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September 23, 2012

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Others can confirm but IIRC Jack Bauer ended up standing trial for some of his conduct; that itself seems impossible in today's government's moral vacuity.

But was Bauer's trial presented as a good thing, the correct application of law and justice, or was it shown as the unnecessary meddling of cowards/fools/traitors/nit-pickers?

I trace the attitudes to Iran-Contra, and Oliver North's stirring-yet-disingenuous congressional testimony.

I must admit that I've never been impressed with this agreement among the leaders of nations, that they'll kill each others' soldiers, instead of each other. Seems just a bit self-serving, and a bit hard on the peons, too. (Yes, I understand there are arguments in favor of the norm that don't rely on the self interest of the rulers. I just wonder if they're what sustained it so long.)

it prohibited torture, protected prisoners of war and outlawed assassinations. It distinguished between soldiers and civilians and it disclaimed cruelty, revenge attacks and senseless suffering.

And these values are still part of our law. The policy of the Bush administration was contrary to that, but the policy of the United States now is not. I don't really get the point of Doctor Science's post.

The Civil War, in addition to causing the deaths of more people than any other war in history, was full of atrocities and horror. Wars were fought differently then than they are now. An attempt was made by people of conscience, who weren't pacifists, to establish rules of war that somehow made the conflict more just. We're still struggling with that, and each conflict is different.

Is it really more noble for thousands and thousands of people to be killed on a battlefield than targeting people who are more involved in the decisionmaking?

Linclon was a great man and a visionary. His code of war is one that ought to be adhered to. Torture is a disgraceful activity.

That said, there was ample amounts of torture, murder of civilians and starvation and other forms of maltreatment of POWs during the Civil War on both sides. And all of that continued through the close of the war. So even a great visionary Commander in Chief couldn't prevent these things from happening right under his own nose.

Assassinations, coups d'etats, terrorism etc have also been the norm in American war fighting since the Revolutionary War. Loyalists were not infrequently killed, had their farms burned, that sort of thing. I'm also including back stabbing (literally in some cases) of American Indian leaders in the history of behavior unbecoming......

During the VN war - especially within the Phoenix program - political assassination, torture and terrorism were standard CIA methods (often carried out on the muscle end by the first SEAL Teams).

And Sapient, if you think things have changed under Obama, you definitely need to put the coolaid down. NOW! BHO has, in fact, increased extrajudicial killings - even of American citizens ***suspected*** of terrorist involvement. Heck, even of family members of American citizens suspected of terrorist connections.

"Is it really more noble for thousands and thousands of people to be killed on a battlefield than targeting people who are more involved in the decisionmaking?"

No. It's not. If someone is a decision maker for a declared enemy of the US then that person should be a fair target. Theoretically. Practically, it is not always the best policy because sometimes you need someone with whom to negotiate a surrender and who can organize the people - especially the military - of that country accordingly. But this is a separate issue from torture. Torture and assassination need to be and to remain parsed out.

Of course the US had not limited assassinations to those who were integral to a declared enemy's political infrastructure. The US has also directly and indirectly assassinated those who were merely an ideological nuisance or a potential hindrance to some interest party's schemes.

"I have never had the luxury of trusting my government, but I've never managed to stir up much genuine rage over it either. It's simply the way the world is."

This is a pathetic statement. Yet, I suspect it is as honest as it is ubiquitous.

So, while the US has always engaged in atrocities, I see the open acceptance - and at least occasional outright applauding - of torture and assassination and drones patrolling the world's skies as yet another symptom of the increasing crass egocentrism (brought on by a breakdown of class structure for mass marketing purposes) of our culture on the one hand and the abject cowardice of the ever growing lot of pampered ego coddled liberal arts college types on the other.

I guess the governemnt controlled corporate media plays a big role here as well.

"The Civil War, in addition to causing the deaths of more people than any other war in history..."

You mean American deaths, right?

You know that WW2 killed between 60 and 80 million people, right?

Actually revised figures show WW2 resulting in about the same number of American deaths as did the civil war.

Yes, Blackhawk12, American deaths. I have no doubt, as a child of a WWII veteran, that the World Wars were even more horrific than the Civil War. My point was this: we're still struggling with trying to figure out how to solve international problems (horrible, violent ones) in a way that is just, and that doesn't punish the innocent. I know all about Obama's policies, and each of the situations you mention needs to be (and has been on this blog) discussed. Things have improved dramatically since Bush.

People don't like to count the dead - it seems so obscene - but, in fact, the death count means something. The Iraq war killed over a million. The drone war? Not so many. Should we be killing anyone? Should we countenance deaths of our own people by others? These are questions that have to be wrestled with.

War reveals the worst of people, said my father the veteran. Yet he was not a pacifist. Sometimes war is necessary, but we'll always struggle with making it just.

I must admit that I've never been impressed with this agreement among the leaders of nations, that they'll kill each others' soldiers, instead of each other. Seems just a bit self-serving, and a bit hard on the peons, too.

Sometimes, I'll be reading something on the internets, and the casual ignorance on display will just knock me to the floor. Like this for example.

Historically, a great many leaders have sought the assassination of their counterparts. But leader assassination does not generally replace war; oftentimes, it births war. Consider the assassination of a certain arch-duke Ferdinand, which lead directly to World War I. More recently, consider the assassination of President Habyarimana of Rwanda, which lead directly to the Rwandan genocide which in turn caused (or strongly contributed to) the ongoing war in the Congo.

I'm sure a great many leaders have convinced themselves that, like Brett, their problems would be solved if only they assassinated the right leader. But in practice, conflict doesn't work that way. Remember when Al Queda disappeared after we killed Osama bin Ladin? How all Iraqi resistance disappeared after Saddam Hussein was driven into hiding (or was executed)?

Doc, I've often heard the code described as the Lieber code, rather than Lincoln's code. I believe that it became the basis for the Geneva Accords.

I also have no idea if people in the military or defense establishment had the same experience, when it happened, and whether they deliberately jettisoned Lincoln's code or if they just kind of forgot about it.

I think some parts of the government (like the CIA) never bought into the Liber code to begin with. Others bought into it, but in a somewhat shallow way that disintegrated wit 9/11 or Iraq.

I mean, we've always insisted that we have the greatest military on Earth: the most technologically sophisticated, with the bravest soldiers and the most intelligent officers. Everyone just knows that. But in Iraq the greatest Army humanity has ever known was incapable of putting down resistance from a bunch of criminals and ex-officers from a third rate impoverished army. They keep trying to win, to impose some order, to establish control, but they keep failing, day after day, month after month, year after year. So what do you do when obviously inferior people keep beating, a member of the greatest army humanity has ever seen? You get creative. You start buying off insurgents with cash and weapons since you can't defeat them. And you start disregarding the Geneva conventions by torturing people. Or you look the other way while others do. What else can you do? Your fellow soldiers are dying all around you.

I don't really get the point of Doctor Science's post.

Are you surprised, ashamed, or appalled that apparently many are "going over to the other side"? I believe that is the question she is asking.

Wars were fought differently then than they are now.

Alas, no...they are not. cf Iran-Iraq war of the 1980's.

When I read about the debates concerning torture and other atrocities in the Philippine "Insurrection" it sounded very modern. At the time when I was reading about such things the obvious comparison was not to Iraq, which hadn't happened yet, but to Vietnam and what we'd been supporting in Central America. I think it's always been like this--some Americans think we should be able to do whatever we want in wartime and opposition is unpatriotic, and others think the opposite, though the relative numbers of people in each category may vary somewhat, depending to some degree on which political party is in the White House.

But I think we are in one of the down cycles as far as our moral values are concerned. The Republican politicians have openly joined the dark side, and some Democrats only get worked up when it is a Republican doing something wrong and anyway, it's all just a policy choice, not something to be investigated and referred to the criminal justice system. But that's not new either. Here's an old (1998) article in the Atlantic about our bipartisan support (under Carter and Reagan) for death squads in El Salvador--

link

There was more ambivalence under Carter, perhaps, and his ambassador was outspoken, but all the same, we funded the Salvadoran military and Reagan, of course, continued that policy. And to be fair, (something I learned from reading one of Greenwald's columns), the Democrats in Congress actually started calling our policies in Central America "terrorism" during the Reagan era. (I don't know how they felt about it during Carter's last year in office.)

I think things will change on the day that some high-ranking Western official is arrested and charged with war crimes or support for war crimes or terrorism or whatever. In the meantime I will keep a sharp lookout for flying pigs.

Would murdering Iranian nuclear scientists count as terrorism, btw? Someone has been doing it. NBC claimed last February that the MEK might be responsible, with help from Israel, while Seymour Hersh apparently reported (I haven't checked Glenn's link) that the US was training the MEK some years ago. MEK denies that they're doing anything currently.

NBC link

Lots of American politicians have been paid a lot of money to lobby for them to be taken off America's terrorist organization list (which is sort of a farce anyway). And so they have.

There are some other points to consider, I think. I'm not sure if these mitigate, explain, softpedal, whatever, but I do think they need to be considered.

First, our definition of cruelty has expanded since Lincoln in a number of ways. First of all, a large number of Americans might have considered that the Moro rebels in the Phillipines were, as non-whites, not entitled to the same protections that white folks were.

Also, more people now countenance a much wider range of behaviors as cruel. In Robert Hughes A Fatal Shore, he talks about the various punishments meted out to convicts there. One was being chained to a small sandstone island that was in the middle of Sydney Harbor on starvation rations, with boats going out to tease whoever was there. We look at pictures of Nazi concentration camps with horror, but the Union prisoners from Andersonville don't look much different from the victims of Auschwitz and it is notable that the overcrowding that led to this treatment began when Lincoln demanded, after the Fort Pillow massacre, that black Union prisoners be treated the same as white prisoners.

Also, more people now expand their definition of problematic treatment. This is from the NPR on the FMU hazing (where a drum major was hazed and subsquently died)

But for the same reasons that they allow themselves to be hazed, which is that they don't want to be ostracized, they really want to belong to these organizations and teams, they allow themselves to participate, whether it be directly or indirectly, in the hazing practices moving forward.

And to answer your question directly, yes, there is an escalation of hazing when we see it happen, not only from person to person in terms of class years, but also something that starts as small -- you had asked a question earlier about defining hazing.

And we can give you very technical definitions, but it exists on this very broad spectrum of the kinds of incidents, everything from what might be low risk in terms of a physical danger, but to a high risk of a physical danger.

You know, wearing a diaper to the cafeteria, low risk possibly, but maybe a very high risk in terms of the mental or emotional damage that it could cause. And so that's a component that most people haven't considered. They look at hazing and they think about the physical aspects and the damage that that can cause.

having prisoners stand on a box while blindfolded and told to hold wires with the (false) threat of electrocution (the iconic Abu Grahib photo) is psychological torture and most people hopefully recognize that. However, in terms of proof and in terms of physical injuries, it is as the NPR report says 'a component that most people haven't considered'.

Second, there is a transfer of torture in terms of ideas etc. The Guardian's discussion of Oliver Stone's new movie is interesting in that regard

Stone has a terrifying and convincing thesis as to why the film has to be set in America, with American characters: "The point," he says, "is that wars come home, they come home to roost. And there are connections: one of the two main guys has come home from Afghanistan and Iraq, and he's brought all that with him, what I think are new levels of cruelty and combat technology we have out there."

He drives his theme: "Of course, humankind has always been cruel – the Third Reich and so on. But I think there are new levels of cruelty, new technologies now, a new ball game. Maybe I'm wrong, but the cruelty level in the world just went up in these recent wars. We get a lot of information about what's happening in Iraq, the Middle East and Afghanistan, which comes back to America with this guy. And who knows how this may influence what's happening in Mexico – I think it probably does."

It's a shocking but cogent point about the nature of the violence, and its arrival into our public domain. Stone cut his teeth in Vietnam, where images of violence (the famous girl on the bridge burned by napalm; and scenes from Stone's own films and past as a veteran) were supposed to shock us – and did. Now, in reality, all that has volte-faced: the Zetas relay their own atrocities on the web as recruiting posters, and in Stone's film, to parley with their proposed business partners. It has been posited before that the Zetas got their ideas for torture and execution videos from al-Qaida, who in turn respond to souvenir photos taken by American troops of their own abuses in Abu Ghraib. Stone, typically, hurls us to the logical, heretical, conclusion.

"This Middle East thing brought it to another level. The barbarism came back in a big way, and it was Bush who started that. It all began with Afghanistan and Iraq. The guy in the movie brings it home; and the cartel brings it home."

I quote the whole thing, but rather than focus on Stone's suggestion that it was 'Bush who started it', I'm more interested in thinking about how the there is some sort of transfer with torture technology and ideas. Stone's movie has this scene described

Stone treats us to the execution of a suspected snitch, hung by his wrists and whipped until he confesses (even though he is innocent), after which he is incinerated alive with a tyre around his arms and torso, running in wild circles to his death. During the scene, there's a moment of mastery: the soundtrack, the cackling laughter of those watching.

That invocation of the tire is, I think, from South Africa in the 80's and termed 'necklacing'. Wikipedia cites it being practiced in Rio among drug cartels in the 2002. Perhaps it is an independent innovation, but the dates suggest that it was picked up.

This isn't to be blasé about torture by suggesting that it has always been with us, but more to suggest that while the rules set down by Lieber are important, they weren't a simple curative for these problems, but that civilizing man is something that requires constant effort and vigilance.

Well, under Bush there was a major move to hide torture and other "un-American" behavior under the guise of "National Security". BHO has accelerated this type of govt secrecy.

Some people will do all kinds of heinous acts when they think no one will know about it and they won't get caught. The CIA profiles prospective spooks for exactly this psychological profile.

"Sometimes, I'll be reading something on the internets, and the casual ignorance on display will just knock me to the floor. Like this for example."

Yes, well, sometimes I'll be reading along, and the casual assumption on somebody's part that their views are so obviously right, that any disagreement with them must stem from ignorance, will just floor me, too.

It's an astonishing world.

This isn't to be blasé about torture by suggesting that it has always been with us, but more to suggest that while the rules set down by Lieber are important, they weren't a simple curative for these problems, but that civilizing man is something that requires constant effort and vigilance.

Thanks, lj. I agree with this.

Congress could write laws to stop this stuff, any time they want.

cleek: Congress could write laws to stop this stuff, any time they want.

You know, I'd like to think so, but not sure I do anymore.

What amazes me is the calm, perhaps resigned, reponse to the Iraq war. A war cynically and dishonestly started to influence domestic politics, sold to Americans on disinformation, resulting in I don't know how may deaths--a million?--and another unknown number of people driven into poverty and exile.

WHere's the outrage?

I don't even feel particlularly outraged myself. Maybe I have outrage overload; the monstrous evil of the Bush administatioin being just to much to respond to.

I rember a good deal of outrage over AbuGraib. Some of it was rightwingers outraged becaue they didn't want to believe it but a lot of it was people just feeling sick because they thought American soldiers representing America should do better than that. They felt ashamed. I can repsect that reaction becuase it shows a sense that our standards should be high enough to exclude the sorts of behaviors that happened at Abu Graib.

It would be nice if our standard were high enough to preclude letting ourselves be bamboozled by war fever into fighting wars we don't need to fight, but I'm afraid that tendecy is too deeply embedded in human charactrer to be avoided. It isn't a uniquely American character flaw.

I'd feel better, too, if we Americans were capable of looking at our collective bad behavior--like fighting unnecesary wars-- and feel some shame and learn from the experience, but that's not the pattern I see. The parttern I see is that many Americans try to forget the unpleasant memory of the war, and many of those who do remember it rewrite history to justify the war and concoct blame fantasies agsint their fellow Americans to avoid facing up to any mistakes made during the war. That's how we, as a group, handled Viet Nam.

more to suggest that while the rules set down by Lieber are important, they weren't a simple curative for these problems, but that civilizing man is something that requires constant effort and vigilance.

This seems...unhelpful.

If you had taken a member of the US Army circa 1999 and told them "hey, I know you guys talk about the Geneva Conventions, but the truth is, you'll blow them off in a heartbeat once you're in a war that's going badly for you; all your precious ideals and moral commitments will turn to ash, not just for individuals but for the institution as a whole", I think that they'd argue with you.

I'd guess that they would (justifiably) feel enraged, because being a part of a "good" military organization is a key component of their identity. American soldiers of my acquaintance took pride in the fact that they were more than thugs with guns but were part of a group that have very strong institutional norms about the GC and torture; that even if a few bad apples screwed up, the rest of the institution would recover and punish them.

But our hypothetical '99 solider would be wrong. Not only did individuals break the rules, but they did so at the behest of the institution, and there were no punishments of consequence. So why was our soldier wrong?

1. is it because this whole hypothetical is offbase? that US military personal in the late 90s didn't believe that the US military would adhere to the GC?

2. or is it that US military folk did believe that but they were just incredibly naive?

3. or maybe they believed that but since then there's been substantial turnover and the military is now staffed with people who have radically different ideas about the acceptability of torture?

Either way, it seems like there's been a change and I think explorations of why and how that change occurred would be more helpful than bland truisms that civilizing man is a task that's never complete.

Either way, it seems like there's been a change and I think explorations of why and how that change occurred would be more helpful than bland truisms that civilizing man is a task that's never complete.

Well, get to it, then. Thanks in advance!

hsh, see the last half of my 10:00pm comment and the three hypotheses posed in 10:43am comment.

Turbulence, I don't think that most military personnel today think torture is ok.

I do think there may be a slightly higher % likely to engage in torture today because 1. They have actually been in combat and some have developed a dehumanizing hatred for a very foreign enemy that hates them, has tried to kill them and has successfully killed some of their buddies. This has happened before, as in the pacific in WW2. 2. Think about the Milgram experiments - some up the chain of command have been authorized to utilize torture (this is where Bush becomes responsible) and they order those under them to perform it. Orders are carried out.

You know, I'd like to think so, but not sure I do anymore.

they can certainly (in theory) pass an Amendment, which would stomp-out any argument the Executive branch might be able to make against a plain-old law.

i'm not saying it's likely, of course, just that there are mechanisms in place which could permanently stop all the things people here are complaining about.

otherwise, we're going to be eternally hoping that the people we elect president are strong enough of character to overpower the "national security" argument: that this guy will be the one to dismantle all the tools and unlearn the techniques that his predecessors have devised. and we will be eternally disappointed.

You know, I'd like to think so, but not sure I do anymore.

They don't seem to have tried. At all. Trying and failing would be one thing, but if you don't even bother to try, maybe it is because you just don't care....

I do think there may be a slightly higher % likely to engage in torture today because 1.

OK. But then why was Anthony Taguba's career ended? If investigating torture means that your career is over, well, then the institution seems very comfortable with torture, right? And that's not really compatible with a slightly higher percentage.

If you want to argue that the senior officer corps is rotten but the lower echelons are great, I'd be sympathetic, but you'd have to make the case.

Think about the Milgram experiments - some up the chain of command have been authorized to utilize torture (this is where Bush becomes responsible) and they order those under them to perform it. Orders are carried out.

I thought the whole point of the military is that the lower levels don't follow orders blindly and in fact refuse to perform illegal orders. If you think that our military culture is such that soldiers will do whatever they're told, no matter how illegal, then torture might be the least of our problems.

I remember reading a piece by the actor Richard Dreyfus, talking about how his father had tortured Nazi officers in the field, with a knife, to get information out of them.

IIRC it was also not-uncommon for WWII guys in some places in the Pacific theater to keep Japanese body parts (including skulls) as a trophy or souvenir.

Waterboarding was used by Americans in the field during the Phillipine uprisings after the Spanish American war.

Torture of VC, not uncommon during Vietnam.

The big difference since 9/11 is the establishment of torture as an official instrument of US policy, complete with extensive legal justification courtesy of the OLC.

My understanding is that Obama has ruled out waterboarding, specifically, but my understanding is also that a number of other 'enhanced interrogation' protocols are still available and in use.

So, perhaps an improvement over Bush, but the goalposts have still moved pretty far from previous to 9/11.

The US, as a nation, freaked the hell out. We have not yet gotten our heads back together, and likely will not in any time frame that I can foresee.

John Yoo engaged in a public conversation in which he asserted the President's right to crush the testicles of the male child of someone suspected of terrorism. He retains his position as a professor of ConLaw at U.C. Berkeley.

That's the state of the art.

The 'bland truism' was just an attempt to try and end the comment on some sort of note without trying to provide a particular answer. I'm not sure if people have gotten worse, or if we had these categories of people that weren't thought of as people before but now are.

At any rate, you are comparing the 1999 soldier with the 2012 soldier, but the OP was comparing the state of affairs in 1862 with today, and Donald specifically mentioned the Moro rebels in the Philippines insurgency, points I was trying to address. Placing the change between 1999 and 2012 on the background of the change between 1862 and 2012 makes it difficult to discuss precisely what change we are talking about.

To take a whack at causes for the more recent slide, certainly, lowered recruiting standards and multiple deployments play into this, as has the grind of counter insurgency, just as it did in Vietnam. There were several articles noting the linkage between stateside prisoner treatment and what happened at Abu Grahib (circa 2004) There was also several exchanges in the Congressional committees concerning questions of psychological torture, iirc, asking about exposing prisoners to spiders and snakes if they had a fear of them, which suggests that we don't have a consensus about psychological aspects of torture (the articles that have been discussed here about solitary confinement come to mind).

My comment was trying to encourage some discussion of those points without trying to sound dismissive of torture, though comparing an ideal image of what some folks hold the armed forces to be with the current situation of standing insurgency that has lasted longer than WWII doesn't really get at anything enlightening here, I think.

Russell suggests that the point is the adoption of torture as policy, and if that was what Doctor Science was getting at, I apologize for misreading, but I thought that the discussion of 24 and our general attitudes towards torture was what she was getting at.

Trivial sidenote: the Philippine "insurgents" that the US was fighting - and torturing - up through 1902 were not "Moros" (Muslims of the southern Philippines) but (Christian) Filipinos, who had declared their independence under Aguinaldo in 1898 and saw the USA try to take this away from them from 1899 onward, resisting the US in what is now referred to as the "Philippine-American [or Filipino-American] War," rather than the "Insurgency" or "Insurrection." This is the era of documented waterboarding (the "water cure").

The "Moro" conflict in the south didn't really get going until later, after the Americans had captured Aguinaldo (1901) and "pacified" most of the lowland/Christian Philippines (1902-3/4/5?). It had its own share of atrocities, notably the Bud Djago massacre of unarmed civilians (cf. Wounded Knee?), before the USA imposed its rule firmly.

None of which affects any of the arguments above, I believe.

"OK. But then why was Anthony Taguba's career ended? If investigating torture means that your career is over, well, then the institution seems very comfortable with torture, right? And that's not really compatible with a slightly higher percentage."

It's the top brass that ends careers; not enlisted and filed grade officers. I was referring to the latter, which, of course, constitute the vasy majority of the military.

"I thought the whole point of the military is that the lower levels don't follow orders blindly and in fact refuse to perform illegal orders. If you think that our military culture is such that soldiers will do whatever they're told, no matter how illegal, then torture might be the least of our problems."

Uh, the military trains the lower levels to follow orders blindly. Yes, there is a provision that allows for an illegal order to be disobeyed, but that instinct is drilled out of many personnel and, even for those who still have it, it can be a career killer move, even if the order was illegal. Politics, politics and bureaucracy.

"If you want to argue that the senior officer corps is rotten but the lower echelons are great, I'd be sympathetic, but you'd have to make the case."

Look, no lower echelon troop can torture a pow, especially not a high value pow, without orders from above. They'd be in the brig and then off to Leavenworth otherwise. BTW....There is no way that what happened at Abu Graib could have happened without the top sanctioning it. No way.

I think society's attitude toward torture has changed. That the enemy are fanatics, attacked the US, hate us, fight a "dirty" insurgency using suicide bombers, kill women and children, are generally crazy islamists, etc, etc makes it easier for society to shift to a more accepting position on torture.

Then we have a general shift in society to a more barbarous outlook; gangsta rap, tv and fim glorifying violence more than ever before, young people with tattoes all over their bodies and piercings through their noses, lips and other sensitive areas, military personnel as "warriors" instead of citizen soldiers.........there's a whole shift to the primitive mentality, of which torture of ones enemies is a norm.

""cleek: Congress could write laws to stop this stuff, any time they want."

You know, I'd like to think so, but not sure I do anymore."

It would take a Congress in which both chambers were sufficiently determined to stop this stuff, to go ahead and impeach the President after he violated those laws. With each administration, Presidents get more casual about violating laws; We're evolving into a dictatorship, inch by inch.

Mainly because Congress finds it too much work to actually do their jobs.

russell: John Yoo engaged in a public conversation in which he asserted the President's right to crush the testicles of the male child of someone suspected of terrorism.

I was going to mention this in response to cleek's note that Congress could put a stop to things if it wished. Even if they reported out a Constitutional amendment, they'd need the states to go along.

Turb: They don't seem to have tried. At all. Trying and failing would be one thing, but if you don't even bother to try, maybe it is because you just don't care....

I agree with this. My guess is we will never see anything like the Church Committee again (or even the Iran-Contra hearings), as the National Security ratchet seems to only go one way these days.

Congress seems to have lost respect for itself as a co-equal branch of government. Instead, they're either for or against whatever the President wants to do, based primarily on party affiliation.

"I thought the whole point of the military is that the lower levels don't follow orders blindly and in fact refuse to perform illegal orders."

I don't know what "the whole point" refers to, but where did you get this impression? Is this a normative statement or descriptive one?

My impression is that the lower levels DO follow orders blindly.

Just adding my two cents to the Congress/President thing, yes, maybe that is what has changed. At one time Congress seemed to take its oversight responsibilities seriously at least some of the time. I think Kennedy did an investigation into civilian casualties in Vietnam (not sure, but I think so.) There was a lot of (sometimes not reported) questioning done by Democrats in Congress of Reagan's Central American policies. There was the Church investigations into the CIA.

Imagine Congress investigating the torture policies of the Bush people. Wouldn't happen, anymore than Obama was willing to do it. I don't think it's a question of blaming one branch and absolving the other--they are both responsible and both have failed.

re: Brett Bellmore

Clausewitz discusses assassination at length, and comes to the conclusion that it's counterproductive, since the enemy leadership is the only force in enemy society which can sign a peace treaty. For example, if the US had killed Emperor Hirohito in WWII, no other authority could have ordered the later Japanese surrender, and considerably more lives would have been lost.

Clausewitz is studied in most military officer training courses, so his point of view is hardly obscure.

re: main post

Lincoln may have approved those rules of combat, but he also approved Sherman's offensive. Hypocrisy is ubiquitous in war.

Hypocrisy is ubiquitous in war.

principles are those things which your enemy, by virtue of not having any, forces you to give up in order to defeat him.

My understanding is that Obama has ruled out waterboarding, specifically, but my understanding is also that a number of other 'enhanced interrogation' protocols are still available and in use.

So, perhaps an improvement over Bush, but the goalposts have still moved pretty far from previous to 9/11.

Unless you talk about specific "enhanced interrogations," and find one that is a moved goal post, I don't think that the goal posts have moved. The Bush regime was an anomaly. Obama has repeatedly stated not only that he opposes water boarding, but that torture is not allowed. If he's countenancing "enhanced interrogation" that is tantamount to torture, someone should describe it in more than just offhand terms.

Actually, I'd like to note that the Lieber code was rather old-fashioned. It was just a recitation of the customary law of war that had not changed for more than a century. Mainly, the fact that putting such thing into writing was necessary, shows that the Union forces were not ingrained in the military culture of their time. A continental career officer simply knew these things.

The main function of Lieber code was a domestic one: it provided the confederate soldiers with the same rights as the soldiers of a civilized independent nation-state. By the contemporary international and domestic law, the confederate military personnel would have been liable for execution as traitors and rebels.

However, the Hague conventions of 1907 included a very important qualification in the list of persons with the privileges of the lawful combatant:
The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.
In Lieber code, these persons would have been considered guerillas liable for summary execution.

This was an important development. The nationalist ideologies saw such spontaneous uprising as a national duty of the population. Thus, persons engaging in such act were honourable lawful combatants.

"Hypocrisy is ubiquitous in war."

But hypocrisy's sincerity during war is so much more thrilling than the pretense of peace.

"Clausewitz discusses assassination at length, and comes to the conclusion that it's counterproductive, since the enemy leadership is the only force in enemy society which can sign a peace treaty.....


Yes. That is what I said.

..........however, terrorist leaders are a different story. As was Saddam, apparently. This was an interesting op (Iraq2). It was a more an attempt at coup d'etat executed on a massive scale. Some weirdo neocon newthink.

Here's an op ed in the NYT from January 2010 that says there are still loopholes that allow abusive interrogations by the US--

link

Obama has repeatedly stated not only that he opposes water boarding, but that torture is not allowed. If he's countenancing "enhanced interrogation" that is tantamount to torture, someone should describe it in more than just offhand terms.

This is a very good point.

My understanding is that interrogation, for all agencies (i.e., military, FBI, CIA) is now limited to what is allowed in the US Army Field Manual.

As Donald's link notes, that still allows for some treatment that can be considered abusive, but it very arguably falls short of any form of torture, and falls *well* short of what was permitted under Bush.

IMO goalposts have moved in other areas - detention, surveillance, etc. - but I believe my comment upthread overstated the tolerance for anything approaching torture in the Obama regime.

In other words, I think my statement upthread was wrong.

We're evolving into a dictatorship, inch by inch.

This sort of seems a little overwrought at first glance, but IMO it has real merit.

I'm not sure if dictatorship, specifically, is where we are headed, but I certainly agree that we are headed in directions other than republic.

Some of the possible abuses under the current system could amount to torture, I think. Whether they are actually occurring now I don't know. Also, this article was over 2 years old and I don't know the current situation. I'll cut and paste the last few paragraphs from my link--

" some interrogators feel the manual’s language gives them a loophole that allows them to give a detainee four hours of sleep and then conduct a 20-hour interrogation, after which they can “reset” the clock and begin another 20-hour interrogation followed by four hours of sleep. This is inconsistent with the spirit of the reforms, which was to prevent “monstering” — extended interrogation sessions lasting more than 20 hours. American interrogators are more than capable of doing their jobs without the loopholes.

The Field Manual, to its credit, calls for “all captured and detained personnel, regardless of status” to be “treated humanely.” But when it comes to the specifics the manual contradicts itself, allowing actions that no right-thinking person could consider humane.

The greatest shame of the last year, perhaps, is that the argument over interrogations has shifted from debating what is legal to considering what is just “better than before.” The best way to change things is to update the field manual again to bring our treatment of detainees up to the minimum standard of humane treatment.

The next version of the manual should prohibit solitary confinement for more than, say, two weeks, all stress positions and forms of environmental manipulation, imprisonment in tight spaces and sleep deprivation. Unless we rewrite the book, we will only continue to give Al Qaeda a recruiting tool, to earn the contempt of our allies and to debase our most cherished ideals.

"Whether they are actually occurring now I don't know. Also, this article was over 2 years old and I don't know the current situation. "

Editing is a good thing, something I should try. I meant that I don't know whether people are actually being tortured by the US right now (my first point) and I also don't know if anything has been done regarding the Field Manual. Two separate issues.

civilizing man is a task that's never complete.
The ancient Hebrews used the metaphor of the Tree of Knowledge of Good and Evil to describe this - we should be able to make these decisions, we know the difference between Right and Wrong.
So why is it, several thousand years later, we are still struggling with this?
Interesting discussion, thanks, Doctor Science.

why is it, several thousand years later, we are still struggling with this?

Pathei mathos

This gift of Zeus to mankind [the gift is the ability to learn from suffering] is not a Christian gift, like a salvation offered to all men ... nor is it a Modern gift, like a self-evident truth that we all share equally as birthright; it is a gift as understood by the classical Greeks, to whom the bad were many, the good few. This point emphasizes not that wisdom comes to all men but rather that [wisdom comes] always against men's will.

Mind, Obama doesn't have to have people tortured by American forces, so long as he has allies like Kuwait to outsource the work to. I'm afraid the change in administration only involved a lesser degree of transparency in torture. (As in all else.)

Thanks, russell, for acknowledging my defense of Obama. I want people who try to get credit.

I am totally opposed to policies of government that countenance torture and inhumane treatment of prisoners. Period.

So why is it, several thousand years later, we are still struggling with this?

We should always be struggling with this. We will probably always have war. How to deal with a basically inhumane concept in a way that preserves elements of morality and human dignity is one of the great issues. We could similarly ask why, several thousand years later, we're still dealing with issues of forbidden love. It's because we're human.

Thanks, joel hanes. Saw that too late to respond.

Bush tortured - Obama kills.

Pathei mathos

Aeschylos:

But even as trouble, bringing memory of pain, drips over the mind in sleep, so wisdom comes to men, whether they want it or not. Harsh, it seems to me, is the grace of gods enthroned upon their awful seats.

I find this one of the truest things ever written.

I'm not a classical Greek, and have a somewhat different understanding of the workings of grace, I guess, so for "the grace of gods enthroned etc." I would probably just substitute "reality".

But yeah, humans are stupidly, mulishly, incorrigibly stubborn, and in general only come to something like wisdom through difficulty and pain.

Unfortunately, it's a process that has to be repeated anew with each generation.

I can't think of a political regime in the history of the world that has been able to wield the arts of torture fairly, justly, or sanely, and without abusing them for their own self-interest and aggrandizement.

I suspect that it's the nature of torture, in and of itself, that makes it impossible for anyone to do so. It's a poison pill.

Folks who think that suddenly we will be able to do so because we are The Good Guys are, in my opinion, out of their freaking minds. They are divorced from plain and obvious reality.

What makes a people and a nation fair and just is acting fairly and justly. What makes a people and a nation respectful of human rights is respecting human rights.

"They did it first" and/or "they do it too" is the argument of a two year old.

Deeds, not words. There is no shortcut.

Deeds, not words. There is no shortcut.
My momma told me "You can make your mouth say anything." She is really smart.

What makes a people and a nation fair and just is acting fairly and justly.

No argument here. I guess the eternal question is what is fair, and what is just?

I'm not a pacifist, so I have to wrestle with what is fair and what is just. My father helped defeat Hitler. His actions (very much putting his own life on the line) was fair and just. I will not second guess that. And although maybe (?) I'm happy to turn the other cheek against al Qaeda, I'm not going to turn my neighbor's cheek. It's not fair and just to let them kill innocents.

sorry for the inability to make verbs and nouns agree.

Lurker @ 3:20 pm:
" Mainly, the fact that putting such thing into writing was necessary, shows that the Union forces were not ingrained in the military culture of their time. A continental career officer simply knew these things."

Of course they weren't ingrained with contemporary military culture. Most Union officers and soldiers were volunteers or draftees, and not career military. When state volunteers mustered up it was common practice for the new unit to elect its officers. There were even generals with no prior military experience who were commissioned for political reasons.

From what I have read, there were a couple of forces that worked together to produce torture. First was the fact of fighting a shadowy non-uniformed groups that we knew little about. When your friends outside the wire are being killed and the guy in front of you might know something that can stop that from happening there is enormous psychological pressure to start cutting corners. Discipline and support from the commanding officers is needed to curb the temptation to torture. This is something that was all too often lacking. This attitude came straight from the top, since IMO Bush and many of his advisers frankly were a bunch of bullies and so were disposed to tolerate roughing the bad guys. I expect the comparisons of Abu Ghraib to college hazing were perfectly sincere; they also proved less than those interlocutors thought given that college hazings occasionally kill people. Then there was the use of private military contractors. Where PMCs fit into the command structure was vague at best, which made it even harder to keep them disciplined.

There are some practical problems with prosecuting the bastards who so richly deserve it. First is that since the Republicans are primed to start a shitstorm over the issue, seriously pursuing prosecutions would divert large amounts of attention from the bazillion other problems Bush left us. Next are the damn torture memos. Yes, they are BS that has since been repudiated, but when they were in force you have guys getting orders to torture along with an official legal memo saying that the orders are legal. Military contractors rear up again. Not only was their chain of command nebulous, it was unclear what legal jurisdiction, if any, they were working under.

so I have to wrestle with what is fair and what is just.

All well and good, but let us see some evidence of this "wrestling". I mean, our Founders fought a prolonged bloody war over a frigging tax 'fer christ's sake. How just was that? Was the blood shed worth it? If Palestinian rights are routinely stamped on by Israel, why can they not resort to violence? Why is their violence 'worse' than Israel's?

And please. The innocent? Really? You want to add up the bodies? The West loses by a very big margin.

I do not mind a good debate about policy, but the repeated and mindless invocation of, "Look over there. Terrorists! They kill innocent people. Therefore our hygienic form of violence due to our possession of overwhelming resources is morally superior," just doesn't cut it.

Try something else for a change. Please and thanks.

And please. The innocent? Really? You want to add up the bodies? The West loses by a very big margin.

Not sure I agree with that, unless you want to lump the Iraq war (which Obama, and I, and almost everyone I'm defending opposed).

And, yes, the experiment of the American Revolution was worth it. bobbyp, I often agree with everything you say, but not this. It's easy to slam any civilization in history for its foibles.

Was history worth it? Don't know. We're here, and now. And I spend a good deal of my life being grateful and happy. And I'm not part of the 1%.

If Palestinian rights are routinely stamped on by Israel, why can they not resort to violence? Why is their violence 'worse' than Israel's?

And, yes, I agree with you there. I think there's an effort going on to recognize the rights of Palestinians. If you don't see that in the political debate right now, you're not looking.

heckblazer, I think you're totally right when you say:

First is that since the Republicans are primed to start a shitstorm over the issue, seriously pursuing prosecutions would divert large amounts of attention from the bazillion other problems Bush left us.

As to the Israeli/Palestinian issue: bobbyp: if you really think that any President has the option of coming out full force in favor of the Palestinians, then please do tell us how that would work politically. We don't live in the land of Oz. I appreciate a lot of what you say, but maybe you should go back to FDL or somewhere as to this subject.

If you don't see that in the political debate right now, you're not looking.

When gazing in wonder at our political elite's so-called 'discussion' of the plight of the Palestinians, I observe no such debate. Feel free to correct me.

It's easy to slam any civilization in history for its foibles.

Yes. It is easy. But I wrestle with the blood on my hands every time I enter a voting booth. After all, my taxes help fund acts which I consider heinous. Fortunately, I don't have to vote every day.

We don't live in the land of Oz.

Yes. Sad but true. I guess those lines in the Declaration of Independence about pledging one's life and sacred honor just don't have the cachet they once had.

Perhaps that is the point of the Good Doctor's post as you inquired about above.

Regards,

"And, yes, I agree with you there. I think there's an effort going on to recognize the rights of Palestinians. If you don't see that in the political debate right now, you're not looking."

Oh, some of us look. It's darn near invisible and when something pops up, like at the Democratic convention, it gets pushed back down. I recall Obama siding with Netanyahu when the PA tried to obtain recognition at the UN last fall. This fall the PA is deliberately going low key at the UN so as not to irritate the US before the election. Sort of pathetic, really.

Maybe Obama will do something if he wins. Maybe not. He got little support from either party for what little he did try his first term and folded. Romney's comments on the video regarding the Palestinians showed his contempt for them (similar to his attitude towards the 47 percent), but his proposed policy isn't all that different in reality from the bogus peace process we've had for decades. When things get tough we're going to side with Israel and blame the Palestinians, even if some President might get a little testy with an Israeli PM from time to time. Why should the Israelis withdraw hundreds of thousands of settlers from the West Bank? Who is going to pressure them to do it? The 2SS is looking about as unrealistic as a secular democratic single state with equal rights for all. The Palestinians should expect nothing from us except some platitudes, some lectures about the evils of terrorism, and maybe some US-made munitions dropping on their heads from time to time.

"There are some practical problems with prosecuting the bastards who so richly deserve it."

True, but you know, I just can't imagine the US government under either party getting serious about prosecuting any Western officials for war crimes, let alone US officials. What President would want that precedent set? Prosecuting whistleblowers is another story. No Administration appreciates them. Torture, unjust wars, supporting death squads, terrorist groups (excuse me, freedom fighters) etc.... Been there, done that, will do it again, can't criminalize policy differences, time to move on. It's easier to unite around the need to bomb foreigners than to be honest about our own record.

going off on the tangent of I/P relations, this from Haaretz was interesting

@cleek-
"principles are those things which your enemy, by virtue of not having any, forces you to give up in order to defeat him."

Classic. Do you know if you're related to La Rochefoucauld?

However, as to Congress maybe making a law to stop all this: Since 1994 the law of the United States has made it explicitly illegal, an any time or place, under any conditions, to engage in torture, with the circumstances in which there may be exceptions to the rule enumerated as follows:

"No extraordinary circumstances whatsoever"

This is, of course, the 1988 UN convention against torture, ratified by the U.S. Sentate in 1994.

And anyone who doubts that this became and now is the supreme law of the land really needs to re-read his or her Constitution (mutatis mutandis for our non-US readers). It will do you good.

One hates to belabor the point, but our enemies seem to have succeeded all too well in convincing the masses that there is no such law in force.

(If you're the kind of crackpot who claims that the Supreme Commander is not bound by the covenant from which, exclusively, he derives his power, I'll not waste my time arguing with Yoo.)

But then, as to Congress doing anything to follow up and put teeth in this (as the existing supreme law of the United States requires) -- well, OK, no argument there.

Bush tortured - Obama kills.

Bush didn't kill?

Under the Bush administration one got the impression that torture to a degree became a goal in itself with highly successful information gathering at times aborted in favor of torture (and not always because the info gathered otherwise was 'inconvenient' because it contradicted the current policy justifications). And at least in the rhetorics I think I caught glimpses of the Roman principle that mandated torture for certain groups* and made evidence non-admissable in court unless it could be proven that the suspect had been properly tortured.
There were also strong hints of 'if we can legally torture, then we can do anything. So let's set precedent!'.

*slaves in particular. It was legal doctrine that (untortured) slaves always lie in court

Hartmut: "Under the Bush administration one got the impression that torture to a degree became a goal in itself..."

Well, sure. Because those DVDs of tortured prisoners was how Cheney got his jollies.

It's pretty bad when national policy is set by who has the freakiest kinks on the Cabinet.

As for passing a constitutional amendment against torture, wouldn't that be redundant? I have a vague, dim memory, something about "cruel and unusual punishment". But perhaps that was a dream, some archaic leftover of a bygone age.

You want to stop torture? Torture right-wing Republians. Like Terry Nichols. I'm sure that he could give up more co-conspirators, if given the right incentive.

Why not start with the 'I am not a witch' lady? ;-)

(Christine O'Donnell not Connie Booth just to be ckear)

As for passing a constitutional amendment against torture, wouldn't that be redundant? I have a vague, dim memory, something about "cruel and unusual punishment"

in the mind of Scalia, at least, that doesn't apply because torture is not punishment; nobody has been convicted of anything; it's coercive, not punitive.

There's a new study out on drone strikes. Glenn has a summary, but here's a link to the study itself (pdf file)

link

"And anyone who doubts that this became and now is the supreme law of the land really needs to re-read his or her Constitution (mutatis mutandis for our non-US readers). It will do you good."

Living constitution. You can't bring a constitution to "life" and have it live only the way you want. Doesn't work that way. You set things up so the parts of the Constitution you don't like won't be enforced, the parts you do like won't get enforced either.

Mechanisms for defeating a constitution aren't that selective.

What does "cruel and unusual punishment" mean, Brett?

Ever notice how it's always the one same clause, every time?

The argument against living constitutionalism isn't that the entire Constitution is perfectly unambiguous. It's that it isn't ALL ambiguous. You can't just point to one clause that practically screams out, "this is a judgement call", and use it as an excuse to treat the entire document like a Rorschach blot.

"Cruel and unusual" demands the exercise of judgement. But I know this: It's not elastic enough to permit water boarding.

What does "Commerce with foreign Nations, and among the several States, and with the Indian tribes" mean, Phil? Growing something in the garden in your back yard?

The argument against living constitutionalism isn't that the entire Constitution is perfectly unambiguous.

Oh, but it is, Blanche, it is!

Brett skrev:

You can't just point to one clause that practically screams out, "this is a judgement call"

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

This is a judgement call.

Brett, I'd love to know how to distinguish which parts of the Constitution are judgement calls, and which are not. If you have a rubric or a dichotomy for this distinction, please say on.

Bush didn't kill?

Of course he did.

What the phrase refers to is Obama having figured out that the whole torture business is tedious, ineffective and bad press, while instead simply killing "the bad guys" is a much easier sell.

Except for the sociopathic contingent of society everybody is squeamish about torture, but you can have even "progressives" hail you as a strong leader who is tough on terror if you just kill "those people down there" instead*. Because then the usual marketing of "it's war, so people get killed - tough, but that's life" works again.

(Not that the US has stopped torturing, it's just been relegated to the shadows again.)

*(and a lot of innocent bystanders, see Donald's link).

"Brett, I'd love to know how to distinguish which parts of the Constitution are judgement calls, and which are not. If you have a rubric or a dichotomy for this distinction, please say on."

Well, just look at that paragraph you quoted: Essentially every word in it has a clear and objective meaning, allowing you to parse it on a machine like level. No opinions called for.

"Cruel"? Almost pure opinion. "Unusual"? You could give it a statistical gloss, but still opinion. Compared to the 8th amendment, the paragraph you cited is practically computer code.

The problem with living constitutionalism is that, having taken ambiguity as a license to attribute to a clause any meaning you think would be a good idea, rather than a mandate to do further research to find what the people at the time it was ratified thought it meant, the living constitutionalist is faced with an incredibly strong incentive to see everything as ambiguous. The originalist faces no such incentive, because ambiguity just implies more work, rather than empowering you.

The whole school of interpretation is basically a training ground for sophists, competing to see who can do a more extreme job of rationalizing.

Which is why what I grow in my garden is subject to regulation under the interstate commerce clause: The interpretation of the clause has been cut almost completely free from the clear denotation of the words.

Once you set up a system like this to empower the rulers and render a written constitution futile, don't be surprised if it renders the parts you might happen to like futile, too. Like the 8th amendment. Once again the left forges a weapon to use on it's enemies, and finds it's enemies can wield it, too.

Once again the left forges a weapon to use on it's enemies, and finds it's enemies can wield it, too.

yeah, "the left" invented tactical interpretation of ambiguous rules. nobody had ever done that before "the left" came up with it.

Which is why what I grow in my garden is subject to regulation under the interstate commerce clause

What do you want to grow in your garden that is subject to federal regulation under the interstate commerce clause?

I think your overall point here is not without merit, however I'm puzzled by this example.

Sensimilla?

Brett's thinking of Wickard v. Filburn, I believe.

Hey, lookie who's trying to ban political speech! (HINT: NOT "THE LEFT.")

a mandate to do further research to find what the people at the time it was ratified thought it meant,

and having gone back in time, having read the minds of the people who wrote the law, and having discovered that they were deliberately ambiguous (for political, practical or parsimonious reasons), what should an originalist do?

Hey, lookie who's trying to ban political speech!

oh now, let's be fair. he's only trying to ban the speech of those he disagrees with. we have no evidence that he doesn't favor free speech for everybody else!

A quote:

“We simply can’t have a setup where the teachers unions can contribute tens of millions of dollars to the campaigns of politicians and then those politicians, when elected, stand across from them at the bargaining table, supposedly to represent the interests of the kids. I think it’s a mistake. I think we’ve got to get the money out of the teachers unions going into campaigns. It’s the wrong way for us to go. We’ve got to separate that.”

This line of reasoning might apply to some other groups or institutions, I'm thinking. I'm sure Romney will apply it consistently.

Funny. I'm not...

He's actually got a point concerning the incestuous relationship between unions and politicians during negotiations. But censorship is not the answer.

Oaxacan

Threadjack....oh, what the hell...

He's actually got a point concerning the incestuous relationship between unions and politicians during negotiations.

Please distinguish clearly the criteria for assessing the "incestuousness" of the relationship between politicians and any other organized group having an economic stake in the political outcome.

From the piece on Romney and teachers' unions:

We simply can’t have a setup where the teachers unions can contribute tens of millions of dollars to the campaigns of politicians and then those politicians, when elected, stand across from them at the bargaining table

This is a man with a serious lack of self-awareness.

I'd think you a bit more serious yourself, if instead of denying the problem with unions negotiating with politicians they helped elect, you generalized it to business, too.

I'd think you a bit more serious yourself,

Sorry Brett, I'm can't tell if you are dinging Russell for a lack of seriousness, complimenting Romney on his seriousness or none of the above. I'm also thinking that you need to be a bit more specific about how unions are different that business (I'm not saying they are not different, so please don't yell 'mask slippage!!') cause I may disagree or agree with the points you make, but can't do so until you actually make them.

I think "generalizing it to business" is exactly what russell did, but one has to be a native English speaker to really see it.

You can generalize it to business if the business is government owned. I guess Government Motors comes pretty close.

Well, I play at being a native English speaker, though being over here for 20+ years, I find my skills deteriorating at an alarming pace. But, I guess what I want to know what 'generalizing it to business' actually means. Is Brett postulating some public/private split, and saying that unions are public entities? Or is it the fact that businesses make money that is the dividing line? Or is it the amount of money that is donated? Furthermore, does he think that Romney's suggestion was serious and if so, how is it implemented?

I'd be surprised if there was some thought behind it, but I live to be surprised.

I'd think you a bit more serious yourself, if instead of denying the problem with unions negotiating with politicians they helped elect, you generalized it to business, too.

LOL, I didn't realize this was directed at me.

My position on this, of some long standing, and documented at great if not tedious length here on ObWi, is that people, which is to say real live individual human people, have the right to engage in political speech.

No other entity deserves the constitutional right to engage in political speech. Full stop, with a cherry on top.

I'd extend that to groups of individual people and only individual people who organize themselves into a properly qualified corporation for the sole purpose of engaging in political speech, and no other purpose.

That would exclude both unions and for-profit corporations.

If the past is any predictor of the future, you (Brett) will now weigh on about how corps are really just big groups of people, Seb will weigh in on how a change of that sort will mean the end - the absolute end - of organized issue advocacy, and if Farber is still around he'll explain about how the freedom of the press requires a corporate right of free speech.

To all of which I'm happy to say f*** it, I'll take my chances.

I'm fine with unions having ABSOLUTELY NO constitutionally protected right to engage in any form of political speech, as long as the same prohibition extends to for-profit corps (and probably most other corporate forms).

We've been around this maypole eight bazillion times, so maybe we can just all acknowledge that we differ on this point and leave it at that.

My point about Romney, in case it actually needs unpacking, is that he's happy to deny the right to engage in political speech to unions, but doesn't seem to see the FREAKING OBVIOUS parallel to for-profit corps.

So, a lack of self-awareness.

Or, in other words, what Phil and hairshirt said.

I continue to be amazed at Romney's general lack of a clue in any form. It astounds me that the man had a successful career in business, however I do understand that venture capital is a pretty specialized little world.

I'd think you a bit more serious yourself, if instead of denying the problem with unions negotiating with politicians they helped elect, you generalized it to business, too.

Sorry Russell. I believe this was lobbed at me. Oh! My! Brett, your mask is slipping!

No, actually it was directed at Russell.

"But, I guess what I want to know what 'generalizing it to business' actually means."

Public unions negotiating with politicians they helped elect are in an incestuous position. They are helping to elect their only customer. A business which was similarly situated, (The local government is it's only customer.) would be in an equally incestuous position if it were dedicating a large fraction of it's revenue to local politics.

But censorship is never the answer. Yes, businesses, AND unions, are made up of people. There's nobody else there to censor.

The problem here is that, however positive you might in principle think the effects of a particular type of censorship would be, in practice it's going to be conducted by people who face a freaking huge conflict of interest: Incumbent politicians. It's just not worth it.

"The problem with living constitutionalism is that, having taken ambiguity as a license to attribute to a clause any meaning you think would be a good idea, rather than a mandate to do further research to find what the people at the time it was ratified thought it meant, the living constitutionalist is faced with an incredibly strong incentive to see everything as ambiguous. The originalist faces no such incentive, because ambiguity just implies more work, rather than empowering you."

But everyone does this, including so-called "originalist" jurists. Their originalism stops exactly at the point that it leads to a conclusion they don't like.

I'm beginning to understand Joe Paterno's quandary a little better.

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Whatnot


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