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Blogging, Expertise, and Comparative Advantage - Or, why I don't blog about torture and the detainee Bill:

Orin Kerr's post and the comments to it raise the question of why we haven't blogged about the detainee bill and the debate over torture. I can't speak for anyone else, but in my case, I try to limit blogging to issues where I have a comparative advantage: that is, questions on which I can say something useful or interesting that is unlikely to be said by others. I do not regard the VC as a forum for me to air all aspects of my world view, or even all of my views on contentious political issues. Little purpose is served by my simply repeating the same points on torture, detention or any other issue that have already been made by dozens of others.

Moreover, I take seriously the implications of some of my own scholarly work on political ignorance. Merely knowing a few basic facts that can be gleaned from perusing a newspaper is not enough knowledge to conclude that I have something original and important to say about an issue, except in very rare cases where the issue in question is unusually simple. My experience as an expert on political information is that there are far more issues that are more complex than most nonexperts believe than the reverse. In this regard, my general expertise on political information helps me keep tabs on my lack of expertise on specific issues.

For these reasons, I try to limit my posts on political issues to the following three categories:

1. Issues on which I am an expert (primarily political participation, federalism, and property rights). This is where I have the greatest chance of making an original contribution.

2. Issues on which I'm not officially an expert, but have a lot of knowledge because I follow them closely (i.e. - far more closely than merely reading occasional articles about them in the media or online).

3. Rare cases that fall outside of 1 and 2, where I come up with an original point that other commentators have for some reason ignored.

The issues of torture and detention do not fall into any of these three categories, so I don't blog about them.

The case of torture is a good example of the limits of my knowledge. For the reasons outlined by Charles Krauthammer, I do not believe that torturing captured terrorists to obtain information is always wrong as a matter of principle. But I don't have anything original to add to his moral argument, so I haven't blogged about it. In any event, I don't think that arguments about intrinsic morality are enough to resolve the issue. To me, the crucial question is whether we can effectively confine the use of torture to the rare cases where I believe it to be justified and prevent it from "spilling over" onto non-terrorist prisoners (as probably happened at Abu Ghraib), ordinary criminals, or even innocent civilians. A second important question is that of how much valuable information can really be obtained through torture that we could not get otherwise. Because I don't know enough to give a compelling answer to these two crucial questions, I don't have anything useful to contribute to the debate over the issue.

UPDATE: The one relevant point that I think has been neglected in the debate is the impact on our enemies' incentive to surrender. If enemy fighters believe they will be tortured if captured, they have a stronger incentive to fight to the death rather than give up; none of the articles I've read on the subject considers this aspect of the matter, though perhaps someone has written a piece on it that I have missed. This consideration counsels against the use of torture, or at least in favor of strictly limiting that use. But I don't think it's enough to resolve the debate by itself.

Related Posts (on one page):

  1. Blogging, Expertise, and Comparative Advantage - Or, why I don't blog about torture and the detainee Bill:
  2. The Military Commissions Bill, and A Note on Blogging Topics:
Adam S (mail) (www):
I understand what you're saying, and also think that regardless of not having anything new to add, it is sometimes important to speak out on moral issues, even if it is merely to add your voice to a crowd.
9.28.2006 11:45pm
Tom Holsinger (mail):
These guys aren't deterred from surrender to American forces by the prospect of torture - quite the opposite in fact. Ask the inmates at Abu Ghraib if they want American gaolers to come back.

Torture is effective in obtaining information. The principal problem in that regard are cultural differences between the interrogators and the interrogated, not the interrogators' tactics.

The chief drawback to torture in this context is what it does to the interrogators and their culture. The widespread French use of torture in the Algerian War was the political blowback into Metropolitan France - it caused popular revulsion and dramatically reduced support for the war effort.

That drawback is simply not present here. Besides the obvious fact that true torture by American interrogators is vanishingly rare, we're fighting for our security at home instead of retaining control of a colonial possession overseas. The stakes simply are not comparable, and that difference is crucial.
9.28.2006 11:53pm
Commenterlein (mail):
With great power comes great responsibility.

While you may not have great power, you do have a great audience. You have direct access to the eyes of thousands of highly educated folks, many of whom are lawyers, and you decided to keep quiet while torture was made official U.S. government policy.
9.28.2006 11:53pm
Tom Holsinger (mail):
oog, preview is my friend.

The major drawback to the widespread French use of torture in the Algerian War was the political blowback into Metropolitan France - it caused popular revulsion and dramatically reduced support for the war effort.
9.28.2006 11:56pm
Ilya Somin:
With great power comes great responsibility. While you may not have great power, you do have a great audience. You have direct access to the eyes of thousands of highly educated folks

Yes, including the responsibility to stay within the limits of my knowledge, and not engage in moral posturing on issues where I lack expertise. In any event, I highly doubt that "highly educated folks" are going to be persuaded by a post where all I do is echo an argument made by dozens of others, one that truly educated folks have probably seen many times elsewhere.
9.28.2006 11:59pm
Rich B. (mail):
For the record, I would like to point out that these two posts about "posting only about topics within one's area of expertise about which one has something interesting to say" appear directly above a post on "Pet Law."

I'm just sayin'.
9.29.2006 12:02am
Commenterlein (mail):
Ilya,

I respectfully disagree. What's at stake right now is what kind of country we want ours to be. We are not talking about legal minutiae, we are talking about the boundaries we impose onto our own behavior in order to retain (or regain) our status as the "good guys".
9.29.2006 12:06am
Jake (Guest):
Why does a large contingent of commenters assume that everybody agrees with what they have to say?
9.29.2006 12:10am
John Doe (mail):
There are a lot of bloggers (cough, Brian Leiter) who could benefit from blogging only about items within their range of expertise.
9.29.2006 12:10am
Martin Morgan (mail):
So if some dim bulb in the Administration proposes Korematsu style internment camps for all Muslim-Americans (hardly as hypothetical as formerly btw), you're going to stay silent in that dispute as well?

There's a famous quote about that sort of thing...
9.29.2006 12:19am
Ilya Somin:
For the record, I would like to point out that these two posts about "posting only about topics within one's area of expertise about which one has something interesting to say" appear directly above a post on "Pet Law."

The points I made about expertise apply to posts on political issues, not to humor posts. Besides, for all I know, Eugene may have a great deal of expertise on Pet Law!
9.29.2006 12:21am
Ilya Somin:
So if some dim bulb in the Administration proposes Korematsu style internment camps for all Muslim-Americans (hardly as hypothetical as formerly btw), you're going to stay silent in that dispute as well?

If I don't have anything useful to say that won't also be said by hundreds of others, yes. For the same reason, I haven't blogged about the genocide in Darfur, the Gulags of North Korea, or many other crimes that are far worse than anything "some dim bulb in the Administration proposes." I do not regard the VC as a forum for expressing all my opinions on every issue under the sun, or even every important issue.
9.29.2006 12:26am
Caliban Darklock (www):
@ Rich B. - Ilya didn't write the post on pet law, so he doesn't have to justify it.

@ Jake - Because if you don't agree with me, you're clearly stupid, and if the people reading this blog were stupid I wouldn't read it. ;)

@ Commenterlein - I think we can all go on record as saying that we'd all really prefer our country never went to war, but at the same time I don't think anyone could rationally suggest we should give up our sovereignty to avoid it. Likewise, while we'd all prefer our country never tortured anyone... sometimes that has to happen. Sure, it's not very nice. War is not very nice.

And from out of nowhere, let me comment that I have always found the support for a war effort increases in direct proportion to the suffering it causes for the civilian population. Nobody supports the war in Iraq because we here at home are not suffering.

Unlike our President, I see a very simple and obvious solution to that problem, and would have no problem pursuing that solution. Which is why I'll probably never be President.
9.29.2006 12:36am
Scroop Moth (mail):
Some of us are going to get our heads sawed off on jihad snuff videos because of what Congress did tonight. We give Bush authority and immunity to do bad things without ever going to court, and he will screw up. America wants to torture terrorists, fine. But what happens when Bush tortures the wrong person? More wrong persons, as he has already? If our detainees can’t see a judge, will their people simply “detain” the first American they can corner? Could we blame them?
9.29.2006 12:51am
Commenterlein (mail):
Caliban,

You have already delighted us all with your detailed torture-porn fantasies on previous threads. Let's just leave it at that.
9.29.2006 12:52am
publius (mail) (www):
What expertise do you need. A quick scan of the papers shows you that this bill authorizes indefinite detention, suspends all habeas, and authorizes several interrogation tactics that non-lawyers would almost certainly call torture.

of course, silence is not assent. and you can obviously blog about what you want. but "non-expertise" doesn't seem like a compelling reason not to write about this incredibly important historical event assuming (critically) that "non-expertise" is the only reason you're choosing not to do it
9.29.2006 12:59am
Randy R. (mail):
Well, apparently, torture, revoking habeas corpus, wiretapping US citizens and detaining people without trial are not nearly as exciting to the readers on the Volokh Conspiracy as gay marriage is.

Heck, we got to 100 messages on when the issue was polygamy without a sweat, even. I guess Marilyn Musgrave (R-Co.) was right when she said this week that the biggest problem facing America today is gay marriage.
9.29.2006 1:01am
Randy R. (mail):
I was watching C-span tonight, just channel surfing, really, and stopped at that channel because they were taking the vote on wire-tapping. They had phone lines for Dems, Reps, and Independants. On the line was a woman who said that if you read the Bible, we've been fighting 'these people', the Assyrians and so on for thousands of years, so we MUST DO WHATEVER IT TAKES (her emphasis) to put an end to this fighting once and for all, and if that includes torture and wiretapping, then she supports the president. He's not perfect, she conceded, but he's trying to do what's right.

Spoken like a true Christian...

I turned the channel after that point. With people like that, I fear for the country.
9.29.2006 1:05am
Dave Hardy (mail) (www):
I think we ought to give the detainees full benefit of the laws of war.

Since they were captured in arms, without uniforms, etc., I guess this means we don't torture anyone, just court-martial and shoot them. Maybe get less intel, but save a lot of money.
9.29.2006 1:17am
Scroop Moth (mail):
Shaetzlein,

You're mistaken about Caliban--the wrong Shakespearian rascal! But you are so right to nip indelicacies in the bud. We'll talk of Michelangelo as people come and go. I was truly asking, just as a citizen, for advice from the smart lawyers here about my liability or jeapardy in regard to the measures we've just authorized our government to take against the people rest of the world.
9.29.2006 1:18am
Lev:

If enemy fighters believe they will be tortured if captured, they have a stronger incentive to fight to the death rather than give up;


You may be assuming they are like you, or us.

Did the Japanese in WW2 fight to the death because they feared they would be tortured, or did they fight to the death because their Code required it?

Did the Germans in WW2 fight to the death? Yeah, kind of they did on the Eastern Front, but not really on the Western Front.

Do the Islamic terrorists really care if they are tortured, or is death part of their Code?
9.29.2006 1:35am
Commenterlein (mail):
For those who would like to learn some more about one of the preferred torture techniques of the Khmer Rouge and, unfortunately, our own government:

Link

What kind of expertise is required to figure out that "evidence" created through waterboarding should not admissible in a US court?
9.29.2006 1:45am
Commenterlein (mail):
Missing "be" in the previous post. Sorry. It's late.
9.29.2006 1:46am
Ilya Somin:
Do the Islamic terrorists really care if they are tortured, or is death part of their Code?

Judging by the fact that thousands of them have been captured in Afghanistan and Iraq, I suspect that many of them do care about staying alive, regardless of what their "Code" might say. If so, their decisions could be influenced by the prospect of being tortured.
9.29.2006 1:48am
Randy R. (mail):
So then they aren't entirely savages, are they, that they value their own life?

Could have fooled me -- from some of the posts I've seen, some people think it's okay to torture them just because they somehow deserve it -- even the innocent ones -- or whether good intel actually comes of it.

The first step to depriving a person of their rights is to dehumanize them. Make them less than human, and it becomes easier to hate them and then torture them, and then, ultimately, kill them. This is how the Nazis made it so easy to harm and kill Jews, how racists made it easy to treat blacks as inferior and lynch them, and so on.

The only way you can justify torture is to believe that we are 'right' to inflict harm upon another person. And I understand this works both ways -- no doubt there are terrorists who think us as barbarians who ought to die. But nonetheless, you have to come up with something, and people have made valiant efforts to say -- without any scientific evidence or case studies as proof -- that torture 'works.' At the bottom of all this, however, is that it's okay for us to torture, because we are the good guys and they are the bad guys. Once that argument is made, you have lost it, since every side thinks they are the 'good guys', just as in medieval times, everyone thought God was on their side. If we can torture because we have the high moral ground, than that gives the green light to every government on the planet to tortue because its 'in their national interest."

Congratulations, folks. you just opened a Pandora's box.
9.29.2006 2:06am
Arvin (mail) (www):

Once that argument is made, you have lost it, since every side thinks they are the 'good guys',

This is only true if the making of the argument is what makes the argument itself true. In other words, are we justified in torturing because we THINK we're good guys or because we ARE the good guys? For example:

I dislike people with red hair. So, the next time I see a redhead, I smack him. He smacks me back, because he dislikes people that smack him.

In a broad sense, we have both done the same thing: we have smacked people we don't like. But I don't think many would have a problem concluding I was wrong, and he was right (or at least more justified than I).

This comment should not be taken to endorse (or condemn) whatever the administration just did. Rather, this comment is merely to point out that one can't draw a moral equivalent just because both sides THINK they're the good guy.
9.29.2006 3:21am
guest:
I'm very disappointed that nobody on the VC has commented on the Terrell Owens hospitalization. The analysis of the situation requires only basic reasoning and moral judgement. Don't any of the conspirators have anything to say about TO at all? The lack of comment is amazing.

It's important to speak out about these grave moral issues. Bizarrely, those who see the Deion Branch trade as an outrage cannot be bothered to worry about the consequences of TO's possible suicide attempt.
9.29.2006 3:24am
Pb (mail):
I've been reading this blog for two plus years. I am a law student and consider it a valuable part of my legal education.

I have never posted a comment. However, Orin and Illya's post have prompted me to.

No one pays to read this blog. Furthermore, I higly doubt that the contributers make much, if any, profit from contributing to the VC. I realize this point is not original to either this blog or any other.

Regardless, it is rather presumptious for people to demand that in return for nothing they be entitled to something.

Furthermore, and I may be mistaken, but generally speaking this is a libertarian leaning blog. As such, I am truly shocked and appalled that contributers don't feel the need to succumb to the wants and desires of readers who pay such a hefty fee to read contributors thoughts and opinions.

Seriously, Orin is, of all the VC contributors, the person most qualified to post on this issue. The fact that he recognizes his own (and everyone else's) limitations on this issue should be commended, not criticized. We have enough people shouting out of their ass on this issue. Heaven forbid someone say they do not have enough information to comment intelligently on a subject. Maybe if everyone said this a better debate might ensue (pollyannaish as this sounds).
9.29.2006 3:25am
Cenrand:
I wonder if those criticizing the VC bloggers for their posts re: detainees take other blogs similarly to task for their lack of postings on the FAR greater violation of civil rights and civil liberties that is the war on drugs. If such commentators don't, what accounts for the double standard?
9.29.2006 3:25am
Lev:

Judging by the fact that thousands of them have been captured in Afghanistan and Iraq, I suspect that many of them do care about staying alive, regardless of what their "Code" might say. If so, their decisions could be influenced by the prospect of being tortured.


How many times have we read that people who were captured by the US were surprised because they were not tortured, because the propaganda on "their" side said the US routinely tortures and executes its prisoners?

Perhaps the ones captured failed, according to their Code, to be killed in battle against the infidel and so they wish to live to kill again until they are killed, and can get at those "virgins." How about those high class gentlemen formerly at Gitmo who were caught and released, and then recaught on the battlefield?

It's worth debate. I think, however, it falls into the trap of assuming, believing, wishfully thinking, that "they are just like us." That they have similar value systems and moralities. Sometimes they are, sometimes not.

Think back to Gypsy Scholar's bottom line on the Pope's speech and Islam:


If God's nature is defined centrally by his radically free will, then believers cannot appeal to reason in their aim to convert nonbelievers but must demand submission to an arbitrary God who cannot be rationally understood. If the force of reason cannot be used in converting nonbelievers, then the force of violence will be.


If an arbitrary God who cannot be rationally understood is at the base of their culture, a "God defined only by his radically free will, a will so unconstrained that it need not even be consistent with itself"; and "a rational God who acts according to reasonable principles and whose divine rational nature is reflected in both human reason and the order of the universe" is at the base of our culture, how can we assume, or think that, or believe that any particular thing in their culture is the same as or similar to something that looks like it in ours?

gypsy scholar blog post
9.29.2006 3:45am
Mark F. (mail):
With all due respect professor, your admiration for the cretin Charles Krathammer and your flirtation with philosophical arguments in favor of torture sickens me. Your consideration of moral relativism and barbarism is deeply troubling.
9.29.2006 4:18am
txjeansguy:
Pb: you say "No one pays to read this blog." But there's an ad for Wal-mart on the right side of the page - that's value we do afford to the blog.
9.29.2006 7:46am
Anderson (mail) (www):
Well, VC posters who don't know much about torture, etc., could learn a fair bit from reading the comment threads, which I hope they do.

To me, the crucial question is whether we can effectively confine the use of torture to the rare cases where I believe it to be justified and prevent it from "spilling over" onto non-terrorist prisoners (as probably happened at Abu Ghraib), ordinary criminals, or even innocent civilians.

On that, for ex, we've seen the Israeli experiment in "restricted torture," which their high court had to put a stop to precisely b/c it couldn't be so confined.
9.29.2006 8:29am
Anderson (mail) (www):
Oh, sorry, hit "post" too soon.

Various commenters, no doubt imitating the President, have created a straw man who demands that the VC blog about X, Y, and Z. Nope. What some of us are saying is just that it's pretty darn weird to see a law-oriented blog ignore the extensions of executive power we've seen in the past week.

For that matter, my own state's code of professional conduct for lawyers includes a nonbinding blurb about educating the public on matters legal.
9.29.2006 8:32am
Richard Aubrey (mail):
Commenterlein. Straw man. The new bills do not contemplate the use of the information in court. As you know but hoped would slip by us.

During WW II, there was a US intel officer on a submarine,for some reason, in the Pacific. The sub was shot up badly enough that it had to be abandoned, but did not simply blow up or crush underwater. So the sailors abandoned it to be taken by the Japanese. The intel officer elected to stay on the sub and die because he believed he could be made to give up what he had and that would have been bad for the war effort.

He, apparently, knew less about the effectiveness of Japanese interrogation techniques than the folks on this board.
9.29.2006 8:58am
Falafalafocus (mail):
Anderson,

While most states do have a similar provision (I know that Florida has one as well), there is also a rule that a lawyer only represent a person if they are competent (or can become competent). I am not suggesting that the rules are exclusionary, but in this case, they do tend to work against each other here. According to the postings I have seen, the only one here who might be competent to speak on this matter in a legal sense was Orin Kerr. What Ilya has been saying is that he is unable to become competent to provide a meaningful comment on the subject within the timeframe alloted. I think that that is a fair argument.

As to your complaint that there the commentators are setting up a straw man, you seem to be proving their case.
9.29.2006 9:10am
giggleburst (mail):
Germany's abuse of Russian prisoners contributed significantly to failure of Barbarrosa operation. And one can argue that suicidal defense of Berlin was in part caused by German soldiers knowing how badly they would be treated by Russian captors.

Doesn't your update addendum contradict the point of your post? If you're a blogger you've set your stall in the marketplace of opinons - should probably let readers decide for themselves what they want to buy. Your post sounds like passing the buck.
9.29.2006 9:35am
Katherine (mail):
If you don't know, why don't you bother to find out?

There is plenty of information available about the torture of innocents.
9.29.2006 9:41am
Dave Futer (mail):
An important meta-question is being ignored here.

No one disputes that this issue is hugely important. Few dispute that it's complex. But if this detainee bill law is so complex that law professors at prominent universities do not feel qualified to comment on it, how can 100 senators possibly cast an informed vote on it? These people are not habeas experts. I will venture a guess that their staffers are not habeas experts either. And yet they voted on it, less than a week after the text of the bill was released, amid the pressure and bustle of an election campaign.

What are the implications for participatory democracy? I believe this question about political ignorance and political participation is well within Prof. Somin's area of expertise.
9.29.2006 9:42am
Paul Karl Lukacs (mail) (www):
This is the VC's blog, and the contributors can post on whatever topics they want, whenever they want, using whatever tone or style they want. If you don't like it, go jump in the lake.

At least, that's the attitude I take on my blog, where I write what I please, without any apologies or explanations about what I choose not to write about.
9.29.2006 9:47am
M. Lederman (mail):
FWIW, I think it's completely understandable that folks such as Orin and Ilya are reluctant to blog about these issues unless and until they know something more about them. (Orin's many posts on FISA and the Fourth Amendment were so valuable precisely because he brought to them his pre-existing interest and expertise on such questions, and could give us some context and relatively non-policy-driven views on the subject.)

The odd thing is figuring out why many of the VC bloggers have not been *interested* in becoming more informed about these questions, and about this legislative intiative -- *not* because they are bloggers or even legal bloggers (heaven knows we don't want every legal blog to pretend to be expert in such questions), but because many of them are committed *libertarian* bloggers who are obviously impassioned and informed about many other arrogations of state power and threats to individual liberty. (This might not apply to some of the VC crew (Orin?), who are not self-identified so strongly as libertarians.) This bill, and all of the related issues surrounding torture and unchecked executive authority (whether constitutional or, now, statutory), implicate traditional libertarian concerns about as much as anything I can recall in my lifetime. Which is why, for instance, Andrew Sullivan has been so committed and eloquent on these matters. Andrew and I certainly do not share a common worldview on many important issues of the day, but these threats and questions have fallen smack dab at the intersection of our liberal and libertarian commitments.

Eugene has, in fact, not been silent on these matters. For several years before Hamdan was decided, he wrote posts in support of torture (recall the Iranian public torture example), in favor of extensive delegations of authority to the Executive in wartime, and against extending any statutory or constitutional rights to aliens detained in war. (Eugene: I'm basing that characterization simply on my rough recollections, without having gone back and searched through archives. If it's imprecise in any respect, please let me know.)

Of course, there are a lot of folks who think likewise, including some other very esteemed legal academics. With respect to most of them, I'm not at all surprised, given our very different philosophies and views on the law. But if I didn't know better, I would have expected Eugene and other professed libertarians and skeptics of state power to have been front and center in the opposition to torture, executive aggrandizement, elimination of checks and balances, a vast detention power, etc. I regret that they haven't been. But more to the point, I wonder *why* they get far more exercised about, e.g., fairly trivial proposed gun regulations than they do about the profound challenges and questions raised by this set of issues. From where I sit, it sure *looks* like a case of fiddling while Rome burns.

Just to be clear: I do *not* think that Eugene, et al., are insincere when it comes to their libertarian impulses and commitments. I have every reason to believe they are heartfelt, not pretextual. Eugene and other libertarians at the VC and analogous sites are *not* typically party-line advocates willing to shill for whatever will advance the interests of the Republican Party or President Bush. This site is obviously (and thankfully) quite *different* from Power Line or LGF. Which is perhaps why we haven't seen much in the way of *cheerleading* here lately for torture or unbridled executive power.

But no apparent concern for it, either? What's the explanation?

My sense is that it has something to do with the notion that in times of war, all bets -- and all libertarian commitments -- are off. If I'm right about that, then it's a very curious phenomenon. For one thing, wouldn't times of war be when one's libertarian instincts should be *most* alarmed? After all, historically that has been when the worst excesses in suppression of liberty have occurred. Moreover, why should one's libertarian instincts be different in *this* sort of war than they are in the ordinary "domestic" setting? It is a mere historical happenstance that we have decided to treat this as an armed conflict, to be addressed in military means. Congress could well have decided on 9/18/01 to treat it as a heightened law-enforcement matter instead, as we had done w/r/t the first WTC bombing and Al Qaeda generally pre-9/11, and w/r/t the Oklahoma City bombing. It didn't -- instead the political branches decided to treat this as an armed conflict and to authorize the use of military force. So why should that sort of contingent legislative choice all-of-a-sudden extinguish whatever libertarian skepticism one might otherwise have had? (Indeed, the Framers' libertarian impulse was the converse -- that there was an urgent need to *deter* war (chain the dog, etc.), because they rightly viewed the use of the Army and Navy as a much more profound threat to liberty than simple, ordinary police practices.)

Or am I wrong? Is it something else entirely?

Thanks in advance.
9.29.2006 9:54am
Tracy Johnson (www):
Darned ironic if VC bloggers started posting about Habeas Corpus and then started disappea....
9.29.2006 10:00am
anonVCfan:
If a quick scan of the text of the legislation leads to obvious conclusions, why do the VC bloggers have a responsibility to state the obvious?
9.29.2006 10:10am
Henry679 (mail):
Because practically everyone in the nation with a brain believes this legislation of great importance and is discussing it, pro or con, there is no need for anyone on the VC to do so. This, essentially, is the response here. (The "lack of expertise" talk is utter crap and embarrassing. The Conspirators would have to be in the top 1% of the people qualified to comment--get real).

Too bad VC wasn't around in late 2000: we could have enjoyed weeks of silence about that presidential election, too--uh, right?
9.29.2006 10:55am
Vovan:

For the reasons outlined by Charles Krauthammer, I do not believe that torturing captured terrorists to obtain information is always wrong as a matter of principle. But I don't have anything original to add to his moral argument, so I haven't blogged about it.


Heh, you can take the man out of the Soviet, but you can't take the Soviet out of the man. Comrade Somin, you are wasting your considerable talent, the Russian government can offer some fascinating employment opportunities.
9.29.2006 11:12am
chris s (mail):
I can't speak for VC writers, but people griping about them not commenting on this issue may not realize how insincere they sound. commenters on this blog folks like Anderson and Mark Field often seem to allow their passions on this issue to cloud their fair mindedness.

to give just one example, foes of the Admin constantly claim the Admin favors torture and wants carte blanche to torture. well, the bill explicitly bars torture. foes reply - 'sure, but it allows coercive questioning. and all coercive questioning is torture.'

well, you may think that playing good cop bad cop is torture, but others disagree. and when your response to that disagreement is to scream about Nazis and Stalin and "first they came for the Jews. . .", it's no wonder people on the other side or in the middle just shrug and choose not to continue a debate that really is a thinly veiled demand for complete concession to the foes' point of view.

one more thing - you can't beat something with nothing as the phrase goes. if the foes want more public support, here or elsewhere, they should spend less time screaming about the Admin (we know, we know, you dislike it) and more time laying out exactly how they think folks like KSM should be captured, detained, questioned, and finally dealt with. like POWs? like your basic crim defendant?
9.29.2006 11:12am
Anderson (mail) (www):
Doesn't [Somin's] update addendum contradict the point of your post?

His addendum was exactly the kind of thing whose absence has been spooking some of us. "Hey, I dunno, but this seems like a good point ...." Sounds like a blog post to me!

Prof. Somin is blessed with posting privileges at a popular blog that attracts a high caliber of commenters (plus the occasional Anderson). If he wonders out loud about something, he stands a pretty good chance of finding out about it.

So, if the VC bloggers were even *curious* about the bill's habeas and torture provisions, they sure wouldn't have to do research on them.

But cf. Prof. Kerr's post about his solo blog, where he said how he just didn't have the time to research his posts. That's a conception of blogging that makes silence understandable. But while it's better to give than to receive, one of the joys of blogging is that you get to do both, if you try.
9.29.2006 11:17am
byomtov (mail):
Lederman raises a good question. Why the utter lack of interest?

If his surmise is correct, then "curious phenomenon" is a very polite choice of terms.
9.29.2006 11:28am
Bruce Hayden (mail) (www):
Let me suggest that it most likely isn't a lack of interest, but rather of time. Many of us here go off half cocked on many of these subjects, using this forum to hone up on the subject through being beaten up by the opposition. But as law profs, etc., they really aren't in a position to do that, at least not here. Besides, part of being a law prof is almost always appearing to be the "expert" on whatever subject they opine about. It is just part of the image.

Thus, the Conspirators are given a couple of options:
1) opine about subjects that they haven't done their homework on (see above), and lose credibility when their lack of expertise on a subject is revealed.
2) bone up on the subject enough to show the expected level of expertise, but that means skipping something else, like, for example, preparing for class, writing articles, etc., all the things that get someone tenure or promotions, or
3) figure that other things take precedence.
9.29.2006 11:56am
larry rothenberg:
I would like to offer all the commenters who are upset that the VC has not addressed this bill to join me in a class-action lawsuit against NPR because their news show, "All Things Considered" clearly does not, in fact, consider "all" things.
9.29.2006 12:06pm
Broncos:
I apologize for cross-posting this (with Orin's last post); but I was one of the people who posted in the the former comment thread that Orin referred to.

Just to be clear: I am not entitled to Orin's legal analysis. On the other hand, I'm not asking him to evaluate my slip-and-fall case for free over drinks. (and as far as paying his legal fees - how many potential billables have I frittered away reading this site? :> )

But there are at least two ways of looking at the situation on the site: (1) The contributers have concerns/thoughts/opinions, but are unsure of their conclusions due to a lack of expertise (though I will note, as I did in my comment in the other thread, that this doesn't apply to the surveillance bill); or (2) regardless of expertise, this just hasn't aroused the interest of the commenters.

It's the latter that disappoints me. On my own, after (long) days at the firm, I've looked into whether an individual might have an implied right of action for injunctive relief to enforce the separate, non-war crimes, "additional prohibition against cruel, inhumane, or degrading treatment." Generally speaking, I believe a good argument can be made that the 1st and 4th components of the Cort test are satisfied, and because I don't have free westlaw, I haven't been able to do real research into 2nd and 3rd components.

I've also done limited research into whether Congress can limit the ability of the judiciary to reason on the basis of otherwise-applicable authority, rather than simply abrogating that authority through statute; and whether Congress can divest the judiciary of the ability to definitively interpret a law (absent later amendment passing both houses and presented to the president), without divesting the judiciary over jurisdiction over that law. Again, however, I don't have free westlaw, so my research is quite limited, mostly composed of guesswork, and most probably wrong.

My point here is that if these bills are of concern to you, they will spur research that does not seem like drudge work. But my sense isn't that the contributers here have been thinking along the lines of "I think that maybe A,B, and C; but I'm not sure; is there anybody else there with more experience who can contribute to this?" (in which case, you may have posted something along those lines). Rather, I think that what has been posted has simply proven more interesting to the contributers.

And given that this is a libertarian law site, that is disappointing.
9.29.2006 12:20pm
Broncos:
Sorry. I've read the comments above, and realize that everyone else has already beaten me to the "interest" punch.
9.29.2006 12:22pm
Henry679 (mail):
People have pointed out the seeming anomaly of website chock full of law professors, who opine on every issue under the sun, failing to discuss legislation that goes to the crux of our Constitutional system.

In response, various smartasses tell us, in effect, "Hey, it's their website and they'll discuss what they want." That is in not in dispute. What IS in dispute is why this subject has not been one that they "want".

And by the way--NPR has discussed this issue extensively, its relative paucity of law professors not withstanding.
9.29.2006 12:23pm
Falafalafocus (mail):

With great power comes great responsibility.

While you may not have great power, you do have a great audience. You have direct access to the eyes of thousands of highly educated folks, many of whom are lawyers, and you decided to keep quiet while torture was made official U.S. government policy.


I'm confused. Many of the bloggers here who are upset that VC contributors are not talking about the habeas bill seem to be the same ones who are screaming "torture" and "boundaries we impose onto our own behavior in order to retain (or regain) our status as the 'good guys'." I believe that someone also threw in Korematsu for good measure.

Let's face facts, people. We don't call the shots regarding what gets posted here any more than we decide what NBC or CBS decides to run as the nightly news. But to the extent that we can demand that an issue get coverage, we can't then demand that the contributor agree with our perspective. From where I sit, you sound like a bunch of people who are demanding to be insulted. If that's the case, then go to LGF or some other site and enjoy hating the contributors.
9.29.2006 12:25pm
MDJD2B (mail):
I understand what you're saying, and also think that regardless of not having anything new to add, it is sometimes important to speak out on moral issues, even if it is merely to add your voice to a crowd.

But under what circumstances?

Should a doctor talk about torture to his patients who are in his office for an annual exam? Or an accountant to his tax clients?

Should a scholar append footnotes on torture in a paper about poetry or physical chemistry?

The Conspirators operate a blog on subjects of interest to them, and in which they have special expertise. It is not for us to demand either that they

1. develop the same priorities of interest or expertise that we do-- or that we want them to-- or

2. shoot off their mouths (or pens) about things on which they have opinions, but no knowledge, because we think they are important.
9.29.2006 12:42pm
OrinKerr:
Maybe we can avoid this problem in the future by having a thread in which VC commenters suggest to the VC bloggers as to what we should be posting on. For example, can you tell me what we should blog on in the next month or so?
9.29.2006 1:07pm
Broncos:
Because this was such a difficult judgment call.
9.29.2006 1:09pm
Anderson (mail) (www):
Prying Prof. Kerr's tongue from his cheek (in a non-abusive, Geneva-consistent manner of course), I do think that having open threads and paying attention to what's in them would be constructive.

But again, the oft-repated point isn't "you should be blogging about this," but "what is up with you guys, that you're not blogging about this at all, not even in a hey, what the heck is going on? manner?" Not too subtle a distinction for a law prof, I daresay.
9.29.2006 1:22pm
Q the Enchanter (mail) (www):
I appreciate and respect the reasons you give for your restraint. Would that all bloggers (including me) had that kind of restraint.

But then why in Heaven's name would you cite Charles Krauthammer's piece? He is hardly an authority on ethical issues (I want to say he's something of an anti-authority on this score), nor are the arguments in that article particularly competent (however much you might agree with his conclusions). If in light of your lack of expertise you feel you have a personal duty to refrain from publicly opining, don't you have a like duty to refrain from publicly adverting to others who also lack relevant expertise but don't share your restraint?
9.29.2006 1:34pm
Mark Field (mail):

I can't speak for VC writers, but people griping about them not commenting on this issue may not realize how insincere they sound. commenters on this blog folks like Anderson and Mark Field often seem to allow their passions on this issue to cloud their fair mindedness.


1. As I said in the other thread, I have NOT "griped" about the lack of comments. My only comment was that the lack of expertise excuse wasn't very persuasive in light of numerous other posts at VC.

2. I'm certainly not going to apologize for being passionate on the subject of torture. Lack of passion would be pretty disturbing, don't you agree?


to give just one example, foes of the Admin constantly claim the Admin favors torture and wants carte blanche to torture. well, the bill explicitly bars torture. foes reply - 'sure, but it allows coercive questioning. and all coercive questioning is torture.'

well, you may think that playing good cop bad cop is torture, but others disagree. and when your response to that disagreement is to scream about Nazis and Stalin and "first they came for the Jews. . .", it's no wonder people on the other side or in the middle just shrug and choose not to continue a debate that really is a thinly veiled demand for complete concession to the foes' point of view.


After mentioning me personally in your first paragraph, you're now lumping together all the opponents of torture in your second. I haven't actually said any of these things you criticize. But do you really believe that there are two sides to every issue? As Churchill said, there can be no issue of choosing sides between the fire department and the fire. Issues like slavery, genocide, rape, etc. don't have two sides. Neither does torture.


if the foes want more public support, here or elsewhere, they should spend less time screaming about the Admin (we know, we know, you dislike it) and more time laying out exactly how they think folks like KSM should be captured, detained, questioned, and finally dealt with.


We're conservatives. We want them treated according to existing law, i.e., Common Article 3. Since when is it so extreme to call for abiding by the rule of law?
9.29.2006 1:35pm
Luke 1152 (mail):

I do not believe that torturing captured terrorists to obtain information is always wrong as a matter of principle


Good god. I have seen this opinion many times and its absurdity is just jaw dropping.

And what makes them "terrorists"? The fact that they were captured? The fact that they were turned over to us by Paki intelligence - like hundreds of people at gitmo?

Was the Canadian Mahar Arar a terrorist? We facilitated his detention and had him shipped off to Syria where we was tortured and held without any charges or review for 10 months.

Look, if someone is a "terrorist" I don't give a sh*t what you do to them. Flay them, electrocute them, shoot them in the head, whatever. The problem is that these are people who have not been convicted of anything and in many cases have not even been charged.
9.29.2006 1:44pm
Anderson (mail) (www):
on this blog folks like Anderson and Mark Field often seem to allow their passions on this issue to cloud their fair mindedness

I missed this. Pooh. My fair-mindedness is a light unto the nations.

Regarding the example, the statute does indeed ban "torture." And who decides what's torture, under the statute?

It's like I tell my kid he has to be in bed by a reasonable hour, and then add that he'll have unreviewable discretion as to what hour that is.
9.29.2006 1:44pm
Anderson (mail) (www):
As Churchill said

Ah, that reminds me of my favorite Churchill quote on the subject:
When all was over, Torture and Cannibalism were the only expedients that the civilized, scientific, Christian States had been able to deny themselves: and they were of doubtful utility.
From The World Crisis, quoted in Paul Johnson, Modern Times 13-14 (1983 ed.).
9.29.2006 1:48pm
M. Lederman (mail):
In my comment above, I wondered why committed libertarians such as Eugene were not more exercised about the questions of torture, detention and unbridled executive power.

Eugene graciously wrote me to note that my premise was mistaken: He is *not* a libertarian. "Ask some libertarians and they'll tell you. I'm a libertarianish conservative, partly because I'm far from sure that the government minimalist position on crime and especially on war and foreign affairs works."

Which explains why he has not taken a classical libertarian view on these matters! My mistake. I appreciate Eugene correcting my misunderstanding.

(I was not among those who thought it is incumbent on the VC bloggers to blog on this subject merely because it's important. Eugene also informed me, however, that his reasons for not blogging more on this are similar to Orin's and Ilya's: that he doesn't think it wise or necessary to blog on subjects where he doesn't have special interest or expertise [I agree!], and that this is "a subject on which I know little, and on which you have to know a lot to know even a little.")
9.29.2006 1:49pm
Mark Field (mail):

The new bills do not contemplate the use of the information in court. As you know but hoped would slip by us.


This is incorrect. The bill specifically permits the introduction of statements obtained after the passage of the Detainee Treatment Act. It also allows statements obtained before that date to be admitted if the military commission finds them "reliable".
9.29.2006 2:00pm
Ilya Somin:
But then why in Heaven's name would you cite Charles Krauthammer's piece? He is hardly an authority on ethical issues (I want to say he's something of an anti-authority on this score), nor are the arguments in that article particularly competent (however much you might agree with his conclusions). If in light of your lack of expertise you feel you have a personal duty to refrain from publicly opining, don't you have a like duty to refrain from publicly adverting to others who also lack relevant expertise but don't share your restraint?

I think Krauthammer certainly has studied the moral issues involved with this particular question far more than I have, and in my view does have enough expertise to write about the issue. In any event, I cited his piece only because it is a good summary of the reasons why using torture on captured terrorists is (in some very limited circumstances) not intrinsically wrong. The main point of that part of the post is that I don't have enough knowledge to opine about what the policy should be even given that assumption.
9.29.2006 2:00pm
Anderson (mail) (www):
As you know but hoped would slip by us.

You know, a little bit of hypothermia, and I bet you'd get the truth about the Act from Mark Field in a hurry: "I made all the bad stuff up! It's a great law!"

Deceive the pro-torturers at your peril, Prof. Field!
9.29.2006 2:03pm
Ilya Somin:
For the reasons outlined by Charles Krauthammer, I do not believe that torturing captured terrorists to obtain information is always wrong as a matter of principle. But I don't have anything original to add to his moral argument, so I haven't blogged about it.



Heh, you can take the man out of the Soviet, but you can't take the Soviet out of the man. Comrade Somin, you are wasting your considerable talent, the Russian government can offer some fascinating employment opportunities.


Yes, endorsing coercive interrogation of captured terrorists in limited circumstances is exactly the same thing as endorsing the killing of millions of innocent people, mass famines, Gulags, suppression of free speech, and so on. Yup, that's a really great argument. This is exactly the kind of penetrating, insightful criticism that is likely to persuade lots of people who don't already agree with you.
9.29.2006 2:05pm
Ilya Somin:
Look, if someone is a "terrorist" I don't give a sh*t what you do to them. Flay them, electrocute them, shoot them in the head, whatever. The problem is that these are people who have not been convicted of anything and in many cases have not even been charged.

If you had read my post, you might have noticed that I specifically indicate that one of the problems I lack expertise on is the question of how we can "effectively confine the use of torture to the rare cases where I believe it to be justified and prevent it from "spilling over" onto non-terrorist prisoners (as probably happened at Abu Ghraib), ordinary criminals, or even innocent civilians."
9.29.2006 2:11pm
chris s (mail):
Mark, I don't think there are two sides to every issue. I'm against torture, properly defined. But I also think 'torture' is as slippery in definition as 'obscenity', hence the debate here and elsewhere. I don't think every unpleasant thing is torture; apparently others disagree.

also, w/r/t alternatives, you say - "We're conservatives. We want them treated according to existing law, i.e., Common Article 3."

well, that's a start. but that article allows regularly constituted mil commissions, correct? those don't provide the full panoply of rights given a standard criminal defendant.

also, Art 3 bars cruel and humiliating conduct - so we have the definitional problem again. is good cop bad cop cruel? is a woman questioning a devout Salafist humiliating him? I say no to both, but no doubt others disagree. so, to be fair to the CIA and military, we should define these terms further.
9.29.2006 2:18pm
Broncos:

(I was not among those who thought it is incumbent on the VC bloggers to blog on this subject merely because it's important. Eugene also informed me, however, that his reasons for not blogging more on this are similar to Orin's and Ilya's: that he doesn't think it wise or necessary to blog on subjects where he doesn't have special interest or expertise [I agree!], and that this is "a subject on which I know little, and on which you have to know a lot to know even a little.")


I disagree. There is a difference between expertise, and simply being well-informed. While expertise may be demanded in some areas, it certainly isn't demanded for general public discourse. Being well-informed is another matter entirely.

My understanding is that the elections work as a democratic check because an informed electorate hold their representatives responsible for the policy choices they have made. How is this to work, if people don't engage in public discourse on those technical subjects in which they lack expertise? Since when do we rely upon a populace of experts?

I can understand how one might not want to publish academically, or submit a brief, without having developed "expertise" in that subject area. Professional and other consequences are simply too great.

But this is another forum, entirely.

I've always viewed blogs as primarily a mechanism for public discourse, rather than as primarily a stage for, e.g. career-advancement. And while people who engage in public discourse should be well-informed, (and one reason why I like this blog), it is not generally required that they demonstrate the type of mastery of a subject area generally required of experts. All that is required is the ability to grapple with the substantive arguments.

Am I missing something?
9.29.2006 2:26pm
Amy (mail):
Yes, I agree - certainly in a blog post, of all places, it's not necessary to have the last word on an issue in order to say something about it. Queries, initial musings, farming the thing out to a guest poster - all would be welcome here.

By the way, as someone who takes pretty much the straight-line liberal view that this bill represents the twilight of our democracy, etc., etc., I would much rather see the Volokh Conspiracy post a full-throated, fire-breathing defense of the bill than post nothing at all. It's the pretending that the issue is so trifling as to be not worth educating oneself about that gets me. (Of course, that's pretty much the view shared by all of our senators, so perhaps it's par for the course.)
9.29.2006 2:36pm
A.S.:
Orin wrote: Maybe we can avoid this problem in the future by having a thread in which VC commenters suggest to the VC bloggers as to what we should be posting on. For example, can you tell me what we should blog on in the next month or so?

I have already requested, in the other thread, that Orin write a post on the IRS's proposed regulations under new Section 409A of the Code (added by the American Jobs Creation Act of 2004). I reiterate this request. This is a vital matter! And I find it surprising that there has been so little interest in the matter from people such as Orin, Eugene, Ilya... and Marty Lederman. I mean, where's Marty's post? Did I miss it?

Thanks in advance guys.
9.29.2006 2:37pm
Falafalafocus (mail):
I'm with A.S. While I know nothing about 409A, I join Brocos's position that I can be well informed. I pay taxes. Therefore, I believe that 409 is unconstitutional! Why no posts? Can't we all see that these so called libertarians are really just tools of the Bush government? It's one step from the gulags, this 409 regulation.
9.29.2006 2:46pm
Ilya Somin:
Yes, I agree - certainly in a blog post, of all places, it's not necessary to have the last word on an issue in order to say something about it. Queries, initial musings, farming the thing out to a guest poster - all would be welcome here.

....I would much rather see the Volokh Conspiracy post a full-throated, fire-breathing defense of the bill than post nothing at all. It's the pretending that the issue is so trifling as to be not worth educating oneself about that gets me.


It would take some real expertise for me to be able to say something useful about the issue that would not just be a repeat of what numerous other people have already said. It is precisely because the issue is NOT trifling that mere repitition of others' views, unsupported by any original points or expertise of my own, is undesirable.
9.29.2006 2:46pm
Broncos:
Falafalafocus:

While I know nothing about 409A, I join Brocos's position that I can be well informed.

Just to clarify, I have never taken the position that you are well-informed.
9.29.2006 2:56pm
Mark Field (mail):

But I also think 'torture' is as slippery in definition as 'obscenity', hence the debate here and elsewhere. I don't think every unpleasant thing is torture; apparently others disagree.
***
also, Art 3 bars cruel and humiliating conduct - so we have the definitional problem again. is good cop bad cop cruel? is a woman questioning a devout Salafist humiliating him? I say no to both, but no doubt others disagree. so, to be fair to the CIA and military, we should define these terms further.


We've discussed this in detail in other threads, including the Rauch thread which is still on the page. Three points:

1. It's ironic to face this argument in the context of a bill which does nothing at all to clarify which techniques are permissible. Such a bill would, like the Army interrogation manual, set out the specific procedures and describe them. Instead, this bill uses vague terms like "severe" and "serious", demands implausible levels of specific intent, and ultimately grants to the President an "unreviewable" power to define what the law is. I'm not much impressed by demands for specificity under these circumstances.

2. That aside, it's not possible to write a statute which sets out in advance all the banned techniques. Human beings are too inventive. Instead, CA3, like all laws -- and we, the US, wrote CA3 -- uses general terms. For example, it is a defense to murder that the homicide was "justifiable" or "excusable". No statute that I know of purports to detail all the possible circumstances which might lead a jury to find either one, and nobody objects that this is unfair. That's why we have a common law system.

3. Lest I be accused of inconsistency, I'll just note that any attempt to list approved techniques is itself dubious. The reason is that a technique itself isn't necessarily torture. Anderson gave the example of waking someone up in the middle of the night. Do that once, it's not torture; do it 14 days in a row and it might very well be. Our common language recognizes this: we refer to annoying events as "Chinese water torture" precisely because small annoyances, done involuntarily and repeatedly, amount to torture.
9.29.2006 3:02pm
Falafalafocus (mail):
How dare you not take a position on whether I am well informed! I believe that you are ducking a serious issue. As a fellow poster, I demand that you take a position this instant, or I fear that a significant issue in which you have opined so clearly on will fall on deaf ears.
9.29.2006 3:02pm
Luke 1152 (mail):
Ilya - quite right, I skipped right over the following sentence.

Sorry.
9.29.2006 3:12pm
Realist Liberal (mail):
One thing that several commenters have noted is the fact that VC has several readers, is incredibly influential and even judges cite it in their opinions. Commenters have used this as a reason why VC SHOULD blog about the subject. I think it cuts the complete opposite way. It is dangerous for a blog that is so influential to comment on something of such grave importance. Do we really want our public policy (in a particular area) shaped by people who freely admit that they do fully understand that area? It's bad enough that most politicians don't understand the issues and don't take the time to understand them. Let's allow VC to shape policy in the areas where the bloggers truly are experts who we want shaping the policy (such as Prof. Kerr and computer search and seizure issues).
9.29.2006 3:32pm
Crust:
I respect the argument from comparative advantage (though I agree that an open thread would be a good idea). I've been reading Lederman's Balkinization and Greenwald's Unclaimed Territory. What blawgs do people recommend to get the pro side of this debate? Thanks in advance.
9.29.2006 3:35pm
Broncos:

It is dangerous for a blog that is so influential to comment on something of such grave importance. Do we really want our public policy (in a particular area) shaped by people who freely admit that they do fully understand that area? It's bad enough that most politicians don't understand the issues and don't take the time to understand them. Let's allow VC to shape policy in the areas where the bloggers truly are experts who we want shaping the policy (such as Prof. Kerr and computer search and seizure issues).


Granted, it's about governmental restrictions on speech, but the truth seems pertinent:

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

Justice Holmes, dissenting, in Abrams v. U.S., 250 U.S. 616 (1919).
9.29.2006 3:41pm
curious (mail):
AS says: "I have already requested, in the other thread, that Orin write a post on the IRS's proposed regulations under new Section 409A of the Code (added by the American Jobs Creation Act of 2004). I reiterate this request. This is a vital matter! And I find it surprising that there has been so little interest in the matter from people such as Orin, Eugene, Ilya... and Marty Lederman. I mean, where's Marty's post? Did I miss it?"

Genuinely not sure where you're coming from here. It's hard for me to believe that you believe these IRS regs are in the same ZIP code of importance as what's going on in Congress right now. So, are you lampooning people who suggest that it's too much to expect a libertarian blog to comment on the most stomachturning cancellation of rights of our generation? Or are you actually one of the people who are suggesting that? Serious question.
9.29.2006 4:45pm
curious (mail):
"Expect" is the wrong word, to be sure. As ably and fairly pointed out by several Volokhsters, there's no legitimate "expectation" of anything when it comes to a blog.

But to reframe as Lederman properly did: are you lampooning people who suggest no one should find it odd that a libertarian legal blog has not commented in any way on what would be the most stomachturning cancellation of rights of our generation?
9.29.2006 4:49pm
Caliban Darklock (www):
@ curious:

I am curious myself. Why is the punishment of terrorists "stomachturning" to you? Why do terrorists deserve rights at all?
9.29.2006 5:09pm
curious (mail):
oh, don't get me wrong. they shouldn't have any rights. i think we should just eat them.
9.29.2006 5:11pm
Crust:
Caliban writes:

Why is the punishment of terrorists "stomachturning" to you?

You mean suspected terrorists, which is kind of the point. Consider e.g. that Canadian who was shipped off to Syria for torture, all based on the basis of mistaken identity.
9.29.2006 5:14pm
Broncos:

Why is the punishment of terrorists "stomachturning" to you?

This is revealing, I think.
9.29.2006 5:15pm
A.S.:
It's hard for me to believe that you believe these IRS regs are in the same ZIP code of importance as what's going on in Congress right now.

The IRS regs are far MORE important than the detainee bill. After all, the detainee bill affects, what, a couple of hundred people? I don't think there's a slippery slope here. So a few hundred, tops. Meanwhile, the 409A regs affect every US person who gets any sort of stock-based compensation. That's millions of people!

And yet it's getting totally ignored.
9.29.2006 5:42pm
curious (mail):
They should have just eaten the Canadian. Then we wouldn't have to listen to him whine.
9.29.2006 6:18pm
Anderson (mail) (www):
Meanwhile, the 409A regs affect every US person who gets any sort of stock-based compensation.

[Makes "world's smallest violin" gesture, after Steve Buscemi in Reservoir Dogs.]
9.29.2006 6:23pm
Crust:
Curious writes:

They should have just eaten the Canadian. Then we wouldn't have to listen to him whine.

Needless to say, we would still have to listen to the Canadian government whine (and rightly so). (Insert obligatory joke about curious no doubt being a South Park fan.)

Broncos quotes curious:

Why is the punishment of terrorists "stomachturning" to you?

and writes:

This is revealing, I think.

Excellent point.
9.29.2006 6:45pm
keypusher (mail):

But to reframe as Lederman properly did: are you lampooning people who suggest no one should find it odd that a libertarian legal blog has not commented in any way on what would be the most stomachturning cancellation of rights of our generation?


Well, that's just it. I don't think the proposed legislation is "the most stomachturning cancellation of rights in our generation". I printed the bill out and read it, and I really don't understand why so many are so excited. Perhaps the VC co-conspirators feel the same way.
9.29.2006 7:01pm
Luke 1152 (mail):

I don't think the proposed legislation is "the most stomachturning cancellation of rights in our generation"

Okay, I'll bite - what would you put at the top of this "stomachtruning cancellation of rights" list in, say, the past 25 years?
9.29.2006 7:30pm
keypusher (mail):
I don't know. I can't think of one. We incarcerate a staggering number of people, especially black people, in this country. That turns my stomach a little bit. But it doesn't seem to have been the result of a particular decision or legislation. (I welcome enlightenment on this point).

I should have just said the detainee bill doesn't turn my stomach. I've read balkinization (Balkin himself seems relatively calm), and nothing I've seen there or read here about the bill turns my stomach. Much of what people are hyperventilating about seems to have relatively little to do with the bill that was just passed. Why don't you tell me why I am wrong?
9.29.2006 7:43pm
Vovan:

Yes, endorsing coercive interrogation of captured terrorists in limited circumstances is exactly the same thing as endorsing the killing of millions of innocent people, mass famines, Gulags, suppression of free speech, and so on. Yup, that's a really great argument. This is exactly the kind of penetrating, insightful criticism that is likely to persuade lots of people who don't already agree with you.


Вижу задели тебя мои слова, хорощо

My reasons against Torture are outlined by Bukovskiy a person who experienced torture on his own skin
Your perspective on torture is formulated by a third rate Canadian hack, who never saw a brown person he did not hate

Скажу еще раз - в демократической России, без гулагов, голода, и войн, длы таких как ты работы много, в МВД ксивы писать.
9.29.2006 7:44pm
A.S.:
Okay, I'll bite - what would you put at the top of this "stomachtruning cancellation of rights" list in, say, the past 25 years?

1. McCain-Feingold.
2. McCain-Feingold.
3. McCain-Feingold.
9.29.2006 8:09pm
Ilya Somin:
My reasons against Torture are outlined by Bukovskiy a person who experienced torture on his own skin
Your perspective on torture is formulated by a third rate Canadian hack, who never saw a brown person he did not hate


Yup, bogus, unsupported accusations of racism are a really great way to prop up a weak argument that began with equally bogus, equally unsupported accusations of being a communist totalitarian.

I'm tempted to respond in kind, but I think your own comments are a much stronger self-indictment than anything I can say.
9.29.2006 8:26pm
Anderson (mail) (www):
Keypusher: Bush has authorized torture (waterboarding, forced standing to 40 hours, hypothermia, sleep deprivation). The bill you've read, while purporting to ban torture, has to be read as an implementation of the very memos (e.g. the Bybee memo) that defined "torture" to exclude those KGB-style tortures.

And the sole interpreter of whether those tortures comply with Geneva is ... the president. Fox? Henhouse?

Hence much of our dismay, leaving aside the concerted effort to set up kangaroo tribunals that will admit coerced testimony and send people to death on its basis.
9.29.2006 8:49pm
keypusher (mail):
"McCain-Feingold."

Thanks, A.S. That does strike me as worse.


Keypusher: Bush has authorized torture (waterboarding, forced standing to 40 hours, hypothermia, sleep deprivation). The bill you've read, while purporting to ban torture, has to be read as an implementation of the very memos (e.g. the Bybee memo) that defined "torture" to exclude those KGB-style tortures.


Why does the bill have to be read that way?


And the sole interpreter of whether those tortures comply with Geneva is ... the president.


Where does the bill say that?
9.29.2006 9:03pm
Kazinski:
The unsaid motivation in all this carping about whether or not to blog on the detainee bill is the carpers are against it, they know that their voices don't have near as much weight in the blogosphere as the Conspiritors' (especially OK and EV), and they want them to go on record so the carpers can use the post to buttress their own position. When someone makes a comment like "it sure *looks* like a case of fiddling while Rome burns" you can be sure its not because they want you to take any position, its because they want you to take their position.

The reason that Orin, EV and the other Volokhans do have the readership they have is because they don't act like they know what they are talking about unless they are pretty sure they do.

The one complaint I do have is that when they are not blogging about serious legal topics at least they could do would be to pick frivolous topics like this rather than pet law.

Oh and for the record, I am anti-torture and pro-waterboarding. Any interogation technique that our own military personel are routinely subjected to in interrogation resistance training exercises doesn't rise to the standard of torture. I'll go on record as being against cutting off fingers with bolt cutters in all circumstances.
9.29.2006 9:40pm
Mark Field (mail):

I am anti-torture and pro-waterboarding.


I assume you mean you're "pro-waterboarding others". As Lincoln regularly pointed out, it was curious that all those advocating the benefits of slavery never seemed to volunteer for the status themselves.

Sadly, in your case, McCain and Graham have both stated that waterboarding is banned. Don't lose hope, though: there's always the possibility of a Presidential signing statement.
9.29.2006 10:06pm
Broncos:
I, for one, have been pretty clear that I expected to hear libertarian arguments. I'm sadly disappointed. There's nothing "unsaid" in my motivation, at least.

Today, I learned that Eugene does not consider himself libertarian. Or, at least he doesn't with respect to to the executive’s power to spy on the populace, seize and lock people into a secret prison, subject them to (insert whatever word makes you feel better about yourself), and put the executive in charge of making sure that the executive stays in check.

Which, to my mind, is sort of a "baseline" part of being libertarian.

And don't bring up the expertise point again: Apart from it being a too-stringent standard from a blog, EV and Orin have proven more than competent in these areas. In the past EV has blogged on habeas, and Orin on surveillance.

So, you win, Kazinski. The Volokh Conspiracy is a conservative blog.
9.29.2006 10:17pm
Kazinski:
Mark Field and Bronco:
Since tens of thousands of Americans have been subjected to waterboarding (semi-volutarily) I'm not sure I wouldn't sign up for a free demo on myself if the opportunity offered. After all I never have the dentist use novacaine when he fills my cavities, it can't be much worse than that. But having said that I am pro-death penalty too, and I'm not signing up for that either, but then again I'm not a murderer.

As for Volokh Conspiricy being a conservative blog I'm not so sure about that, I can't remember too many posts (except by temporary guests) that are anti-gay marriage. I was dissapointed in Orin's erroneous conclusion that the AUMF allowed the President to bomb Al Qaeda back to the stone age (and Osama is living in a cave) but not to listen to their phone calls.
9.30.2006 12:16am
dvorak:
From Anderson: Bush has authorized torture (waterboarding, forced standing to 40 hours, hypothermia, sleep deprivation).

Better to say "Bush has authorized waterboarding, forced standing to 40 hours, hypothermia, sleep deprivation which I believe is torture."


Hence much of our dismay, leaving aside the concerted effort to set up kangaroo tribunals that will admit coerced testimony and send people to death on its basis.

So the military courts of the US military are "kangaroo"? I think this tells us more about your prejudices than anything regarding laws and rights.
9.30.2006 12:24am
Anderson (mail) (www):
So the military courts of the US military are "kangaroo"?

Geneva requires regularly constituted courts. Bush insists on courts that deny various protections, presumably b/c he thinks he can't get convictions in a regular military court (an institution for which I have high respect).

The best guess, other than Bush's own aversion to any semblance of justice, seems to be that our case against KSM and other worthies is hopelessly tainted with torture, so that the evidence wouldn't be admissible. Bush is desperately trying to cover up his screwups from the past 5 years.
9.30.2006 12:48am
Randy R. (mail):
A question no one has asked is a very obvious one:
Why was this bill needed now?
If it is so necessary to torture these people, why was it not necessary until now? It's been just over five years since 9/11, and we've been at war for about four.

Does this mean that the military has not engaged in any torture until now, and now they are asking for this right? Bush has repeatedly said (even to Matt Lauer) that the US does not torture. If so, then how the heck have they been conducting the war until now? Has the war on terror been successful until now or not? Bush claims we have made progress. Therefore, we have made progress without the need for torture. So why the need now?

Or does this mean that the military has been secretly torturing people until now? If so, then why the need for the bill, unless there is a tacit admission that all or most of the torture has been illegal until now. Therefore, there should be military tribunals on this matter, but so far very few.

Nothing adds up. Bush under either scenario, Bush and our leaders are lying, or at the very least, hiding important information from the public about torture.

Bush is left with the position of saying that we haven't tortured in this War on Terror, that it's going along just terrifically, much progress has been made, but not quite enough. We are safer, but not safe -- whatever that means. So to go from safer to safe, we need to ramp up our efforts, even though there have been no further attacks against the US since 9/11 and the anthrax attacks that followed, and the only way to do that is through torture.

And whom shall we torture? All those people in Gitmo have been there for years. They can't possibly know of any new plots against the US. What would be the purpose in torturing them now? The only thing I can see is to get them to confess to crimes that we don't have evidence so that we can extract a confession. That's hardly a reason to torture.

Who else? Recent captures, I suppose. But here's a thought -- what if our enemies turn out to be nothing more than the equivilent of urban gangs? Just semi-organized groups of young men who know how to make homemade bombs and kill people. No big plans, no grand theories, just a bunch of criminals, really. Torture them all you like, and they just don't have much to reveal.

Sometimes, the danger is overestimating the enemy.
9.30.2006 12:56am
Mark Field (mail):

Since tens of thousands of Americans have been subjected to waterboarding (semi-volutarily) I'm not sure I wouldn't sign up for a free demo on myself if the opportunity offered.


If it's so appealing, I recommend you sign up it, but leave the number of sessions open to be decided by your interrogater. Oh, and safe words are for wusses.

I'm guessing you'll confess to terrorist acts by the third session.
9.30.2006 1:02am
Kazinski:
Randy,
On most other blogs I'd just call you an idiot and be done with it. But as the VC has a more genteel commenting policy, I'll try to explain why the detainee bill is necessary now when it wasn't last May. The Supreme Court issued the Hamdan decision which re-interpreted the Geneva conventions to require that terrorists be treated under article 3 of the Geneva conventions. The Supreme Court in the person of Anthony Kennedy said that Congress had to authorize the Military Commissions that while legal in 1942 in Ex Parte Quirin:

Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

had somehow become illegal (its too bad Supreme Court decisions don't have an explicit expiration date like milk). So to conform with the law as it is today President Bush needed to get Congress to authorize military commissions to try the illegal combatants.

But a lot had changed since 1942, not just Supreme Court decisions. In 1942 to be called a facist you had to burn down the Reichstag. Now to be called a facist all you have to do is comply with a Supreme Court ruling.
9.30.2006 4:03am
Mark Field (mail):
Quirin is the decision Scalia (!) said was "not this Court's finest hour". I guess in your view Korematsu was good law too and shouldn't have "an expiration date". Want to go on record for Dred Scott?
9.30.2006 12:45pm
Randy R. (mail):
Well, sorry for asking questions. I apologize. In the brave new world that George Bush and the Republicans have wrought, asking questions is at best stupid, and at worst treasonous.

One last question though: Why was it so necesssary to ram this bill through congress right now? They had the entire summer to present it and debate it, but no reason to do so until now? Just a few weeks before the election?
The wording of this bill wasn't even available until late this week. Wow gosh and golly gee -- the congress spent a whole three days discussing a bill that would transform how we've conducted warfare since at least 1946 and probably earlier. No hearings, no discussion, not even time for the public to digest what's going on. For crying out loud, gay marriage had more hearings that this bill!

So I guess I am 'stupid' for wanting to know why Bush and the Republicans felt the need to ram it through congress without the proper amount of deliberation it deserves and needs. But then, if you are a republican, politics uberalles.

So I'll ask this again, and now risk being called a traitor: If torture is so important, why wasn't it introduced shortly after Hamdam? Why did the Bush administration leave us so unprotected in since Hamdam? Or where they torturing in sure violation of Hamdam since then, thereby knowingly violating the law?
9.30.2006 3:50pm
Randy R. (mail):
I mean, of course, the Bush administration would NEVER do anything it knew to be illegal. So we must assume that from the time of Hamdan until just now, the military halted all torture in accordance with Hamdam, right?

Or maybe this is a rogue administration that really cares nothing for the rule of law. And yet, we are supposed to trust them that they would never abuse the use of torture.

And, according to recent released documents by the NIE, the problem of terrorism has been exasperated by the inept war in Iraq. Perhaps we wouldn't even be having this discussion if the Bush people didn't create so many terrorists that needed torturing in the first place.

What else will these people screw up, and then tell us that we have to abandon longheld views of law and the Constitution in order to 'correct' these problems.

I guess these statements make me qualify as helping the terrorists, since I question the adminisitrations' handling of the whole mess that itself, right?
9.30.2006 5:35pm
Kevin Edwards (www):
Ilya, recognition of our own limits is to be commended. Most people are simply lost on this legal topic and looking for guidance from those they've grown to trust and respect.

Although you, et al., might not have answers, I think the two "crucial questions" you raise are the key starting points, and should perhaps be codified as foundational: (1) the effectiveness of the various interrogation techniques and military commissions, and (2) the application of those techniques to avoid misuse and abuse of innocents.

Your "update" actually refers to perceptions of treatment after capture rather than actual treatment, which can be divergent for many reasons, including, for example, (1) enemy leaders tell their fighters they will be tortured to encourage them to fight to the death, or (2) the U.S. claims they do not torture, even if they do in select cases where it is effective. Alternatively, (3) the perception of torture might even prove to be a deterrent to fight in the first place.

At this point, I think we are all just looking for evidence, research, and experts to help us answer these dilemmas.

Kevin
9.30.2006 8:26pm
keypusher (mail):

Well, sorry for asking questions. I apologize. In the brave new world that George Bush and the Republicans have wrought, asking questions is at best stupid, and at worst treasonous.


Randy R. Asking questions is neither treasonous nor stupid. But jumping up and down and asking "why this legistlation NOW??" in total ignorance of the Hamdan decision is pretty damn dumb.

To answer your follow-up question, Bush has been pushing for this legislation since Hamdan came down. Drafting and enacting legislation takes time, especially when you have to compromise to get three critical senators (McCain, Warner, Graham) lined up.


I guess these statements make me qualify as helping the terrorists, since I question the adminisitrations' handling of the whole mess that itself, right?


Helping the terrorists? Don't flatter yourself.
9.30.2006 9:54pm
Randy R. (mail):
I agree, I should have noticed the Hamdan decision. And you folks have indeed answered some of my questions.

But still, you yourself admit that drafting these bills takes time. Debating them even more so. Why the rush to approval? And sorry, but I disagree about the timing. I believe that the Bush administration wanted this vote just before the election so that they could say how tough they are on terrorists.

As for helping the terrorists -- I DON'T flatter myself. However, Bush, Cheney, O'Neill, Limbaugh and so on have in fact stated that any criticism of the way the war is handled, or any questions, is giving comfort to the enemy. They have done so repeatedly since 9/11, and I will stand up every moment I can to say that dissent and questioning, in ANY context, is not helping the enemy. On that issue, Bush's was in Iraq has done more than any person could have dreamt of.
9.30.2006 10:32pm
DanH (mail):
Judging by the fact that thousands of them have been captured in Afghanistan and Iraq, I suspect that many of them do care about staying alive, regardless of what their "Code" might say. If so, their decisions could be influenced by the prospect of being tortured.

As you do not make uninformed comments, I suppose this means that you have more access to the mindset of thousands of Afghan and Iraqi prisoners than to a Congressional bill.
10.1.2006 4:56pm
Rob W (mail) (www):
I am certain that you would agree that as well-educated legal minds and citizens, you owe the nation a duty to inform yourself about these critical issues and then express your opinion on them.
10.2.2006 1:32am
Anderson (mail) (www):
The bill is NOT "needed now," or ever. No statute is needed for every detainee in our custody to be charged, tried, and imprisoned or executed if found guilty.

Because there's already a statute. In fact, there's the Uniform Code of Military Justice. And the military tribunals it creates.

We could try KSM and everyone else in that system. But Bush et al. are fighting like crazed dogs to keep that from happening.

Does no one find that a bit peculiar? Are Bush's talking points really so persuasive?

Our evidence against these people is apparently derived from torture and coercion, and inadmissible by any court or tribunal worthy to fly the American flag. THAT, I suspect, is why these "special tribunals" are necessary.

How these are "regularly constituted tribunals" under Common Article 3 is anyone's guess. But, wait, we still *follow* Geneva ... we just don't *enforce* it.
10.2.2006 11:44am
Anne Alienable (mail) (www):
Many libertarians with whom I've spoken seem to have a real macho thing going on. They want government roles to be limited, but aren't too sad to see its power in exercizing them be pretty unchecked if it's done by good strong capable men like Jack Bauer.
10.2.2006 12:07pm
Anderson (mail) (www):
Anne, it seems that liberatarianism's strong Romantic individuality renders it subject to another Romantic ideal, the "great man" a la Carlyle--an individual who, by embodying why individualism is so wonderful, also holds himself out as an ideal type. Cf. Ayn Rand's Howard Roark.

Thoreau, I think, managed to get the individualism without the authoritarianism. "I desire that there be as many different sorts of people as possible" is a sublime thought.
10.2.2006 1:39pm
Anne Alienable (mail) (www):
It's only a short step between positing an ideal type of person and deciding that such is morally above all restraint.

Perhaps they are...but only if they all are, and if that's the case we'll just have to make sure we can physically keep them from going too far in way obnoxious to the rest of us, even if that's the flip side of non-creative parasites holding down the True Creative Individuals out of blinkered ignorance and resentment for our betters.
10.2.2006 7:53pm