Squaring the Culture




"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

05/07/2009 (4:53 pm)

Oops, Can't Prosecute Those Bad, Bad Bush Lawyers

Patterico drew attention yesterday to a fine article by Andrew McCarthy, the US Attorney who prosecuted the 1993 WTC bombers, at NRO, discussing the legal reasoning early in the Bush administration that undergirded the Enhanced Interrogation Techniques. Jay Bybee was head of the White House Office of Legal Counsel, and John Yoo was his deputy, back in 2002 when the Bush administration needed advice concerning what could be done legally to question detained terrorists who might know something about imminent terror attacks. They produced the now-famous (to some, infamous) “torture memos” that the Obama administration released to the public last week. The far left wants them hauled before their state bar associations for malpractice.

According to McCarthy, making a case against them is going to be a bit difficult. You see, on April 23 of this year, just a day after Attorney General Eric Holder announced his intent to investigate Yoo, Bybee, and others, the US Justice Department filed a brief in a case in the US Sixth Circuit in Ohio, making exactly the same legal argument as was made by Yoo in the memos. The plaintiff in Demjanjuk v. Holder, a former Nazi jailer who’s been detained in the US and is fighting extradition to Germany, claims that he’ll be mistreated if he’s returned to Germany. Holder’s Justice Department argues that the UN’s Convention Against Torture (CAT) only applies if it can be proved that the Germans actively intend to do him harm. (In typical fashion for the “transparent” Obama administration, the brief disappeared from the Sixth Circuit’s web site after McCarthy aired it. But he still has a .pdf of it, if you want to read it.)

This is precisely the argument raised by Yoo and Bybee in their legal brief to the President, for which the leftie legal hounds want a pound of flesh, and it creates a problem for anybody who wants them disbarred. Apparently a legal opinion can only be called “malpractice” if the lawyers proffered an opinion that no lawyer could possibly have offered as a sound analysis. If the Justice Department is offering the same analysis, then it’s clearly not that.

It gets worse. It seems that not only is the Justice Department using the argument, but the Third Circuit has already ruled on the same argument in a case called Pierre v. Attorney General, and decided that the argument is correct. The Third Circuit heard the case en banc in 2008 (all 13 judges heard the case at the same time) and voted 10-3 that the Convention Against Torture only applies if the defendant actively intended to do the plaintiff harm.

Since the memos were all about how to conduct these practices in such a way as to cause no harm, it’s obvious on the face of things that the CAT cannot be invoked against any of the acts used by the US to interrogate its detainees. End of prosecution. Let’s all go home.

madbobBy the way, I finally located some documents describing the prosecution of Japanese officers for war crimes during WWII, in which their version of waterboarding was discussed. An acquaintance who used to post here was fond of pointing out that we prosecuted the Japanese for doing the same things we were doing. To say this was inaccurate is far too polite. The man lied to me, pure and simple. The Japanese version included waterboarding each prisoner for an average of four to six hours, while beating the prisoner; sometimes they filled their stomachs with water and then pounded on them to make them vomit. They were also prosecuted for truly heinous murders, decapitations, removal of limbs, and other vicious acts. Ann Coulter addressed this topic today in her column at Human Events, and observed correctly that

The Japanese “water cure” was to “waterboarding” as practiced at Guantanamo what rape at knifepoint is to calling your secretary “honey.”

The attempt to find something for which to prosecute the Bush administration is a dishonest game that’s been proceeding for almost 9 years now, and has absorbed literally hundreds of thousands of hours of official government time. They have found nothing in all that time. Any administration that can withstand that level of scrutiny and have nothing turn up that’s prosecutable, must have been unusually clean. It’s time to call a halt to it; if it continues, I’m in favor of prosecuting the people who are wasting government money pursuing it. Witch hunts are evil, and the people performing them are evil, too.

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19 Comments »

May 7, 2009 @ 8:52 pm #

Phil,
Thank you for your clear headed pieces on this subject from the very beginning.

May 7, 2009 @ 10:38 pm #

I watched a total and utter video smackdown the other day by Bill Whittle (I believe) of one of the TV comics (Jon Stewart?) about having played the liberal moral equivalency card and having called Harry Truman a war criminal for dropping the bomb.

This whole business is ripe for the same type treatment. Start with the facts about Dems such as Pelosi having been briefed before this even started and having nothing negative to say at that time. Then juxtapose their recent quotes to highlight their selective memory loss and blatant hypocrisy.

Next blast apart the moral equivalency argument by showing the Democrats’ using Japanese waterboarding as a false example, contrast what the Japanese did and why with what we did and why, with some perspective from a few of our guys who underwent waterboarding and worse at SERES training. Finish with Miss Coulter’s quote.

Cap it off with the material you just published.

About 10 minutes total would do. Plaster it all over U-Tube and RNC sites with citations at the end.

I’m no PR guy, but the Whittle piece was brutal. No yelling, just a cold summation of logic backed by facts, then a conclusion sending the comic skulking back back to the sandpile with the kiddies.

May 8, 2009 @ 6:19 am #

Yeah, I watched the Whittle piece. If Pajamas TV wasn’t attempting a for-profit model and preventing embedding, I’d have posted it here. He really did show up Stewart for an historical ignoramus.

May 8, 2009 @ 1:29 pm #

Phil,

If you recall, I said we prosecuted Japanese soldiers for waterboarding. That was clearly true, as you now admit. Very good. We’re making progress.

However, you say that those cases were different because the Japanese waterborading was more brutal than our own. Based on that distinction, and that distinction alone, you called me a liar. You said, that I “lied to you, pure and simple.”

It never occured to you that I might think that “extra brutality” is a distinction without a difference (which I do). Nor did it occur to you that I might not have known that the prosecutions were based on these extra brutalities (if, in fact, they were, which I seriously doubt, and which you have not proven).

No no no, I lied to you, “pure and simple.”

You have no basis whatsoever for calling me a liar. You don’t know how brutal our waterboarding actually was (the video tapes were intentionally destroyed by the CIA, which suggests that it was not at all pretty).

All you know is that the OLC drafted legal memoranda in which they made our version of waterboarding sound “safe.” But that’s precisely the problem. That’s why those guys are being criticized. They used lawyerly language and euphemisms to declare a practice that has been legally prohibited for centuries, legal.

Moreover, the fact that a government lawyer makes an argument in a brief does not mean that it is the law. Lawyers make bad arguments all the time when they represent clients. The Obama administration argued that the government is immune from civil lawsuits for illegal wiretapping, unless it shares the information it obtained. That’s an absurd argument, and certainly not the law, but they made that argument anyway, hoping that the court would buy it.

The argument that an interrogator cannot “torture” unless he or she attempts to cause harm is absurd. Torture is the imposition of unbearable pain or suffering. The entire point of torture is to “break” the person being interrogated – to get them to the point where they can’t take the pain and/or suffering any more and give up the information that you’re after. Surely you know this.

Phil, think of how you reason. You draw a distinction between a description of Japanese waterboarding (with extra brutalities) and a description of our own waterboarding, taken from a memo the sole purpose of which was to make waterboarding sound legal. Then, on that basis alone, you declare me to be a liar. Not misguided, or even wrong. But a liar.

You also point out that a government lawyer made an argument in a legal brief and, on that basis alone, declare the legal issue as to whether “intent to harm” is an element of torture, resolved.

Phil, you are obviously a smart guy. But you are struggling to defend the indefensible. And one of your main strategies is to convince yourself that people who disagree with you are “liars” and bad men, who can be dismissed. Another strategy is for you to claim that even the Obama administration agrees with you (when most of its members clearly do not).

These are the tactics of a dedicated partisan, not of an openminded thinker.

I challenege you to leave this comment up, point it out (or print it in one of your new posts), and ask your readers to comment as to whether what I’m saying to you has any merit. You’re not going to get a more favorable jury that your readers.

I, for one, would love to hear what they say.

Joe H.

May 8, 2009 @ 1:53 pm #

Phil,

In drafting my previous reply, I overlooked the fact that you cited an actual case.

Just to preempt you calling me a liar, my omission was a mistake. People get worked up a bit when you call them “liars,” and when I was drafting my reply, I forgot that you cited a case. I’ll look at the case and correct myself if it says what you say it does. If you are correct, that would strengthen your argument regarding the reasonablness of the opinions coming from the OLC.

However, the fact that a court in 2008 agreed with something written in legal memoanda about an element of “torture” written in 2002 and 2005 does not mean that intent to harm is, in fact, an element of torture. Courts get things wrong all the time. Additionally, there is no evidence whatsoever that the people who ordered or performed waterboarding and the other tactics did not intend to harm. There are assertions to that effect, but assertions are not proof, and only a partisan would accept self serving assertions on matters this grave without proof.

We should not assume either way – we should invesitgate.

Joe H.

May 8, 2009 @ 2:34 pm #

Phil,

It turns out that you and your friends have misread Pierre v. Attorney General. In that case, the Court held that a person could obtain relief against being repatriated pursuant to the CAT only if they showed that the government of the country they were being deported to had the “specific intent to inflict severe physical or mental pain or suffering.” Mere knowledge that the person would experience severe pain and suffering, even by the actions of the government (imprisoning him), was not sufficient to invoke the protections of the CAT.

Intent to permanently injure or harm is not an element of torture under the CAT.

Surely you don’t deny that the so-called “enhanced interrogation techniques” were designed to inflict severe physical or mental pain or suffering. That is, after all, how you “break” someone. You inflict pain or suffering so intense that the subject can’t stand it any more.

That’s why the OLC memoranda tried to define “severe physical or mental pain or suffering” as pain equal to the pain experienced during organ failure and/or death. Those lawyers knew that they purpose of the techniques was to inflict pain and or suffering severe enough to break someone. That’s why they tried to define ‘severe’ pain as pain going beyond that point.

Shall I conclude that, because you misread Pierre v. Attorney General you are a “liar” who is not to be trusted?

Of course not. That would be foolish.

Best wisshes,

Joe H.

May 8, 2009 @ 2:40 pm #

Frankly, Joe, I’m so furious at this moment that I’m not going to reply. You’re not going to get an apology. Your argument is pure horse shit, and it’s increasingly obvious that you’re incapable of handling facts in an honest manner. I’m going to let the matter sit for a day or two, and decide after I’ve cooled off a bit whether you’ll get a reply at all.

In the meantime, this is the last comment you will ever post on my blog. You are no longer welcome here.

May 8, 2009 @ 3:09 pm #

well, for what it’s worth, I’ll take you up on the challenge, Joe. I don’t think your argument has merit.

May 8, 2009 @ 3:58 pm #

What has made you furious, Phil? After following Joe’s argument carefully through, I don’t see anything he said that is unreasonable…and CERTAINLY nothing that deserves the “horse shit” label.

If he is incorrect…point out why! Is it that the law case Joe and you mentioned speak of “severe mental pain or suffering”, and Joe tried to make that different from “harm”?

I think Joe’s argument is WITH merit, even if arguable, and worthy of careful consideration.

BTW, did you read Garrison Kiellor early this week on this subject? Eminently reasonable – expose what was done for all to see, and prosecute nobody. Let the public outrage be the future deterrent.

May 8, 2009 @ 10:35 pm #

I was going to only post the last three paragraphs as rendering a kind of “verdict” which Joe solicited. But I’m afraid if I did that readers might think I actually have few or no reasons for my conclusions. So here’s how I wasted quite a few hours on this matter today. — dullhammer

———-

As I see it, Joe’s argument is not about torture. It is about being called a liar. The torture arguments serve only as a basis to undermine Phil’s assertion that Joe is a liar.

Joe’s argument then is essentially this as it ‘progresses’ through three posts:

Post one:
1) Phil has “no basis whatsoever” to call Joe a liar.

2) Phil does not have enough information to call Joe a liar.

3) Phil can not see what Joe sees so clearly.

4) Phil does not reason clearly enough to call Joe a liar.

5) Phil calls everyone he disagrees with a liar.

Post two:
3) Phil actually has more information than Joe realized.

Post three:
4) Phil is still wrong to call Joe a liar, as Joe has examined the information he first missed and concludes that Phil misread the information.

* Joe’s Conclusion: Joe is not a liar and Phil should know better than to call him one.

Joe’s torture argument isn’t much better than his defense of his personal truthfulness.

1) Japanese soldiers were prosecuted for waterboarding.

2) “Extra brutality” is a distinction without a difference.

3) US officials interrogated terrorists with waterboarding.

* Therefore US officials are guilty of torture.

But please note:

*Joe thinks it is unimportant that Phil, and others, can now describe the Japanese water torture in a way that is virtually unrecognizable from what we have been calling waterboarding (and have been using on our own troops for training). [Post 1, paragraph 1,3,]

*Joe thinks the US officials should be guilty until proven innocent. [Post 2, Paragraph 3]

*Joe thinks lawyers can make an illegal procedure seem legal; but he is completely silent on the possibility that they could also make a legal procedure seem illegal. [Post 1, pp 6]

*Joe categorically affirms that “intent to harm” is an absurd way to measure torture. His reasoning is this: “The argument that an interrogator cannot “torture” unless he or she attempts to cause harm is absurd. Torture is the imposition of unbearable pain or suffering. The entire point of torture is to “break” the person being interrogated – to get them to the point where they can’t take the pain and/or suffering any more and give up the information that you’re after. Surely you know this.” [Post 1, pp 8]

*But note: Joe’s ‘absurdity’ hinges on his definition of “torture” when he should also be defining what “Interrogation” is, or “Harsh Interrogation” at least in relation to torture. His argument as it stands is completely circular and invalid. i.e. “Torture can not be defined as intent to harm because torture alway involves harm.” Yes, but if torture IS defined as intent to harm, then interrogation with intent to harm would become torture and torture without intent to harm would cease to be torture.

Not unlike how the definition of lying hinges on intent. You would not say, “Lying can not be defined by a person’s intent to deceive because lying always involves deceiving.” That’s stupid. Lying IS defined by an intent to deceive. So, if a person shares false information with an intent to deceive then that information is a lie. But if a person shares false information without an intent to deceive, then that person is not actually lying– in spite of the false information shared. Surely we know this. [Post 1, pp 8]

*Joe repeatedly condescends toward Phil and cites him for poor reasoning and failure to see the obvious. Yet it was Joe who had to add two more posts because he failed to see that Phil actually DID cite a court case in his reasoning. A reasoning that greatly weakens Joe’s protest against the value of ‘intent’ in my opinion.

This not only undermines a significant amount of Joe’s own reasoning and response, but it undermines Joe’s credibility for being a critic of Phil at all. He criticizes Phil for not seeing the obvious, while he himself misses what is right in front of him. I could say more but I’ll stop there.

———–

I personally have no reason to call Joe a liar. But that doesn’t mean he is not one. Actually, truth be told, we are all of us guilty of that charge at some level. And though I think Joe protests too much in his own defense, I think I might react the same way if I were called a liar (rightly or not).

As for Joe’s “merit” in what he presented I will say this: I find Joe’s actual arguments (both on lying and on torture) to be relatively confusing, myopic and even hypocritical (which is a form of lying, but not necessarily with full intent). Combine this with Joe’s air of condescension and arm chair analysis directed at Phil I think I can at least understand Phil’s anger. In that anger Phil may have wrongly called Joe a liar. Phil may also know whether or not Joe knew more than he was saying about the Japanese water torture, which in that case would involve lying. Joe has not actually denied such knowledge, even though he touched on the matter hypothetically, which I find a bit incriminating.

Even so, if Joe lied to me I would still have to forgive him. If Phil called me a liar simply out of anger, I would have to forgive him as well. Joe and Phil are the only two who can really sort this out. And they can forgive each other without even coming to a conclusion as to which one is right or wrong. I admit forgiveness is another matter entirely. But maybe it’s a matter more important, to both parties, than torture.

May 9, 2009 @ 1:10 am #

Joe,

Not to pile on but…

The US waterboarded a total of three (3) prisoners who were known high profile terrorists under a ticking time bomb scenario, for the sole purpose of extracting information that could potentially save thousands of innocent lives in our homeland.

Khalid Sheikh Mohammed (“KSM”) was questioned about future attacks prior to being waterboarded and his response (to the extent that he responded at all) was “Soon you will see”. His questioners moved to harsher methods that had been legally vetted and discussed with dozens of high ranking members of Congress from both parties, none of whom are known at this point to have recorded an objection at that time.

I read the 9-11 Commission Report and was stunned by the amount of information that eventually came from KSM. Even Obama appointees acknowledge the high value of the information that was extracted from the waterboarding from KSM and the other two.

The procedure was done under medical supervision, and it is a procedure that is done to our own soldiers at SERES training.

In contrast:

The Japanese waterboarded prisoners and subjected them to other barbaric procedures routinely, as a matter of course. Obtaining actionable intelligence as a reason for doing so took a back seat to sheer cruelty for its own sake.

“The Japanese version included waterboarding each prisoner for an average of four to six hours, while beating the prisoner; sometimes they filled their stomachs with water and then pounded on them to make them vomit. They were also prosecuted for truly heinous murders, decapitations, removal of limbs, and other vicious acts”

As for the CIA not having videos, I cannot know because I was not there, but I have no doubt that it was a very disturbing scene. After all, the CIA would not tell KSM (as if he were about to undergo a scary medical test), “Here’s what we’re going to do, and why, and although it will be very uncomfortable, you will not be hurt, and when you we find out what we need to to know, the procedure will stop immediately and you will receive medical treatment. As a matter of fact we have a doctor here to make sure that you are OK at all times.” I have little doubt that fear of the unknown is a large part of the effectiveness of the procedure.

The CIA knows better than to let any videos see the light of day. They would be used as a pure political attack tool. After being thrown under the bus recently by the Obama administration, their caution seems well founded.

You could make “slippery slope” arguments and I would respect that. I have a fear of government overreaching. I’ve seen how RICO laws are sometimes twisted so as to encompass targets that probably were never envisioned by the people who instituted the law. I don’t want, for example, to see Tony Soprano being waterboarded sometime down the line.

But to me, much of Phil’s post went to demolishing the attempt to establish similarities between barbaric practices committed by other nations and how Amerians conduct themselves during a war.

You can attempt to parse this all you want, but I see no moral equivalency here. Candidly, I can see no rational way or reason to try to make a claim of moral equivalency other than being sadly misguided, or for disingenuous and partisan political purposes.

May 9, 2009 @ 3:37 pm #

Phil–

You obviously stuck a nerve. Keep it up.

May 10, 2009 @ 11:45 pm #

Hey Dullhammer,

A couple of things here -

Joe is my friend. He was a philosophy professor (and a good one), but at the time he was seeking a tenure-track job, jobs in the humanities dried up. Wanting to remain a productive member of society and still use his very clear mind, he became an attorney.

Joe is NOT a liar. And I do not see any condescension at all in his posts, EXCEPT in the area where he has earned it – that is, in careful thinking. He has been banned here from pointing out Phil’s problems in this area…but look at it this way: If I want to correct a repeated math error I saw you making, I would possibly sound as if I was condescending to you to keep telling you how to correct the error.

Now, Phil and Joe’s argument is much more complicated than this of course. But in Joe’s defense, let me tell you what motivates him:

1. We agreed (by treaty and otherwise) that torture is inhumane and we would not practice it. Waterboarding is accepted as a method of torture.
2. Certain people, all agree, crossed the lines we agreed to at least a bit, sometimes more.
3. If having good motives is allowed as an excuse not to prosecute those who performed, authorized, and justified the act, the US will be morally worse off. This is not LEAST because all who feel the need to cross the line can claim good motives.
4. Therefore, a nation governed by the Rule of Law should either pardon these people, or prosecute them.

This is eminently sensible to me. All the arguments about whether it’s okay for reason X and reason Y are where things get confusing, but I don’t think any part of it merits Joe being called a liar; he is motivated NOT by politics (He is furious at Obama for continuing to let the injustice stand), but by a sense of justice given to him by his Creator. To that I testify, and haven’t seen any reason to go back on it yet.

May 11, 2009 @ 5:36 pm #

What made me so furious?

Joe’s first post was a masterful application of weasel words, words carefully chosen to sound reasonable while absolutely misleading regarding the truth. That’s why I’m calling the man a liar.

Look at the very first sentences:

If you recall, I said we prosecuted Japanese soldiers for waterboarding. That was clearly true, as you now admit.

The context of his earlier statements was clear, though. He was offering that observation as a clear contrast parallel to the Bush administration’s policy, with the unmistakable intent of saying “We are now doing the thing we formerly prosecuted.” There was no point in even mentioning the prosecution of the Japanese when he did unless he was saying that the very acts we prosecuted back then are the acts that we’re perpetrating now.

In order for these sentences to be true, then, two things must be the case:

1) What we prosecuted the Japanese for must be the same thing, or substantially the same thing, as what the Bush administration did; and

2) This act alone would have been sufficient on its face to trigger prosecution.

If both of those statements are not correct, then there was no point in raising the argument. The argument has no merit, is in fact a complete red herring, unless we Americans would have prosecuted Japanese officers for doing substantially what American CIA officers are doing now.

What made me say that I’d been misled was that when I read the descriptions of the prosecutions of the Japanese (sanitized, like the Yoo memos, by legal verbiage), it was readily obvious on the face of it that neither statement was true. There was not a single Japanese officer who was prosecuted SOLELY for water torture, and the description of the water torture was clearly and substantially dissimilar to what was described by the Bush administration. The differences were so stark, in fact, that it’s my assessment that even a partisan should be able to see the difference, and thus cannot be excused by some difference in interpretation.

The correctness of my last observation becomes clear when we start parsing Joe’s successive arguments. Starting with the clear equivocation on the word “waterboarding,” he then tries minimize the distinction between what the Japanese did (which was clearly for the purpose of causing pain and death) and what we’ve done (which is clearly for the purpose of frightening the prisoner into giving information), reducing the distinction to a single word, “brutality.” And then, he questions our understanding of the practices of the Bush administration, noting that it’s at least theoretically possible that what they did is a great deal worse than what was described in the memos.

Without even looking at those arguments, look what that does to Joe’s original claim, “We’re now performing the very acts we used to prosecute.” Now, instead of this fairly persuasive statement, if he’s being candid about his argument, it’s as follows: “IF the Bush administration is being completely dishonest in its characterization of waterboarding, and IF you accept that the level of brutality makes no difference in the prosecution of torture, THEN it’s possible that we’re doing something that we used to prosecute.”

Not exactly the same argument, is it? No. In fact, his entire case comes to rest on those two distinctions, and as we’ll see in a minute, they’re nonsense. So before we even address Joe’s rebuttal claims, we already know that his original statement was seriously misleading, and avoided stating controversial assertions in order to make his claim rhetorically powerful. And remember, there was no purpose — none — to even raising the matter of prosecuting the Japanese unless what we’re doing now would have been prosecuted if the Japanese had done it. The argument is meaningless unless that’s the case.

So we already know Joe was deliberately attempting to mislead us. But are his distinctions reasonable?

It’s the level of brutality that absolutely and completely defines torture. As I explained in an earlier post, the entire topic of allowable and non-allowable interrogation techniques is dominated by an assessment of the increasing level of brutality as we go up an otherwise arbitrarily ordered list of techniques. The ONLY characteristic on which these techniques can be assessed is the relative level of brutality.

If he’d said “brutality doesn’t matter” in person, I’d have laughed in his face, and walked away. The level of brutality doesn’t matter? What DOES matter, then? If the level of brutality doesn’t matter, then a questioner can be prosecuted for torture if he throws a glass of water into the prisoner’s face while his hands are restrained. If the level of brutality doesn’t matter, then jailing criminals is illegal torture — the very threat of jail is supposed to frighten potential criminals into refusing to commit crimes. Hell, if the level of brutality doesn’t matter, then a parent threatening his child with a spanking is torture!

What Joe trying to do is assert that we could prosecute members of the Bush administration for any act that goes by the name “waterboarding,” simply by virtue of the fact that it has a similar name to something we prosecuted the Japanese for doing. The criteria affecting the conscience (which is the central feature of the LAW regarding torture, namely “acts that shock the conscience”) does not matter to Joe, so long as he gets to say “The name is similar, and they both involve boards and water, therefore they’re equally prosecutable.”

This is utter and complete horse shit. It’s as though we have two defendants: Man A committed rape, murder, and arson, while Man B burned trash in his back yard. What Joe is saying is that since both men engaged in acts involving illegal burning, they are morally equivalent, and since we prosecuted the first, we must prosecute the second if we’re to be consistent.

And I’m supposed to respect his honesty??????? Pardon me while I spit.

As to the other argument, it’s no better. Yoo’s memos were not written for public perusal, they were legal opinions written to assess the question of what is legal and what is not. Nor are these the only descriptions of the acts involved. Elected Representatives heard descriptions, descriptions have been published in newspapers, and we’ve all read descriptions by former interrogators and SERE-trained soldiers who have described the techniques. We have no reason whatsoever to doubt the reports we’ve heard so far, and we CERTAINLY have no reason to doubt them for purposes of assessing whether their acts were like those of Japanese officers.

The Japanese were exceedingly brutal toward their prisoners, underfeeding them, brutalizing them, beating them regularly, humiliating them, and performing vile acts of all sorts on them. Something like 25% of the prisoners committed to their oversight during WWII, died while prisoners. What’s the rate of attrition at Guantanamo?

I have to run, but that’s basically the argument. I will not apologize, unless the Holy Spirit forces me to. The man made a completely misleading statement, and a man of his credentials and standing should know better. His defense isn’t worthy of an 8th grader. My kids knew better than to pull such crap on me when they were 10.

May 11, 2009 @ 6:52 pm #

[Note: I am posting this well after Phil's post but it is not a response with that post in mind as I had not seen it while I was composing this one.]

Hi Darkhorse,

Thank you for the background on Joe. And for your defense of him as your friend. I am going to disagree with you on several points, but I will not be doing so in any attempt to make Joe out to be the “bad-guy”. I believe we pretty much all are “good-guys” and “bad-guys” in the longer course of life. The final “verdict”, as I understand the grace of Christ, will be on the level of friendship with Christ (or the lack thereof) rather than on technicalities and legalities of law.

I hope you do realize I deliberately fell short of calling Joe a liar. But so did Joe himself fall short: he never actually denied the charge of lying. Instead he counter-attacked Phil by using Phil’s accusation of Joe’s lying as a way of undermining Phil’s ability to reason properly. Both have served as ad hominem attacks which have now distracted from the proper debate on interrogation and torture. For me at least.

As for condescension from Joe to Phil, that’s how I read certain sentences and phrases. His very first sentence may be an attempt at humor, but it strikes me as deliberately undermining Phil’s POV on Japanese waterboarding and is phrased as if talking to a child. Then again in his 9th and 10th paragraphs he returns to that attitude and in the midst of it he is himself factually wrong about Phil resolving the issue of “intent to harm” by his only pointing out an argument in a legal brief and doing so “on that basis alone”. Ends up, as Joe admitted in his second post, that Phil in fact cited a legal case. Even so, I don’t remember Phil as considering the whole issue “resolved”; but he did consider a serious weakness to be exposed in any prosecution’s case against the Bush administration.

I really take no pleasure in dissecting Joe’s posts in this way. But he invited it. And I don’t believe I even have to be 100% correct in what I say. I was simply asked for my own personal assessment as to whether or not Joe’s comments had merit. And my answer was basically “No”. A very long “No”. I’m actually trying not to be long here.

As for the line of reasoning, or “motivations” you outline: I agree with you that this line of reasoning does not merit Joe being called a liar. But I never thought he was called a liar for his line of reasoning; it was for his misuse of the facts given to support his reasoning. That’s not my assertion, BTW; it’s Phil’s.

I have issues with the outline you give of Joe’s argument, but that gets us into the proper debate which has gone on in the past between Phil, Joe and everyone else. I don’t believe that is what was put on the table here in this thread. If I’m wrong about that just point it out to me. But my understanding is that Joe was asking about the merit of what he presented on May 8, 2009 @ 1:29 pm. Along with the other two additional posts.

May 11, 2009 @ 9:07 pm #

I called Joe a liar because I believe there is no fair reading of the particulars of our cases against Japanese officers that can plausibly be read as similar in any way to the program of enhanced interrogation techniques pursued by the Bush administration. I believe Joe had read those particulars, and having done so, any representation of those acts as being similar in any way to the acts of the Bush administration is simply and completely dishonest.

I still maintain that this is the case, and I have not the slightest respect for Joe’s honesty, nor for his intellect. If he’s teaching philosophy, his students are being cheated.

May 12, 2009 @ 3:16 am #

Phil, you said:

“I have not the slightest respect for Joe’s honesty, nor for his intellect.”

That is ONLY because he is your political opponent. That seems pretty clear to me.

The first rule of open-minded discourse is to interpret an opponent’s argument charitably. That means you give your opponent the benefit of the doubt, or at least the opportunity to clarify what he means, before you call him a liar.

You do this not because all of your opponents are good men. You do this because you realize that you can make mistakes and that, if there is any truth to what your opponents are saying, you want to know about it.

You disagreed with Joe over the legality of water boarding. Joe presented evidence that it was illegal – that we prosecuted it in the past. You looked at Joe’s evidence – the Japanese commander prosecutions – saw that they involved additional brutalities – and concluded that Joe intended to mislead you.

You didn’t come back to Joe with a good natured “hey Joe, your shit’s pretty weak. The Japanese commanders examples were complete barbarians – not just water boarders.” You didn’t ask him to provide you with better examples of the moral equivalency between what Bush administration officials authorized and what we’ve prosecuted in the past (which he could easily have done and has done for me). You didn’t stop to think, “maybe Joe, in citing this one example, wasn’t saying that Japanese barbarism (which included water boarding) is morally equivalent to the techniques the Bush administration authorized – just that water boarding is illegal because we’ve prosecuted it in the past.” You didn’t wonder if the example was ill chosen, given that the Japanese water boarding was mixed in with other brutalities, but Joe may have better examples, which you would surely want to know about (if they exist).

You instead decided to adopt the worst interpretation possible. Then, without contacting Joe and asking him to clarify what he meant by citing those Japanese prosecutions, you called him a liar. You said “he lied to you, pure and simple.”

That’s not civil behavior Phil. Nor is it open minded behavior.

Then, when Joe understandably got angry about this and responded, you gave his response the worst possible interpretation. You argue that he tries to minimize the distinction between what the Japanese did and what the CIA did. However, I read Joe’s “distinction without a difference” comment as saying that it didn’t matter that there were extra brutalities – that water boarding alone was illegal and was one of the crimes for which they were prosecuted (which proved the point for which Joe offered the Japanese commanders as an example). I read Joe’s comments that way because that’s exactly what your post denied. You were saying that the Japanese commander examples failed (and Joe was a liar), because what really was at issue were the extra brutalities. Joe responded by saying, perhaps not as clearly as he could have, that the water boarding was itself sufficient and this renders your brutality distinction moot in so far as the issue was the legality of water boarding.

There is no way Joe was saying that we could prosecute members of the Bush administration for any act that goes by the name “water boarding,” simply by virtue of the fact that it has a similar name to something we prosecuted the Japanese for doing. And even if that was what he thought or meant, it would go to the issue of his stupidity, not his honesty.

Come on Phil. Do you really think a man with two doctoral level degrees in reason intensive fields could advance such a stupid argument? And what does it say about your level of openness that your could latch on to such an unreasonable interpretation of his argument and assign it to him in order to dismiss what he said.

This is what Joe was talking about. He was saying that you look for reasons to dismiss your opponents. I suspect that there is some truth to that charge.

By the way, banning Joe from the blog was lame. It suggests that you don’t want to engage.

Oh, by the way. Joe took on the Andrew McCarthy article you cited in your post on his blog and utterly destroyed it! UTTERLY DESTROYED IT! If you really want to demonstrate that you’re open minded, go read it, put aside Joe’s snide comments, and, if you disagree, explain why without mentioning anyone’s motives.

http://moreunsolicitedthoughts.blogspot.com/2009/05/motive-verses-specific-intent.html

May 12, 2009 @ 6:23 am #

That is ONLY because he is your political opponent. That seems pretty clear to me.

So, what did I bother to write some 10,000 or more words over the past few months to explain?

I spent the better part of a year giving Joe precisely the sort of charity you describe. My reaction to him now is based on that experience. Even regarding this interrogation discussion, we’ve been going at it for months. You seem to want me to treat every encounter as though it were the first. Charity does not mean continuing to give the benefit of the doubt to those about whom you no longer have reason to doubt.

Jim — I looked at Joe’s evidence and discovered, not that they involved additional brutalities, but that they were as different from what we’re doing as arson is to burning trash.

You guys — both of you — are perfect examples of the very closed-mindedness you accuse. You’re accusing me of your own partisanship. I’m not nearly as partisan as Joe is, and you, Jim — you’re so damned stuck in your charity that you’ve absolutely switched off your ability to discern. Come out of it.

You didn’t come back to Joe with a good natured “hey Joe, your shit’s pretty weak.

He lied to me. Deal with it.

The other alternative is that he’s delusional, and has constructed an American torture regime in his head that’s comparable to the brutality of the Japanese. The evidence that such a regime exists is not slim, Jim, it doesn’t exist. There is zero evidence for this, and solid evidence to the contrary. And you should think for a while about why any civilized person should be good-natured about people who are so bent on the destruction of good men that they’ll imagine them performing such inhuman acts, based on no evidence, solely to obtain a reason to call for their prosecution.

If Joe were seriously proposing that I join with him to rob a bank, would you expect my reaction to him to be good-natured? I believe that what he’s doing is evil on a par with that.

If you really want to demonstrate that you’re open minded, go read it,

If you don’t know by now that that’s precisely what I would have done even without your taunting about it, then I give up.

May 12, 2009 @ 7:17 am #

Joe’s argument at MoreUnsolicitedThoughts is incorrect, in two ways:

1) He confuses McCarthy’s argument with Attorney General Holder’s. Joe goes to great lengths to refute a legal argument, but he asserts that the argument is McCarthy’s. McCarthy’s point is that not only did Bush’s Office of Legal Counsel make this argument, but Obama’s Attorney General also made this same argument, and 10 of the judges on the Third Circuit accepted it. So whether Joe is correct or not about the argument, that argument is the official position of the Obama administration as well as the Bush administration.

McCarthy raises the point, not because he thinks the argument is so superb, but because the standard for prosecuting legal malpractice is crossed when a lawyer advises a client using reasoning that no competent lawyer could conceivably endorse. Since Yoo’s and Bybee’s argument has been endorsed by both Eric Holder’s Justice Dept and the Third Circuit (whether legally sound or not), they clearly were not engaging in malpractice when they offered their advice. That’s the point of his article, and that’s the point of my blog post where this discussion is occurring.

2) Joe is not correct about what’s intended. If I’m reading the cases correctly, the CAT demands specific intent to cause severe pain and suffering, as opposed to general intent. Those are technical legal terms. Joe says that in the US interrogation regime, the specific intent IS to cause pain and suffering, but this is not correct; the specific intent is to obtain information by the least brutal means possible. If I’m reading this correctly, what Joe describes would be called “general intent” — and it’s general intent that is being excluded as insufficient by Holder, and by the Third Circuit, when they emphasize that “torture” is a “specific intent” crime.

The distinction is easier in layman’s terms. If I’m reading what’s being said about these cases correctly, the law requires that the purpose of whatever the government is doing must be “I want to make you HURT, you sonovabitch” before we can call it torture. Holder’s argument in Demjanjuk is that “I want to make you PAY FOR YOUR CRIME by incarcerating you” is not torture, even if it will make the poor sonovabitch hurt, because the object is not specifically “I want to make you HURT.” Yoo’s argument seems to be that “I want to make you TALK” is also not torture, especially when we add the criterion “by the least brutal means that will accomplish that result.” It’s only torture if the final, specific object is to cause pain.

From answers.com’s discussion of specific intent:

Courts have defined specific intent as the subjective desire or knowledge that the prohibited result will occur (People v. Owens, 131 Mich. App. 76, 345 N.W.2d 904 [1983]).

Note the phrase “subjective desire.” Unless the government can be proved to have really, badly wanted Kalidh Sheik Mohammed to suffer (as opposed to simply wanting him to talk, and doing their best to apply only that amount of suffering that would achieve that result) they cannot be convicted of torture under the CAT. The thing that makes an act “torture” is that inner desire that says, “I really, really want you to suffer!!!!

I admit that I’m not an attorney and could easily have gotten this wrong. However, since I’m simply echoing the legal opinions of Andrew McCarthy (former US Attorney), Eric Holder (Attorney General), and ten judges on the Third Circuit, I’m heartened that I might have got it right.

Oh, yes:

3) Tell Joe that “Verses” should be changed to “Versus” in his title.

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