That's the way Dershowitz would deal with violent abuse of civil and human rights by the police: since it's going to happen, we should legalize it.
What's wrong with this logic is this: bringing something into law only makes it legal; it does not make it right. Hitler got the Reichstag to legitimize nearly everything he did. The Nazis didn't just commit abominations against those groups they loathed. They legislated those abominations. The worst of what they did was perfectly legal. The only things absent were morality, justice and decency.
Blatham I know the rules of the Geneva Convention and I know the rights of U.S. citizens who are detained by law enforcement personnel. The thing you don't seem to grasp is that neither of these apply to non-citizen terrorists. So a captive terrorist is pretty much at the mercy of his captors
UN experts find evidence of WMD
By Edith M Lederer
10jun04
UN weapons experts have found 20 engines used in Iraq's banned Al Samoud 2 missiles in a Jordanian scrap yard, along with other equipment that could be used to produce weapons of mass destruction.
Acting chief UN inspector Demetrius Perricos disclosed the discovery today in a closed-door briefing to the UN Security Council.
According to the text of his presentation, Perricos said a similar missile engine had been found in a scrap yard in the Dutch port of Rotterdam, while a request had been made to Turkey, which has also received scrap metal from Iraq. The discoveries raise questions about the fate of material and equipment that could be used to produce biological and chemical weapons as well as banned long-range missiles.
Perricos said UN inspectors do not how much material has been removed from Iraq since the war began in March 2003, and suggested the interim government may want to reconsider "the whole policy for the continued export of metal scrap" once it assumes power on June 30.
"The only controls at the borders are for the weight of the scrap metal, and to check whether there are any explosive or radioactive materials within the scrap," he said, according to the text of his briefing.
Afterwards, he told reporters that up to a thousand tons of scrap metal was leaving Iraq every day.
Perricos told the council that UN experts visited "relevant scrap yards" in Jordan and discovered 20 SA-2 missile engines, which are used in Al Samoud 2 missiles. His report did not specify the condition of the engines, or whether they were damaged.
The UN team also discovered some processing equipment with UN tags - which show it was being monitored - including chemical reactors, heat exchangers, and a solid propellant mixer bowl to make missile fuel, he said. It also discovered "a large number of other processing equipment without tags, in very good condition." The UN inspectors in Jordan were told that "brand new material like stainless steel and special alloy sheets" was being sent out of Iraq, he said. At today's closed council meeting, UN diplomats said many members expressed concern about items missile engines and other material that had been monitored by UN inspectors ending up in foreign scrap yards including Algeria, Brazil, Germany, France, Chile, Spain, Russia and China.
Blatham I know the rules of the Geneva Convention and I know the rights of U.S. citizens who are detained by law enforcement personnel. The thing you don't seem to grasp is that neither of these apply to non-citizen terrorists. So a captive terrorist is pretty much at the mercy of his captors
The term and idea of 'unlawful combatant' occurs nowhere in the Geneva Conventions nor in other legal precedent. It is a creation of this administration and has been, as Dworkin notes, widely challenged. Further..."In any case, Article 5 of the Third Geneva Convention, to which the United States is a party, requires that parties convene tribunals to determine whether particular prisoners are entitled to prisoner-of-war status when there is doubt. The First Additional Protocol, which the United States signed but did not ratify, specifies that requirement in much greater detail: it requires that each prisoner be presumed eligible for prisoner-of-war status and allowed to contest any reclassification before a "competent" tribunal. The administration refuses to recognize those further requirements of the protocol, and insists that there is no doubt that those it has detained are not entitled to prisoner-of-war status." (Dworkin)...so perhaps you ought to cease pretending that you are on top of the legal questions here. You have, as the administration has, as every police state has, given yourself justification for all manner of hideous acts of torture and denial of basic rights of humans in any situation, which makes your following sentence laughable. and, for his sake, he is probably pretty glad that the President of the United States and the Attorney General are both devout Christians with considerable scruples about what is humane.
So I ask you....that's YOU Blatham...since we can decide how interrogations will be done and there is no law governing that....if you are in charge and the lives and safety of millions of your countrymen hang in the balance, how tough can you get with a terrorist who has information that might help you protect them?
It's a really simple question. And one I would think anybody should be able to answer without Google.
Of course it isn't a simple question at all. It's a very complex question, but why am I not surprised you want simple again. NOBODY claims as you have just above that there are no laws governing interrogations, not even the administration, nor the military. So why do you type that stupidly uncareful sentence? Why is it that you cannot follow a nuanced argument? You claimed elsewhere that your posts are viewpoints are consistent...they are, and that's not a compliment. I've met few people in my life who are as functionally blind and unreflective as you. Every time your facts or arguments are at risk, you pop up somewhere else like a quantum electron. I'd forgive you most of that except that now you are defending torture even while denying the fact of it when the any child in America would tell you 'yes, that is torture in that picture, and in that other picture, and in that other picture too'. You deny it while people have been beaten to death in 'aggressive questioning'. You deny it because you do not have the moral or spiritual courage to face it.
Your moral values here are despicable. Your arguments are shoddy and your research moreso. It is precisely people like you fox, with your ideological rigidity and the pretence (to yourself) that you and those you consider fellow members of your christian tradition could not be guilty of such evils whose pridefulness threatens to turn America and Christianity into something unrecognizable and vulgar beyond words. Imagine, just imagine, Jesus washboarding you, or smearing you with ****, or shoving a lightstick up your ass and saying "This is justified."[/[/color]quote]
Foxfyre wrote:Blatham I know the rules of the Geneva Convention and I know the rights of U.S. citizens who are detained by law enforcement personnel. The thing you don't seem to grasp is that neither of these apply to non-citizen terrorists. So a captive terrorist is pretty much at the mercy of his captors
The term and idea of 'unlawful combatant' occurs nowhere in the Geneva Conventions nor in other legal precedent. It is a creation of this administration and has been, as Dworkin notes, widely challenged. Further..."In any case, Article 5 of the Third Geneva Convention, to which the United States is a party, requires that parties convene tribunals to determine whether particular prisoners are entitled to prisoner-of-war status when there is doubt. The First Additional Protocol, which the United States signed but did not ratify, specifies that requirement in much greater detail: it requires that each prisoner be presumed eligible for prisoner-of-war status and allowed to contest any reclassification before a "competent" tribunal. The administration refuses to recognize those further requirements of the protocol, and insists that there is no doubt that those it has detained are not entitled to prisoner-of-war status." (Dworkin)...so perhaps you ought to cease pretending that you are on top of the legal questions here. You have, as the administration has, as every police state has, given yourself justification for all manner of hideous acts of torture and denial of basic rights of humans in any situation, which makes your following sentence laughable. and, for his sake, he is probably pretty glad that the President of the United States and the Attorney General are both devout Christians with considerable scruples about what is humane.
So I ask you....that's YOU Blatham...since we can decide how interrogations will be done and there is no law governing that....if you are in charge and the lives and safety of millions of your countrymen hang in the balance, how tough can you get with a terrorist who has information that might help you protect them?
It's a really simple question. And one I would think anybody should be able to answer without Google.
Of course it isn't a simple question at all. It's a very complex question, but why am I not surprised you want simple again. NOBODY claims as you have just above that there are no laws governing interrogations, not even the administration, nor the military. So why do you type that stupidly uncareful sentence? Why is it that you cannot follow a nuanced argument? You claimed elsewhere that your posts are viewpoints are consistent...they are, and that's not a compliment. I've met few people in my life who are as functionally blind and unreflective as you. Every time your facts or arguments are at risk, you pop up somewhere else like a quantum electron. I'd forgive you most of that except that now you are defending torture even while denying the fact of it when the any child in America would tell you 'yes, that is torture in that picture, and in that other picture, and in that other picture too'. You deny it while people have been beaten to death in 'aggressive questioning'. You deny it because you do not have the moral or spiritual courage to face it.
Your moral values here are despicable. Your arguments are shoddy and your research moreso. It is precisely people like you fox, with your ideological rigidity and the pretence (to yourself) that you and those you consider fellow members of your christian tradition could not be guilty of such evils whose pridefulness threatens to turn America and Christianity into something unrecognizable and vulgar beyond words. Imagine, just imagine, Jesus washboarding you, or smearing you with ****, or shoving a lightstick up your ass and saying "This is justified."
June 09, 2004
Apologia Pro Tormento: Analyzing the First 56 Pages of the Walker Working Group Report (aka the Torture Memo)
I have read a redacted copy of the first 56 pages of the Torture Memo (alternate source). The memo ?- or at least the approximately half of it we have ?- sets out a view as to how to make legal justifications for the torture of detainees unilaterally labeled by the government as "unlawful combatants", including (but not limited to?) al Qaida and Taliban detainees in Guantanamo.
Here are my initial comments on some of the main points, especially those regarding Presidential powers and international law. I've concentrated on those parts because those are the relevant issues I think I know the most about; in contrast, I say little here about the direct criminal law issues. I wrote this in a hurry, so please treat these as tentative remarks. I look forward to discussion with other readers, and will post amendments and corrections when they are brought to my attention.
1. The memo begins by noting, accurately, that our international obligations include a commitment to refrain from actions that would be ?'cruel and unusual punishment' under the Constitution. This acknowledgment does not, however, infuse much of what follows.
2. The memo notes that Justice Department opined in a separate memo dated January 22, 2002, Re: Application of Treaties and Laws to al-Queda and Taliban Detainees, that customary international law "cannot bind the Executive Branch under the Constitution because it is not federal law" and in particular clear executive decisions would be "controlling" law that would trump customary international law. [Note: The Jan. 22 memo cited here seems related to the Gonzales memo of Jan 25, but to be a separate document ?- is a copy available anywhere?]
In my opinion, the first part of this statement about customary international law is directly contrary to the Restatement (3rd) of Foreign Relations Law of the United States § 111(1) ?- although I suppose a reasonable person might conceivably disagree. The second part is simply weasel wording: Compliance with customary law is an international obligation of the US, but not always a domestic obligation. It's agreed that Congress can constitutionally legislate in a way that would violate our international obligations, although as a matter of construction courts presume it has not done so unless the Congressional intent to violate international law is explicit. It's not generally agreed the President can do this unilaterally, especially since the Supreme Court declared that "international law is part of our law" in The Paquete Habana (1900).
3. As previously noted by the WSJ, the memo argues (accurately, in my opinion) that the Torture statute, 18 USC § 2340, applies only to conduct outside the US, then it argues (plausibly) that Guantanamo is inside the US for jurisdictional purposes, hence not within the zone covered by § 2340. As I noted previously, this analysis conflicts with the position the US government took regarding Guantanamo before the Supreme Court. (But I actually think the memo has it right, and the US litigation posture wrong.) The memo argues that the two positions can be reconciled, which again is technically correct?-they can be read that way?-but I think it would be wrong to read them that way, and it's certainly not compelled.
4. Then there's a long discussion of what is or isn't torture, with much fine parsing of the torturer's intentions, all of which seems designed to bend over backwards to suggest that hurting people a whole lot to the point of damage is fine if you do it with the right spirit. I cannot bear to summarize all this; it is too painful. I have never seen a better demonstration of the first part of the saying that "the letter killeth, but the spirit giveth life," an ironic property given the identity of the lead author.
5. The discussion of Presidential powers begins (page 20) with the observation that in the exercise of the commander-in-chief function, and in particular in the conduct of operations against hostile forces, the President enjoys "complete discretion". That the President's powers are at their greatest in these circumstances cannot be disputed. But while the discretion is indeed very great, I do not see how it could possibly be read to include the authority to commit war crimes, even pre-Nuremburg. And today it clearly cannot include that authority, at least without explicit Congressional authorization. Thus, the entire discussion of Presidential power is based on a premise so false that any student who has taken introductory International Law should be able to recognize its error. And as any logician will tell you, when you begin with an erroneous premise, you are in trouble.
6. A similar error infuses the paper's discussion of the application of the Torture statute, 18 USC § 2340, to actions on the field of battle or activities ancillary to battle. On p. 21 the paper states that the President's military authority to run a campaign means that the Torture statute "must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority" (i.e. all military interrogations in wartime) because ?- I am not making this up, they are ?- "Congress lacks the authority to under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war." In short, according to this memo, on the field of battle the President's authority is absolute (recall that the English commander-in-chief was an official who reported to George III). "Congress may no more regulate the President's authority to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."
This is clearly wrong on the Constitutional level, and quite probably a bad analogy. It is clearly wrong to suggest that Congress exceeds its authority when it implements an international treaty obligation against torture, even if this has the result of reducing otherwise extant Presidential power. This is because under Article VI of the Constitution, international treaties "shall be the supreme Law of the Land". We've known that this means what it says since at least Missouri v. Holland, if not long long before.
It is generally agreed ?- and I certainly believe ?- that Congress has no role in dictating battlefield troop movements, or the choice of field commanders (as opposed to its constitutional role in approving promotions). Conversely, under the Constitution, if not always in real life, Congress does get to choose who we attack. And Congress does have a say in the methods by which we wage war, both via the spending power and via its constitutionally prescribed role in setting the rules of military justice. If Congress passes a law that says it's a criminal act for a soldier to thumb his nose at a prisoner, or carry a type of weapon, that's a valid law, and the Commander in Chief authority cannot trump it. To argue otherwise is to say that were Congress to decide that we should not make a neutron bomb, as it did, the President could nonetheless decide to make one, and use it on the battlefield. Similarly, were Congress to pass a law that said nuclear weapons could only be used if certain conditions had been met, under the Constitution the President would not have the authority to ignore that limitation.
But that's all beside the point. Even if we were to accept that the President has unlimited authority over the battlefield, it in no way follows that this authority extends to Guantanamo, which is far removed from it. The memo treats this as given. It is anything but given.
Page 23 really goes off the rails, making an argument popular with the Federalist Society, but not taken seriously by mainstream academics, for unlimited, uncontainable, Presidential power. The so-called "unitary executive" argument is set out most clearly in a Harvard Law Review article, Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1155 (1992). My explanation as to why this article is profoundly wrong and dangerous can be found at A. Michael Froomkin, The Imperial Presidency's New Vestments, 88 Nw. L. Rev. 1346 (1994), which in turn sparked separate and not entirely consistent answers from each of the two authors of the Structural Constitution article. My rebuttal article Still Naked After All These Words, 88 Nw. L. Rev. 1420 (1994) is also online.
On pages 22-23 the Walker Working Group Report sets out a view of an unlimited Presidential power to do anything he wants with "enemy combatants". The bill of rights is nowhere mentioned. There is no principle suggested which limits this purported authority to non-citizens, or to the battlefield. Under this reasoning, it would be perfectly proper to grab any one of us and torture us if the President determined that the war effort required it. I cannot exaggerate how pernicious this argument is, and how incompatible it is with a free society. The Constitution does not make the President a King. This memo does.
7. The draft returns to the theme of cruel and unusual punishment around page 35, grudgingly noting that although Gitmo detainees have no constitutional rights since they are foreigners, the US nonetheless can't subject to them to acts that would be ?'cruel and unusual' due to our obligations under the Convention Against Torture. Having said that, the memo notes that what is cruel and unusual is not a hard and fast rule (I'd add "in all cases", since I think some things are per se cruel and unusual), and what is forbidden may depend on the circumstances. Having constructed this loophole ?- which to the extent it exists is not designed to allow coercive questioning ?- the memo then tries to squeeze through it, noting in its Eight Amendment analysis that the "government interest here is of the highest magnitude" (p. 38) and hence things that might be excessive force in other circumstances might not be here. But it doesn't come to any specific conclusions about what's in and what's out.
8. There's an extensive discussion of various criminal and civil statutes that might land a torturer in hot water, but I'm going to skip over those. Similarly, I'm not going to discuss the UCMJ provisions cited on pages 47-51, except to note that the UCMJ is a congressional enactment, pursuant to its constitutional powers. Indeed, as the memo notes, "even in war limits to the use of force exist" and these are enforced by the military justice system.
The memo is ambiguous as to whether it argues that the UCMJ is an infringement of the President's supposed plenary power of the military. Failing to make this argument would expose the flaws in its own reasoning that the President is subject to no legal constraint in his prosecution of a war and in any ancillary activities relating to it. On the other hand, arguing the UCMJ is invalid is obviously nuts. Here's what the memo says on the subject of the President unilaterally overruling the UCMJ (p. 53):
"Legal doctrines could render specific conduct, otherwise criminal not unlawful.
See discussion of Commander-in-Chief Authority, supra.
Oddly, there's no mention of the Constitutionally proper means by which a President could in fact overrule the UCMJ ?- by exercising the Pardon power. (Perhaps it's not so odd ?- unitary executive partisans don't want to admit that the Pardon power is how the President balances Congress's lawmaking power; they'd rather have the President in effect legislate.)
9. The final section of the 56 pages in the version posted online (there's obviously lots of the memo left to be found), discusses the very reasonable rules in fact used heretofore by the US armed forces. Unlike the authors of this memo, the folks on the sharp end eschew physical torture, preferring interrogation techniques that sound a lot like what the cops do down at the station.
10. This memo is labeled "draft". Even so, if the second half is like the first, then everyone who wrote or signed it strikes me as morally unfit to serve the United States.
If anyone in the higher levels of government acted in reliance on this advice, those persons should be impeached. If they authorized torture, it may be that they have committed, and should be tried for, war crimes. And, as we learned at Nuremberg, "I was just following orders" is NOT (and should not be) a defense.
Praise the Lord and Pass the Thumbscrews
It's been pointed out to me (tip of the hat to Bernhard H.) that the team of lawyers who wrote the Pentagon's treatise on presidential torture powers was led by this woman:
U.S. Air Force's General Counsel, Mary L. Walker, discusses what it takes to leave a legacy of significance
Ms. Walker, it turns out, is a long-time Republican political appointee first brought to Washington during the Reagan administration to help oversee the looting of America's natural resources, um, that is, I mean, to serve as principal deputy in the environmental division at Ed Meese's Justice Department.
It also appears that Ms. Walker is a devout Christian - much like her fellow Reagan alum and environmental despoiler, Interior Secretary James "I don't know how many generations we've got until the Lord returns" Watt. And she's the co-founder of a San Diego group called Professional Women's Fellowship, an offshoot of the Campus Crusade for Christ "dedicated to helping professionals find balance, focus and direction in life."
God knows, we all need balance, focus and direction in our lives - and I'd be the last person to criticize Ms. Walker for looking for it in Jesus. As a devoted follower of John Lennon (bigger than Christ, but we won't dwell on that) I'm a firm believer in whatever gets you through the night. It's all right. It's all right.
But knowing what we now know about the subject matter of the Pentagon report, and the legal theories expounded therein, I do have to wonder how seriously Ms. Walker takes her Golden Rule.
At the very least, the report lends a curious overtone to some of the comments in this interview with Walker, which was published on the PWF web site:
Walker: "I wanted to be involved in policy development at the highest level, and lawyers in our society are often involved in shaping policy."
The report: After defining torture and other prohibited acts, the memo presents "legal doctrines ... that could render specific conduct, otherwise criminal, not unlawful."
Walker: "I can't divorce faith from success because God is the foundation for my life."
The report: "Good faith may be a complete defense" to a torture charge."
Walker: "My relationship with God and with others in the community of faith has been central in my life."
The report: "The infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture." It "must be of such a high level of intensity that the pain is difficult for the subject to endure."
Walker:"It helped to find someone who could mentor me and help me see my faith as relevant to the challenges of life and work."
The report:For involuntarily administered drugs or other psychological methods [to be considered torture], the "acts must penetrate to the core of an individual's ability to perceive the world around him."
Walker: "When God is the center of your life and everything you do revolves around His plans for you and the world, then that is when life really gets exciting."
The report:The executive branch [has] "sweeping" powers to act as it sees fit because "national security decisions require the unity in purpose and energy in action that characterize the presidency rather than Congress."
Walker: It's a travesty to be in a place of strategic importance to the world as a business or political leader and not allow God to accomplish the truly significant through you.
The report: To protect subordinates should they be charged with torture, the memo advised that Mr. Bush issue a "presidential directive or other writing" that could serve as evidence, since authority to set aside the laws is "inherent in the president."
And of course, I saved the best for last:
Walker: "Making moral decisions in the workplace where it is easy to go along and get along takes courage. It takes moral strength and courage to say, 'I'm not going to do this because I don't think it's the right thing to do.' "
The report: Officials could escape torture convictions by arguing that they were following superior orders, since such orders "may be inferred to be lawful" and are "disobeyed at the peril of the subordinate."
And so there you have it: Mary L. Walker - Christian, Republican, Patriot, Torture Attorney.
