Look at these faces!
October 18, 2006, 8:20 am
Posted by Margaret O'Brien Steinfels
The front page photo on the print edition of the New York Times (10/18/06) is worth some study and reflection. Bush has signed the bill for interogating and trying unlawful combants. What are these witnesses thinking? Embarassed? Solemnly looking forward to the interrogations that will find the “ticking” bomb? Worry that they might find themselves hauled off to The Hague?
I think they all have that expression that says there’s a big pile of doggie-doo on the floor and they’re just holding their breath to see if George will step in it.
With all due respect, Ms. Steinfels, what do posts like this contribute to a Catholic discussion board? They only polarize the debate further by sending an implicit, unargued message about what sorts of ideological positions are welcomed and unwelcomed. I would estimate that 20-25% of the posts in the last, say, two months have been political softball tosses of the sort that would be perfectly at home at the Daily Kos. It is of course your right to post such things and I an open to the possibility that they fall under the purview of the mission of Commonweal. But I wonder about the unintended consequences of such assumptions…
Donna you win the caption prize–so far!
MLJ, were you born this way or have you taken classes in being a PA.
First of all it is only fair to repeat that mlj has no credibility, identity or sense of fair play. Ad hominem is not possible because who is the person involved.
Secondly, if s/he had a scintilla of awareness of Peggy Steinfels s/he would know that Peggy has criticized democrats just as severely. Something mlj rarely does as an obvious republican.
Thirdly, the subject matter is a matter of justice–something she never addresses unless it is perceived as a wound to mlj’s partisan cronies.
I think at the very least that this new law is a significant development in our political history and one does wonder what the people involved are thinking.
A great deal of our political rhetoric on both the right and the left seems to me to consist of people attempting to construct (after the fact) a moral rationale for utilitarian political positions they have adopted (including those positions that support strategies that have failed).
I am fascinated by this, because many times it looks to me that people try to sell their political positions mostly to themselves. This tells me that it may be true that in fact people have a natural impulse to do the right thing, however hard this may be to see when we look at what they actually do (as opposed to what they say they are doing).
For this particular law, there seems to be a conflict between tradition and current utility. My own feeling is that this law, while it appeals to the virtue of justice, is perverting justice and is actually appealing to vengeance. And I will indulge myself in thinking that most of the people in the photo know this in the form of a feeling of unease that they can’t explain, but which shows up clearly on their faces.
I believe the Times’ picture tells us exactly as much as the corresponding picture in the Washington Post about what the witnesses are thinking, next to nothing.
There may be deep significance in both pictures but I wouldn’t be surprised if reactions to them are almost entirely subjective and tell us much more about the viewers than about the inner thoughts of the witnesses.
http://www.washingtonpost.com/wp-dyn/content/article/2006/10/17/AR2006101700190.html
Confessing my ignorance in advance, what is a PA?
This mlj entity does seem to have a somewhat mysterious persona. I find that I agree with him more than I disagree, but he/she is not predictable.
To all of you who are agonizing about the “Torture Bill”, all the polls seem to indicate a Democratic sweep of the House and Senate in November, so the prospects of nullifying it (the bill) are excellent. In fact, what I see happening is that the Democrats will simply shut down the Administration with subpoenas and impeachment activities, which will give them a chance to defend and free as many detainees as possible. I find this prospect dispiriting, but you guys should be encouraged, so take heart! Be happy! You’ll have Bush et al in chains before you know it. But then the suicide bombers will come to our shores…Oh well.
The second photo is definitely much more telling than the first.
The second photo clearly illuminates the pride these men have in George for being able to successfully navigate sitting in the chair without mishap. Judging by how George’s tongue is out and pressed against his upper lip, this feat of gross motor function took no small amount of mental effort.
Yes, what is a PA?
On the subject of “thinking,” I never make that assumption with respect to Commonweal partisans. Since I always see the same predictable drivel, I assume that no thinking is involved.
Quote: I find this prospect dispiriting, but you guys should be encouraged, so take heart! Be happy! You’ll have Bush et al in chains before you know it. But then the suicide bombers will come to our shores…Oh well.
One of the difficulties about discussing the topic of national security overall is that the current administration has managed to separate questions about the logic of their policy assumptions from questions about the (incompetent) execution of their policies.
They have also managed to conflate different questions under one question (although per Alasdair Macintyre’s article, we should not be surprised to see that the public is too shallow to see this).
No one has shown an actual relationship between what Bush has been doing with detainees so far and the lack of “suicide bombers” on our shores. And the question of whether torture is effective (and the evidence seems to be that it is not) is not the same question as whether the Executive Branch of the American government should be able to detain and punish people as a pure administrative act as though we’re a bunch of Bolsheviks.
As far as your fears that suicide bombers are going to come to our shores (necessitating this violation of the Constitution) I guess I’m not brave enough to be as afraid as you are.
Janice Kraus,
“No thinking involved” belongs clearly to those who defend a magisterium that has ignored pedophiles, rewarded a coverup cardinal, allowed priests to steal from parishes, and catered to the wealthy.
It amazes me how mlj and Janice are permitted to remain on this blog since their contribution is totally negative.
There are so many others here with different opinions who contribute so well to the dialogue.
Remember Huxley’s “Brave New World”? Obviously, between the first picture(seemingly anxious, eyes downcast) and the second (smiling and jovial), the Soma has kicked in!
Since no one has appeared to answer the most pressing question publicly (they may have sent private e-mails), I shall address the issue of “What is a PA?”
In medical terminology, a PA is a physicians’ assistant, which is someone who has studied enough medicine to examine and recommend treatment for patients, but they cannot write prescriptions or perform surgery.
In the terminology I’m most familiar with (and what I think the first person meant) a PA is more commonly known as a PITA, which translates as Pain in the A$$.
I could be wrong though. PA could be some acronym involving the word “putz”, but I believe the usage of that particular form is rare in comparison.
PA? Peculiarly Adolescent–of course!
Maybe the WashPost photographer asked them to smile. Though possibly Donna is correct–and the winner again.
This bill looks like it’s already on the way to the Supreme Court. We shall see how Roberts, Alito, Thomas, Kennedy, and Scalia land on the habeus corpus issue? Would that be CATHOLIC enough?
“PA? Peculiarly Adolescent–of course!”
Ahhhh!!! I like it!
(btw, i know i’m new here, but are people always this serious?!?)
Caption:
“O.K., John Warner, you’ve won ‘The Lottery.’ Drag him off to the interrogation room in the West Wing. And no more comfy cushions!”
(Apologies to Shirley Jackson and Monty Python.)
Caption (2nd photo):
“Lot # 9-17-1787, the United States Constitution. Going once…Going twice…
Sold…Out.”
[Caption (2nd photo):
"Lot # 9-17-1787, the United States Constitution. Going once...Going twice...
Sold...Out."]
“And you can keep the pen!”
(that’s the spirit, bill! well done!)
“My momma told me there’d be days like this. There’d be days like this, my momma said.”
And if you are not old enough to remember that refrain, fie on you.
As a CD(Commonweal driveler), I hope that those who argue by insult could do a bit better.
Beyond the humor here, a moral question of justice continues on. Given the “1%” solution that seems operative in detention, what process do the defenders of this legislation think should be used MORALLY- and, please, step back from all the partisnan idelogical junk!
Rather than wasting time with these terribly clever comments about this hillarious photo, why doesn’t someone point out to me the specific points in the legislation that threaten to undermine our constitution and international law? A link to the bill is below. Read it, please, and show me what I ought to be concerned about. I keep hearing about torture. Where in the bill is it permitted?
http://thomas.loc.gov/cgi-bin/query/D?c109:4:./temp/~c109G18eQE::
The responses only prove my point about this post being a political softball for soi disant “thinking” people.
Robert:
Your question sounds like it may be very substantive, except that its not clear what you’re asking. Are you asking what process of interrogation “should” be used morally? (did you mean to ask “COULD” be used morally?
And why, if I may be allowed to slip back into partisanship, do the Democrats NEVER worry or complain about the tactics of terrorists?
To everyone who is not MLJ or Sean H: Please do not feel obliged to respond.
Absolutely Grant, no one has any obligation to respond at all, if they ever did – much better to discuss doggie poop and what PA means rather than actually look at the text of the so-called “torture bill” and show where torture is permitted.
unagidon,
Part of the problem with this discussion has been the tendency to treat the whole process, and how the Bush administration handled it as something extraordinary and unprecedented. It isn’t, and it isn’t nearly as extreme as it has been portrayed, which is why I ask people actually read the law rather than what the NY Times has to say about the law.
Some facts -
Military commissions/tribunals have a long history in the US and other countries
Under the Geneva Conventions, military tribunals are valid judicial bodies for trying individuals accused of war crimes
Torture is illegal under US law
Under this statute evidence obtained by torture or inhumane or degrading coercive techniques will be inadmissable against the accused
Habeas corpus, to my knowledge, has never been applied to enemy combatants in the history of the US
Bush’s military tribunals were patterned on – almost identically – tribunals established by executive order by Roosevelt in WWII. The jurisdiction of those tribunals (which resulted in the conviction of 8 individuals most of whom were captured on US territory not overseas – and the execution of 5 or 6) was upheld by the Supreme Court. The idea that Bush was acting like a rogue is simply untrue. The Supreme Court case earlier this year was about whether the President had the authority to establish the commissions without Congressional approval. In a divded opinion, they said no. This law is that approval.
This is not a situation where there is a “conflict between tradition and current utility.” If anything, tradition supports the president’s position.
Quote:
Rather than wasting time with these terribly clever comments about this hilarious photo, why doesn’t someone point out to me the specific points in the legislation that threaten to undermine our constitution and international law? A link to the bill is below. Read it, please, and show me what I ought to be concerned about. I keep hearing about torture. Where in the bill is it permitted?
It seems to be permitted here in d2, for example (although I don’t think I was one of the people who spoke about torture here).
Sec. 948r. Compulsory self-incrimination prohibited; treatment of statements obtained by torture and other statements
`(d) Statements Obtained After Enactment of Detainee Treatment Act of 2005- A statement obtained on or after December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that–
`(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;
`(2) the interests of justice would best be served by admission of the statement into evidence; and
`(3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005.
You may argue that section 3 specifically prevents torture, except that section 1003 of the DTA of 2005 doesn’t specifically define torture and section 2 above would seem to contradict section 3. But since you have told us that you are an attorney, I would like you to produce a similar statute authorizing 2b above that either covers American citizens or covers prisoners of war.
But the big problem with the bill is in the definition of “enemy combatant” as a brand new legal category and brand new abilities of the President to administratively define who constitutes one.
Somebody asked how this contributed to a Catholic discussion. This is so depressing. Torture has become one of the defining moral issues of our day. Who could have predicted it? If anybody had told me 10 years ago we would be faced with such an appalling administration, I would have written it off as the rantings of a La Rouche partisan. But here we are. The president has legalized torture, using a toxic mix of Orwelllian double-speak and consequentialist reasoning. Of course, those who support abortion engage in the same kind of consequentialist logic. Where is the consistency? Has the legacy of good Cardinal Bernardin been destroyed utterly?
For Catholics, this is as non-negotiable as it gets. But I don’t expect partisan outfits like Catholic Answers to make this point (I’d love to know how they are avoiding it though, probably just by refusing to engage in any debate). But where is the USCCB? Has it been so neutered that it dare not speak out on such a pressing moral issue?
Just rememer, torture is listed right after abortion, murder, euthanasia and genocide in Gaudium Et Spes. And John Paul called it “instrinsically evil” in Veritatis Splendour. He wrote in this context: “They [instrinsically evil acts] do not leave room, in any morally acceptable way, for the “creativity” of any contrary determination whatsoever:” And “creativity” is exactly what Bush is engaging in. As Tolkien would put it, he has been seduced by the ring of power. He thinks one can flirt with evil to bring about good. Not possible. But I repeat, where is the Catholic outrage?
Bob Schwartz obviously doesn’t live in or near New York. Otherwise he would know Sen. Chuck Schumer frequently discusses the risks posed by terrorists. He’s hardly alone in his party.
The faces are of men who are embarassed. Embarassment is another candidate along with hypocrisy for the tribute that vice pays to virtue.
I think in some circles a PA is a personal assistant, no?
The new law also allows the use of “coerced testimony” to obtain a conviction. “Coerced” is a pretty fuzzy word to me, and how credible can such testimony be. I recently heard a lecture by Fr. “Monk” Molloy, the immediate past president of ND, who spoke on terrorism, including the extremely low reliability of evidence obtained by torture and/or coercion.
What is most bothersome to me is that there is (1) no right of habeas corpus (that means “indefinite detention” and no U.S. court has jurisdiction to address habeas issues), (2) very limited ability to cross-examine adverse witnesses, (3) widespread use of hearsay and coerced evidence, and, for the finale, (4) the availability of the death penalty.
Why, exactly, was this law necessary? Wouldn’t it have been better to have shaped a process that draws on the most humane features of Geneva Convention, the procedures at the Int’l Court of Justice, the procedures of the Code of Military Justice, and the Nuremberg trials? Of course I’m anti-terrorism, and terrorists hould be punished, but the new law seems to me to be a short-term response to a political problem, instead of a thoughtful enactment that will show the world and history that the U.S. will provide a fair measure of due process even to those who seek to harm it. The new law is bound to catch up innocent victims in its net, and that in and of itself is a blemish on the civil rights we hold so important and want the rest of the world to adopt.
unagidon,
I am confused. The section you quote only applies to statements taken before Dec 30 05 and it does not apply if the statement was made under coercion involving “do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005.” How does that permit torture today?
And lest we overlook it, Hillary “The Queen of Waffles” is waffling on this topic, too …..
http://blogs.nydailynews.com/dailypolitics/archives/2006/10/clinton_on_tort.php/.
NCR reported back in March about Catholics attitudes about torture.
http://natcath.org/NCR_Online/archives2/2006a/032406/032406h.htm
So there’s a Catholic link if anyone wants more food for thought.
As for the fellas in the photo, they all look appropriately somber. Many of them are responsible and thoughtful legislators. Unlike President What Me Worry.
I remain unapologetic and stand by my doggie doo comments.
However, my thanks to Bill Collier for summing up my sentiments about this bill.
I have not yet grasped the connection between complaining about the tactics of terrorists and complaining about a piece of legislation that is poorly written and has so much potential for being abused.
unagidon,
I realized I misread what you posted – that section applies to statements made after, not before 2005 – my error. Nonetheless, whether before – subsection (c) or after, subsection (d) – in no case can evidence obtained through coercion amounting to cruel, inhuman, or degrading treatment, a standard much higher than torture, be used.
A few other points. Again, habeas corpus has not been used by or applied to enemy combatants ever – notwithstanding the fact that the US has had tens of thousands in custody over its history. Habeas is unique to the common law system, that is most nations don’t even have it, so it can hardly be a standard to apply under international law.
As for some of Mr. Collier’s questions, the whole basis for the US law surrounding the Miranda Warning – “you have the right to remain silent . . . ” is (according to the Supreme Court) that custody itself is inherently coercive. There can be a lot of things that a US court would consider coercive that are routine practice in other countries – including our allies in Europe. One feature of this law is that the accused can’t be compelled to testify against himself. Citizens in most European nations don’t have this right in their own countries. As far hearsay, again, US hearsay evidence rules are more restrictive than most other countries. This law effectively applies a hearsay rule that you would find in a German or French court where the test of admissability is reliability and probative value.
The law is necessary because the Supreme Court said it was.
Frankly, this whole debate comes down to whether you believe we are at war. If we are not at war, then I would agree with the critics, we should apply our normal domestic standards. If we are at war, and the Geneva Conventions and international law applies, these military commissions are more than adequate to protect basic human rights, and certainly more than almost any other country in the world would apply.
Quote: I realized I misread what you posted – that section applies to statements made after, not before 2005 – my error. Nonetheless, whether before – subsection (c) or after, subsection (d) – in no case can evidence obtained through coercion amounting to cruel, inhuman, or degrading treatment, a standard much higher than torture, be used.
The statue defines when coerced statements may be used, but it has at least two holes in it.
First, the definition of torture in the 2005 statute is not clearly defined. As you know, part of the problem with the torture question is that people have been arguing that a number of things that appear to be torture are in fact allowed by the 2005 statute and this statute does not clarify anything.
Second, the title of the statute refers to cases “in which the degree of coercion is disputed”. In a civil trial, this disputation would be made a a defense counsel. For a prisoner of war, it would be made by a neutral inspector. In the case of this statute, who is going to make this “dispute” in these cases that have been converted from judicial to administrative procedures?
Quote: Frankly, this whole debate comes down to whether you believe we are at war. If we are not at war, then I would agree with the critics, we should apply our normal domestic standards. If we are at war, and the Geneva Conventions and international law applies, these military commissions are more than adequate to protect basic human rights, and certainly more than almost any other country in the world would apply.
This is easy. We are not at war. The President was granted war powers to use in Iraq. He was not granted war powers to use against anyone else.
You can read the act here (warning, pdf):
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s3930enr.txt.pdf
For an interpretation by Jack M. Balkin, constitutional law professor at Yale, go here:
http://balkin.blogspot.com/2006/10/rights-against-torture-without.html
Sean said: The law is necessary because the Supreme Court said it was.
Jean observes: The Supreme Court said abortion was necessary, too.
As a lawyer, I’m sure you agree that what the law will tolerate is not the same as what is morally right.
I don’t think the legislation is really the issue here.
I think if more people thought the war in Iraq and efforts against terrorism were going in the right direction, there would be less noise about this bill. The concern over the bill you are hearing is part of a larger concern that our foreign policy in the Iraq and with Muslim countries is a big mess.
Here’s Patrick Lang (a man who can read military faces) on two of those faces.
“With this new law the country became a place in which the president/commander in chief can classify whomever he likes as an enemy combatant beyond the reach of habeas corpus. This means that the executive branch can arrest and hold without trial anyone in the world (including American citizens). He can also hold that prisoner indefinitely without confronting the detained with the case against him/her or the evidence involved….
“If you watched Generals Hayden and Pace who were artfully positioned behind the sovereign at the signing, you saw a lot of blinking. They know what they have done.”
Here is Lang’s whole post (plus comments) on his blog: http://turcopolier.typepad.com/sic_semper_tyrannis/2006/10/god_save_the_ki.html#comments
I wish we could get straight answers to two questions, neither have been taken up with the necessary seriousness and objectivity by professionals in the field.
1) Does current US law reflect and/or reinforce practices widely used by the American government in the past? In other words, does this law represent a break with our past treatment of prisoners? I have not found a candid treatment of this by anybody. My brother is a current JAG officer and he swears our policies on treatment of prisoners is excessively tight, to the point where it interferes with normal military procedure. I realize that testimonies from my brother are not probative.
2) Can we somehow convince our many fine Catholic ethicists to actually expend serious intellectual energy helping us to understand what is and is not torture? They have been negligent in this. Does tricking somebody into thinking they are drowning for 10 seconds constitute torture? Perhaps it is indeed grotesque and inhuman. But we need the help of our best thinkers–and it has not been forthcoming.
I’ve been thinking about that picture since discovering it last night.
After reading today ‘s New York Times editorial “A dangerous new order” it occurred to me that the caption should be “U.S. one step closer to military dictatorship.”
The “bastard’s” in the picture know it too. (I use that word purposely because they have bastarized both the Constitution and America’s other vaulted pillar “the rule of law”.)
One final thought, however. I want Donna and the others who have used humour, to know that it is really really great to see American’s beginning to enjoy and laugh at themselves again. Perhaps, America is finally on the mend. Hopefully we will know better in just a few weeks.
John,
You said that we have just moved “one step closer to military dictatorship.” You also said that as a country we are “on the mend” in light of coming elections. I’ll leave it to your mental powers to square those two statements. I’m more interested in the first one.
I’m wondering if you could tell us what you mean by a “military dictatorship.” Perhaps a defintion and some examples would help me understand. There are two parts to your charge, one that contends our military has coopted our elected officials; the other maintains that ours is a dictatorship, presumably meaning that they are no longer held accountable by elections.
I’d also like to know how our current government is approaching this status. Could you give examples, preferable from the bill just signed?
A couple points worth making -
unagidon, you seem to be operating under the impression that these people have no defense lawyers. That is not the case. There are teams of JAGs, with some civilian help, serving as defense counsel. The same type as a member of our own armed forces receives. In fact, some of the most experienced criminal lawyers in the armed forces are involved.
There is also an assumption that anything other than the full panoply of US legal procedures and rights is illegitimate. International law and the law of war simply do not require this. Many of the very things that people are aghast about in this law and that are supposedly leading toward a “military dictatorship” are standard practice in supposedly enlightened Europe. People suspected or terrorism can secretly be held for weeks in European countries. Many western countries require the accused to testify. Go to Germany, or France and they will say “habeas what?”
What is most disturbing is the tendency to treat anyone who disagrees with you as acting in bad faith or as evil. I say this especially because I actually know and have worked with some of the people who have worked on both the legal and the administrative side at GTMO. These are not evil people.
Again, read the actual law first, not what the Times or Globe or Post or a liberal law professor says about it, and ask what a reasonable person applying it would do.
mlj,
My first response is to say: if you do not know the answer then I’m not going to tell you. It is obvious from your earlier posts that you think the Act Bush signed is fine so we are at odds of no understanding before we even start.
The only analogy I can propose is for you to recall that Hitler started out “elected” also. Note, I said this was another step, not that it had happened or that America was in that state yet.
I used the word “military” because at some point as in the German case one moves from ‘elected’ to ‘military’.
Personally, the humor statement is quite appropriate. I was speaking of it as a sign that it might not happen. My God I certainly hope it doesn’t. I do not want to live next door to such a beast. It is difficult enough and growing more so, under Bush, as it is.
That is why I ended on a positive note, seeing humor again and with the Democrats in an upswing America may yet over-come this dark period in its history.
As for Donna’s pile of doggie doo, I guess he must have missed it because there is no picture of the fall or his buds laughing floating through cyberville.
But mark my word the fall is coming and the Dems are just starting to laugh on the way to the House.
As usual, the majority of posts in this thread move down the standard brands ideological line. The moral framework appears in a few and I’d just like to suggest that as part of that one should consider.Fr. Drew Christansen’s piece in the October 2 issue of America.
Unless we use our moral frameworks ,not what they do in Eyurope or how great one thinks or doesn’t think our chief executive is, to evaluate the law, I think we’re basically lost.
For those of you who missed Keith Olberman’s MSNBC commentary on this topic last night, here is the link. You’ll have to scroll toward the bottom as he saved his best wine until last:
http://www.msnbc.msn.com/id/15331093/
Robert–
Fr. Christiansen’s article also came to my mind as this thread was developing. For those who are not subscribers, here’s what are IMO the most salient excerpts:
In response [to 9/11], President George W. Bush declared “a war on terror,” and his administration made a host of decisions that broke with precedent. They made exemptions from the Geneva Conventions, permitted cruel and inhumane treatment of prisoners and “enemy combatants,” allegedly established a string of secret prisons, sent captives to even less scrupulous foreign authorities and eavesdropped on innocent parties within the United States.
In a moment of moral panic, a whole fabric of restraints that had been established over the previous three centuries, and particularly since the Second World War, was cast off and a world of moral permissiveness opened up for the exercise of government power. Dostoyevsky had written, “If God is dead, everything is permitted.” In the war on terror, 9/11 supposedly changed everything, and anything was permitted to those in power. The threat from Al Qaeda was a new sort of challenge that required new sorts of responses. The sad fact is that, instead of giving those responses serious examination and careful definition, the Bush administration decided to violate moral and legal boundaries wherever it chose.
….
As promoted by the Bush administration, the war on terror resembles the “supreme emergency,” the moment in a conflict when civilization itself is at risk. At that point, many argue, the usual laws of war may be set aside to prevent not just any defeat but a catastrophe for civilized life—the triumph of evil, as Mr. Bush might say. To those who believe today’s global terrorism constitutes such a supreme emergency, John Paul [II]countered with the example of the ultimate victory of the Christian opponents of Communist oppression in Eastern Europe during the cold war:
‘These events are a warning to those who, in the name of political realism, wish to banish law and morality from the political arena…. It is by uniting his own suffering for the sake of truth and freedom to the sufferings of Christ on the Cross that man is able to accomplish the miracle of peace and is in a position to discern the often narrow path between the cowardice which gives in to evil and the violence which, under the illusion of fighting evil, only makes it worse.’
Torture is one form of the violence that, “under the illusion of fighting evil, only makes it worse.”
“Does tricking somebody into thinking they are drowning for 10 seconds constitute torture? Perhaps it is indeed grotesque and inhuman.”
This is a satanic distinction if there ever was one.
What is most disturbing is the tendency to treat anyone who disagrees with you as acting in bad faith or as evil.
I don’t believe that I have been doing either of these things, but if I have given you that impression, I apologize. I mean no disrespect.
You do bring up an interesting point, however. The advocates for the rights of prisoners in America (attorneys in the case of civil law and outside inspectors in the case of POWs) are independent. Even American soldiers being tried under American military law do not simply give up all of their civil rights as US citizens. But the enemy combatants in this new law, while they may be well defended by ethical JAG lawyers, are being defended by people who are not independent.
The thing that guarantees our civil rights is the independence of the people who defend them, not their personal morality. We don’t want the defense of our rights to depend on the personal morality of our officials. This is the fatal flaw of the whole Right wing premise about both this law and all of the other extra political and extra juridical rights that the President is claiming for himself. The charge to “trust me” and the indignant appeal to the personal morality of the people we are giving these powers to are not enough to offset the necessity of independence and transparency.
While we want our officials to be ethical, the system of the defense of our rights should not depend upon on whether our officials are ethical or not. This is the way that the Founders designed the Constitution.
unagidon
I am not relying only on the morality of officials, but on the language of the law itself and on the system as a whole.
Do people really think, as has been implied here, that we are headed toward a military dictatorship? That Bush is the equivalent of Hitler? That is what I object to.
No one here has yet to explain how this law will make torture more likely. The explanations I have seen all depend on the bad faith of the people who wrote the law, passed the law, and will operate under the law.
As for “independent” defense counsel, again you are equating the American system with “justice.” In other countries, many of which people would identify as having modern and fair criminal justice systems, the idea of the kind of independent defense counsel that you describe is completely foreign to them. A fair, or just, system does not equal a US civilian court system.
Quote: I am not relying only on the morality of officials, but on the language of the law itself and on the system as a whole.
You have not demonstrated that the language of the law is sufficiently unambiguous or that this law is a logical or reasonable extension of the system as a whole. The President has taken upon himself the ability to unilaterally designate people as enemy combatants during a time when we are not at war. They are to be put at the mercy of a system of military courts that does not have a mechanism of independent defense. And you yourself have defended this by defending the integrity of the people involved as though that is the key indicator that there will be no abuses. You keep talking about people having bad faith in the people who wrote the law, etc. If you want to put things on that basis, we have a great deal of reason to believe that the Administration that pushed support for this law has lied to us continually about a great number of things over the past six years. So why should be begin to trust the Administration now? Are we to have faith in their good intentions? That seems to be their (and your) typical argument. But good intentions aren’t enough, as you know as a good Catholic.
Since we know that torture has in fact been going on, the burden of proof is really upon you to show that the new law will make torture less likely.
Finally, you keep referring in a piecemeal fashion to foreign legal systems. I have a familiarity with the Japanese legal system (for example). And I’ll tell you that you can’t say, something like “they don’t have habeas corpus and they are considered fair, so if we don’t have it we are just as fair”. Their legal system is integrated and although they don’t have habeas corpus, they have other protections that work to the same end. Habeas corpus is part of the fabric of our legal system. It’s not some sort of element that can be removed. Our legal system was founded on the basis of universal legal principles and habeas corpus is one of the manifestations of this. Or so thought the Founders, who thought it was one of the KEY manifestations of this.
And this brings me to my last point. You have cited “precedents” to this new law, and I think your intention is to simply say that this new law is another development in our common law tradition. But the foundation of our legal system is also based on the idea of universal rights. Not just rights for “citizens”, but universal rights. I am frankly rather surprised that someone like you, who seems to argue for a Catholic orthodoxy that would (as you know) have to appeal to Natural Law would then argue against Natural Law in defense of this statute. Because the universal rights that we enjoy are part of the Natural Law. Not a function of whatever this President (or any president) thinks is expedient. And as a Catholic, I think you know that too.
Getting back to my caption, and what the witnesses are thinking. How about: “Is this what formal cooperation in evil feels like?”
” We don’t want the defense of our rights to depend on the personal morality of our officials.”
Bill Clinton will be very glad to hear that.
unagidon
Yes – the Japanese system that the US established after WWII and that some US scholars ciriticized at the time as being inferior because it wasn’t just like ours is fair, as are others that don’t have evey feature that our system does.
The executive has always – always – always determined who is or is not a combatant. This law doesn’t introduce anything new in that regard. The crux of your entire argument is “when we are not at war.” Which has been my whole point all along. You are right if we are not at war – I said as much earlier. If we are at war, it is the executive that conducts the war. There are political constraints and realities that he will deal with that limit his actions – things like elections – the power of the purse tthat Congress has – but the executive has always been the one who directs the war.
Please explain to me how Natural Law equates to the US legal system.
Quote: Yes – the Japanese system that the US established after WWII and that some US scholars ciriticized at the time as being inferior because it wasn’t just like ours is fair, as are others that don’t have evey feature that our system does.
Yet somehow I have a feeling that you would much rather be tried under the current Japanese legal system than this new law you are defending.
Quote: Please explain to me how Natural Law equates to the US legal system.
Of course Natural Law does not equate to the US legal system and I think that you know that I wasn’t saying this. What I was saying is that the human rights that the President’s law is violating come from Natural Law. I was arguing that you can’t defend both at the same time. Especially as there is no war to use to claim some sort of immediate danger.
unagidon,
Again, you are assuming that the people who will implement the law – the defense counsel, the prosecutors, the judges, will all violate its terms. By its terms, the accused has a right to an impartial judicial process under the circumstances – that is that the accused is detained in the conduct of hostilities.
Eveyone says the president has a unilateral right to determine who is a combatant and who is not. As I have noted, the executive has always done this. Moreover, this law alllows the accused to challenge this finding – something that was not allowed in previous conflicts. The thing it doesn’t provide, and which critics are basically basing their criticism on, is that there is no ultimate access to the US court system. Enemy combatants have never had access to the US judicial system.
Again, if you accept we are at war, these tribunals are part of the conduct of that war.
John B.,
While you and I agree on a lot of things, I do think the Hitler-was-elected-too analogies go to far. It makes it all too easy to dismiss substantive critiques.
It seems clear that Sean H has not read widely in this subject. Rather than mount his own argument about the law, he insists on pointing out the “bad faith” assumptions–an entirely spurious tactic–of those who believe the president signed a bad law.
Likewise, the notion that habeas corpus has never been applied to aliens is utterly false. Check out the WWII cases of Quirin and Yamashita. As Marty Lederman has pointed out, in Yamashita, the Court ruled that “the courts may inquire whether the detention complained of is within the authority of those detaining the petitioner….The Executive branch of the government could not, unless there was suspension of the writ, withdraw from the courts the duty and the power to make such inquiry into the authority of the commission as may be made by habeas corpus” (327 U.S. 1, 8-9 [1946]).
Quote: Again, you are assuming that the people who will implement the law – the defense counsel, the prosecutors, the judges, will all violate its terms. By its terms, the accused has a right to an impartial judicial process under the circumstances – that is that the accused is detained in the conduct of hostilities.
No, I am not assuming that the people who implement the law will violate its terms. I am assuming that these people will carry out the terms, which are themselves flawed.
The flaw is that the President can designate a person as an enemy combatant for any reason and on any basis that he wants. These people can be drawn into custody and have a hearing that proves what? That the President was wrong? What this law does is create an “impartial” juridical system to evaluate guilt or innocence against an arbitrary specification of what constitutes the “crime”. The thing that is missing here is that there is no specification of a crime. There is nothing against which to impartially evaluate guilt or innocence. You keep talking about “impartiality”, but impartiality is only possible if there is some sort of objective standard outside of the decision itself. In this case, there isn’t. What the law produces instead is the appearance of an impartial procedure that supports the President’s subjective appraisal that an apprehension was appropriate.
You use the word “hostilities” like you use the word “war”. Both of these are now as defined by the President. We are not in a legal state of war. And we do not have a legal definition of what constitute hostilities in this non-war. So the law does not establish a realm of impartiality. It is a fiction that masks the underlying partial and subjective powers that this president has decided to delegate for himself under the theory of the so-called “unitary executive”. It is, in fact, a dictatorship.
More (sensibkle) stuff on this from Fr. Christensen in teh new America magazine.
At the end of his piece, I note, young Reidy is moving from Commonweal to America – i think that’s a loss for Commonweal though America could stand some improvements.
Grant,
One thing I did read is Prof Balkin’s post that you linked to, and I quote:
“The CIA will still be violating the law if it does what the President wants it to do. However, because the Military Commissions Act severs rights from remedies, the Executive branch has the sole power of enforcement. The President decides whether he thinks people in the Executive branch are violating the law, and even if he believes they are violating the law, the President also decides whether he will order them to stop. By now we know the answer to this question. He will not order them to stop. Quite the contrary: the President has made clear in his repeated endorsement of these “alternative” techniques (techniques that he will not name in public) that he will push CIA officials to break the law. Because the Executive branch holds all enforcement powers within itself, the only thing that prevents cruel, inhuman and degrading treatment is the conscience of CIA personnel and executive branch lawyers.”
In other words, he assumes the President, the CIA, and the military will all act in bad faith.
Again, the complaint fundamentally comes down to the fact that there is not independent judicial review. I simply point out there has never, ever, been independent judicial review of enemy combatants’ status or conditions. The US, held within its custody, tens of thousands of enemy combatants – both lawful and unlawful – in the course of the twentieth century, and these individuals were, according to someone like Prof Belkin, at the mercy of the executive branch ergo subject to legalized torture. Were the Iraqis we captured in Desert Storm entitled to judicial review of their status? How about the Viet Cong?
The characterization of this as some radical departure from historical or international legal norms is simply wrong.
Sean – Isn’t the point that the Bush administration has acted in bad faith? It’s one thing for the executive to have prisoners at its mercy and another for the executive to use the opportunity to torture. JK
Sean, the President taking on war powers when we are not at war is both radical and wrong.
It is also immoral, regardless of whether the President is “acting in good faith” or not.
Sean H believes “bad faith” assumptions amount to an invalid argument. They don’t. Nevermind that he can’t demonstrate this bad faith. Nevermind the president’s refusal even to say in the abstract that a “technique” like waterboarding is torture (he claims he can’t discuss interrogation methods–p.s., if Al Qaeda doesn’t know we’ve waterboarded by now, they are too incompetent to be a real threat). Bad faith. Red herring. Keep repeating that we’ve never had judicial oversight of the detention of aliens. It won’t change history.
>>Keep repeating that we’ve never had judicial oversight of the detention of aliens. It won’t change history.<<
But Sean is right on the basic outline of facts. Those facts may be morally encouraging, indifferent or damning, but there they are. If Bush is wrong–and he may well be–we have been in the wrong for a very, very long time. And if that’s the case, let’s everybody stop this moral self-preening.
Quote: But Sean is right on the basic outline of facts. Those facts may be morally encouraging, indifferent or damning, but there they are. If Bush is wrong–and he may well be–we have been in the wrong for a very, very long time. And if that’s the case, let’s everybody stop this moral self-preening.
Sean has not given us any relevant facts. His main arguments are that the President has always had the powers assigned to him by this law in war time (but this isn’t war time and in any case, if Sean was correct, why would he need this new law?) and that the law is sound and we are simply treating the Administration in bad faith, which may or may not be warranted but is also not a fact.
But we have come full circle finally. Your early complaint was that we were not discussing this as a moral issue and you are now complaining that we are.
Unagidon,
I have a hard time following what you write, which is perhaps my fault.
I indicated that I thought this discussion was moving on two rails. 1) The historical question about how this law fits with legal precedent and previous military practice. On this I am persuaded that Bush is clearly falling withing historical precedent. Such a conviction does nothing, absolutely nothing, to solve 2) The moral question as to whether our current legal defintion of torture is morally defensible. They are two different questions.
I am more interested in the second question. As I wrote above, we have been negligent in doing the hard thinking on the matter of torture. We evidently prefer to post pictures and makes jokes about dog doodoo.
Basic outline? No. He has ignored or elided facts–e.g., the WWII cases I cited.
It’s pretty amusing, mlj, that you, from behind your cloak of anonymity, who habitually asks how we’re contributing to the “Catholic conversation,” something you’ve never defined, are instructing those of us who object to this law to avoid “moral self-preening.”
“If Bush is wrong–and he may well be–we have been in the wrong for a very, very long time. And if that’s the case, let’s everybody stop this moral self-preening.”
As far as torture we have been wrong for a long time. Witness the torture and jailing of dissidents in South America.
The difference now , it seems to me, that we are willing to take on our allies and say that America can do what it wants to get at facts. In Central and South America the terrible actions by the US was always denied.
But the documentation was ample.
As far as I know no American president ever flouted the Geneva convention. The neocons have raised American arrogance to a new level..
That is their crime and it seems they are in for some serious comeuppance–among themselves first. http://www.nytimes.com/2006/10/20/us/politics/20conserve.html?_r=1&th&emc=th&oref=slogin
Are we at war or not? Naturally, there are some who maintain that neither condition pertains. Judge Richard Posner, in his recent book, Not a Suicide Pact, The Constitution in a Time of National Emergency, argues that the “terrorist threat is sui generis – that it fits the legal category neither of ‘war’ nor of ‘crime.’ It requires a tailored regime, one that gives terrorist suspects fewer constitutional rights than people suspected of ordinary crimes, though not no rights.”
As one example of how the new situation changes previous positions, he suggests that those who oppose torture might now want to loosen the normal expectations regarding habeas corpus proceedings – a long delay may be useful in gaining information from a suspect. “The principal argument for torture is that it works quickly: the substitute methods of interrogation may take much longer to elicit the desired information and so their successful employment may require protracted detention of the suspects – in secret.” But these present-day tradeoffs are rarely recognized by absolutist civil libertarians, just as their predecessors were outraged by Lincoln’s suspension of habeas corpus in an earlier day.
Posner’s view of Islamic terrorists is one that I wish were more widely shared by our law schools: “They are numerous, fanatical, implacable, elusive, resourceful, resilient, utterly ruthless, seemingly fearless, apocalyptic in their aims, and eager to get their hands on weapons of mass destruction and use them against us. They did us terrible harm on September 11, and may do us worse harm in the future.”
Quote: (…) the moral question as to whether our current legal definition of torture is morally defensible.
I think the question of the expansion of presidential power to include the ability to classify people as enemy combatants and remove their rights during a time when we are not at war is primary and torture in this context only secondary. However, to address your question, I see at least three issues.
1. Does torture work? This might not seem to be a moral issue, except that if torture does work one might say that torture might be used to prevent an even greater harm (or evil). This is how I see the argument that starts “would it be permissible to torture someone who knew where a nuclear weapon was placed in a city?” Most people would probably say that yes, it might be permitted in such a limited circumstance. Proponents then usually go on to say that permitting the torture of terrorist suspects amounts to the same thing. (I think that this position, however, founders on the question of torture as punishment, below.)
But if torture does not work, then the nuclear bomb argument does not hold. I have seen two good general arguments about why torture does not work. One is that torture does not produce the truth. But those who say that torture does not work because it can produce lies as well as truth seem to be countered by people who say that both the lies and the truth can be checked out and therefore torture is a source of information although that information may not be reliable. The things done at Guantanamo seem to mostly be of this order; people tortured to produce streams of stuff that might turn out to be useful background information, rather than the kind of intelligence that is called “actionable”.
The second objection is a policy one. A group that knows that its members are subject to torture will adapt to this fact. This is one reason why revolutionaries form cells; so that no one person knows too much. Al Qaeda supposedly operates like this. So it would seem that torture might also have diminishing returns in a continuing struggle even if it does work at the beginning. But like any other weapon the enemy will adapt and therefore become more powerful.
2. Is torture also a form of punishment? This idea, or perhaps I should say sentiment, seems to run through the public discussion of torture by people who consider themselves on the right. We see it when people say that people opposing the use of torture are “coddling terrorists”. Torture is certainly punishing, but does it stand as an extraordinary form of legal punishment? It sometimes seems to be used in this way and also sometimes seems to be used for deterrence rather than information gathering.
3. Is torture evil? Torture is intrinsically evil as murder is intrinsically evil. There are certain limited cases where murder is justified (as a form of immediate self defense) and I think that there could be similar cases where torture is justified. However, just as we don’t allow murder as a form of pre-emptive self-defense we shouldn’t allow torture as a form of pre-emptive self-defense. Torture may be a tool, but it is also nonetheless a form of punishment and a particularly degrading one at that. Aside from all of its problems as a form of punishment, I think that it is immoral to punish the innocent. Torture as a punishment to elicit innocence seems to me to be completely perverse. Yet this is what it is, no matter what kinds of legalistic statutes surround it.
Quote: “They are numerous, fanatical, implacable, elusive, resourceful, resilient, utterly ruthless, seemingly fearless, apocalyptic in their aims, and eager to get their hands on weapons of mass destruction and use them against us. They did us terrible harm on September 11, and may do us worse harm in the future.”
Except for the part about September 11, I have heard all of this used to describe the Communists and read all of this describing the Germans and Japanese in WW 2. So why do we need a legal retooling?
I always thought Posner had a cooler head.
Grant,
Yamashita and Quirin both held that the writ was unavailable to the accused in duly constituted military tribunals. It entertained the appeal only to determine the authority of the military commissions, and then denied leave to file a writ.
I invite anyone to read Yamashita and decide if it agrees with my position on this or not.
http://www.law.uchicago.edu/tribunals/docs/yamvsty.pdf