for example, that many of the military people who got caught up in the Abu Ghraib mess are at least in part victims of the Administration's policies on this issue.

But I don't expect you to be convinced by me that this is not all a plot of the left. Still, you might want to reflect a bit on who you trust to know the most, and care the most, about what is best for those serving in the military--people like Cheney, or people like McCain and Lindsey Graham--given their own personal backgrounds.
12.20.2005 5:13am
Richard Aubrey (mail):
I think McCain was a terrific naval aviator. Since then, he's been a Senator. The two don't connect.

If this is not about playing gotcha, then there would be more specificity, and there would be protection against such things. But there isn't.

Your post, Medis, presumes that gotcha will decrease under the new regs. You put some money on it with yourself, would you?

Abu Ghraib had zilch to do with standards coming from above, as all know and a few will admit.

But there are too many examples of incidents far less egregious, and, indeed, quite innocent, which were gotchaed. I don't expect that to end, and I do expect that the motivation behind this abomination is to increase the possibility for convenient handles for anti-war types.

McCain's principles are for sale to the next presidential campaign. He's trying to be all things to all people. That isn't the way to find the truth.
12.20.2005 10:39am