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[Richard Painter, guest-blogging, March 29, 2009 at 4:14pm] Trackbacks
A response on torture and setting the right priorities:

I face the curious accusation that I oppose torture in order to sell copies of my book. At most eight pages (129-134 and 137-141) of the book deal with the torture memos. Nobody should pay $55 (probably the best price for my book on line) in order to hear from me a new and insightful argument against torture. The fact that cruel and degrading treatment of human beings is wrong has already been conclusively established, for example in a best selling book available free of charge in most motel rooms.

I have been asked to provide more specifics to support my argument. There are enough specifics provided in the comments to my posts, including references to crushed testicles and similar inflictions. We should not be talking about this kind of thing in the United States.

From the opposite side, I face criticism for not being enthusiastic about state bar associations sorting through what went wrong. Fact is that, with the notable exception of the District of Columbia bar, state bar associations have said relatively little that is specific and informative about the obligations of government lawyers besides prosecutors. There have been relatively few disciplinary proceedings, apart from those against prosecutors. Ethics of government lawyers is a topic -- like the role of corporate lawyers prior to Sarbanes-Oxley -- that has suffered from benign neglect. Most authorities on legal opinion writing are oriented toward private clients, and many of these authorities are slanted toward allowing the lawyer too much flexibility in telling the client what the client wants to hear. As I pointed out in an earlier post, malpractice litigation not bar disciplinary proceedings is the mechanism by which sloppy opinion writing for private clients is deterred. It is perhaps unfortunate that we do not have, and may not be able to design, a similar malpractice regime for the government bar.

I said in my book that competence standards in legal opinion writing should be strictly enforced by the states where lawyers are licensed to practice, by the federal government, or by both (page 133). The problem is that these authorities have not, except in the most general language, articulated what those standards are. A lot more attention needs to be paid to defining and enforcing standards in this area.

What is needed is an executive order banning torture and anything that comes close to torture (I believe we now have one, but given the amount of hairsplitting in our conversation, I should reread the President's order to make sure). We then need an act of Congress signed by the President that says the same thing so the definition of torture will not change every four to eight years. The law should specifically provide that tactics such as waterboarding, sleep deprivation, and humiliation are illegal and criminal. Finally, a mechanism should be set up within the Department of Defense and the CIA to enforce the law. Prisoner abuse, whether in United States custody or in Chicago police stations, has been the subject of a "don't ask, don't tell" mentality for too long.

I will not respond to invective against the Right Rev. Gene Robinson, Bishop of New Hampshire. None of that is interesting to most readers here, except perhaps the fact that when people in New Hampshire choose their own clergy, or their own license plates saying "live free or die", there is bound to be trouble if others do not leave them alone.

The more relevant point on that topic is that many of our political leaders as well as parts of our religious establishment have focused debate in recent years on issues that reflect the wrong priorities. In 2005, in the midst of wars in Afghanistan and Iraq, weeks were spent by officials at the highest levels of all three branches of the federal government debating both sides of a case involving one terminally ill patient in Florida. That case involved important issues, but did they have to be federal issues? Meanwhile, hundreds of thousands of American soldiers are depending on our government to make decisions -- ranging from proper interrogation techniques to proper protective gear -- that could determine whether they live or die. Sometimes the federal government should have the good sense to know when it is into enough difficult matters already and should stop getting into more.

Benjamin Davis (mail):
I salute your coming into this forum and raising these issues in the manner that you have. I assure you that the discussion of these topics in this space has been ongoing and very virulent over at least four years.

On the state bar associations' roles, there was an effort by a North Carolina lawyer to bring an ethics complaint against Yoo on these memos to the Pennsylvania Bar. The Pennsylvania Bar demurred referring to the DOJ and Congressional investigations of the torture memos.

Similar efforts have been tried with regard to state licensing boards for psychologists who have participated in the torture and cruel inhuman and degrading treatment.

I think a major reason for these state bar and licensing associations not acting is that they do not really appear to have resources to investigate (so they have said as much in the Yoo Pennsylvania letter) or they seek evidence to support the complaint that no one but the government that is hiding the evidence behind "state secrets" grounds could give. It takes a change of Administration and a willingness to declassify. Moreover, it appears that they really await a criminal conviction to then take up the disbarring of a present or former government official (See Libby or Clinton as examples of that). It is possible that this might change if the DOJ Office of Professional Responsibility report on Yoo and Bybee is as devastating to them as it has been announced to be, but that means Bradbury and Flannigan and Gonzales and Addington who managed to not be in the line of fire do not face the same music.

As to a new law specifying that each of the acts you enumerate is a crime, this was precisely the approach that was avoided in the drafting of the Convention Against Torture and Cruel Inhuman and Degrading Treatment and the Geneva Conventions. In the commentary to the Geneva Conventions they discuss at length the fear that if a specific list was made then you would have "clever inventive" people who would tell the government how to do things that amount to torture but that would not fit a particular category.

The development from dirty torture (the kind that leaves scars) to clean torture (the kind that does not leave scars) as practiced by some democracies is one example of this that is a result of an effort of states to redefine techniques, redefine the law, and redefine appropriate implementation of the law in an effort to subtract themselves from the treaty obligation in the light of international human rights monitoring (See Darius Rejali's Torture and Democracy on the long pedigree of this).

Of course, one of the first rules of international law is that no state can extract itself from its international obligations through its internal law. So, in the end, the sh*t hits the fan, if there is sufficient political will internally and externally to hold the torturers accountable. If there is not (as so many on the Volokh push so hard to avoid accountability) then we are faced with acquiescence in the illegal acts that gives them legitimacy in our polity.

THAT, to me is what is at stake in these debates on these fora and one reason I salute you for coming and arguing as you have - keeping up resistance to those who attempt to rationalize what is fundamentally illegal and an abomination. Those who have tried to argue "the other side" on torture have been arguing that side for lots of man's history and at present the consensus view in the law is that it is a fundamental violation of law - whatever the popular sentiment at some point against some "other."

If, of course, Americans are so sanguine about torture, then let them introduce legislation in Congress to further weaken the domestic law and let them call for the United States to terminate its adherence to the relevant conventions. Then, our obligations would be customary international law and we can push and push to have more of the world change the customary international law rule into one where torture by the state is sanctioned. That is the path that is open for the apologists for torture. It is a road back to barbarism - but if that is what they want they ought to go for it. Just, please do not speak of civilization or "city on the hill" and the rest of it in the same breath.

Thanks again for your taking on the discussion in this space. I have done it as have many others as commentators and I think it is significant that the Volokh Conspiracy has even seen fit to allow you to be a guest blogger. Given the paucity of strong anti-torture comments in the original comments of the key bloggers here in this arena, it suggests that even the Volokh Conspiracy is coming to realize that not having guest bloggers who vigorously disagree with those who acquiesce to torture is simply not tenable in a civilized space.

Best,
Ben
3.29.2009 4:48pm
Perseus (mail):
The fact that cruel and degrading treatment of human beings is wrong has already been conclusively established, for example in a best selling book available free of charge in most motel rooms.

I'm not so sure that the book in question does such a thing, and even it it does, it only applies to those who share that faith (and your particular interpretation of it).

We then need an act of Congress signed by the President that says the same thing so the definition of torture will not change every four to eight years.

Yet you still fail to acknowledge that a majority of Americans disagree with you. Such a definition will stick only if there is in fact a broad consensus against torture as defined in all circumstances among more than just the chattering classes. But bringing that about would require actual argument rather than sanctimonious declarations. Then again, that sort of cloistered mentality does make it more likely that the views of people like me will prevail.

The more relevant point on that topic is that many of our political leaders as well as parts of our religious establishment have focused debate in recent years on issues that reflect the wrong priorities.

In other words, the due process rights of unlawful enemy combatants are more important than those of helpless civilians. Talk about warped priorities.
3.29.2009 5:16pm
d-day (mail):
Mr. Painter:
Thank you for continuing to respond. I think I understand you better now.

[M]alpractice litigation not bar disciplinary proceedings is the mechanism by which sloppy opinion writing for private clients is deterred.

Absolutely. This is an interesting issue and a important concern. There should be consequences and incentives for professional negligence in the government level that aren't there now. Since it seems like that's really the main thrust of your book, then I will try to find a copy and check it out. Maybe we should be pushing for the adoption of an overhauled Restatement of Rules Governing Lawyers (a la Rest. 3rd Torts).


The fact that cruel and degrading treatment of human beings is wrong has already been conclusively established, for example in a best selling book available free of charge in most motel rooms.

This may be the first time I have ever heard the Bush administration be criticized for an under-reliance on the Bible in governance. Even so, I agree with you completely.
3.29.2009 5:18pm
d-day (mail):
I should have said that I agree "completely" on that particular point alone. I don't think the posts or the comments regarding torture discussion and the role of the opinion drafters, which is admittedly just a tiny portion of your book, were reasoned through enough to provide any real guidance on the issue. Although there is plenty of food for thought in all the threads.
3.29.2009 5:23pm
Cornellian (mail):
[M]alpractice litigation not bar disciplinary proceedings is the mechanism by which sloppy opinion writing for private clients is deterred.


If that were the case, what deters in-house counsel at a private
corporation from writing sloppy opinions? If it's just the possibility
of getting fired by some future general counsel or CEO who sees things differently, that's not much different than the situation that government lawyers
face.
3.29.2009 5:40pm
Constantin:
I will sleep better tonight knowing Mr. Painter has no role in influencing America's defense of itself. By all accounts, he is wrong about what the new president will and won't allow in terms of interrogating terrorists.

President Obama, unlike Mr. Painter and Ben Davis, looks to realize (despite all of his perfunctory and native language and facade on the matter) that if America is attacked again, and the president could have stopped the attack by waterboarding a terrorist for ten seconds, that president will do well to have impeachment be his only punishment.
3.29.2009 5:58pm
Bill Snowden (mail):
Humpty Dumpty: “When I use a word, it means just what I choose it to mean - neither more nor less.”

We need to remember that there are consequences, whether from action or inaction.

Having the moral high ground means little if you are dead.
3.29.2009 6:12pm
Andrew J. Lazarus (mail):
Constantin has learned to love Big Brother, and in his case it wasn't very hard.
3.29.2009 6:26pm
ArthurKirkland:
And I sleep better knowing that the frightened, brittle, indequate and amoral ideologues of the Bush administration no longer inflict risk and shame on Americans and undeserved misery on many others; that the new president and his colleagues seem likely to reveal the records (those that have not been destroyed, that is) so vigorously concealed by the cowards who preceded them; and that better men may hold Feith, Rumsfeld, Cheney, Bush, Yoo, Addington, Flanigan, and others like them to account.
3.29.2009 6:31pm
calico (mail):
Reading Mr. Painter's statement that laws should provide that "humiliation" is "illegal and criminal," it is hard not to picture him as a small boy, being picked last for dodge-ball.

The fact that cruel and degrading treatment of human beings is wrong has already been conclusively established

Two possibilities seem to present here. Either Mr. Painter has never learned the difference between fact and opinion, or he is not very good at expressing what he actually means.
3.29.2009 6:34pm
John Thacker (mail):
I still find this a case of begging the question. Torture is wrong, everyone agrees it seems. And certainly I agree that crushing testicles is torture. But I don't think that everyone agrees that even everything in the famous memos is torture.

And I certainly think that "supermax" prisons like ADX Florence or the United States Disciplinary Barracks at Fort Leavenworth are definitely worse torture than even waterboarding, much less the other six or seven approved tactics, despite the supermax prisons only being inflicted on convicted criminals. (If it's torture, it shouldn't matter.)

The whole argument just seems pointless to me, since people don't seem to care at all about something that's worse torture as far as I'm concerned, and even propose moving the prisoners to that worse torture as a "compromise."
3.29.2009 6:43pm
matt b (mail):
i am still entirely confused. i suggest you take a look at jose ortega-y gasset's revolt of the masses.
3.29.2009 6:47pm
Gerry Schulze (mail):
What's the name of that book that you find in hotel rooms that says that cruel and degrading treatment of human beings is wrong? The only book I usually find in hotel rooms is the Bible. It's full of cruelty and violence, seldom condemned, and frequently committed or encouraged by the protagonist of the tale.
3.29.2009 6:58pm
Sam H (mail):
"And I sleep better knowing that the frightened, brittle, indequate and amoral ideologues of the Bush administration no longer inflict risk and shame on Americans and undeserved misery on many others; that the new president and his colleagues seem likely to reveal the records (those that have not been destroyed, that is) so vigorously concealed by the cowards who preceded them; and that better men may hold Feith, Rumsfeld, Cheney, Bush, Yoo, Addington, Flanigan, and others like them to account."

It was the CIA that was the driver behind waterboarding and most of those people are still there.
3.29.2009 7:01pm
Dan M.:
Sleep deprivation? Seriously? That's the issue I have with these arguments against torture. I think a certain amount of unpleasantness is fine. I don't think it's okay to just torture anyone we pick up off the street in Afghanistan. But I think keeping up the possibility to inflict pretty intense unpleasantness on certain people. What if we pick up somebody that's shown on one of those beheading videos? Would you have moral qualms about at least having the option to deprive such scum of sleep?
3.29.2009 7:02pm
Benjamin Davis (mail):
Clearly the people who wrote the memos will never agree that everything in the famous memos is torture. So one can not have "everyone agree". That is not the point.

I deconstructed the torture memo a year ago at Jurist on the key point of the definition of torture used by Yoo. I only assumed in that piece that Yoo intended to write what he wrote in that memo and that is the source of the specific intent you need to find torture and/or conspiracy to torture under US law with regard to him. For conspiracy you typically need agreement and one overt act. The War Council and National Security Principla meetings are the agreement and the torture memos are only one of many overt acts. I am sure there are many more. So much for at least two of the crimes. You can see my article Refluat Stercus if you want to see other crimes in the St. John's Journal of Legal Commentary (2008).

As to supermax prisons, the whole issue of treatment of prisoners in the American penal system is a very live issue for human rights activists inside the United States and abroad as well as government officials. You can see Senator Webb talking about it in today's Parade magazine. The policy of repression that has lead to levels of incarceration as high as they are in the United States is a great source of concern for budget reasons for local, state, and federals and all the rest. And the issue of supermax being in violation of human rights treaties is a subject that is very live. There are many issues to address in perfecting our union and I hope we do not have to fix everything until it is perfect before torture apologists among Americans will get over their torture fetishism. The capacity to deny what is in front of our faces is maybe a hallmark of our past. Then, of course, 50 years later we apologize.

As to those who take comfort in torture, please let them know that the top four uniformed Judge Advocate Generals firmly and resolutely disagreed with this approach - that was why they were kept out of the loop. It is the REMF or suits with their half-baked theories on torture that got us into the mess. Painter and I are standing with those JAG's not with the boneheads whose company the torture apologists appear to prefer. To hell with those apologists among you.

Best,
Ben
3.29.2009 7:03pm
Bart (mail):
Professor:

What is needed is an executive order banning torture and anything that comes close to torture (I believe we now have one, but given the amount of hairsplitting in our conversation, I should reread the President’s order to make sure).

1) The executive order limits interrogation to the Army Interrogation Manual. In that manual, Appendix M -- Restricted Interrogation Technique -- Separation permits virtually everything short of waterboarding.

2) Obama executive orders are not worth the paper upon which they are written and can be changed with a single order of the President. See the so called ban on lobbyists.
3.29.2009 7:06pm
MarkField (mail):

In other words, the due process rights of unlawful enemy combatants are more important than those of helpless civilians. Talk about warped priorities.


Talk about false dichotomies.
3.29.2009 7:13pm
Pro Natura (mail):
please let them know that the top four uniformed Judge Advocate Generals firmly and resolutely disagreed with this approach - that was why they were kept out of the loop. It is the REMF or suits with their half-baked theories on torture that got us into the mess.
You evidently don't know what a REMF is since JAGs all definitely fall into that category. On the other hand, I have talked with several men who were in combat and who used methods that would make you swoon (although not causing any permanent damage to the recipients) to obtain information and save American soldiers' lives. I guess they and I and you have different priorities.
3.29.2009 7:18pm
ArthurKirkland:
Were those correspondents among the persons who beat shackled prisoners to death? If not, the necessary arguments exceed their experience. If so, the "permanent damage" refuge evaporates.

I have no doubt that some government officials or soldiers believe their abuses "saved American soldiers' [or civilians'] lives. But if they weren't up to the task of doing their jobs without engaging in unlawful brutality, why should we assume their perceptions of the consequences of their shortcuts were accurate?
3.29.2009 7:35pm
Paul L. Creech (mail) (www):
I'd rather not, thank you. The military arguments against torture don't wash on these non-state actor's. To call water-boarding, sleep deprivation, and humiliation torture is a hilarious departure from both reality and previous definitions. I hope barry and friends give the anti-interrogation legislation a try, it will be their ass if the do come election time. Normal people wouldn't care if we actually tortured them, much less the crap we do now.
3.29.2009 7:38pm
Bama 1L:
Having the moral high ground means little if you are dead.

I think that book Mr. Painter referred to has a bit to say on that topic. . . .
3.29.2009 8:05pm
Thoughtful (mail):
Given the difficulty so many intelligent lawyers (or maybe that's the problem) have in defining what exactly constitutes torture, perhaps we should use an ostensive definition:

For every detainee/prisoner X that the US government wishes to interrogate with "extreme measures", a member of the group interrogating him, Y (military personnel, prison employee, etc.) volunteers to undergo the same treatment. It is all videotaped, continuously. Same long hours without change in position, same water-boarding for the same amount of time, same extremes of heat and cold, same soaking wet clothing, same loud noise, same testicular squeeze, same body stretches, same head smashes to the wall, etc., etc., etc.

When Y demands that it stop, it's torture.
3.29.2009 8:10pm
albert:
As for priorities Prof. Painter, I simply think you have misrepresented the memos' content. The critics of the previous administration were often guilty of histrionics and I'm sorry to see the passage of time is not reducing the exaggerations of its critics.
3.29.2009 8:13pm
CDR D (mail):
>To hell with those apologists among you.


<

Ya... see you in hell.

I don't give a damn if they pour molten lead down their throats.

If my neighborhood goes up in a cloud, I do know that one of the words in my dying curse will be "lawyers".
3.29.2009 8:33pm
Roger Schlafly (www):
I said in my book that competence standards in legal opinion writing should be strictly enforced by the states where lawyers are licensed to practice, by the federal government, or by both (page 133).
Does Prof. Painter's postings meet those competence standards? I sure don't see much substance to any of his arguments. He can't seem to decide whether torture means crushed testicles or humiliation, and seems oblivious to what the Bush administration actually did.
3.29.2009 8:33pm
ArthurKirkland:
Which memoranda -- the ones that were repudiated and withdrawn. the ones not (yet) repudiated and withdrawn, the ones whose concealment is no longer is effect, or the ones not (yet) disclosed?
3.29.2009 8:35pm
Benjamin Davis (mail):

You evidently don't know what a REMF is since JAGs all definitely fall into that category. On the other hand, I have talked with several men who were in combat and who used methods that would make you swoon (although not causing any permanent damage to the recipients) to obtain information and save American soldiers' lives. I guess they and I and you have different priorities


I guess there are REMF's and REMF's - and there are REMF's and suits. Of course when someone is up on charges I imagine they then look a little more nicely at the JAG representing them.

What happens in war will make many swoon - that is the nature of war. Ah yes the - I know several men who were in combat and who used methods that could make you swoon - dodge. And whether what they did resulted in obtaining information and saving American soldiers' lives is of course in the eyes of those guys who did the bad thing. Ask a torturer if torture is reliable and he will tell you it is. Nothing new under the sun. That it violates their training (whether with the instigation of higherups or not) does not make it legal.

If you are talking about horrendous things like killing people in war, yeah it makes me swoon too. I agree horrible things are done in war to obtain information and save American soldiers' lives. That does not mean that once someone is in our custody and control it is OK for us to torture them.

Vague references to "other methods" is the kind of obfuscation we have lived with for so many years on this issue of treatment of our prisoners.

I read a piece in the Washington Post by an interrogator in Iraq who got the lead for Al-Zarqawi who decried the torture methods that were being done for interrogating people there. And, of course, there is Petraeus who decided that the best way to go was more "R-E-S-P-E-C-T". Oh, but because these folks did not want to torture people they are wimps who are not willing to beat the crap out of someone who is completely dependent on them. Puh-leaze - the wimps are the torturers.

Best,
Ben
3.29.2009 8:44pm
Guessed1:
Mr. Painter,

I'm in the curious position of concluding that the torture memos that we've seen should have been reviewed internally and changed before they were finalized, and, since that didn't happen, investigated and reviewed now -- but that establishing a procedure by which they are submitted to review by a government ethics lawyer, as you suggested earlier, would be a terrible alternative. I think it's fair to say that you're not bringing anything more to the table than your trusty Gideon's and your instincts about what America stands for. In such cases, the argument for involving additional lawyers, let alone those whose everyday stock in trade are financial disclosures and the like, is extraordinarily slight. The basic point, I gather, is that any right-thinking person could spot the flaws; if so, no reason to gussy it up and dilute the claim to relative expertise that may be needed on some other occasion.
3.29.2009 8:45pm
Ken Arromdee:
The fact that cruel and degrading treatment of human beings is wrong has already been conclusively established, for example in a best selling book available free of charge in most motel rooms.

Haven't we already accepted as a matter of principle that it's inappropriate to run a government using this book, and in particular using it as a source of morality?

(By the way, I suggest reading the Book of Revelation. Plenty of torture by the good guys in there.)
3.29.2009 8:46pm
Richard Aubrey (mail):
"Humiliation"? That's torture?
Oh, boy. You shot yourself in the foot. Try taking that argument public.

"You think that's bad. I just spent an hour at the Department of Motor Vehicles."
3.29.2009 8:47pm
Owen Hutchins (mail):
I think that this series of threads demonstrates some of the most appalling opinions it has ever been my displeasure to read; to see so many defending and even endorsing torture is truly and utterly disgusting.

Torture is wrong. ALL torture is wrong. It does not magically become right because of a tenuous hypothetical situation; the "ticking time bomb" scenario is a myth, as not only is not one single case ever revealed been shown to be such a case. On the contrary, we recently learned that many held at Gitmo were in fact known to be innocent, but held anyway to improve the "intelligence mosaic", to provide basic information having nothing to do with terrorism. And we're supposed to trust the people that did that?
3.29.2009 8:49pm
Dave N (mail):
And the issue of supermax being in violation of human rights treaties is a subject that is very live.
Which is why I worry about much of the hyperventilating on the left.

When Arthur Kirkland (on another thread) says that a former President should avoid foreign travel and Ben Davis makes the above comment, I have to ask if ALL Presidents since the Supermax Prison opened should be as worried as Mr. Kirkland thinks President Bush should be? After all, Mr. Davis seems to think that there might be massive human rights violations occurring at that prison.
3.29.2009 8:51pm
Ken Arromdee:
For every detainee/prisoner X that the US government wishes to interrogate with "extreme measures", a member of the group interrogating him, Y (military personnel, prison employee, etc.) volunteers to undergo the same treatment....

When Y demands that it stop, it's torture.


Never mind torture, by this reasoning we couldn't kill ordinary soldiers in the heat of battle. We couldn't lock up criminals. We couldn't even fine them--can you imagine deciding whether a $5000 fine is appropriate by asking whether some judge is willing to pay one too?

On the other hand, at least we'd be able to flush Korans down toilets.
3.29.2009 8:51pm
pluribus:

I have been asked to provide more specifics to support my argument. There are enough specifics provided in the comments to my posts, including references to crushed testicles and similar inflictions. We should not be talking about this kind of thing in the United States.

Amen. And thank you Richard Painter.
3.29.2009 8:58pm
http://volokh.com/?exclude=davidb :

The only book I usually find in hotel rooms is the Bible. It's full of cruelty and violence, seldom condemned, and frequently committed or encouraged by the protagonist of the tale.

True. In response, when I stay in hotels I've taken to leaving copies of Hitchens' book on Mother Teresa. It's available in bulk at surprisingly reasonable prices.

"God is Not Great" was such a bestseller that it is still difficult to get cheap copies.
3.29.2009 9:26pm
PlugInMonster:
I have yet to be convinced that the American people think this is a top priority issue.
3.29.2009 9:30pm
ArthurKirkland:
Mr. Bush (Jr.) occupies a unique position among former American presidents in this regard. His conduct not only offended other countries, but also appears to have breached the laws of the United States and reasonable standards of decency. He likely will receive a pass in this country (with respect to his liberty, not his reputation), for political reasons. That pass is much more difficult to justify if his arrogance inclines him to flout the express warning that other countries are disinclined to ignore his apparent transgressions.

Does anyone argue that the United States should use military force to enforce a claim of entitlement by men such as Bybee, Yoo, Addington or Cheney to flout other nations' sovereignty and laws by traveling to countries that have indicated they wish to advance criminal charges against them? These men could have avoided the problem by refraining from engaging in the relevant conduct. They get another shield from accountability if they merely avoid traveling to countries that plausibly regard them as criminals. Anyone who blows through both of those stop signs, in my judgment, possesses no reasonable claim to a bailout.
3.29.2009 9:42pm
Constantin:
Constantin has learned to love Big Brother, and in his case it wasn't very hard.

Yep. Would that I could just slap the "O" logo on the back of my car, like twenty million other guys, and tell myself the bad guys have gone away. And then tell myself, a bit later, that my president has repudiated the evil criminality of Bush and Cheney, even though he's done no such thing. And then I could convince myself that, in true 1984 fashion, torture doesn't really mean torture if a guy with a "D" after his name orders it.

Then I'd be an independent thinker like Andrew Lazarus.
3.29.2009 9:51pm
Ricardo (mail):
The executive order limits interrogation to the Army Interrogation Manual. In that manual, Appendix M -- Restricted Interrogation Technique -- Separation permits virtually everything short of waterboarding.

Did you actually read this section? The section is all about the use of "separation" -- that is, separating an unlawful combatant detainee from other detainees in order to prevent communication. It also includes these lines:

"M-15. All captured or detained personnel shall be treated humanely at all times and in accordance with DOD Directive 3115.09...

"M-16. Any inhumane treatment—including abusive practices, torture, or cruel, inhuman, or degrading treatment or punishment as defined in US law, including the Detainee Treatment Act of 2005—is prohibited and all instances of such treatment will be reported immediately in accordance with paragraph 5-69 thru 5-72."

Would you mind telling us how this permits "virtually everything short of waterboarding"? In particular, explain how "everything short of waterboarding" can be interpreted as "humane" treatment -- a standard that is surely more stringent than "not torture."
3.29.2009 9:56pm
second history:
Paul Creech:

To call water-boarding, sleep deprivation, and humiliation torture is a hilarious departure from both reality and previous definitions.

This is laughable. The US military has prosecuted waterboarding (committed by both Americans and the enemy) for over 100 years. See here, here and here for examples.

To Persus, calico, et al:

Who cares what the public thinks—they watch too many episodes of 24? This is not the Roman Colosseum, it is a representative democracy. Fortunately we do not determine what is or is not torture by the polls; our representatives have defined torture in federal law (in addition to the various treaties to which the US is a party to.) Torture is more than physical infliction of pain. Torture is defined as:


"[A]n act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control . . " and further defines “severe mental pain or suffering” as the "prolonged mental harm caused by or resulting from the intentional infliction or threatened infliction of severe physical pain or suffering; the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; the threat of imminent death; or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality. . ."
(my emphasis)

See 18 USC PART I CHAPTER 113C §2340.
3.29.2009 9:59pm
Don Meaker (mail):
The Bar limits the number of practicing lawyers to increase the salaries for those who do practice. The "ethics" program of the state bar is the "look! a bunny!" effort to justify a conspiracy in restraint of trade.

The Bush regime was not criminal, it was effective. Obama is still putting together a cabinet. When an administration proves to be ineffective, where will the international community be? Will they prosecute a sitting president for incompetence in protecting US lives?

If you want to find out how rotten Intelligence normally is, look up the "German Tank Problem" to see how mere statisticians were able to out perform seasoned intelligence workers in WWII. Intelligence professionals estimated German tank production at 1400 a month. The statisticians estimated 255...German records available after the war put it at 256.

Of course the intelligence is wrong. As a former military pilot, bad intelligence is part of President GW Bush's database, and he properly thought about what would happen if the intelligence was wrong, and acted to be sure that he preserved the lives of millions of Americans. Obama will have to learn more to reach Bush's level of competence because of his lack of military experience.

I regret that I have little hope that President Obama will ever reach President Bush's level of integrity. I hope I am wrong.
3.29.2009 10:06pm
Andrew J. Lazarus (mail):
The KGB is glad to know that sleep deprivation is not torture. Not that they cared very much, but as I have pointed out repeatedly, it was one of their favorite methods. Of course, we use it only for good, and it goes without saying that many good, clean American lives were saved thereby. The KGB (and the other Commie agencies) used it only for bad, with nasty results like extracting confessions for their show trials.
3.29.2009 10:15pm
byomtov (mail):
Professor Painter,

From the opposite side, I face criticism for not being enthusiastic about state bar associations sorting through what went wrong.

I am one of those who has criticized you. I don't care what state bar associations do. What I care about is that miscreants be punished.

My impression is that you are reluctant, unwilling almost, to see any actual consequences be visited on those who provided legal justification for torture. I may be mistaken about your attitudes, but if not, I suggest that your protests are empty posturing.
3.29.2009 10:19pm
Don Meaker (mail):
Title 18, Chaper 67 covers the Army and Navy, and lists only these crimes. I don't see any listing of Torture.

§ 1381. Enticing desertion and harboring deserters
§ 1382. Entering military, naval, or Coast Guard property
[§ 1383. Repealed.]
§ 1384. Prostitution near military and naval establishments
§ 1385. Use of Army and Air Force as posse comitatus
§ 1386. Keys and keyways used in security applications by the Department of Defense
§ 1387. Demonstrations at cemeteries under the control of the National Cemetery Administration and at Arlington National Cemetery
§ 1388. Prohibition on disruptions of funerals of members or former members of the Armed Forces
3.29.2009 10:24pm
PC:
Will they prosecute a sitting president for incompetence in protecting US lives?

Under that standard President Bush should have been prosecuted on 9/12/2001.
3.29.2009 10:26pm
Don Meaker (mail):
The KGB also occasionally permited brief views of the sky. Accordingly, the US should never do what the KGB did, so we should never permit brief views of the sky.

I also distinguish between legal combatants, illegal combatants, and enemy civilians, when ever such a distinction can be made.
3.29.2009 10:29pm
second history:
Don Meaker:

Torture is in See 18 USC PART I CHAPTER 113C §2340. Link is above.
3.29.2009 10:44pm
pintler:

... a member of the group interrogating him, Y (military personnel, prison employee, etc.) volunteers to undergo the same treatment


1)Rather, I think, substitute 'member of congress, director of CIA', etc for soldier or guard.

2)Assume, arguendo, that torture is the optimal way to make ourselves safe. Patrick Henry famously remarked "Is life so dear, or peace so sweet, as to be purchased at the price of...". We all get to decide how low we will stoop to live. Lie? Cheat? Steal? Torture? Is life so dear as to purchase it at the price of torture? For me, a life purchased at that price would be a like a life purchased by throwing someone weaker out of a lifeboat - a life that was worse than death.

3)I would refer interested readers to a passage from "The Edge of the Sword", Anthony Farrar-Hockley's memoir of capture in the Korean war. The passage starts on p 183 of my copy, but I found an online copy. The passage is towards the bottom, use your browser to search for "His drawn pistol covering me, Poker-face intimated that I should follow, and, with Kim, we left the room." Maybe I have read too many POW memoirs, but reading that passage left me in a cold rage that people could treat a POW that way - and then I realized my own country was doing the same thing.
3.29.2009 11:05pm
C. Gittings (mail) (www):
"We should not be talking about this kind of thing in the United States."

Indeed, and that is exactly why we need to prosecute these outrageous war criminals: to put an end to the discussion once and for all.

Isn't that why we enact laws? To enforce them?

And there wasn't anything unclear about the law here. They set out with the specific intent to subvert and violate every applicable law and treaty.
3.29.2009 11:08pm
Kirk:
Mr. Painter,
What is needed is an executive order banning torture and anything that comes close to torture... [and] an act of Congress signed by the President that says the same thing so the definition of torture will not change every four to eight years.
This seems, on the face of it, so naive for someone of your experience and position that Occam's razor tells me to suspect, rather, that I have misunderstood you.

Do you really mean to say that such an approach would be the end of arguing over this subject? For a counterexample, I need reach no further than Benjamin Davis in the very first comment here; he definitely seems poised to resume fighting over whatever is on the newly-defined legal side of the bright line you are hoping to erect. And he is certainly not alone in this.

Or so it seems to me.
3.29.2009 11:14pm
ReaderY:
In Steinburg v. Cahart, a majority of the Court's justices -- including a 4 now on the court -- issued a robustly pro-torture opinion villifying opposition to torture as irrational, illiberal, and unamerican. As

Justices Stephen and Ginsberg asked in concurrence,


That holding--that the word "liberty" in the Fourteenth Amendment includes a woman's right to make this difficult and extremely personal decision--makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty.


WIn this case, as in Roe, Americans have a right to make a virtually identical difficult and extremely personal decision to conduct termination procedures -- that's what war is -- to protect a similar constitutional right, a right to security.

If the state has no legitimate interest in requiring a doctor to follow any procedure other than the one he or she reasonably believes will best protect Americans in the exercise of their constitutional liberties, how can it possibly have a legitimate interest in requiring a security professional to follow any procedure other than the one he or she reasonably beleives will best protect Americans' constitutional right to security?

Justice Stephens and Ginsberg's encouragement to doctors not to be swayed by moral-mongering busy-bodies' characterizations of their methods as "brutal" or "barbaric" or "inhumane" and not to let this type of emotional and (in their view) inappropriate rhetoric deter them from doing whatever it takes to protect Americans' liberties would seem especially appropriate here. Scratch the word "abortion" and write in "torture" in crayon, scratch the word "medical" professional and write in "military" professional and the arguments remain virtually the same.

If Stephens and Ginsberg are right, what we have here is yet one more case -- a virtually identical case -- of emotion-based and religion-rooted political interference with the rational, secular, scientific judgment of professionals, and of elevation of mere moral values over protected constitutional rights. If Stephens and Ginsberg are right, this ought to be a really easy call for constitutional loyalists. We ought to see all this talk of "torture" as mere demogogic heat and look to the Justices to shine the light of reason on it in order to protect our fundamental right to security from being undermined and rational professionals judgments' in protection of those rights from being overthrown by the emotional, dim-witted, religious zealots uncommitted to our nation's core constitutional values.

Why aren't Justice Stephens and Ginsberg right?
3.29.2009 11:15pm
RPT (mail):
"Don Meaker:

The Bush regime was not criminal, it was effective."

Only if he and the rest of the administration took office on 9.12.01, and ignored anthrax, the rise in terror attacksover the subsequent years, and so on. Who said "an ounce of prevention is worth a pound of cure"? But then that is the unfashionable cry of "personal responsibility", which does not apply here.
3.29.2009 11:46pm
d-day (mail):
Reader Y:
I also like how since lawyers are now their client's moral advisers, every pro-life attorney ought to be denying their clients legal advice to advance their personal agenda. Abortion providers who happen to pick an attorney who privately holds moral views on opportion gets whatever inaccurate legal advice he deserves. After all, some questions should never be asked. Same thing for criminal defense attorneys. Am I following your argument correctly, Mr. Painter?
3.29.2009 11:54pm
PlugInMonster:
I laugh at all you liberals because President Bush will never be prosecuted and it will EAT YOU UP INSIDe for the rest of your days.
3.30.2009 12:02am
ReaderY:
d-day,

I think you have a fair point here, the issue of zealous service focus on a single objective and not being dettered by side issues or other people's opinion also applies to lawyer's service to their clients.

I wish to clarify that

(1) I personally think the political branch of government has every right to make moral judgements that torture, partial-birth abortion, etc. are wrong and should be prohibited. I don't think the constitution gives either doctors or the military special protection from these judgments.

(2) I do think the constitution gives lawyers special protection in zealously representing their clients.

(3) The reason for the difference, which is critical to my view of constitutional interpretation, is that the constitution specifically mentions lawyers and gives them a specific duty ("effective assistance of counsel") in the constitutional schema. However, the duties of doctors aren't mentioned at all, while the constitution specifically subordinates the military to political oversight in a variety of ways.
3.30.2009 12:22am
RPT (mail):
To PIM:

Of course, the former members of the Bush Administration may limit their international travel somewhat....remember, that book in the hotels has a place for them, the entire Principals Committee and more.
3.30.2009 12:28am
C. Gittings (mail) (www):
"Title 18, Chaper 67 covers the Army and Navy, and lists only these crimes. I don't see any listing of Torture."

Don,

The armed forces are subject to all of Title 18, not just Ch. 67.

For example, 18 USC § 2441 is the war crime statue, and applies to any offense committed inside or outside the United States by or against a US national or service member.


They are also subject to Title 10, especially, Ch. 47, the UCMJ. For example...

10 USC § 893:

"Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct."

10 USC § 897:

"Any person subject to this chapter who, except as provided by law, apprehends, arrests, or confines any person shall be punished as a court-martial may direct."

10 USC § 928:

"(a) Any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct.

"(b) Any person subject to this chapter who—

"(1) commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or

"(2) commits an assault and intentionally inflicts grievous bodily harm with or without a weapon;

"is guilty of aggravated assault and shall be punished as a court-martial may direct."
3.30.2009 12:34am
C. Gittings (mail) (www):
Oh that's a very neat argument ReaderY...

So bribing a judge or juror, soliciting a hit on a witness, or suborning perjury are constitutionally protected as effective representation of counsel??

There is nothing in the Constitution that protects a lawyer who commits a crime from being prosecuted for it.
3.30.2009 12:41am
Bama 1L:
If the state has no legitimate interest in requiring a doctor to follow any procedure other than the one he or she reasonably believes will best protect Americans in the exercise of their constitutional liberties, how can it possibly have a legitimate interest in requiring a security professional to follow any procedure other than the one he or she reasonably beleives will best protect Americans' constitutional right to security?

ReaderY, are you actually saying the government may not have an interest in telling its own agents how to perform the tasks it has assigned them? Good luck with that.
3.30.2009 12:48am
ReaderY:
Bama 1L,


ReaderY, are you actually saying the government may not have an interest in telling its own agents how to perform the tasks it has assigned them? Good luck with that.




Actions advocates of abortion have argued precisely that; they've argued that govenrment has no right to determine whether doctors at government hospitals etc. can perform abortions. And while not ultimately prevailing, the position has gotten considerable traction in the courts.

But the issue here is a claim that the courts ought to impose restrictions on the military based on traditional moral considerations. It's quite worth pointing out that in past cases where court has grappled with whether moral considerations should limit state conduct towards those whom the constitution doesn't protect from being killed and who stand outside the application boundary of the term "person" as used in the 5th and 14th Amendments, courts not only decided not to impose or involve themselves in enforcing any such restrictions themselves, they came up with arguments to strike them down as contrary to the constitution, liberty, the American way of life, what have you.

After all, Justices Stephens and Ginsberg gave arguments. Are they reasonable arguments? If they are perhaps we should follow them. We should at least hesitate to condemn those who behave consistently with them. Whether courts have jurisdiction to enforce these arguments in particular cases is another matter.

Finally, the issue isn't ultimately whether abortion or torture is good or bad. It's how an otherwise sane person could write a sequence of posts stating on the one hand that government must not involve itself in legislating morality and that considerations of what is immoral or evil are not an adequate basis for government action, yet government should prohibit torture because torture is evil and immoral. Clearly, what one is really saying is that government should never enforce moral judgements unless they agree from ones own. Professor Painter is not unique in this; the Supreme Court's liberal wing has been doing it as well.
3.30.2009 2:14am
C. Gittings (mail) (www):
ReaderY,

That all depends on precisely what you mean by the term "morality". Perhaps you and Painter are operating under different definitions, and perhaps he has a different understanding of what constitutes a human life.

This much is clear: abortions are legal, while torture is a federal felony punishable by up to life imprisonment or death.
3.30.2009 2:58am
Brett Bellmore:
I see a problem here. While it would certainly be nice if private sector and government lawyers were subject to the same standards of competence and ethics, doing so is radically inconsistent with a major thread of constitutional law: Informal constitutional amendment.

In the private sector, if a lawyer tells a client that something that's illegal is legal, it's malpractice, and the client usually takes a fall. In the government sector, lawyers telling their clients that something is constitutional when it's not is a well established part of an "informal" amendment process. Not only does the client not take a fall, they stand a good chance of having the bad advice affirmed.

How can the federal government carry out it's latest expansion of power, contrary to the text of the Constitution, in order for it to become established as an informal amendment, if you don't have lawyers around willing to say that growing veggies in your own garden to eat yourself is "interstate" commerce, that D.C. can have a House seat, that a damp spot in your farm field is part of the nation's "navigable waters", or any of a thousand other blatant falsehoods that the Leviathan relies on lawyers being willing to say are true?

Mind, I'd be glad if the Leviathan fell, but has Richard really thought out the implications of his stance?
3.30.2009 6:21am
Ken Arromdee:
This much is clear: abortions are legal, while torture is a federal felony punishable by up to life imprisonment or death.

If the argument is that lawyers should object to torture based on its morality rather than its legality, I don't see how that's relevant.
3.30.2009 10:28am
Anderson (mail):
Re: sleep deprivation, see this. And this. And this.

People who make mocking pronouncements on What Can't Possibly Be Torture, maybe first should read up on how torture actually works. The NKVD wanted confessions and show trials, and they got 'em. Only a few very strong-willed people, like Bukharin, managed to resist, and even then only partially.

Re: the commenter who said Supermax isolation is itself torture, I'm not disagreeing with that.

A U.S. military study of almost a hundred and fifty naval aviators returned from imprisonment in Vietnam, many of whom were treated even worse than McCain, reported that they found social isolation to be as torturous and agonizing as any physical abuse they suffered.

And what happened to them was physical. EEG studies going back to the nineteen-sixties have shown diffuse slowing of brain waves in prisoners after a week or more of solitary confinement. In 1992, fifty-seven prisoners of war, released after an average of six months in detention camps in the former Yugoslavia, were examined using EEG-like tests. The recordings revealed brain abnormalities months afterward; the most severe were found in prisoners who had endured either head trauma sufficient to render them unconscious or, yes, solitary confinement. Without sustained social interaction, the human brain may become as impaired as one that has incurred a traumatic injury.


But our practice of one form of torture doesn't excuse others.
3.30.2009 10:41am
d-day (mail):
Reader Y:
I agree with your response. I'm frustrated by the inconsistency in Painter's argument that you point out. If we're going to open the question of the extent to which government lawyers should act differently in providing guidance on issues relevant to their personal morality, that's not a discussion we can have in a vacuum. That's a big question, due the importance of lawyers in our system of government.

If we're going to talk about it, then we should recognize that the debate the discussion 1) constitutes a substantial change in the rules and ethics that currently govern lawyers (which require withdrawal) and 2) that this isn't going to be limited to the torture context. It's Pandora's box - and abortion is going to be the first thing to come flying out, precisely because personal beliefs regarding human life and dignity are so important and deeply held.

I suspect that many of those who find torture immoral and argue that the involved lawyers should have acted on their personal morality in rendering advice would not grant the same indulgence to those in other contexts. In making these broad pronouncements without recognizing the scope and consequence of these arguments, we're not having an honest debate.
3.30.2009 10:46am
ArthurKirkland:
It was not necessary to reach issues of personal morality with respect to generating or assessing the (revealed) torture memos. Torture is, and was, unlawful. That may be one of the reasons the relevant memoranda were repudiated and withdrawn by the Bush administration. That one of the principal authors wasn't wise or moral enough to understand that testicle-crushing with respect to children would be unlawful and immoral might illuminate some important points about that lawyer, those who would hire or defend him, and his work, but is not greatly important to legal analysis of the memoranda.
3.30.2009 11:05am
C. Gittings (mail) (www):
Ken,

It relevance is simple: a lawyer should not commit, aid, or abet a crime. Looking at the ABA Canons of of Professional Ethics, there are a number of items that seem very relevant in this context...


Canon 29. Upholding the Honor of the Profession.

Lawyers should expose without fear or favor before the proper tribunals corrupt or dishonest conduct in the profession, and should accept without hesitation employment against a member of the Bar who has wronged his client. The counsel upon the trial of a cause in which perjury has been committed owe it to the profession and to the public to bring the matter to the knowledge of the prosecuting authorities. The lawyer should aid in guarding the Bar against the admission to the profession of candidates unfit or unqualified because deficient in either moral character or education. He should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice.

Canon 30. Justifiable and Unjustifiable Litigations.

The lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or to injure the opposite party or to work oppression or wrong. But otherwise it is his right, and, having accepted retainer, it becomes his duty to insist upon the judgment of the Court as to the legal merits of his client’s claim. His appearance in Court should be deemed equivalent to an assertion on his honor that in his opinion his client’s cause is one proper for judicial determination.

Canon 31. Responsibility for Litigation.

No lawyer is obliged to act either as advisor or advocate for every person who may wish to become his client. He has the right to decline employment. Every lawyer upon his own responsibility must decide what employment he will accept as counsel, what causes he will bring into Court for plaintiffs, what causes he will contest in Court for defendants. The responsibility for advising as to questionable transactions, for bringing questionable suits, for urging questionable defenses, is the lawyer’s responsibility. He cannot escape it by urging as an excuse that he is only following his client’s instructions.

Canon 32. The Lawyer’s Duty in Its Last Analysis.

No client, corporate or individual, however powerful, nor any cause, civil or political, however important, is entitled to receive nor should any lawyer render, any service or advice involving disloyalty to the law whose ministers we are, or disrespect of the judicial office, which we are bound to uphold, or corruption of any person or persons exercising a public office or private trust, or deception or betrayal of the public. When rendering any such improper service or advice, the lawyer invites and merits stern and just condemnation. Correspondingly, he advances the honor of his profession and the best interests of his client when he renders service or gives advice tending to impress upon the client and his undertaking exact compliance with the strictest principles of moral law. He must also observe and advise his client to observe the statute law, though until a statute shall have been construed and interpreted by competent adjudication, he is free and he is entitled to advise as to its validity and as to what he conscientiously believes to be its just meaning and extent. But above all a lawyer will find his highest honor in a deserved reputation for fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen.
(emphasis added)
3.30.2009 11:28am
Sk (mail):
You are a pretty decent poster, but you are getting lazy.

"We then need an act of Congress signed by the President that says the same thing so the definition of torture will not change every four to eight years."

You don't mean this. Technology changes. Societal mores change. Is there any other area in which you believe definitions should be frozen according to today's standard? Would that work for copyright law? Property Law? Civil Rights Law? Its a silly expectation. Laws, and definitions, and ethics, and circumstances, are in constant flux.

"I will not respond to invective against the Right Rev. Gene Robinson, Bishop of New Hampshire."

If I could sum up your initial post on this subject, it was 'I have no opinion on the Episcopal Church, but wouldn't it be better if one side just dropped their argument?' It had a sniping, clear opinion hidden behind your supposed neutral gloss. People caught the hidden snipe. Bottom Line: If you don't want to discuss Eugene Robinson, don't bring up Eugene Robinson.

"...people in New Hampshire choose their own clergy..." They didn't chose their own clergy. People in New Hampshire chose the clergy for the national organization of the Episcopal Church. People in the national organizaiton of the Episcopal Church didn't like it, and are responding to that choice.

You are backed into a corner here, and you are getting sloppy.

"In 2005, in the midst of wars in Afghanistan and Iraq, weeks were spent by officials at the highest levels of all three branches of the federal government debating both sides of a case involving one terminally ill patient in Florida. That case involved important issues, but did they have to be federal issues? Meanwhile, hundreds of thousands of American soldiers are depending on our government to make decisions – ranging from proper interrogation techniques to proper protective gear -- that could determine whether they live or die."

Are you suggesting that officials involved in weapons development and acquisition, or military lawyers, were involved in Terry Schiavo? Probably not. Perhaps you are suggesting that a government of millions of employees can only focus on one thing at one time? Probably not. Let's face it: its just another lazy snipe.

Ultimately, if you express opinions (even hidden ones, like the Episcopal Church issue), in a written document that will be read by others, expect those others to read those opinions! If you write silly, lazy snipes (How could anyone care about Terri Schiavo, when soldiers needed better body armor!? (really, this is about the silliest thing you have said to date), expect your readers to notice those silly comments!

I suspect when academics participate in blogs, they are often shocked. They are used to making lazy, sniping comments to colleagues, and academia is such an echo chamber, they don't realize 1) that many others don't agree with them, and 2) their snipes really aren't well argued or thought out.

Blogs aren't perfect, and can degenerate (anonymity has advantages and disadvantages). But they really are the modern-day equivalent of the agora. Academia has successfully stifled this type of debate in classrooms, and academics don't even realize it.

This blogging is probably good for you. It will tighten up your writing.

Sk
3.30.2009 11:43am
d-day (mail):
ArthurKirkland and C.Gittings:
Painter is saying something about the incentives for government lawyers not to be negligent in their work - it's his best point on the issue. But his main point, which he does not support, is that the moral dimension should have prevented the creation of the memo at all. This is where Painter is righteously indignant, but its his least-reasoned argument.

This is not an argument which a person wins by citing cases or finding ways in which the Constitution might conflict with treaty obligations the United States voluntarily entered into. This is a question of right and wrong, and there are certain things a civilized society does not do.

Also:

Of course I bring my own moral views to this question. It would be difficult not to. There is admittedly a gray area when a lawyer believes something is clearly legal but also morally wrong. Advice given to a client may vary depending on the circumstances and the lawyer. When something is widely viewed as being both illegal and morally wrong, however, constructing an argument to the contrary is a disservice to the client, even if the client appears ready to entertain such an argument. The lawyer’s job is to say no.

Admittedly, a lawyer has an obligation not to aid and abet crimes. These lawyers did shoddy work in advising their client of what is a crime. But Painter's criticism goes beyond that. He says the question should never be asked and that an ethical lawyer would refuse to answer.

I'm not saying that the government lawyers are blameworthy or not. I think that this particular argument is being presented rather cheaply, for emotional punch, but is poorly presented and poorly reasoned.
3.30.2009 12:07pm
Ken Arromdee:
It relevance is simple: a lawyer should not commit, aid, or abet a crime.

So if the lawyer's legal analysis determines that it's not a crime, you have no objections, regardless of morality?
3.30.2009 12:54pm
C. Gittings (mail) (www):
Ken,

I'm not sure I understand the question.

When a lawyer's 'analysis' is based on claims that 1 + 1 = 0, or that violating a statute isn't a crime as long as you think it's a good idea, their 'determinations' are nothing but evidence of malfeasance or incompetence.

And that's exactly the situation with Addington, Yoo, Haynes, Bybee, Gonzales, and Mukasey.
3.30.2009 2:02pm
Ken Arromdee:
The question is about whether lawyers are permitted to give an analysis which says it's not a crime. If the analysis shows it's not a crime, the argument "a lawyer should not commit, aid, or abet a crime" is irrelevant.

The argument that the lawyer is doing something immoral may be relevant, but that brings up awkward questions like "what advice can an anti-abortion lawyer say about abortion" and "can a lawyer get a guilty person off on a technicality".

If you answer the abortion question by insisting that the lawyer must act legally, but you answer the main question by saying it's immoral to make the legal analysis, that's equivocation. It's a fallacy. Make up your mind.
3.30.2009 2:40pm
Richard W. Painter (mail):
I have been criticized in some of these comments for my ridicule of an obsession with certain social issues in both our government and parts of our religious establishment. My tone may be harsh, but my concerns are well placed as this obsession has been at the expense of more pressing issues.

I said in my post that high level officials in all three branches of the federal government spent far too much time on the Schiavo case. This was not a question of asking a few middle level lawyers to discern if there could possibly be a federal interest in the matter and how to proceed. Even public news accounts convey clearly the fact that federal involvement was much more. It is this lack of proportion and lack of priorities that disturbs me, not the fact that the matter was examined at all.

The federal government has two wars going on and a ten trillion dollar economy to manage or mismanage. The ship of state requires all hands on deck, and it is troubling to see the officers congregating starboard to fish for minnows. I am well aware that come election time one of these minnows may turn into a whale in a few undetermined counties in a swing state. This is, however, no excuse.

My discussion of the schism in the Episcopal Church illustrates that this same phenomenon is playing itself out in the religious sphere as well. The clergy and laypeople of New Hampshire interviewed several candidates and chose one to be their bishop. The other bishops followed the usual practice of respecting local autonomy and assenting to this choice. Because the new bishop happened to be openly gay, there was an immediate uproar, with some parishes and even entire dioceses threatening to leave the Church and put themselves under the auspices of a bishop in Nigeria, a country rife with corruption but where sodomy at least is a criminal offense. Lawsuits have been filed in dozens of states, motions and countermotions are flying in every direction and lawyers are racking up their fees.

I blame not only the dissidents but the leaders of the Church who should have the good sense to let these parishes, which are relatively few in number, take their church property and go to Nigeria if they wish. I have received a dozen emails this week assuring me that there are plenty of investment advisors there who can help manage the church funds.

Jewish rabbis I understand frequently argue over theologically significant matters of personal morality such as Sabbath observance. Rarely, however, do they carry on about such matters before a national audience in such a loud manner as we have. Instead public dialogue is about such matters at the Middle East and economic justice.

The Episcopal Church has traditionally included some of the Country’s most prosperous and well educated citizens, people who should know to spend their money on helping the poor and not on hiring lawyers to fight with each other. For many Church members, this entire episode is an embarrassment.

As I pointed out earlier, our government should likewise be embarrassed for having the wrong priorities. It is about time we pull up our trousers, stop worrying about what goes on with other people’s trousers and address the more pressing issues at hand.

Richard W. Painter
3.30.2009 3:39pm
C. Gittings (mail) (www):
Ken,

That's just the point: fabrication is NOT analysis. You're arguing apples and oranges, the gist of it being we're supposed to consider anything that comes out of a lawyers mouth analysis even when said 'analysis' is intended to advance a criminal conspiracy.

A fraudulent pretense or a fanatic's unreasoning certitude in their own infallibility are NOT good faith analysis. These people set out to commit war crimes in violation of numerous federal statutes and treaties in force for the United States. The object of the memos was to shield them from prosecution so they could commit those crimes with impunity. Criminal conspiracies don't get any more willful or deliberate than this one was.
3.30.2009 4:09pm
ArthurKirkland:
The "walk and chew gum" argument was used by those who sought to defend U.S. Attorneys who devoted substantial resources to finding and prosecuting sellers of water pipes, distributors of dirty movies, and the like when the Department of Justice was telling us that the terrorism threat was so overwhelming that it was necessary to run roughshod over civil liberties.

As it turned out, they stumbled over their own feet and choked on the gum, and none of it was necessary.
3.30.2009 6:55pm
MlR:
"The fact that cruel and degrading treatment of human beings is wrong has already been conclusively established, for example in a best selling book available free of charge in most motel rooms."

Bombing, shooting, and otherwise killing thousands, if not millions of people, while prosecuting a war, however, is presumably okay.

And you can keep your religion out of my politics, thanks.
3.30.2009 9:04pm
Benjamin Davis (mail):
Just in on Abu Zubaydah - Detainee's Harsh Treatment Foiled No Plots in yesterday's Washington Post.

Here is the quote:



In the end, though, not a single significant plot was foiled as a result of Abu Zubaida's tortured confessions, according to former senior government officials who closely followed the interrogations. Nearly all of the leads attained through the harsh measures quickly evaporated, while most of the useful information from Abu Zubaida -- chiefly names of al-Qaeda members and associates -- was obtained before waterboarding was introduced, they said.

Moreover, within weeks of his capture, U.S. officials had gained evidence that made clear they had misjudged Abu Zubaida. President George W. Bush had publicly described him as "al-Qaeda's chief of operations," and other top officials called him a "trusted associate" of al-Qaeda leader Osama bin Laden and a major figure in the planning of the Sept. 11, 2001, terrorist attacks. None of that was accurate, the new evidence showed.

3.30.2009 11:01pm
einhverfr (mail) (www):

Admittedly, a lawyer has an obligation not to aid and abet crimes. These lawyers did shoddy work in advising their client of what is a crime. But Painter's criticism goes beyond that. He says the question should never be asked and that an ethical lawyer would refuse to answer.


I disagree with Painter on this limited issue. The question needed to be asked and clarified, but the OLC did a lousy job of answering it.

However, I have a bit of a hard time with the number of apologists for torture here (evidently "24" has the same effect on the general public as it does on Westpoint students).
3.30.2009 11:14pm
Richard W. Painter (mail):
Some here express concern that I cite the Bible for the proposition that cruel and degrading treatment of other persons is wrong. I do so because the Bible is the most often talked about book in America, and politicians are particularly fond of citing the Bible around election time. They should read and think about the entire book, not just selected passages, for example passages buried in the back of Leviticus somewhere that are believed relevant to the dispensation of marriage licenses in California. Unlike those issues, the proposition that cruel and degrading treatment of other persons is wrong is one about which a multitude of sacred as well as humanist texts reach the same conclusion.

For the many people in the world who look to the Koran, for example, I trust that upon careful reflection they will find the same thing there. We see in some countries what happens when people succumb to the influence of political and religious leaders who rely on selected passages of sacred text.

Some will use the misuse of sacred text as an excuse to banish all religious values and even humanist thought from the realm of politics. Politics as a moral value in and of itself, however, is an experiment that has been tried several times, including once in Germany and once in a country formerly known as the USSR.

The difficulties we had with those two countries in the last century gets me to the difficulty I have accepting the proposition, as tempting as it is from a moral perspective, that war is always wrong. I hope we will someday soon live in a world where this is indeed the case because the United Nations or some other international organization can deal effectively with oppression and aggression before it is too late. Until then we will have to consider whether military engagement is justified in each particular case, although I hope only very rarely and only after much thought is given to the reasons why and whether those reasons are in fact legitimate.

RWP
3.31.2009 9:51am
C. Gittings (mail) (www):
Richard,

I quite agree, and in any case: god doesn't need a human police force.


But gee, I just have to ask...

Whatever possessed you to go to work for a pair of lying murderous gangsters like George Bush and Dick Cheney??

And could you possibly do a post on your experiences and observations of David Addington?
3.31.2009 10:57am
Anderson (mail):
Whatever possessed you to go to work for a pair of lying murderous gangsters like George Bush and Dick Cheney??

And the scribes of the Pharisees, when they saw that he was eating with sinners and tax collectors, said to his disciples, "Why does he eat with tax collectors and sinners?"

And when Jesus heard it, he said to them, "Those who are well have no need of a physician, but those who are sick; I came not to call the righteous, but sinners."
3.31.2009 11:54am
Ken Arromdee:
Unlike those issues, the proposition that cruel and degrading treatment of other persons is wrong is one about which a multitude of sacred as well as humanist texts reach the same conclusion.

Please. Most sacred texts say that torture is generally wrong, but "generally" and "universally" are different things.

"If anyone worships the beast and his image and receives his mark on the forehead or on the hand, he, too, will drink of the wine of God's fury, which has been poured full strength into the cup of his wrath. He will be tormented with burning sulfur in the presence of the holy angels and of the Lamb. And the smoke of their torment rises for ever and ever. There is no rest day or night for those who worship the beast and his image, or for anyone who receives the mark of his name."

That's directly from that sacred book. It obviously approves of torture here.
4.1.2009 11:00am
Suzy (mail):
Thank you for this excellent series of posts.

In response to those who think it is not such a big deal if, for example, we deprive vicious criminals and warmongers of sleep: what they deserve is not pertinent to the issue. Of course they deserve whatever horrors could be inflicted upon them. The point is that we cannot have a free, civil society if we make it our job--the job of the state--to inflict such retribution. We don't grant habeas corpus and due process because it's some form of luxury--we grant it because it's the cornerstone of a free and just society. By definition, countless people who don't deserve anything good will receive the fruits of our system of justice. That doesn't mean we should toss the whole thing out in favor of lawless violence, when it suits the state's fancy.
4.1.2009 11:52am
Richard W. Painter (mail):
I discuss some of my disagreements with positions taken by the former Vice President and his staff in my book and in a post here titled "Cheney".

I do not discuss specific individuals who worked for the President or the Vice President in my book, and will stick with that approach here. It should be clear, however, where my approach to a specific issue is different from that of some other individuals who worked for the government.

I see that selected passages of scripture will continue to be cited here -- as they are cited in some parts of the world where our military is currently engaged -- to support propositions that are without support in the same body of scripture taken as a whole. Metaphores used in scripture to describe divine wrath are also wrongly conflated with, and seen as a justification for, human violence.

RWP
4.1.2009 1:59pm
Ken Arromdee:
I see that selected passages of scripture will continue to be cited here -- as they are cited in some parts of the world where our military is currently engaged -- to support propositions that are without support in the same body of scripture taken as a whole.

Funny how every scripture-quoting believer says this when you demonstrate that their scriptures say things they may not like.

Metaphores used in scripture to describe divine wrath are also wrongly conflated with, and seen as a justification for, human violence.

Come on, now. No writer who wants you to follow God would compare God's actions to something the writer considers evil. The metaphor could only be made in the first place if torturing enemies is seen as good.
4.1.2009 5:14pm
LM (mail):
Ken,

You're changing the subject. God telling us how he'll punish sinners doesn't authorize anyone else to carry out the punishment.
4.1.2009 9:08pm
Ken Arromdee:
Yes, but nobody's saying they want to punish suspected terrorists for committing sins, either.

If you say something like "God's love is sweeter than the sweetest honey", for example, that's a metaphor about God, but it also implies that honey is supposed to be sweet and that being sweet is a good thing. The point is that when God's actions are compared to some human action, that implies that the human action is good--when done by humans--because if it wasn't good, it would make a pretty bad metaphor. The honey metaphor doesn't imply that you have to be God in order for sweet foods to be good--it implies that love given by God is like honey given by men.
4.1.2009 9:21pm
LM (mail):
That still avoids the point. This isn't about whether descriptive Biblical metaphors apply consistently, which I assume they do. I take it the one you quoted is meant to describe God's "opinion" of Hell and also the human experience of it.

But that's an entirely different question from whether it's OK for us to do what God does. It isn't. God's behavior is by definition both good and beyond our comprehension. Which is why he guides us with codes of conduct that prohibit us from killing people (apparently) indiscriminately, as well as a myriad of other things God does that become evil in our hands.

I hope you don't think it would be OK for you to kill your best friend's family and destroy everything he owns just to test his faith in you?
4.1.2009 10:20pm
Richard W. Painter (mail):
This discussion started because lawyers misconstrued the laws, treaties and Constitution of the United States to condone torture. We end with this, the claim that scripture also condones torture. The overwhelming consensus among those who study these texts for their livelihood – lawyers, judges and clergy among others – is precisely the opposite.

This is the type of nonsense that got us into our present difficulties.

We confront in various places in the world adversaries who distort both law and scripture to condone cruel and degrading treatment of other human beings, including acts of terror and torture. Perhaps it is time to ask ourselves again what exactly it is that we are fighting against and what we are fighting for.

RWP
4.2.2009 12:32am
Ken Arromdee:
We end with this, the claim that scripture also condones torture.

You seem to be under the impression I believe in scripture. I don't.

Saying that we should avoid torture because the Bible tells you to is no different than saying that we should believe the Earth was created in seven days because the Bible tells us so, or that we should avoid abortions, etc. It's possible to quote scripture to prove anything, and we have no business running a secular government using the Bible as a source of morality anyway.

And yes, I do think those passages condone torture. I am not saying "because those passages say it's okay for God to torture, it must be okay for people to torture". What I'm saying is that the very existence of the metaphor implies it's okay for humans to torture. If you're a worshipper of God and you say that God is like something done by men, you're expressing approval of that something being done by men.
4.2.2009 2:40am
Richard W. Painter (mail):
Persons who do not like scripture distort selected passages of scripture in order to attack it. The Bible is at times subject to such distortion of its true meaning, as is the Koran (indeed there was an earlier comment here about flushing Korans down toilets, a shameful act perpetrated by a few prison guards who were completely ignorant of what the Koran has to say). Such distortions are useful for stirring up prejudice against a particular religious faith, but rarely give useful insight into the religious texts themselves.

The greatest danger, however, arises when persons who believe in scripture believe these same distortions: a National Socialist preacher in Hitler’s Germany says that the Bible condemns Jews; an ayatollah in Tehran says that the Koran demands the destruction of Israel; a backwoods preacher telephones in to talk radio a five minute sermon on how the Bible approves of torture. It is this misuse of religion – not the careless musings of persons who reject religion – that a civilized society has to worry about. Regardless of our motive, we act irresponsibly if in a public forum we make false statements about scripture that can be found by others who troll the Internet looking for inflammatory statements to use for an evil purpose.

Torture is wrong because the law condemns it, but the law could be changed tomorrow to permit it and torture would still be wrong. I and billions of people around the world look to one sacred text or another; others look to the writings of humanist philosophers or to their own gut feeling about what is right and wrong. With respect to torture, the widely held view among authorities from all of these perspectives is the same – it is wrong.

RWP
4.2.2009 12:03pm
Richard W. Painter (mail):
I am pleased that here at least I am not accused of being disloyal to President Bush because I oppose a policy that was supported by some high ranking members of his Administration. I supported President Bush, and I believe that in many ways he was a good President. That does not mean that I agree with everything that was done over the eight years he was in office. This is one of several areas where I do not agree.

Franklin Roosevelt also was a good President. He provided extraordinary leadership in a time of great peril. That does not mean that everything that happened on his watch was right. The removal of Japanese Americans to internment camps is the most disturbing example. Supporters of President Roosevelt did not have to support this policy while he was in office, or justify it afterwards or ask the courts to affirm it.

It is true that persons involved in the internment policy went on to provide exemplary leadership to this Country in other ways, one as Chief Justice of the Supreme Court. That does not make what they did in that instance right or create any obligation on the part of anybody to seek to justify it.

RWP
4.2.2009 2:16pm
Ken Arromdee:
The Bible is at times subject to such distortion of its true meaning

I'd ask if this was a joke if I didn't know better. There are lots of mutually incompatible religions that claim to use the Bible. Even when you're talking about a single religion, no single religion reads the same things into the Bible that it did hundreds of years ago. And you're seriously telling me that there is such a thing as "one true meaning" for the Bible and that everyone who doesn't read the Bible the same way is just wrong?

With respect to torture, the widely held view among authorities from all of these perspectives is the same – it is wrong.

That is bollocks. Most belief systems say that torture is generally wrong, not that torture is wrong no matter what.

Moreover, there are a lot of things which are widely believed by many belief systems, at least until recently, but which you would no doubt reject. If I name any of them you'll probably get insulted that I "compared" them to torture, but there are lots of extremely well known examples of things that a lot of belief systems all got wrong at once.
4.2.2009 5:49pm

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