Partisan gamesmanship can easily backfire. That is likely to happen in the highly emotional "torture" debates.
There is an old legal maxim,When the facts are on your side, pound on the facts.…
When the law is on your side, pound on the law.
When neither is on your side, pound on the table.
Article comments
— go to most recent comments26 - Ruvy
I do hope Eric and Phil are reading this comment thread.
Having studied law for a bit, I long ago came to the conclusion that "legal logic" was the equivalent of "military music" if you get my drift.
But since everyone else is complaining about the "new and improved" site, let me also bitch too (or three).
I've seen one thing resolved - I no longer have two writers' sites instead of one. Great! But pages of comments? Come on, is this You Tube? I only get to see five recent comments? And speaking of comments, where is the comment review button? I miss it, even if I will not miss Chris Rose demanding that I preview my comments for broken HTML tags. But he'll have a lot more work (don't say I never did you any favours, Chris).
And where the hell did my photo go? I it just on my writers page? How are all those assassins going to find me?
Clavos, since you've taken it upon yourself to ask for patience (not a smart move to stand in for management, especially with that high salary they're paying you), what I really want to know is when do us writers get to see how many hits WE are getting?
Finally, hat I want to know is have they excised Desicritics and all the other parts of BC Magazine as well? Has Aaman Lamba been spun off to mix his own curried rice all by his lonesome?
27 - Dan(Miller)
re my # 26: my fault. I neglected to go to the next page of comments. It is difficult for an old dog to learn new tricks. You may consider me to have been severely chastised, arguably amounting to torture.
Dan(Miller)
28 - Jet
Have you guys noticed the ads that now are placed between the 3rd and 4th comments of each page?
29 - Cindy
Ruvy,
Having studied law for a bit, I long ago came to the conclusion that "legal logic" was the equivalent of "military music" if you get my drift.
Good point. Or put another way. "legal logic" = "military intelligence".
30 - Clavos
Ruvy,
Aaman and his crew at Desicritics are still very much alive, but have not escaped the bug invasion. However, I did just see a communication from him on what is now a VERY busy edlist correspondence list.
Again, all of you, most bugs are known and will be addressed in priority order.
And c'mon: don't it look purty, bugs and all?
31 - Dan(Miller)
Jet, yep and it's another distraction -- sometimes, it is difficult to see all changes we can believe in as beneficial. I shall resist the temptation to leave an open tag.
Dan(Miller)
32 - M (a) ® k
Site speed is significantly improved...good job.
33 - Matthew T. Sussman
Roger, nobody in a position of power is going to read your gripes about the redesign here in the comments. Refer to the Yahoo Groups' instructions on sending feedback and bugs to the editors. The dev team is actively working on fixing stuff. Thanks!
34 - Cindy
It looks magnificent. Even as I find myself lost amongst pages and pages of comments...unable to remember who said what...or find the comment I am trying to reply to, or the other comment I know was around here somewhere, I notice it's quite pretty.
It's actually taken my mind off the visceral anguish I experienced yesterday on attempting to read Dan(Miller)'s article here. Who knows, the beauty may help me to look past and get to page two today.
35 - Cindy
I love the colors. They're very soothing. It's like having the ocean in front of you and the sun above.
36 - Cindy
They're working already.
37 - Dan(Miller)
In the unlikely event that anyone is interesting in reading the article as reasonably well formatted, it is here , along with some other stuff including a couple of short stories.
I know, absurd self-promotion; the blog devil made me do it.
Dan(Miller)
38 - roger nowosielski
Cindy,
The beauty of the site is intended to take the vitriol out of you and me. And it is working.
Yes, Dan Miller. Earlier on, the comments just did not post and you had no idea whether they'd post. So I, too, had to repost again only to find out it was a duplicate.
39 - roger nowosielski
#33, Matthew"
I can't find the site you're referring to - the Yahoo discussion group. I think it would be good idea to set up just one comment thread to deal specifically with these technical issues. That way, everyone could participate and all could benefit from the feedback and the interface.
40 - El Bicho
Here's a suggestion: why not send the issues/complaints to the people who can actually fix them rather than whining to each other here.
41 - Baronius
Dan(M), this article addresses a lot of things we've been talking about recently. Nice job. I do have to disagree with you on one point, however. I would much rather have redacted memos in the public than memos that clearly stated who revealed what. The enemy knows we foiled an attack in, say, Seattle. They don't know if Ali revealed the bank accounts or Ahmed told them to bug a safehouse in Zurich. Ideally, there would be no information made public, but by all means let's not call for the publication of more. That's dangerous partisanship too.
42 - roger nowosielski
Baronius,
Join the fucking expeditionary force and then you'll be able to speak with greater credibility about "the enemy."
You still haven't answer my question whether your sons and or daughters have come back with body bags. So I until you do, all I see from you is a bark, not a bite.
Get real. You're not a fucking general to be sending other people to war while you sit on your ass and pontificate.
You should see the sorry picture you cut. It's pathetic.
43 - Dan(Miller)
Baronius,
Thanks.
I do think that may well be possible to provide information about the effectiveness of "torture" without disclosing who said what when or otherwise providing useful information to the bad guys. Or, maybe not; without access to the unredacted memos, I obviously have no idea what could have been revealed safely.
What bothers me is the wholesale redaction of everything suggesting that "torture" may have served an occasional useful purpose, suggesting that a main reason for redacting stuff was political expediency rather than national security. It is, obviously, easier to oppose "torture" when it does no good than when it disrupts terrorist attacks. Without even suitably redacted information, an informed judgment is very difficult to make.
Dan(Miller)
44 - Cindy
Dan(Miller),
I haven't finished your article still, but I will. It's upsetting, in the way that when someone you 'know' says a thing, it's different than when someone you've never heard of says it. But I want to ask a question for now.
...water boarding and other forms of "harsh interrogation" still do not seem to violate, or in the the past to have violated, the U.S. Code. 18 U.S.C. Section 2441(d)(1)(A), which defines "torture" as follows:
The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering
1) I'm not sure how you're stating as a 'fact' that drowning doesn't involve severe mental suffering.
2) I'm also not sure how you conclude that 'waterboarding' has never violated the code.
I'll refer you to this information by a JAG.
Waterboarding Used to Be a Crime
The media usually characterize the practice as "simulated drowning." That's incorrect. To be effective, waterboarding is usually real drowning that simulates death. That is,
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the victim experiences the sensations of drowning: struggle, panic, breath-holding, swallowing, vomiting, taking water into the lungs and, eventually, the same feeling of not being able to breathe that one experiences after being punched in the gut. The main difference is that the drowning process is halted. According to those who have studied waterboarding's effects, it can cause severe psychological trauma, such as panic attacks, for years.
The United States knows quite a bit about waterboarding. The U.S. government -- whether acting alone before domestic courts, commissions and courts-martial or as part of the world community -- has not only condemned the use of water torture but has severely punished those who applied it.
After World War II, we convicted several Japanese soldiers for waterboarding American and Allied prisoners of war. At the trial of his captors, then-Lt. Chase J. Nielsen, one of the 1942 Army Air Forces officers who flew in the Doolittle Raid and was captured by the Japanese, testified: "I was given several types of torture. . . . I was given what they call the water cure." He was asked what he felt when the Japanese soldiers poured the water. "Well, I felt more or less like I was drowning," he replied, "just gasping between life and death."
45 - Baronius
Dan(M), I consider that a moot point. I oppose torture. In the worst case scenario, with the atomic bomb about to explode in five minutes, I'd oppose torture. So for me there's no need to discuss the quality of information to be gained by torture. If this was torture, it shouldn't have occurred.
To me, the whole waterboarding issue boils down to the fact that the administration followed one legitimate interpretation of international law in good faith.
46 - Dan(Miller)
Cindy, it is entirely clear that water boarding, as well as the other "harsh interrogation" techniques as used by the U.S., were highly unpleasant and frightening. That was the intention.
Here is a contemporaneous Department of Justice memo addressing the limitations under which the "torture" was to be conducted. Links to additional memos as well as a summary can be found here.Those limitations were presumably intended to prevent the types of harm incident to "torture" as defined. Presumably that memo, and others like it, were relied upon in good faith by those who requested the guidance as well as by those who acted upon it. I have no reason, at least yet, to assume otherwise.
I have read nothing thus far suggesting that any harm of the sorts prohibited by the statutes was caused, to anyone. Reading the accounts of water boarding by the Japanese during World War II, and the memo detailing the conditions imposed by the U.S. on those conducting this species of "torture," it seems as though the U.S. did things quite differently.
Unpleasant? Obviously. Extremely frightening? Obviously. Something I would willingly have done to me? Obviously not. Effective? I don't know, because the memos were redacted to eliminate that sort of information.
Perhaps new and more comprehensive humanitarian limitations should be imposed -- prospectively -- on what can lawfully be done to extract critical information from those unwilling to provide it except under extreme duress. However, to impose new and different definitions retroactively strikes me an very unwise. So does the politicizing of the issues which seems to have occurred.
Dan(Miller)
47 - Baronius
Roger, one of the great things about the US is that everyone's entitled to his opinion, and his vote, even those of us who've never lost a child on the battlefield. If you think about it, you wouldn't want our interrogation policy to be decided by grieving parents. They might allow tortures you've never conceived of.
I have to say, this new confrontational approach of yours seems a lot like you're trying to bully me into agreeing with you.
48 - roger nowosielski
OK. Time out!
49 - roger nowosielski
"To me, the whole waterboarding issue boils down to the fact that the administration followed one legitimate interpretation of international law in good faith."
Now, how do we establish this?
50 - Baronius
I'm guessing the old spam filters aren't working anymore? You don't know what you've got until it's gone.
51 - Clavos
Ya think, Bar?
52 - Cindy
Dan(Miller) and Baronius,
I left comment 125 here for both of you, regarding torture.
In case you never find it.
53 - Cindy
Dan(Miller),
I have read nothing thus far suggesting that any harm of the sorts prohibited by the statutes was caused, to anyone.
But why haven't you? There is plenty of information available. Isn't it selective to fail to look at that information? What does that say about your analysis? Doesn't that make it 'table-pounding' in a guise of rational detachment?
I've got a couple of counters to the information you provided in #46. I'll work on one at a time.
54 - roger nowosielski
Cindy,
Just read your #125 and left response there. On the point. That's what they ignore and I hide behind "the legaleese."
55 - roger nowosielski
Guys:
Two major points. Please make "Fresh Comments" default. And make it possible for us to refer to those comments upon clicking rather than have us return to the main page.
These are basics.
56 - roger nowosielski
I'll post another just for the heck of it to kick Donna out of here.
57 - roger nowosielski
And one more. She doesn't belong in this section.
58 - roger nowosielski
This one should do it - for a minute.
Perhaps now they'll get the message.
59 - roger nowosielski
Now the spams took it over. All five of e'm. More effective than me trying to dethrone Donna.
60 - Dan(Miller)
Cindy, in your Comment # 125 here, I think you have pointed out one of the principal points at issue: I am asking a question about ethics. You are both discussing 'law'. What does looking at legal definitions have to do with ethics? I think that the question is a good one. "Ethics" is different from law; sometimes they conflict, and sometimes "ethics" are imposed by, and thereby become, law. Both law and ethics are necessary.
Let's look at the "torture" controversy indirectly, by analogizing it to a different controversy. Many people have ethical/religious objections to abortion, particularly to near term abortion, which they view with some justification as murder of innocent children. Over the years, some of their ethical objection became law, while others did not. However, the laws against abortion have become increasingly relaxed in recent years, much to the dismay of people who oppose it, vigorously, on ethical/religious grounds. Others have different views, and tend to elevate their ethical/religious views of women's rights over objections to abortion. For some on both sides, the abortion issue is far more important than any other, and they take inflexible positions.
At present, the Federal Government is expanding women's rights by making abortions more readily available. Many find this very distasteful, and demand that these encroachments on their ethical views cease and reverse course. Suppose, for the sake of this discussion, that during President Obama's current term, the abortion laws, regulations and executive orders become increasingly permissive and that even near term abortions become increasingly common.
Assume that eventually the "right" gains enough power to elect a President and a Congress with substantial ethical/religious objections to abortion, and that the legality of the regulations and executive orders issued during the Obama administration comes into serious question. Just as lawyers can often find ways to fit conduct within the four corners of the law, they can also often find ways to support a contrary conclusion; that's what we do for a living. Many cases tried by the courts involve just that.
Should Rush Limbaugh or Glen Beck become President, with a strong majority in the Congress, should the pro-choice legal memoranda and the executive orders and regulations based on those memoranda be dissected and countermanded with a view toward punishing those who wrote the memoranda, those who promulgated the executive orders and regulations and those who relied upon them? I think that this would be a travesty of justice. Changing those regulations, etc. prospectively would not be. I would consider even prospective changes significantly limiting the ability to obtain an abortion to be a mistake, since I consider the matter one for individual choice; but my views -- even though I am entitled to hold them -- don't constitute law.
The "torture" situation is not entirely different. When writing the legal memoranda justifying acts which some find ethically very objectionable and deem to be "torture," the attorneys writing them considered the statutes defining torture and may have pushed them further than some in the Obama administration consider ethical or necessary. Presumably, they were writing in a context where preventing terrorist attacks on the United States was considered to be extremely important. The key words in the statutes are "severe" and "serious" physical/mental harm, words which are certainly elastic. There are always gray areas, and within those areas there are numerous shades of gray. There appear, however, to have been good faith efforts to stay within the law, while acting within the law to prevent terrorist attacks, when the memoranda were written and relied upon; I think that the memoranda, etc. were well done and accurately reflected the intent of the statutes in question while accommodating the need to prevent terrorist attacks. Others doubtless disagree.
It would be one thing to change the interpretation of the statutes, prospectively or indeed, to enact new and different statutes. I would have no objection to this from a legal standpoint, although I think it would be harmful further to limit "torture" as now permissible under the statutes to take it entirely off the table even when necessary. It would be quite a different thing to impose new and different interpretations of the law retroactively, to punish those who wrote and those who relied upon the old memoranda.
To me, law and ethics coincide in the view that to punish people for writing or relying in good faith upon legal memoranda at a time when preservation of national security was seen as paramount would be perverse in the extreme. It would be unethical in the circumstances here present to direct people to perform acts which in a time of peace and tranquility would not be performed, and then later to punish them for it. I think it would also be contrary to our system of laws.
Dan(Miller)
61 - roger nowosielski
The difference number one as regards the analogy in #62 is that the pro-choice vs pro-life controversy is not a clearly resolved moral issue; if it had been resolved, there would be no controversy (to speak of).
Whereas, there is no question that "torture" (and "cruelty," I may as well add) is not a moral/ethical behavior; and it's condemnable by the average moral sensibility: that's the force of those words in the English language, and the force they carry is precisely for that very reason - to regard such acts and behavior in that light.
Now, the pro-life/pro-choice controversy MAY be regarded by some as a moral issue, although I happen to think it's more properly a case of moral vs religious controversy. But the matter of torture (in the context here defined), and of the application of torture, is not a moral issue by any means. We all know it's WRONG. And the conflict at hand is a conflict between moral interests/concerns and political interests/concerns - an entirely different plane.
As regards "going back" and looking into the deeds of the past administration. I'd say there is sufficient circumstantial evidence to the effect that the existing laws regarding "torture" and the matter of applicability of those laws were skewed to serve the interests and designs of the party in power - sufficiently so to warrant an independent investigation.
So let's find out what really happened rather than argue for total immunity.
62 - Clavos
Not so fast there, Speedy.
While no one in his right mind would argue the immorality of torture per se, there does exist some controversy over what is or is not "torture."
Some of the practices currently being touted by the Left as "torture" are not, in the opinions of many, any such thing. Some of these include: sleep deprivation (whether by piping in loud sounds/music, leaving lights on continuously, or both), "cold rooms," and use of non-lethal insects to frighten insectophobes. These methods do not cause physical injury, are non-contact even, and are often very effective.
What they aren't is "torture."
63 - roger nowosielski
No question there. It is, ultimately, the matter of "definitions." I don't think I implied anything to the contrary, other than pointing out to the inadequacy of DM's analogy.
64 - Baronius
Dan, your duplicate of comment #62 shouldn't be deleted. It should be duplicated again, printed on pamphlets, given to schoolchildren to memorize...
65 - roger nowosielski
OK, Herr Goebbels.
Let's make all Americans into obedient little soldiers. Uniformity of mind, uniformity of thought, uniformity of action.
And thus, United We Stand.
66 - Dan(Miller)
This is probably a repeat of what was to become comment #70; however, Comment #70 as displayed has no text. If it is a duplicate, I hope that Zeus will forgive me.
67 - Dan(Miller)
OK, I put something in blockquotes, and that evidently didn't work. So, here goes again with the blockquotes replaced with italics:
[T]here is no question that "torture" (and "cruelty," I may as well add) is not a moral/ethical behavior; and it's condemnable by the average moral sensibility: that's the force of those words in the English language, and the force they carry is precisely for that very reason - to regard such acts and behavior in that light.
I would therefore assume that the members of Congress, on both sides of the aisle, who were briefed on what was being done and on what was going to be done and raised no objection lacked average moral sensibility. Strangely, they appear to have developed new moral sensibilities recently, or perhaps have revised their understanding of "torture."
Dan(Miller)
68 - Dan(Miller)
Bar, #68 --
Thanks.
Dan(Miller)
69 - Ma rk
Dan, from my comment to Dave over on his related thread on the side-topic:
Chapter 113C was written specifically to implement requirements (guidelines if you prefer) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which the US ratified in '94 -- the same year 113C passed. (What the US hasn't ratified is the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment which some argue threatens US sovereignty as it provides for international supervision of national governments.)
It becomes ever less clear that it's reasonable to claim that 113C 'derives' from the Geneva Convention and is limited by its exceptions.
One of the provisions of the Convention against Torture:
Article2, 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
70 - roger nowosielski
"I would therefore assume that the members of Congress, on both sides of the aisle, who were briefed on what was being done and on what was going to be done and raised no objection lacked average moral sensibility. Strangely, they appear to have developed new moral sensibilities recently, or perhaps have revised their understanding of 'torture.'"
I can't comment on whether the present stink is motivated by nothing other than politics or desire for full-disclosure and transparency in government. The motives may vary from individual to individual. I'm certain, however, that there are some - this writer included - who are moved by higher concerns rather than seeing people hang.
My understanding of the situation is that there has been sufficient vacillation and back and forth to revise definitions and/or their applicability to meet the circumstances of the moment [which, IMO, constitutes abuse of the existing law(s)], and that alone warrants looking into. Not to mention the legal opinions to the contrary, or inadequate research/preparation as to the origins of "water-boarding," e.g., at the hands of the North Koreans and the Chinese during the Korean War.
So the question really is as to what were the laws in effect once the Bush team took over, and the matter of how they got to be changed (if they indeed were "changed" or "altered") to suit the occasion. That's all.
As to the matter of "developing new moral sensibilities," both of us know that such things happen - as a result of disclosures, new realizations, learning the facts, reflection, any number of things. Whether this applies to the present case, and to which people individually, it's not for me to tell. I don't have a crystal ball.
As to your analogy in #62, it's still the case that it's rather unfortunate. But of course Herr Goebbels is not apt to be highly sensitive to finer moral nuances. In light of which, your "thank you notes" going back and forth put your own moral sensibility in question.
At the very least, you should abstain from encouraging uncritical thinking, especially when it comes to friends.
71 - Dan(Miller)
Roger, we disagree. As noted in the article, the laws were changed, modestly, in 2006 to make them more restrictive as to "torture."
However, thank you for what I have no doubt is your well meant albeit unsolicited advice about my moral well being and critical thinking abilities. Although I very much appreciate your advice, if I ever feel that I am in need of it, I shall ask.
Dan(Miller)
72 - Baronius
Roger, I was applauding Dan(M)'s clarity of thought, ability to avoid digressions, and grasp of America's legal tradition. I'm stunned that someone online would accuse someone else of being a Nazi.
73 - roger nowosielski
I wasn't suggesting you're lacking in moral sensibilities, only that some of your comments may lead one to think otherwise. So that's point number one.
As to whether "the laws were changed, and modestly," as you say, I have no opinion in the matter either way: If you read my comment, I simply posed the question.
And third, again if you read my comment, I wasn't impugning on YOUR critical abilities, only on the consequences of your meaningless (and therefore empty) encouragement of Baronius who seemed to have missed holes in your argument. But then again, perhaps you yourself weren't aware of those holes, so in that case I'll correct myself in that you were operating from the position of ignorance. Quite excusable, IMO, because none of us humans are strangers to this condition. And in that case, you were simply perpetuating a state of ignorance. The more, the merrier.
But since Baronius posted an intermediate comment, I'd like to ask where does the accusation of "being a Nazi" come from? As to Dan's "clarity of thought," please re-read my comment, please, where I point out the inadequacy of his analogy.
But I suppose Dan himself had come to realize that since he failed to address this very point. As you see, I'm being guided by another maxim here, and no less valid - namely that silence implies consent. Which is good news, since there's hope for both of you.
74 - Dan(Miller)
Roger,
You may, of course, assume whatever you please. However, silence does not necessarily imply consent; to the contrary, it may imply that the point is not worth addressing.
As to what you consider the holes in my argument, I think I addressed them to the extent that was appropriate. I recognize that abortion and "torture" are not identical, and did not claim that they are. However, there are very strong feelings about what is currently referred to as "torture" as well as about abortion, shared by some but far from all.
Here is a link to an article which sets forth some arguments on the "torture" issue. I find myself in substantial agreement with it.
Dan(Miller)
75 - roger nowosielski
An addendum to your last comment:
"Although I very much appreciate your advice, if I ever feel that I am in need of it, I shall ask."
You should know, Dan, that it doesn't work that way, especially in matters relating to "moral advice." There is no such thing, BTW, as a "moral advice," strictly speaking, because we all - of most of us at least - know what's right and what's wrong. But even if there were, for hypothetical purposes, let's say - than any such advice would be useless.
Why? Because those who would need it the most are most likely not to respond to it if and when given. Which makes the exercise futile in such cases, don't you agree.
The proper language and purpose of morals is exhortation. So yes, I may have been guilty as charged and therefore stand convicted.
Back to you.