If Death Is Always Worse, Is Anything Permitted?
I have long taken it for granted that there are some things worse than death. Certainly torture, if severe enough, can be worse. Apparently this is not a universal view, however.
At Balkinization, Marty Lederman points to this interview with John Yoo in which he says "death is worse than torture," and therefore torture must be permissible in some circumstances:
death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them. I don't see how it can be reasonable to have an absolute prohibition on torture when you don't have an absolute prohibition on killing. Reasonable people will disagree about when torture is justified. But that, in some circumstances, it is justified seems to me to be just moral common sense. How could it be better that 10,000 or 50,000 or a million people die than that one person be injured? [emphasis added]The second half of Yoo's quote is the fairly traditional (albeit highly controversial) utilitarian argument that torture may be justified in extreme circumstances to save innocent life. In the first half of the quote, however, Yoo suggests that because "death is worse," then if one is allowed to kill one's enemy in wartime, one must be allowed to do anything else to one's enemy as well. Whatever one's view of the acceptability of torture, this can't be right. Unless one is going to argue that torture would be justified whenever killing would be justified, then the lack of an absolute prohibition on killing cannot establish that an absolute prohibition on torture is not "reasonable."
What a joke. Or rather, what would be a joke if the stakes weren't so high.
Similarly you can maim the enemy with bullets, mines, bombs, etc. Doing those same things to a captive is prohibited. Torture as usually defined is limited to captives, and thus is not permitted even during war. You could argue that maiming someone with a mine is a kind of torture that is permitted during war, but very few people use that definition for torture. It is clearly not the meaning that Yoo has in mind.
I've said it before, and I'll say it again:
Shame on Yoo.
I stole that line, I just can't remember from whom.
If we are entitled to kill people, we must be entitled to rape their children. I don't see how it can be reasonable to have an absolute prohibition on raping your enemy's children when you don't have an absolute prohibition on killing.
Caveat: What if enslaving was the least harmful method of immediate self-defence - eg, Prospero binds Caliban to stop Caliban assaulting Miranda, rather than Prospero killing Caliban? Ditto, if non-lethal electric shocks - or the new "active denial" weapon, aka the "Pentagom Jabbar", which uses microwaves to heat the outer skin and create a burning sensation, but without causing any actual burning - are used to fend off an immediate threat.
"Immediate" would have to mean "clear and present", and more importantly, against an armed attacker - not against someone who might know where al-Qaeda's planted a dirty bomb in DC.
My point being that the moral intuition here is not "you must always kill rather than inflict pain or slavery", which really would be perverse, but "you can only use these extreme measures against someone who'd otherwise kill you right away." Whereas in most cases (to paraphrase what Orwell noted about revenge), to either enslave somene or torture them, then by definition you first have to have them completely within your power as an unarmed prisoner; they won't be a clear and present aggressor.
I don't think the US taking this view bodes well for the safety of US servicemen who will be taken prisoner in the future.
Well, that really is the crux, isn't it. If one assumes death is not annihilation, then there are plenty of things on earth worse than moving on to a comfortable afterlife, including a wide variety of tortures. If death is the end, as I believe, it gives one a somewhat longer pause about killing and the arguments for it, as well as putting anything that is not death into a completely different category of action. (A quick death vs. torture to death is a completely different argument the one suggested by Yoo, by the way.)
Interestingly, torturing a materialist, where death was not the certain outcome either way, might produce marginally better results than torturing someone sure of his celestial reward.
What about torture of one to prevent death of another, or - of many others? And, even if ultimately not able to prevent other harm, to exhaust all alternatives to that end?
"sometimes dead is better"
(insert downeaster accent for optimum effect)
The real crime is that this man is treated as a serious academic and theorist rather than the political hack that he obviously is. Boalt Hall is a lesser law school for having hired him.
(1) a enemy on the battlefield can be killed
(2) a soldier not on the battlefield is an enemy
(3) the greater includes the lessor
(4) therefore a soldier not on the battlefied can be tortured
for starters, (1) and (2) don't prove a soldier not on the battlefield can be killed. all soldiers on the battlefield are enemies, but not all enemies may be killed. just because all A's are C's and all B's are C's, does not mean that A=C, john.
then, are the premises of proposition (3) even proper? the greater might include the lesser, but it's not clear that torture is the lesser.
o, i forgot, it's not torture, it's "innovative interrogation technique."
Sad, but very true.
Prof: So you say toturing suspects can never be moral. How about a guy has a nuclear bomb hidden in NY City; when it goes off millions will die. You know he has a phobia, an absolute terror, about electrical shock. A tiny shock that would barely be noticed by you or I, and he will spill his gutst. Do you give him that shock?
Student: Er ... uh ... I suppose so.
Prof: Alright, now that we're settled that torturing suspects for information is moral, it's just a question of how much pain versus how much public benefit, I suppose we can (etc.).
Yoo is not a war criminal in any legally meaningful sense. And, if he upholds his obligation to teach rather than to indoctrinate, I can't find an acceptable rationale for criticizing the hire.
I generally find the practice of disqualifying faculty for consideration based on unpopular theories to be disturbing. The exclusion of CLS scholars from many top universities, for example, I find troublesome.
Obviously the desirability of a faculty candidate rises and falls in part on the quality of their legal scholarship, but it also reflects the influence thereof. Based on his role in the administration's war on terror, I would never want him on my (hypothetical) faculty, but only because I subjectively regard his role with the greatest moral contempt. But I realize that is a subjective judgment, and I would not condemn a university for aggregating a series of subjective judgments into a collective judgment that conflicts with my own.
Two additional points:
(1) I would actually laud Boalt for the hire because it's obviously at least in part a step necessary to discredit their stereotype as an administration and faculty of liberal idealogues.
(2) My position is obviously vulnerable to the criticism that, taken to it's logical extreme, Harvard should hire scientists that think the world is flat. While acknowledging that criticism here, I hope to be politely relieved of the fairly involved burden of distinguishing the two situations.
A socratic retort:
Dave: Alright, now that we're settled that torturing suspects for information is moral, it's just a question of how much pain versus how much public benefit, I suppose we can (etc.).
Lee: No, we haven't settled anything, because we haven't concluded that there's an institutional actor or mechanism of making that calculation with the necessary accuracy.
Yoo is not a war criminal in any legally meaningful sense.
Doesn't your need to include the phrase I put in boldface suggest that your defense is weak? Holding controversial views is one thing. Engaging in activities that require that qualifying phrase is something else.
Is the logic that lawyers who justify and aid governments in committing war crimes can not be war criminals since lawyers are, by definition, the salt of the earth and get a free pass on anything they do? Well, I suppose my fondness for the lawyers here on the Volokh Conspiricy makes me somewhat open to that idea, but I have to confess I am not totally persuaded.
Doesn't your need to include the phrase I put in boldface suggest that your defense is weak? Holding controversial views is one thing. Engaging in activities that require that qualifying phrase is something else.
I don't think so. I was trying contrast
(1) the legal status of a "war criminal," subject to all the statutes, treaties, and decisional law that exclude Yoo from the term's ambit, with
(2) the everyday sense of "war criminal," as in a guy with blood on his hands, who has some quantum of personal responsibility for the zealous acts of patriotism/physical violence that this theory has incited.
If one believes that Roe was wrongly decided, a number of lawyers and judges could be called "murderers," but I don't think in the sense that should exclude those people from academic participation.
I hate what John Yoo did, and every rationale he has offered falls short of what i hoped his reasoning would be, but I just don't think that's a basis to criticize boalt for hiring him.
"Yoo is not a war criminal in any legally meaningful sense. And, if he upholds his obligation to teach rather than to indoctrinate, I can't find an acceptable rationale for criticizing the hire."
I didn't call Yoo a war criminal. I said he was a political hack who made intellectually dishonest arguments at the DOJ. And great law schools-- and Boalt is a great law school-- are supposed to be interested in serious intellectual inquiry. Hiring a water-carrier for the Bush White House does not further that purpose.
It wouldn't particularly bother me if they hired a torture supporter, even though I find that view abhorrent. Alan Dershowitz at Harvard is a fine law professor and a torture supporter. But Professor Dershowitz isn't a political hack.
I actually find the issue of whether Yoo is a war criminal to be almost impossible to determine. On the one hand, I take the Hitler analogy-- if Hitler had a lawyer who wrote him memos saying that the Final Solution was permissible under German and international law, I would hope that the Nuremburg tribunals would have prosecuted him or her. On the other hand, there's a big difference between giving advice and implementing policy, and there are good reasons why we generally don't criminalize the giving of even plainly incorrect legal advice.
But by discussing the issue of whether Yoo committed war crimes, one sets the bar too high. He certainly claimed things were legally permissible that he must have known were not (and his current defenses of torture, by negative implication, show this). That's just about the biggest no-no for a serious scholar, and should disqualify him from employment at a top law school.
(1) punitive, because he did shitty things, or
(2) instrumental, because although he might be good at teaching law, he might teach it in a way that promotes dangerous ideas
(3) instrumental, because his work for the administration signals intellectual shortcomings that would make him a bad professor?
It isn't as though there aren't great arguments to be made, and academic battles to be fought, on, e.g., the scope of executive power against terrorists. It's just that so much of what Yoo says would land him a "C" on any Fed Courts final but for the fact he's already tenured.
As a practical matter, any public discussion of this is immediately politicized and becomes mere repetition of ritual denunciations. Lefties in particular have a vampire-to-garlic reaction to mention of Mr. Yoo.
In a related question, how many lunatics can a single school collect on its faculty? Remember that Phillip Johnson of ID (in)fame is also there. He, at least, waited until after he was tenured to espouse batshit crazy ideas.
I believe there were and they did.
I seriously doubt that Yoo's afterlife -- if it exists -- will be a comfortable one
Given that the word "person" as used in the Bill of Rights lacks "ectraterritorial application" (the quote is from EJohnson v. Wisentrager) in exactly the same way as it lacks "prenatal application" (the quote is from Roe v. Wade), I don't see why the incidental use of scientific research or intelligence-gathering methods incidental to a termination procedure could even be thought of as having anythin to do with the Eighth Amendment. Surely no-one would think of bringing the Eighth Amendment into play in an abortion case. What makes war any different? Certainly nothing in our constitutional jurisprudence suggests a difference between the two. Traditionalist views in both cases are largely a product of medieval thinking out of which our society has presumably evolved.
War is not a game fought always by the Marquess of Queensbury rules. Just ask the Israelis, who have resorted to simple murder, to deal with terrorists. (I say murder because sometimes their assassinations have gotten the wrong guy.) If some torture happens to the bad guys (and I don't mean 18 year-old Iraqi conscripts, by the way), there's a good part of me that says, "serves them right."
Consider another argument: You know that most people don't like being in prison, even a fairly humane prison. In fact, there is a nonzero percentage of captives who, if let go, will give you no information, but if threatened with prison, will.
By the same argument that claims a small electrical shock opens the road to tortures of all kinds, putting someone in prison also opens the road to tortures of all kinds, and in fact it is immoral to ever put a captive in prison in order to get information.
atheistic materialism is not a position so fundamantally out of the realm of logic, to be so completely dissmissed by the intelectually feeble above. neither is moral relativism.
I am singling out bobnfs. ship erect and others as representative of a section of humanity who go through life in intelectual straightj ackets
Since it has now been pointed out in the comments that, yes, we did go after Hitler's laywers, I ask again, how is it obvious that Yoo is not a war criminal? Not one worthy of execution certainly, maybe just a little warboarding and cold room treatment. He can't complain about that since Bush says that is not torture, and Yoo has been nothing if not loyal in believing what Bush wants him to believe, even if it goes against obvious truths, laws, and facts.
Or has D Esler put it above "I said he was a political hack who made intellectually dishonest arguments at the DOJ". If those dishonest arguments did leave to war crimes, isn't this exactly what a small fry war criminal is?
What if enslaving was the least harmful method of immediate self-defence - eg, Prospero binds Caliban to stop Caliban assaulting Miranda, rather than Prospero killing Caliban?
Self-defense only authorizes force when danger is eminent. Enslavement goes beyond preventing eminent danger. (Assuming Prospero &Miranda are telling the truth, otherwise they are just criminals.)
If we are entitled to kill people, we must be entitled to rape their children. I don't see how it can be reasonable to have an absolute prohibition on raping your enemy's children when you don't have an absolute prohibition on killing.
Actually, Yoo has stated that it would be OK for the president to give the order to crush a child's testicles in front of a parent if the parent was a terrorist that had significant information. (I actually have the alleged mp3 file of this, I saved it because I couldn't believe it.) The nature of the injury implies a male child, so I don't know whether he would have female children raped or not. Of course genital mutilation or destruction is worse than rape, so maybe anything goes since he's said genital mutilation is OK.
The idea that the constitution would permit the courts to impose judicially-created prohibitions on the use of poison gas, nuclear weapons, land mines, partial-birth methods, or other termination methods is incompatible with our constitutional jurisprudence.
Really? If the Constitution states that treaties signed by the US are second only to the Constitution itself in supremacy and the US has signed treaties which bar the use of chemical and biological weapons, prohibit torture, etc. isn't that part of our "Constitutional jurisprudence"? Granted these aren't "judicially created" but they certainly can be judicially interpreted and ordered.
If some torture happens to the bad guys (and I don't mean 18 year-old Iraqi conscripts, by the way), there's a good part of me that says, "serves them right."
What does that part of you say when they torture an innocent person? Oops?
And prey why is Abu graith such a heinous crime (or rendition for that matter). I keep hearing it is - taken as a matter of axiomatic fact, with nary a reasoned argument as to why in a time of war it is so bad.
I would be especially interested in your reasons as to why you think the kind of sordid sexual humiliation that abu graith became famous for is a fate worse than death. Maybe you too belive in some 72 virgins awaiting you on the other side.
Mouthing off of drivel without thinking it through is a common failing of pious sanctimonious types.
War my friend is dirty business. And if you believe a war can be fought ( AND WON ) while keeping one's hands clean, then I hope there are many like you on the other side. Coz if there are many like you on our side ( as it appears) all is lost.
Yoo had a legitimate realist point of view, you may or may not like it - but really who cares.
One problem, with the current state of the USA is that every opinion no matter how foolish has equal wieght- too much democracy perhaps. This is of course a problem with the internal dynamics of democratization taken to an absurd extent.
Remember- by definition the average IQ is 100, or to put it another way 50 % of the population (with a democratic voice that needs to heard) has an IQ less than 100, or better still, 30 million people in the usa have an IQ of less than 80 ( CLASSIFYING THEM MEDICALLY AS RETARDED). and all of these peoplehave a need to be heard, and for their opinions to get an legitimate airing.Ergo stupidity, pedantry and populism dominate our discourse.
In the context of democracy, there are things the elites have to say- just for the sake of saying them or to keep the idiots at bay. When the elites actually start believing their own rhetoric- then we have a civillizational problem.
So: Mr Ship erect I ask you which are you-
the plebian in need of a bromide
the dispenser of the bromide
or the delusional who has started to belive his own bromide.
all of me says --ooops
And that's the first time I've seen it called "Graith." Perhaps you have a different torture prison in mind?
to quote from the original interview:
Yoo's theory of the president's practically untrammelled powers in war is, to put it mildly, not the orthodox position on what the constitution permits. "Well, it may not be orthodox," Yoo replied with a smile, "but it is in fact the way presidents have behaved during wartime, and it is supported by legal precedent. Generally, the courts have not tried to interfere with the president's power to conduct war ... I think the OLC's reversal was pure politics. The administration just lost the courage of its convictions."
nothing wrong with what he said here. problem is in the 21st century we have given unparalled power to idiots, who actually belive the drivel that they put out for public consumption.
wars- especially wars against non state actors who behead people on camera are nort won by the most virtuous but by the ones with the most resolve, and balls!
In the fine tradition of orwellian newspeak: dont like what I say call me a fascist. and call YOO a war criminal
One would never, ever guess it from your erudite eructations.
> "Self-defense only authorizes force when danger is [im]minent. Enslavement goes beyond preventing eminent danger."
Well, normally. My recollection of "The Tempest" is that Caliban tried to rape Miranda so Prospero chained him. (Correct me, anyone?) Not sure that "enslave" is the right word. Objectively speaking, I'm not sure how "I'm handcuffing you so you don't kill me" (or "I'm giving you a zap with a taser so you don't kill me") can be said to "go beyond" "I'm putting a bullet through your head of chest so you don't kill me." It's not the extent that counts (otherwise, slavery and torture would indeed, as Yoo says, be less grave than killing) but the necessity. Immediate self-defence justifies whatever effective means are least far-reaching. Normally, this means only killing. If, however, pain or restraint would suffice to protect you from imminent death, then they would be justfied (perhaps based on implied consent).
Of course, I add two very big caveats: (1) "The Tempest" has been postcolonially deconstructed in great depth, and (2) both my e/gs above (Shakespeare and Frank Herbert) of "non-lethal self-defence" come from fantasy and science fiction. Ideally, I suppose, a Potterish "you cannot harm me" spell, or the power to telepathically make your enemy's weapon too hot to hold ("Firestarter", Star Trek's Organians) would be less drastic than killing, and therefore (arguably) morally better.
1. We all wind up dead.
2. Thus, the question is whether someone dies sooner rather than later.
3. A person who dies now can no longer suffer.*
4. A person who dies later can suffer/be tortured in the meantime.
5. The choice is therefore between dying now and dying later while suffering/being tortured.
6. If suffering/being tortured is a negative, then dying now is always better than dying later after being tortured.
Hence, indeed, death can be better. The same analysis proves that the death penalty is actually not as bad as locking up someone for life in prison with no chance of parole. Either way, the convict dies. The only question is: how much added suffering do we throw on top?
* I'm not including the afterlife in the analysis. The only argument by which immediate death could be seen as worse than death after a period of suffering is if one decides that the added measure of life could afford someone the chance to change their afterlife. In other words, if I kill an unrepentent murderer now, they go to Hell and suffer. However, if left alive long enough, the murderer might come around to being repentent and escape Hell. Of course, this is navel-gazing, really, but it's fun for a Sunday morning.
Nag:
the logical corrollary of your " logical analysis" could also be :
1. We all wind up dead.
2. Thus, the question is whether someone dies sooner rather than later.
2a life involves much suffering ( along with the good parts of course)
3. A person who dies now can no longer suffer.*
4. A person who dies later can suffer in the meantime.
5. The choice is therefore between dying now and dying later while suffering.
6. let us all kill ourselves
starting perhaps with the folks who think killing is better than torturing.
BTW remember- the torturee ( is that a word) has a choice- he can spill the beans before the splinters underneath the nails.
Really. This torture victim who can give up intel would be who now ? One of the majority of Iraqis imprisoned in Iraq who are innocent and therefor have no intel to give up to stop torture ?
Walk us through how that works champ.
Animals generally don't kill other members of the same species. Doing so would be very maladaptive (except in certain situations), because it would harm the survival of the species, so they've evolved threat displays and other forms of dominance that fall short of causing actual death.
As humans, we can think, so we can override our instincts and kill, but we still have a instinctual reluctance which says "killing is bad. Dominance (in this case shoving people into prisons) is good."
In other words, you may very well be *right*. A rational analysis concludes that the death penalty *is* better than permanent imprisonment. But we're wired to want to do the worse thing and put people in prison instead.
Yoo's comments seem to go far beyond a theory of executive power. As pointed out repeatedly in this thread, his reasoning leaves quite a bit to be desired. That seems to me just as disqualifying for a law professor as denying a historical fact. In addition, Yoo's arguments imply factual assumptions which certainly are dubious, though not sinking to the level of Holocaust denial. Again, that blindness to factual evidence strikes me as at least ground for skepticism if not disqualification. Combined, I don't see any justification for the hiring decision. It certainly isn't one I'd applaud.
For the sake of clarity here, I have no problem with the idea that a law school would hire a proponent of the "unitary executive". I personally think that theory is fatuous, but it shouldn't be confused with Yoo's outrageous conclusions.
"Intellectually dishonest" referst to people who advance theories they don't believe in, make arguments that they would not make if the shoe were on the other foot, or make arguments inconsistent with known law or fact in the hopes of misleading people who are not familiar with that law and those facts.
It's a subset of dishonesty. One can be dishonest in many ways, from embellishing one's resume, to cheating on one's spouse, to cheating on one's taxes, to spinning yarns at a cocktail party. But intellectual dishonesty-- i.e., making arguments that you actually understand to be BS-- is poisonous in legal academia, because law schools are supposed to be searching for truth, generating legal theories supported by history, text, tradition, and sound policy, etc. So it's a specific type of dishonesty that would make Yoo a bad legal scholar in a way that, for instance, falsifying a tax return would not.
"First, I think, in order to achieve their foreign policy goals, the Clinton Administration has undermined the balance of powers that exist in foreign affairs, and have undermined principles of democratic accountability that executive branches have agreed upon well to the Nixon Administration. The second thing is that the Clinton Administration has displayed a fundmental disrespect for the rule of law. Not in the sense that they don't make legal arguments to defend their positions, but the legal arguments are so outragous, they're so incredible, that they actually show, I think, a disrespect for the idea of law, by showing how utterly manipulable it is. And the the third thing is a matter of consistency. I think one of the things the rule of law demands is that people be consistent, and that institutions be consistent in their legal positions. And I think the Clinton Administration, as I'll discuss in a moment, has been wildly inconsistent. It has gone to the point of disavowing previous executive branch opinions, and when it does things that it finds so inconvenient legally that it overturns too much law, it just doesn't say anything at all, and goes ahead and does what it intends to do anyway."
This is from a previous VC post.
Now, replace Clinton with Bush and you will have the text of a typical "leftist" rant against Bush. But, of course, this is John Yoo speaking and perhaps giving a new meaning to the term "chutzpah." Has Yoo discovered something in the constitution in the past seven years he missed back then?
I'm not sure how anyone could think something to be worse than death. After death, you are gone. Maybe there's some afterlife, but getting there faster won't make a difference. One only needs to look at the extraordinary hardships (and risks) people endure when their lives are in danger too see the value of survival.
Note that our laws define death to be worse than torture; the ban on Euthanasia shows this. If you are in immense pain, you still can't choose to die.
Christ, we've gone so far ad absurdum there's no room left for a reductio.
Objectively speaking, I'm not sure how "I'm handcuffing you so you don't kill me" (or "I'm giving you a zap with a taser so you don't kill me") can be said to "go beyond" "I'm putting a bullet through your head of chest so you don't kill me."
There's a reason we don't allow this outside of the legal system, because there's no factfinding. Prospero may be lying. He could be seeking "protection" because he or his daughter committed an offense and don't want to answer for it. He could be enslaving or economically crippling because he hates the fact you were more successful than his kids, etc. He could be enslaving because he or his relatives are simply greedy, lazy, power-hungry ethnosupremicists. It happens all the time - people make false claims for profit or people lie about the true cause of a situation and then they try not to get caught.
And of course from a policy perspective this is ridiculous. People looking to steal money would just find someone with money that is physically intimidating. They would slap them across the face and then run away. Then they would claim that they feared for their safety and needed to steal from and enslave them. Obvious potential to be a scam.
Immediate self-defence justifies whatever effective means are least far-reaching. Normally, this means only killing. If, however, pain or restraint would suffice to protect you from imminent death, then they would be justfied (perhaps based on implied consent).
Where do you get self-defense means killing? There are all kinds of analysis involved in self-defense doctrine - size of the parties, who initiated the threat, proportionality, nature of the threat, imminence, etc.
Implied consent of who? The assailant? That assumes it truly is self-defense and appropriate self-defense.
Ideally, I suppose, a Potterish "you cannot harm me" spell, or the power to telepathically make your enemy's weapon too hot to hold ("Firestarter", Star Trek's Organians) would be less drastic than killing, and therefore (arguably) morally better.
All assuming that it is valid self-defense. If it isn't the "defender" becomes a criminal and tortfeasor. Maybe the effort should be on not starting trouble, not taking what isn't yours, paying your debts, leaving people alone, etc.
On the other hand, I thought law schools existed to train lawyers. One of the chief skills in lawyering, is in making a convincing argument in favor of a position that you don't believe. So, assuming that Yoo knows that these arguments are BS (and I'm not sure I'm willing to make that assumption), wouldn't his fault, as a trainer of prospective lawyers, lie chiefly in espousing these views in a way that is not persuasive? The problem is not a matter of whether he believes these views or not; but that he is such a bad advocate for them.
all of me says --ooops
Maybe they will take that into account at your sentencing.
In other words, you may very well be *right*. A rational analysis concludes that the death penalty *is* better than permanent imprisonment. But we're wired to want to do the worse thing and put people in prison instead.
There's also the matter of irreversibility. Once you execute someone that is it. So if you are wrong and executed an innocent person you cannot correct your error and atone for it. If you falsely imprisoned someone you can release them and pay the damages.
BTW remember- the torturee ( is that a word) has a choice- he can spill the beans before the splinters underneath the nails.
As someone mentioned above, not if he is innocent.
Then the torturer has made their choice - they have chosen to incur massive amounts of civil and criminal liability. They can only try to cover it up, smear the victim, try to frame them, etc. Or they could show some backbone and face the consequences.
Did Dick Cheney sneak on to these boards?
The US fought a clean war in WWII and the Korean War. By that I mean that there was no official policy to deviate from the Geneva Conventions. For the most part, the wars were fought with complete compliance. Privately, I'm sure somethings happened that were not clean. But the point is that even if that happened, it was not the official policy of the US>
We won those wars handily. We didn't need to resort to violating our obligations to Geneva, to our judeo-christian heritage, or to our consciouses. And for that reason, the United States of America became greatly respected around the world. We are not in the process of destroying all that good will and respect. And what have we gained for it?
Good going, Dick Cheney. Instead of being the beacon of light and the moral consious of the world, we are now no better than any tin pan thug.
"And great law schools-- and Boalt is a great law school-- are supposed to be interested in serious intellectual inquiry. Hiring a water-carrier for the Bush White House does not further that purpose."
Oh yeah, all of the elite law schools are SO much about intellectual integrity and not about being a political hack. Please, don't piss in my ear and tell me it's raining...
i don't understand your point. law schools are so much about being a political hack [sic]? what does that mean? that berkeley hired yoo because it wanted to become a mouthpiece for the administration? or that law schools are only interested in ex political officials?
First, torture causes more harm. There are many unhappy people who would have been better off never having been born, but no one is better off as a result of being tortured.
A few days of severe and degrading torture can cause enough unhappiness to more than offset an entire lifetime of happiness for even a fairly happy person.
Second, torture corrupts the torturer in ways that a clean and speedy executive doesn't do to the executioner.
Third, and most importantly, torture acclimatizes investigators and interrogators to cut corners in their inquiries, by relying on a speedy but often unreliable method of collecting information (torture) for time-consuming but more reliable methods of collecting information such as carefully gathering intelligence, searching the crime scene, forensic science, etc.
To draw an analogy, hearsay is often relevant, and sometimes not too unreliable, but the legal system bars it in part to compel the production of evidence in more reliable, vettable form (testimony based on personal knowledge, from the original source, etc.).
I once worked with John Yoo on a case. Back then, he seemed like a nice, intelligent man.
But now, it seems, John Yoo has gone sadly astray. What ghastly arguments he had made about torture. Terribly sad.
Most other people are probably right for ignoring this, but I just can't bear to:
"Remember- by definition the average IQ is 100, or to put it another way 50 % of the population. . . has an IQ less than 100"
NO. No no no. That's not how averages work. Aargh.
And jvarisco:
You may find it hard to understand, but a lot of people (most?) do believe in things worse than death. Euthanasia and suicide laws wouldn't have to exist otherwise. And even those laws don't necessarily imply that death is worse for the sufferer than pain: just that it is wrong to choose death over pain.
Not by today’s standards. For example in the battle for Iwo Jima, we had a “take no prisoners” policy. Japanese soldiers were killed upon leaving their bunkers with no chance to surrender. After the island was pacified, it was bombed and machine gunned to eliminate any survivors.
But the real fun starts after the war with mass transfer of ethnic Germans according to official policy as laid down in the Potsdam Agreement. Note section 12: Orderly Transfer of German Populations. Approximately 16 million ethnic Germans had their property confiscated and were forcibly removed from their various homelands. About 2 million died. Another piece of official policy as stated in the Yalta Declaration called for slave labor under the euphemism “reparations in kind,” see protocol 2c. In this case 874,000 civilians were abducted and sent into forced labor in the Soviet Union. About 45% perished with hardest hit being Danube Swabians and Siebenbuerger Saxons as well as East Prussians and Pomeranians. For details see A Terrible Revenge by Alfred-Maurice de Zayas.
Is this your idea of a “clean war?”
This is another argument that's never convinced me.
First of all, it isn't really true that you can always compensate someone for damages from false imprisonment. Imagine imprisoning someone for 50 years. Is there anything you could *really* give them that would pay them back?
Second of all, if someone is punished by prison and dies in prison, that's irreversible too. You cannot give him back the years of life he lost, nor can you compensate him. In order to distinguish the death penalty from imprisonment in this regard, you have to say something like "It's wrong to give a punishment which is always irreversible, but it's okay to give a punishment which has a finite chance of being irreversible, as long as I don't know in advance when it's reversible and when it isn't". This is more hairsplitting than I'm willing to do.
Legal academia is deeply infected with "hacks" and I find it curious that so many folks here have the gall to put Yoo down for such a thing. I mean, how do law profs get hired? A 1-page AALS "CV" or all of the behind the scenes phone calls? Are we really to believe that only Yale and Harvard alums are qualified to teach or clerk at the Sup Ct? And don't get me started on the whole "legal scholarship" bs -- not peer reviewed, few real lawyers read them, 24 year old kids deciding what is good scholarship... please, give me a break. Yoo is the PRODUCT of the legal academia; the pinnacle. If you're all so mad about Yoo, then remember the culture that produced him as you breathlessly await the next cycle of the US News rankings. Or, to put it different: look in the mirror.
With this kind of reasoning, why have a tort system at all? How could a drunk driver repay you for killing your child?
Wrong. You can have a court martial, and kill someone for the crime being an unlawful combatant. Which is to say, enemy soldiers captured out of uniform are subject to summary execution, regardless of whether or not they've been caught doing anything else wrong.
The above assumes we honor the Geneva Conventions.
You have a very idealistic, and uninformed, opinion of American combat operations in World War Two. There was rampant murder of newly captured POW's which officers often tried to restrain, but almost as often the officers joined in or started it. One of the more common lines, "Only a combat soldier can understand another combat soldier" referred directly to the murder of POW's.
I also suggest you check Chuck Yeager's autobiography, Yeager, for his references to official fighter strafing missions directed at German civilians in rural areas. He said of those, "We better win this war."
It was much, much worse in the Pacific. Read Dower's War Without Mercy: Race and Power in the Pacific War.
Avoid fantasies. War is always brutal, and brutalizes everyone involved. American combat operations in World War Two were "clean" only by comparison with those of other combatants, including our British Commonwealth allies.
It was outside combat, in occupied areas, where American forces truly merit accolades for their conduct in World War Two. Foreign civilians rightly fled or hid out from the "terrified teenagers with guns" comprising the ground forces of all other countries. But not from Americans, and there was a reason for that which reflects very, very well on the American people and their military.
sorry for the multiple comments; I wish there was an edit function.
http://www.guardian.co.uk/uk_news/story/0,,1745489,00.html
Can anyone posting on this thread honestly say that, given a choice between a quick death or being tortured for, say, a week at the hands of an expert in the infliction of pain (to be followed by death, of course), you would choose to live the extra week in excruciating agony? I could set out a parade of horribles involving fingernails, genitals, eyes, and various bodily orifices and, maybe, acid, razor blades, cigarettes, thumbscrews, skinning knives, and nails if you need help imagining what it would be like.
I want to hear why you think that week of life would be preferable to immediate death.
He couldn't repay your child, but the loss of a child has repercussions on people other than the child itself, who he could at least partially repay. Punishing the drunk driver also helps deter other people from drunk driving.
First of all, it isn't really true that you can always compensate someone for damages from false imprisonment. Imagine imprisoning someone for 50 years. Is there anything you could *really* give them that would pay them back?
You can at least attempt to compensate someone for falsely imprisoning them, the shorter the period the easier it is. But in the case of long terms it is virtually impossible to come close.
Second of all, if someone is punished by prison and dies in prison, that's irreversible too. You cannot give him back the years of life he lost, nor can you compensate him
Yes, but the irreversibility wasn't intentional. Your hypothetical reminds me of that poor handyman in the Elizabeth Smart case - they scooped him up as a suspect and because he had an open warrant or parole violation or something they locked him up and he died in jail or prison - innocent the whole time.
In order to distinguish the death penalty from imprisonment in this regard, you have to say something like "It's wrong to give a punishment which is always irreversible, but it's okay to give a punishment which has a finite chance of being irreversible, as long as I don't know in advance when it's reversible and when it isn't". This is more hairsplitting than I'm willing to do.
Well its wrong to be executing or imprisoning innocent people in the first place. But with executions you run the additional risk of not being able to reverse or remedy significantly what the state did if the state was wrong. And of course since we are talking about innocent people you still have the criminals that actually did the act in question still out there running around. And something tells me that if you were falsely accused of a serious crime that is some hairsplitting that you would want them to do.
Treaties are reflections of choices, choices that can be repealed by the choice-maker. The question is the moral universe in which treaties exist. In a pre-Roe, pre-Lawrence universe one could speak of government policies imposing hardships on citizens out of purely moral considerations. Such talk seems anachronistic today.
Treaties or international law aren't an area I have much knowledge in. But if a treaty is the law saying one can disregard it without formally withdrawing from it seems pretty dishonest, etc. Likely a violation of the treaty as well.
What do mean by "imposing hardships on citizens out of purely moral considerations"? Are you saying the government should impose hardships on citizens that haven't committed a crime but in your opinion have committed a moral infraction?
First of all, you're "AP" from now on. I have to cut and paste the second name/word/whatever.
You can at least attempt to compensate someone for falsely imprisoning them, the shorter the period the easier it is. But in the case of long terms it is virtually impossible to come close.
Interestingly, though, it is very difficult to do during the judicial process. The main actions for false imprisonment are for 1983 damages. But in an opinion recently, the short statute of limitations begins to run the second they initiate legal process against you. the claim accrues before your conviction is finalized. There may be other damage-claim mechanisms that I don't know about, though.
Kovarsky:
Legal academia is deeply infected with "hacks" and I find it curious that so many folks here have the gall to put Yoo down for such a thing.
Do you have a working definition of a "hack" and some idea of how many people that fit said definition "infect" academia?
I mean, how do law profs get hired? A 1-page AALS "CV" or all of the behind the scenes phone calls?
There's a little of both. Behind the scenes phonecalls, though, are often used to promote people that are not poltiical hacks.
Are we really to believe that only Yale and Harvard alums are qualified to teach or clerk at the Sup Ct?
I have no idea what role this statement plays in your analysis, but, point of fact: a ton of other schools are represented in the SCOTUS clerk pool.
And don't get me started on the whole "legal scholarship" bs -- not peer reviewed, few real lawyers read them, 24 year old kids deciding what is good scholarship... please, give me a break.
I wouldn't want to get you started.
Yoo is the PRODUCT of the legal academia; the pinnacle.
I don't even understand what you're saying atthis point - is being the product of legal academia the same as beingthe pinnicale of it? Yes, sure, his hire is a "product" of academia in the sense that it evaluate hires along multiple dimenisions, one of which is certainly how great a role they've played in shaping our current balance of federal power.
If you're all so mad about Yoo, then remember the culture that produced him as you breathlessly await the next cycle of the US News rankings. Or, to put it different: look in the mirror.
ipsiwhatever, i'm quite far removed from giving a shit about the US news rankings. i think what you're trying to say is that by buying into the "game" of competing for law schools spots based on rank that i've somehow bought into "the system," propped up "the man," and have constructed my very own frankenstein in the form of John Yoo. i think that model is flawed.
No we did not.
"In the last five months of World War II, American bombing raids claimed the lives of more than 900,000 Japanese civilians—not counting the casualties from the atomic strikes against Hiroshima and Nagasaki. This is more than twice the total number of combat deaths that the United States has suffered in all its foreign wars combined.
On one night, that of March 9-10, 1945, 234 Superfortresses dropped 1,167 tons of incendiary bombs over downtown Tokyo; 83,793 Japanese bodies were found in the charred remains—a number greater than the 80,942 combat fatalities that the United States sustained in the Korean and Vietnam Wars combined."
http://denbeste.nu/external/Mead01.html
General Curtis LeMay was the commander. "he once remarked that had the U.S. lost the war, he fully expected to be tried for war crimes, especially in view of Japanese executions of uniformed American flight crews during the 1942 Doolittle raid. However, he argued that it was his duty to carry out the attacks in order to end the war as quickly as possible, sparing further loss of life.
Presidents Roosevelt and Truman justified these tactics by referring to an estimate that one million American troops would be killed if Japan had to be invaded."
http://en.wikipedia.org/wiki/Curtis_LeMay
We did our share of war crimes during WWII, with approval from the very top.
Not analogous. Yoo wasn't talking about torturing somebody to death, he was speaking of torturing somebody and keeping them alive, which in his view is more humane than just killing them. I would take a week of torture (especially if it was not physically mutiliating torture) over being killed.
What Yoo is saying here is logically sound. Is torture worse than death? If the answer is no and death is indeed worse, then in circumstances where we could choose to kill a combatant we should be able to torture them. This logic, however, only includes the harm done to the combatant. One of the arguments against torture is that it dehumanizes our soldiers in a way that simple killing does not. If that's true, then Yoo's calculus is wrong, but not with respect to the harm done to the combatant.
It's my opinion that we have done and will continue to do acts which are considerably worse than torturing a limited number of high value targets. Yet, that doesn't necessarily mean I'm pro-torture. There is a slippery slope, there is our image to our allies and even to our enemies, and there is the perfectly reasonable position that we shouldn't add yet another atrocity to the list of accepted incidents of war. Yet, I can't bring myself to the level of moral outrage summoned against Yoo by his critics. I believe it's a false outrage, any reasonably intelligent person can fathom that torturing enemy combatants ranks low in the sins of war. If you look at modern warfare with open eyes, it's hard to be genuinely outraged about torturing a few high value targets, even if you don't support it as a matter of policy.
Come on, now. You knew in advance that there would be people with irreversible punishments, and you did it anyway. You just didn't know exactly which ones they were. That's intentional in any reasonable sense, and is an example of the hairsplitting which I find absurd.
But with executions you run the additional risk of not being able to reverse or remedy significantly what the state did if the state was wrong.
Again, *some* may be discovered when the punishment can be reversed, but others will not. So you still run a *risk* of irreversible punishment of an innocent person. It's a smaller risk, but it isn't a zero risk. You need to do basically the same hairsplitting: "since only some of them are irreversible, that doesn't count as a risk".
But the trouble with torture isn't just the physical dimension. It is that physical, or sometimes even non-physical, methods are used to BREAK SOMEONE'S MIND. That element is missing from most discussions that focus on the physical side of torture. The problem is not just elaborate corporal punishment.
It tends to take a lot of force to break someone's mind to the extent that he will talk when he is firmly resolved not to. That means the cruder expressions of torture (hitting, "stress positions" and so on) will tend to escalate from things that most people would find acceptable to things that most people would not. A ban on coercive interrogation techniques, including the milder varieties that most of us would admit are no big deal, is a ban on that escalation process rather than on the very first slap.
I would definitely like to see such a ban for ordinary troops, both for the effect on the troops themselves and because it will encourage people to surrender to the US military rather than fighting to avoid capture. The issue of the CIA and these high value targets is something else again.
Now I know your weakness -- assume it will be physically mutilating, not to mention painful and grossly disfiguring, and assume that you don't know whether you will live, nor do you know when, if ever, it will end. (I suggest that it is highly likely that at some point, probably early on, torture subjects will assume that they are going to die, and wish it would come sooner rather than later. In fact, mock executions are a classic method of interrogation.)
In your case, let's say I start by putting out a cigarette in your right eye and continue by working over the rest of your face, working ever closer to the left eye. Then we break out the pliers and start ripping flesh. After a suitable rest period (for me) and a "contemplation period" for you, we start over again, perhaps this time with some waterboarding. If you don't talk the first week, we do something different the second. Does there come a point at which you would prefer to die? Does there come a point at which you regret not having chosen death in the first place?
We awarded a Medal of Honor to Admiral James Stockdale, because, among other things, he attempted to kill himself rather than give the North Vietnamese information under torture. (Admiral Stockdale was an amazing man in many, many respects -- worthy of his own thread.) Does the extrinsic goal of not "breaking" make any difference? Is more acceptable, than suicide simply to avoid continuing pain from further torture?
If we were merely talking about a random beating after which there would be medical attention, a hot meal, and a warm bed, it wouldn't be torture. It's not like having an accident where you break a bone or two and get some bruises. Unless you assume the sterile "torture warrant" and "needle under the fingernail" situation that Alan Dershowitz suggested some years ago will be the norm and that such rules will be strictly observed, then the form of torture to be used in interrogation is limited only by the imagination of the torturer. Moreover, the torture scenario would be replayed over and over until the subject's mind is "broken"; the object of torture is to create terror in the mind of the subject so he will be compliant in order to avoid further torture.
One of the reasons losing generals and kings fell on their swords in the classical and pre-classical eras was to avoid the torture that was in many cases inevitable with capture. I think they had a pretty good idea of what the choices entailed, and made a reasoned judgment as to what was preferable.
All the "bombing" of Japan was fully justified and legal. "Strafing" of civilians with direct fire weapons (the .50 caliber heavy machine guns arming fighters), as Chuck Yeager's P-51 wing did to German civilians, was neither justified nor legal.
The fire-bombing raids broke the morale of the Japanese people, and the A-bombs broke the will of the Emperor. Both were necessary to coerce Japan's surrender.
The alternative was outright murder by the Japanese Army of ALL the Allied civilians they could catch in China, Malaya, Singapore and Dutch East Indies, plus ALL Allied POW's, (at least 50 million people) and the extermination of at least a third of the Japanese people by starvation, disease, gas attack (we were going to gas them from the air like bugs) and by our ground forces during the slow, bloody invasion and conquest of Japan.
We had intercepted and decoded, prior to Hiroshima, the orders from Imperial General Headquarters in Tokyo to Japanese Field Marshal Teruachi (CINC the Japanese Southern Group of Armies) to commence the massacres in Singapore and Malaya upon the British invasion scheduled for September 1945, and to massacre all the rest when the U.S. invasion started there.
For more information on this, see When A Democracy Chose Genocide.
What's the legal distinction between mass bombing of civilian targets and using direct-fire weapons?
You could win the gold medal in the long jump with a leap
like that.
Military necessity. The military means of effectively attacking industrial targets without mass bombing of cities simply did not exist for most of World War Two. The required conditions were daylight air supremacy and relatively concentrated industrial targets. Those conditions were only met in the European theater by October 1944 when the German air defense system was pushed back to the Rhine, and by then weather did not permit full use of the air supremacy until March 1945 when it didn't matter anymore due to Allied crossings of the Rhine and Elbe.
Those conditions were never met in the Pacific theater.
Strafing of civilians did not and could not materially affect anything. It was terrorism pure and simple.
The only potentially applicable legal standards at the time were the Geneva Conventions, which when written did not envisage mass bombing of industrial targets. There were discussions at the time, on the Allied side, about the morality of mass bombing of cities.
BTW, there was one type of World War Two bomber which could do precision bombing of industrial targets, but those were limited in number due to production issues (notably limited supplies of balsa wood) and generally reserved for other missions only it could perform, such as long-range high altitude reconnaissance (I knew a pilot of one - a local bankruptcy attorney named Steve Luse). I refer to the British Mosquito "light" bomber, which could carry as heavy a bomb load as far as the B-17 heavy bomber and strike with far greater precision. They were often used as pathfinders for huge formations of heavy bombers, to strike the targets first and mark them.
There are a charming set of photos of a low-level Mosquito attack on a Gestapo headquarters somewhere in occupied Europe which include shots of a Gestapo official coming out the front door, seeing a Mosquito coming right at him, and diving back through the doorway followed closely by a 500-pound bomb from the Mosquito. Then BOOM!
If we were merely talking about a random beating after which there would be medical attention, a hot meal, and a warm bed, it wouldn't be torture.
What? That is torture by all of the definitions save the current Administration's non-definition.
Come on, now. You knew in advance that there would be people with irreversible punishments, and you did it anyway. You just didn't know exactly which ones they were. That's intentional in any reasonable sense, and is an example of the hairsplitting which I find absurd.
No, the assumption is that the person is guilty and will be imprisoned until their sentence is over or they die. You have no control over when they die, unless you are intentionally arranging for their death or neglitently causing it.(And those are crimes/torts.) Therefore the intent is to imprison, which is more reversible and compensable, and review is still possible while it is being carried out.
Again, *some* may be discovered when the punishment can be reversed, but others will not. So you still run a *risk* of irreversible punishment of an innocent person. It's a smaller risk, but it isn't a zero risk. You need to do basically the same hairsplitting: "since only some of them are irreversible, that doesn't count as a risk".
But unless you have some control over their deaths - are intentionally or negligently causing them - the irreversibility was not caused by you. They would have died outside of confinement as well. So that risk is irrelevant.
Something tells me that if you were falsely convicted of a serious crime you would want the hairsplitting between a reversible and reviewable sanction like imprisonment and an irreversible and not meaningfully reviewable sanction like execution performed.