April 18, 2009

Quote of the day, torture edition

I find much to agree with in the [torture] memos and little, if anything, with which I disagree from a legal standpoint.
Yes, like borrowing a legal definition of "good faith belief" from a civil case (since vacated by the 4th Circuit) arising from a real estate dispute to apply to a federal criminal statute prohibiting torture.

Hard to take issue with that practice.

22 comments:

Clutch said...

Torturing regimes operate in the developed world because educated, powerful people endorse torture. So it was in Argentina and in Chile; and so it is in the United States.

When such people can blithely announce such views without loss of power, money, or social status, there is no reason to think that the nation will do anything other than continue into that particular moral degeneracy.

Anonymous said...

This is a pretty good catch. At least for a gossip blog, anyways.

William Tyroler said...

"Torture" under the relevant provision, 18 USC § 2340(1), is defined as: "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering ... 'severe mental pain or suffering' means means ... prolonged mental harm." I'm not quite sure how either mens rea (specific intent to inflict severe injury) or actus reus (prolonged harm) element is satisfied, let alone both. Maybe they are, but I haven't seen anyone make a strong case for it. Could be that the Obama Administration won't prosecute anyone for the simple reason that no crime can be proven.

Anonymous said...

A far more likely explanation.

Clutch said...

Presumably satisfying mens rea would be a matter of actually noting what the torturers or their institutions say about the point of torture -- for instance, allusions to breaking a prisoner's will to resist would seem rather unambiguous with respect to the duration of the effect sought via "the... threatened infliction of severe physical pain or suffering."

It is unclear what would constitute a "strong claim" by your lights, though.

William Tyroler said...

satisfying mens rea would be a matter of actually noting what the torturers or their institutions say about the point of tortureOK, putting aside the polemical, outcome-determinative reference to "tortur(ers)." I gather we agree, then, that there has to be at least some express suggestion that the interrogators meant to inflict severe harm within the statutory definition. At a minimum I'd like to see such evidence before leaping to the conclusion that prosecution is supported. I'm not saying none exists, just that the burden to produce it is on those who want a prosecution.

The Marty Lederman post cited by gnarly contains this interesting observation: "prosecution of the waterboarders themselves ... would be targeting the wrong government actors (we should want CIA officers to be able to rely on OLC advice) and, in any event, such a prosecution would be of dubious constitutionality." I wonder how many of those now clamoring that the "torturers" must be prosecuted would agree with that observation.

In the end, we can't really be sure just why the supposedly transparent Obama Administration won't green-light prosecution. CIA pressure? Fear that leading Congressional Dems, who certainly knew about and possibly approved the alleged "torture," would be dragged through the mud? Insufficient proof? Who knows.

Anonymous said...

Well, we can make a reasonable supposition. And "no crime was committed" isn't one of them.

The most reasonable hypothesis would be that it would effectively eliminate the OLC as a going concern, along with any executive branch function that requires its opinions.

Clutch said...

I wonder how many of those now clamoring that the "torturers" must be prosecuted would agree with that observation.Not knowing what clamorers you've heard, it's hard to know what they would say. (Are these the same elusive people who say that Obama is the messiah?)

What I would say, though, is that I do agree. Constitutionally it is a difficult matter to get at the torturers themselves; yet the "command responsibility" goes so high in the government that the stakes for prosecution would be very, very high indeed. Which is, of course, gnarlytrombone's point: there's unlikely to be any domestic prosecutions because there are no convenient Lynndie Englands available here, only senior govenment officials/advisors -- Yoo among the most junior, some Bybees at the mid-level, Gonzales, Cheney and Bush at the top -- and they would have to be accused of something less direct than torture, but rather more general impeachable offenses. The political will probably does not exist to drag the Republic so comprehensively through the mud. Or, more accurately, to reveal how deeply through the mud these men dragged it.

(Under German law, it might have been an equally vexed question of how to prosecute torturers who were just following orders in WWII; it was the international character of the prosecution that cut that particular Gordian knot. Go Spain go.)

Yet none of that means that it is reasonable, nor in particular morally defensible, to breeze over the matter as if the prospects for indictments were the final word. A rough but real justice was done in the OJ Simpson case by virtue of its being made an entirely open secret that he did it. If by "clamoring" you mean the aggressive search for and publicizing of details of decisions and actions that served so effectively to reduce the moral distinctions between the USA and its terroristic enemies, then clamoring seems to be the only ethical and patriotic thing for an American to do.

William Tyroler said...

If by "clamoring" you mean the aggressive search for and publicizing of detailsNo, I meant precisely what I said: clamoring for prosecution. True, I didn't think it necessary to identify who might be raising such a din. A decent guess, even without following the discussion, would have been Glenn Greenwald. Better still: the always excitable Andrew Sullivan ("If you want to know how democracies die, read these memos").

So, the decision not to prosecute must come as a grave disappoint in certain quarters. Clutch seems to expect Spain to ride to the rescue. Doesn't seem likely. In any event, I don't think Americans are quite ready to accept the spectacle of its officials in the dock of a 4th-rate power.

As to the idea that "The political will probably does not exist to drag the Republic so comprehensively through the mud": why not? If it is true, as Sullivan claims, that the "torture-regime" exemplifies "how democracies die," then we have already been dragged through the mud, and prosecutions would lift us up. The dilemma for the pro-prosecution crowd is that it must reassess either its own rhetoric or the good intentions of the Obama Administration.

Clutch said...

I wonder how many of those now clamoring that the "torturers"must be prosecuted would agree with that observation."Not knowing what clamorers you've heard, it's hard to know what they would say."

A decent guess, even without following the discussion, would have been Glenn Greenwald.Really? Because your link to Greenwald explicitly has him arguing that "[b]inding U.S. law requires prosecutions for those who authorize torture". Not the torturers themselves. (It's in large letters, bolded, at the top of the page to which you linked.)

So Greenwald, in that post, does not fit your earlier description; and Lederman's point (that prosecutions would have to focus on the senior people who approved the torture) does not seem in any tension with Greenwald.

Better still: the always excitable Andrew Sullivan ("If you want to know how democracies die, read these memos"). Sullivan too does not say what you seem to think he does. In fact he doesn't call for any prosecutions in the first instance, calling instead for an investigative commission. But he does hold that if there are any prosecutions, it should be those who authorized torture primarily.

In English and everything: "The question of prosecution remains. It's a painful decision. My view is that those who pay the legal price should be, first and foremost, those who authorized this at the highest levels... A full accounting of all of this - by people from both parties with real power to investigate and report (a 9/11 style commission, in other words) would be a natural next step."

So, again: no.

Not that any of this is terribly germane to the question of what the proper legal approach is; I just wanted to see who you had in mind with your generalization. If the answer is nobody in particular, that's fine too.

Clutch said...

If it is true, as Sullivan claims, that the "torture-regime" exemplifies "how democracies die," then we have already been dragged through the mud, and prosecutions would lift us up.And since nations always do what's ethically best, without regard for nationalistic pride, perceived humiliation, or conflicts with the vested interests of many very rich and very powerful people, then we're left with a, like, totally obvious and totally non-contrived dilemma!

The dilemma for the pro-prosecution crowd is that it must reassess either its own rhetoric or the good intentions of the Obama Administration.LOL -- I did call this one. I just knew that the "pro-prosecution crowd" was secretly also the "Obama is omnibenevolent" crowd!

Alternatively, though, the word "dilemma" still has meaning, and what many supporters of prosecutions have to face is nothing like a dilemma, but just the mundane fact that it is often hard to launch investigative processes that threaten to be destabilizing, unpopular, and harmful to powerful interests. You might consider asking the people you have in mind (assuming there any such) whether they realized these practical difficulties existed before your analysis was available.

Anonymous said...

always excitable Andrew SullivanThere's a vas deferens between a mens rea and manu stuprare.

William Tyroler said...

Greenwald, in that post, does not fit your earlier descriptionMy alleged misapprehension isn't unique:

There is a lively debate going on in the blogosphere about the legal impact of Eric Holder’s statement that waterboarding is torture and Susan Crawford’s conclusion that Mohammed al-Qahtani was tortured while in custody at Guantanamo Bay. Does Holder’s statement and Crawford’s conclusion require the US to prosecute the interrogators who used waterboarding and the Bush administration officials who approved its use? Glenn Greenwald believes that they do, as do Dahlia Lithwick and Philippe Sands, writing together. Eric Posner, by contrast, insists that they do not.

I firmly believe that anyone involved in waterboarding should be criminally prosecuted. That said, I think Posner has the better of the legal argument. ...
(Emph. supplied.)

But at this level of detail -- exactly what Greenwald meant -- the debate is awfully sterile. It's just not that hard to find pressure groups as well as individual commentators who advocated prosecution for interrogators as well as higher ups. E.g., Human Rights Watch advocates "investigation into those who authorized and conducted torture and other abuse." But if clutch wants to say that no one's really advocated that those who actually conducted "torture" be held to criminal account, then fine. I'm not quite sure what to make, though, of his tortured allusion to the Nazis ("Under German law, it might have been an equally vexed question of how to prosecute torturers who were just following orders in WWII; it was the international character of the prosecution that cut that particular Gordian knot. Go Spain go."). I wait for cognitive dissonance to work its magic at some point.

William Tyroler said...

the mundane fact that it is often hard to launch investigative processes that threaten to be destabilizing, unpopular, and harmful to powerful interestsI wouldn't necessarily disagree. But what happened to Hope, and Change?

Clutch said...

My alleged misapprehension isn't unique--

Demonstrated with quotes, rather than alleged. And yes, no doubt you're not the only person to make any particular error.

But at this level of detail -- exactly what Greenwald meant -- the debate is awfully sterile.--

Of course it wasn't me that cited and linked to Greenwald as an example of something he turned out not to say in the proffered post. But if it is now suddenly "sterile" to note what Greenwald actually means, in the piece you provided as evidence, that's no real problem. We seem to agree on Lederman's point about the constitutional difficulties with domestically prosecuting torturers in this case. The disagreement is principally over whether the further reluctance to prosecute on command responsibility is confounded by the objectively massive political (and corporate, and social, and economic, and even familial/dynastic) pressures against this. I say that no rational person could doubt it; you ostentatiously wonder about Obama's being the Second Coming. It's unclear why you do this, but you do.

It's just not that hard to find pressure groups as well as individual commentators who advocated prosecution for interrogators as well as higher ups.--

I'm sure you're right, though yet again you give a quote, from HRW this time, that falls far short of staking a position in any tension with Lederman's post. No big deal, though. You'd just seemed to have some specific "crowd" in mind, with specific things clamored-for to which you were alluding. It turns out you didn't, or thought you did but were wrong. And, as I said, that's fine. Surely there are, among the hundreds of millions of Americans, plenty here and there who have called solely or primarily for the prosecution of the torturers themselves.

...if clutch wants to say that no one's really advocated that those who actually conducted "torture" be held to criminal account...LOL. iT keeps saying stuff about how lawyers are supposed to be careful readers and writers. It's sometimes hard to credit why he thinks this.

Anyhoo. If you think there's cognitive dissonance involved somewhere in the views I've expressed, I invite you to take a moment and jot down, for all to see, the two inconsistent positions I've adopted. You may find your failure instructive.

William Tyroler said...

Demonstrated with quotes, rather than alleged.Huh? Greenwald's own words: "The U.S., under Ronald Reagan, legally obligated itself to investigate and prosecute any acts of torture committed by Americans (which includes authorization of torture by high level officials ..." Prosecute any acts of torture -- seems perfectly clear to me, even if clutch sees it otherwise. I previously (3:42 p.m.) linked to and quoted international law expert, Kevin Jon Heller, whose take was precisely the same as mine: Greenwald, and other leftist luminaries, advocated prosecution of actual interrogators as well as policy makers who authorized their "acts of torture."

We are at this point because clutch disputed any such demand to prosecute the interrogators themselves (12:51 p.m.; 7:20 a.m.). And clutch did so even while him or herself oddly imploring the Spanish "to prosecute torturers who were just following orders" (7:20 a.m.). But I hardly think it matters to my now-obscure original point (9:54 a.m.), which was that torture might be more difficult to prove than most might think; and that perhaps refusal to prosecute anyone, low or high, turned on proof-related problems.

you ostentatiously wonder about Obama's being the Second Coming. It's unclear why you do this, but you do.That's just weird. In fact, clutch introduced the subject (7:20 a.m.): "Are these the same elusive people who say that Obama is the messiah?" I did, with Greenwald and Sullivan much in mind, express curiosity about how Obama supporters might square his refusal to prosecute with their own rhetoric about the death of democracy. Obama either represents a break from past politics or he doesn't. And if he doesn't, then maybe partisans on either side should stop hyperventilating about him.

Feel free to have the last word, clutch. I can't imagine anyone else is following this increasingly tedious, tangential, and enervating discussion. No one with any sense anyway.

Clutch said...

Another note: Clutch seems to expect Spain to ride to the rescue. Doesn't seem likely. In any event, I don't think Americans are quite ready to accept the spectacle of its officials in the dock of a 4th-rate power.--

Notwithstanding the lingering reading comprehension problems suggested by the word "expect", the salient observation here is that what Americans are ready to accept is the whole point of hoping for an international indictment.

Evidently many Chileans -- especially the many rich and powerful ones implicated in his regime -- were unprepared to see Pinochet stand trial in Spain or Britain. Yet his arrest and threatened prosecution abroad helped to finally put in motion domestic proceedings against him. And though he was never convicted, the facts that he was arrested internationally, and finally charged at home, were important elements of the imperfect justice that was achieved -- the small victory being that he ultimately had to face charges on a partial list of the tortures under his rule; the slightly larger victory being the more formalized guilt consequently attaching to his junior accomplices, still very powerful people in Chile.

Even Spain's wholly unsuccessful attempt to have Kissinger detained was worthwhile, focusing, briefly, as it did, attention yet again on Kissinger's complicity in terrorism, dictatorships, and war crimes. For that matter, Hitchens' book on Kissinger was not an expression of confidence that Kissinger would in fact be tried -- it was itself a public trial. Clamoring, as some might dismiss it. Or holding American leaders to extremely basic moral standards, as one would reasonably see it.

illusory tenant said...

I'm following. What's maybe more of a cause for concern about Obama's remarks (and those of Rahm Emanuel over the weekend) is the extent to which they're an admonition to the Justice Department.

That executive department is unique in its independence from the president and I don't think it's obliged to ignore whatever evidence of a crime it may find simply because the president is reluctant to prosecute.

Clutch said...

clutch disputed any such demand to prosecute the interrogators themselves (12:51 p.m.; 7:20 a.m.).--

?

Is there a special Wisconsin admissibility rule called Stuff I'm Making Up Now?

Clutch said...

That executive department is unique in its independence from the president and I don't think it's obliged to ignore whatever evidence of a crime it may find simply because the president is reluctant to prosecute. --

Maybe not constitutionally obliged. But practically obliged?

And you are, I think, understating things to say that it's simply because the president is reluctant to prosecute... The antipathy would be far broader than the Pres and far deeper than reluctance, IMO.

William Tyroler said...

Well, long as there's still an audience ...

clutch takes issue, in characteristically graceful prose, with my claim that s/he "disputed any such demand to prosecute the interrogators themselves": Is there a special Wisconsin admissibility rule called Stuff I'm Making Up Now?

Here's what you said, buddy:
your link to Greenwald explicitly has him arguing that "[b]inding U.S. law requires prosecutions for those who authorize torture". Not the torturers themselves.

And: So Greenwald, in that post, does not fit your earlier description [that he supported prosecuting the "torturers" themselves].If clutch would take a moment to remove his teeth from my ankles and pay attention to the world around him, he would see this development:

President Obama left open the door Tuesday for charges to be brought against Bush administration lawyers who justified harsh interrogation techniques, though he continued to argue that CIA agents who used those tactics should not be prosecuted.Not that I'd want the discussion to degenerate away from who on this board said what.

Anonymous said...

And now the circle is complete.