We're Moral Idiots
[Update 01/18/09 (Patrick): A friend sent me this, which is mildly on point and much too funny not to pass on.]
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This is several days old, but it keeps nagging at me. See, it turns out that even senior officials at the Pentagon admit we tortured at least one Guantánamo detainee:
"The senior Pentagon official in the Bush administration’s system for prosecuting detainees said in a published interview that she had concluded that interrogators had tortured a Guantánamo detainee . . . . In May she decided that the case could not be referred for trial but provided no explanation at the time.So, now what? Let's assume the individual was in fact tortured, and that he was in fact a bad, bad man. Should we let him go? No. He's now a bad, bad man with bitter memories and cause to retaliate. Should we continue to detain him even though we know a legal conviction is impossible? No. That's impermissible for reasons obvious to all but the most die-hard Unitary Executive theorists, and perhaps the Chinese.
“. . . . 'His treatment met the legal definition of torture. And that’s why I did not refer the case' for prosecution, Ms. Crawford [the official] was quoted as saying in an article published in The Post on Wednesday."
Thanks to our country's "short sighted and immoral policies of coercive interrogation," the problem is now intractable. We can release the prisoner and expose the country to a very real threat of attack, or we can continue to detain him and degrade the legal principles we stand for in an unmistakable international gesture of two-faced hypocrisy.
Flash forward to your grandchildren: this will be among inexplicable historic American embarrassments like Japanese internment, Watergate, rollerblades, and recumbent bicycles. In the meantime, what the hell are we going to do?
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Sources, and discussion from bigger brains than mine, updated 01/16/09 afternoon:- Balkinization, (01/16/09)
- NYT Op Ed(s), (01/14/09, series of point / counter-points)
- NYT Article, (01/14/09)
- WA Post Article, (01/14/09)
- WSJ Law Blog, (01/16/09)
posted by Patrick Bageant at 7:22 AM
20 Comments:
I reiterate my position established last year on this blog: we the Boalt community should fire JY immediately for his role in helping the Bush administration torture untried terrorism suspects.
JY for his writing of the torture memos should be fired for violating the higher standard of professional conduct which I believe applies to executive council. To not take action against JY in the interest of academic freedom does not make us moral idiots, as the rest of the country may be termed. Rather we have become transgressors of a basic moral tenet: to consciously allow suffering to be caused to innocents is unjust and inhumane. Lets act to fire JY now, before we allow more harm to be caused.
For a more lucid recitation of this argument and the arguments against it, please see the comments at http://boaltalk.blogspot.com/2008/04/academic-freedom-horrible-horrible.html#comments.
Thank you for reading this.
-2:57, 4/11/08
She's acknowledged that none of the specific acts constituted "tortue", so her contention is that the cumulative effect of applying non torture techniques itself constitutes torture--I doubt that this is a cognizable legal standard. We'd certainly want a less impressionistic standard before condemning anyone interrogating detainees. I'd suspect her "finding" wouldn't hold up if judicially reviewed. And b-t-w, this detainee remains an unlawful enemy combatant, even if not subject to criminal charges, so he can be detained. There's nothing illegal (or immoral) about that.
I of course feel JY's actions were morally despicable, but it's tough to express such feelings without being accused of being closed minded to alternative political view points.
What's done is done, and hopefully we're in a better place now. I would be happy knowing that Bush, Cheney, Yoo & Co. lost a whole lot of sleep at night.
No, Toney, it's not difficult to express criticism without coming off as closed minded. Look up Cass Sunstein. It's just that based on comments from other threads, you don't really know what you are talking about when it comes to John Yoo. You have reached conclusions based not on knowledge of the issues, but based on your assumptions about what they might be, blended with a good of Berkeley PC, and spiced with Bush and Cheney. The "actions" you find so "morally despicable" are not as clearly cut and easily dismissed as you make them out to be. That's why people accuse you of being closed minded.
You offer a very strange example. In your hypo, the person is a "bad guy", and you seem to argue that somehow torturing him will cause him to attack the US. Didn't that "bad guy" want to attack the US anyway? I'm not saying that I believe torture is called for in every case. However, I think the case can be made that it is appropriate in some exigent circumstances. If the decision is between torturing someone who is planning an imminent attack on American civilians and letting those same civilians die, torture may be called for. Sometimes asking nicely just doesn't work.
10:47 - Fair enough. It's tough for me to set aside the quick flare of outrage that happens inside me when I hear the buzzword "torture".
But unless I'm missing something, doesn't the summary go like this: Yoo authored memos offering his legal opinion that "enhanced interrogation techniques" didn't qualify as torture, changing the definition of torture from what the Geneva Convention defines it as (and generally, the rest of the world) to something that doesn't include the methods Bush & Co. feel are necessary to protect us in the war on terror?
Am I missing something? I don't mind being accused of not knowing what I'm talking about, but I'd also like to remedy such a situation. I may close minded when it comes to my adamant disapproval of torture, but I recognize that advocating the view that some things don't qualify as torture isn't as culpable as performing the acts of torture themselves.
What should we do? Duh, we should give him a fair trial to determine if he is a "bad man" (what are you, four?). If he is not convicted by a court of law, he should be released. In addition, he should be compensated if his rights were violated by the use of torture. This shouldn't be so hard to figure out, or maybe you haven't taken constitutional law yet?
Patrick's actually taking his second con law course, and is quite knowledgeable in con law matters; he's definitely not someone you want to accuse of otherwise.
Having said that, yes, we should try these bad dudes, and if we can't convict them, then they have to be released. The fact that their probably unlawful imprisonment has pissed them off, and they may return to take their anger out on us shows the irresponsibility of the Bush administration.
2:42, I thought "bad man" was pretty clear and, given that these discussions quickly devolve to preschool levels, appropriate. I suppose I could have used some hideous multi-syllabic compound noun like Alleged-International-Terrorist-Current-Enemy-Combatant-Detainee, and then garnished it with a confusing MLA* like AITCED. But "bad man" sort of carries the point, no?
Anyway, what should we do if he would be a clear-cut conviction on the merits, except that all the otherwise valid evidence was obtained by torture? Release him because his rights were violated? Then compensate him for the violation?
Or, should we convict him on the basis of coerced, self-incriminating testimony because, after all, he was in fact guilty? The whole scenario is disgusting and embarrassing.
*Multi-Letter Acronym
He should be released if he cannot be convicted. Its called the rule of law. Plenty of murderers as well as innocent people are released after a not guilty verdict. Any other outcome leads to totalitarianism.
In addition to the civil liberties concerns, evidence obtained by torture is inherently unreliable. So your hypo about a "bad man" being set free sounds more like a plot to the TV show 24 than a legal or moral dilemma.
Right, right, 24, TV plot, couldn't happen in the real world, academic "hypo," whatever.
Read the freaking articles. All the current charges were filed on the basis of his coerced testimony, which senior pentagon officials feel "the rule of law" precludes.
Get it? Do you get it now?
Wow. Pissy much? Sorry.
We're making the same point, really. He should be released if he cannot be convicted under the law. By breaking the law in order to hasten access the evidence to convict him (if torture even does that) we will end up (1) subverting our legal principles (again), or (2) releasing a person who, by all accounts, really should be convicted. I'm infuriated because if our leaders had played by the rules all along, we wouldn't be in this situation.
So, what do do? Well, in one sense, the honorable thing to do is release him. After all, he can't be convicted. But of all the detainees, the '20th hijacker' is a guy we really don't want to turn loose. We wouldn't be in this situation if we had behaved with honor all long, but we have done some really shitty things and as far as I can tell there isn't any way out but to do another one.
Whew. Okay, I'm done.
Yea, let's release him to his home country so they can torture and indefinitely detain him. Problem solved.
I don't think we should release the 20th hijacker or KSM, even if we can't convict them. These aren't civilians accused of murderer acquitted by juries. These are individuals who planned to do terrible mass-killings akin to acts of war, and would continue to plot terrible things if released to Tora Bora or wherever. The fact that KSM was waterboarded does not change my opinion, and it does not render his statements unreliable--he has admitted and boasted of his actions even without coercive pressure being applied to him.
Well, if KSM bragged about his actions, then waterboarding wouldn't have been needed in the first place right?
And then there's the whole bit about the United States being a country where you don't go to jail unless you, you know, actually commit a crime.
Hello, I am an undergrad and I don't have much of a legal background, but this issue seems like it has a straightforward, obvious solution.
Since we are fighting the "war on terror", or maybe the "war on al-qaeda", we should treat the prisoners we capture in this war as Prisoners of War. That would eliminate the need to give them a trial or to hold them in exotic locations like Guantanamo Bay. When the War on Terror comes to an end, we can release them, or exchange them with our prisoners who are being held by the terrorists. Why has no one thought of this?
People have thought of that, and some people make that argument.
The problem is, the President doesn't WANT to treat them as regular prisoners of war. If we call them prisoners of war, we will have to recognize they have certain rights, and it will create responsibilities on our part. The President feels those rights and responsibilities are too constraining on his ability to keep America safe, and that if he was forced to recognize POW status, America would be at risk.
So, he looks for a way around it. Rationales include the observation that we have not declared war, that terrorists do not represent another government, and that at any rate terrorism is a "unique" threat to which antiquated rules like the Geneva Convention were not meant to apply. Some of these arguments are more persuasive than others.
The bottom line is that a group of people, including the President, do not feel it is wise to recognize enemy combatants and detainees are prisoners of war, and are trying very hard to avoid that classification. Your degree of sympathy for the President's position depends on your politics, and your own belief about whether incidents to the 'war' on terror can be handled by current laws and convention. The tenor of my post probably makes my conclusions on this one clear. There is room for debate, though, and the fierceness of it is part of the reason we can't all simply agree they should be POW's.
Another fairly obvious reason that's not a good idea, even if you don't support the politics of the current administration, is that there is very unlikely to be a clear end to the war on terror (It's a bit like holding someone until the end of the War on Drugs). Which means that treating detainees as Prisoners of War would be likely to lead to indefinite detention without trial. Which, in fairness, is what was happening before, without granting them the rights of POW's, but it's still not really the same as keeping people detained for the duration of a more traditional war.
Professor: What if the landlord had leased, “To A for the duration of the war”?
Student: Then it the lease would expire at the end of the war.
Professor: Of course, some wars may never end. The war on terror, the war on drugs, the war on poverty. . . .
From last spring's professor quotes thread.
Toney--KSM was waterboarded to obtain actionable intelligence on other plots in the works. It was not to coerce a confession. Harsh interrogation, even torture or the threat thereof, can be effective in the ticking time bomb scenario. It is not reliable in getting confessions. I think it was and is reasonable to think that al Qaeda continues to plot attacks, so finding out what they are is critical. So some kind of interrogation is needed.
Al Qaeda trains its operatives to resist normal interrogation techniques, so treating them as POW's would not likely help intelligence-gathering. It would merely incapacitate them for the duration of hostilities. That is important, but not sufficient. I recognize that indefinite detention is undesirable, but I think it's better than setting al Qaeda operatives free.
Patrick, as you point out, POW's have legal rights and duties. Al Qaeda fighters target civilians; they do not represent a government; do not wear uniforms; do not provide basic identifying information about themselves, etc. Nobody really thinks they are POW's. To give them every protection owed POW's also makes no sense.
The question was whether they are protected by Common Article 3 of the Conventions. The Supreme Court held in a 5-3 decision in 2007 (Hamdan v. Rumsfeld) that they are. While this is now clearly the law of the land and gives them certain protections (far less than owed to POW's), it was not legally established at the time of 9/11. To tie things back in with the first comment, firing JY for thinking common article 3 did not apply and that we could use harsh interrogation tactics is not legally defensible.
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