What the heck is Hindrocket smoking?

I don't mean to beat up on Hindrocket of Power Line, but his portrayal of the objections to elevating Judge Gonzales to AG is simply bizarre.  The objections to Gonzales do not consist solely of disagreements with Gonzales' alleged conclusion that the Geneva Convention does not apply to "enemy combatants" in the service of "pseudo-states," as Hindrocket writes.  (We could simply call them terrorist groups, but nooooooo.)  Indeed, though such conclusions are hardly "unassailable," the main objection to Gonzales' elevation to AG is his apparent involvement in the so-called "torture" memorandum.

For those who have been in a coma and/or distracted by the Minneapolis Star Tribune's latest outrage, the torture memo is the memo that resulted in headlines like "Torture Memo Key Hurdle for Gonzales" (Tampa Tribune).  It's also the memo that defined "torture" under 18 USC §§ 2340-2340A as:

[E]quivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.

Incidentally, the torture memorandum's legal analysis -- which consisted of ignoring relevant authority in favor of irrelevant authority -- was indefensible, whether performed by an experienced DOJ lawyer or a first-year associate.  (See this, this, this, this, and this, among many others.)  Its legal conclusion wasn't so brilliant, either.  Indeed, the DOJ has rescinded memo, effectively repudiating its more outlandish claims.

It's not anti-conservative (or anti-Republican, or anti-American), to be against torture.  As I've written before, one also needn't accept the false choice between legalizing torture or prosecuting hero-cops who defuse a ticking atom bomb by slapping around the captured atom-bomber. Nor is it wrong to ask why the President's lawyer apparently signed off on a crappy legal analysis.  Indeed, one might call that question fairly important and on-point, given that Gonzales has been nominated to the AG post.

I realize the tendency is to rally 'round your man, but this is ridiculous.  Obscuring the issues in dispute and calling legal arguments "unassailable" when they ain't -- well, the nicest thing I can say is that it's not a positive thing for the public good.  I hope Hindrocket does better next time.

Comments

[praktike]

He won't do better next time.

You see, Mr. Hinderacker is what we call a "slavering rightwing hack." You will never see him deviate from the party line.

[Katherine]

Do not get me started on John Yoo. He's like, my personal arch-nemesis. (Of course, like most of my arch-nemeses, he's not aware of my existence.)

It's kind of funny to read his argument that "to pretend that the Geneva Convention applies to Al Qaeda, a non-state actor that targets civilians and disregards other laws of war, denies the reality of dramatic changes in the international system", because just last night I was reading his argument that the Convention Against Torture cannot apply extraterritorially to transfers of Al Qaeda prisoners because it's pre-empted by Geneva.

grrr. arr. Of course he actually wrote the Bybee memo so this is not surprising.

It's kind of funny that the staunchest defenders of the laws against torture have been members of the U.S. military, and the person doing his best to find loopholes in them is an "ivory tower academic" at Berkeley of all places.

There have been reports that Kennedy and Durbin were urging a filibuster (my current and future senators), but they clearly didn't succeed and it's not clear that the aide who said they'd tried knew what he was talking about...regardless, I am such a huge Dick Durbin fan. I give him more credit than anyone for the surprisingly strong Democratic opposition to Gonzales.

current predictions: 64-36. Party line vote for the GOP. Jeffords votes no. Democratic defectors: Ken Salazar, Joe Lieberman, Ben Nelson, Bill Nelson, Kent Conrad, Tim Johnson, and 2 to be named later.

And if you drink a shot everytime a Republican senator blatantly plays the race card, you will be in real danger of alcohol poisoning.

[bob mcmanus]

"Gonzales' alleged conclusion that the Geneva Convention does not apply to "enemy combatants" in the service of "pseudo-states," as Hindrocket writes."

Well, we had another recent court decision, which surprised me, for I though the issues had already been decided.

But the concept that there can be a class of human beings in this world who have no legal protections whatsoever ("Psuedo-states" ?? are there people who do not have citizenship somewhere?) is to me vastly more important than torture.

The torture was really only possible because of the "enemy combatant" designation.

[hilzoy]

Bob: there are people who are stateless, and are citizens of nowhere. Some Palestinians, at least before the PA (does it have the power to grant citizenship?).

von: great post.

[Josh]

Hey, did you trackback to the Powerline post you linked, von? I'm curious to see what their response would be...

[hilzoy]

Josh: I emailed them about mine, which was up ages ago, and no response yet. Maybe von will do better, though.

[CaseyL]

But the concept that there can be a class of human beings in this world who have no legal protections whatsoever ... is to me vastly more important than torture.

Especially when you put it next to another Gonzales 'finding': that there is a class of human being (i.e., President of the US) who has no legal restraints whatsoever.

In "A Man For All Seasons," Thomas More - who has fallen from favor by opposing Henry VIII's break with the Church and divorce from Catherine of Aragon - advises Thomas Cromwell (the king's newest, and most pliant, legal advisor), "Don't tell the king what he can do, but rather what he should do." Later, when More is facing trial for high treason, he notes that Cromwell did exactly what More advised against: told the King he could do, legally, whatever he wanted.

I wonder, considering their long history together and how Gonzales has enabled Bush every chance he got, if Gonzales fancies himself a kingmaker in the style of Thomas Cromwell.

[liberal japonicus]

But the concept that there can be a class of human beings in this world who have no legal protections whatsoever ("Psuedo-states" ?? are there people who do not have citizenship somewhere?) is to me vastly more important than torture.

This seems to me to be the fundamental question of globalization and foreign relations now. At the risk of getting called on a Godwin violation, the idea that people have no protections because of their lack of membership within a group is precisely the line of thinking that the Nazis employed. At every step, the legal mechanisms were put in place and used to have jews declared as non-citizens, and therefore outside the protection of any country. link These steps, I believe, were also taken in the lands that the Reich had conquered, so as to provide the legal foundation for the treatment of Jews.

As hilzoy notes, there are stateless people. The number is estimated between nine">http://www.refugeesinternational.org/content/issue/detail/4835">nine and ten million (that last link is a pdf) While they are not in the uniquely dangerous position that Jews were (owing to the long history of Western antisemitism), but are in danger whenever a scapegoat is needed.

[von]

Hey, did you trackback to the Powerline post you linked, von? I'm curious to see what their response would be...

Powerline's trackback doesn't appear to be functioning. I'll send an e-mail.

[Jesurgislac]

Katherine: It's kind of funny that the staunchest defenders of the laws against torture have been members of the U.S. military,

I think it's pretty reasonable. Not only are they in a position to know the difference between interrogation and abuse (and hence, not to defend abuse as a means of interrogation), they're also the group of Americans most likely to directly suffer if the laws against torture are as relaxed as Gonzales (and, one must presume, President Bush) would like to make them.

[LizardBreath]

Military training on torture is also (wildly generalizing from the one ex-military guy I talk to about this) very sound. I've got a very Republican, Bush-supporting buddy who spent 20 years in the army before going to law school, who I argue with about politics a lot.

He has a hard time discussing the torture issue, because he has such a thoroughly ingrained knee-jerk response to it: "No. It's just wrong. Doesn't matter if there's a ticking nuclear bomb, it's just wrong." I (generally as horrified by the torture stories as anyone could be) find myself taking the devil's advocate position: I think the ticking-nuke exception is irrelevant to any real world discussion, because it is so unlikely to occur in the form that would actually justify torture (ticking nuke, certain knowledge that you had a guilty party with the information necessary to disarm it), but in that wildly unlikely situation, I would probably agree that a torturer should be pardoned. My buddy, on the other hand, while he can follow the argument justifying torture in the ticking-nuke scenario, can't accept it: he's stuck on the ingrained "it's just wrong" that he was trained on.

I've got to think that this kind of training is both incredibly useful for making correct decisions in the field: "Hmm, am I justified in torturing this guy under these circumstances? Let me check this against my training: No. Pretty much under any circumstances, no." And even for military lawyers analyzing the situation, having that kind of ingrained revulsion has got to assist them in reaching anti-torture conclusions.

[LizardBreath]

Goddam. I even previewed that, and the last two sentences are still all confused. Really, I can write grammatically on paper -- there's something about comment boxes that messes me up. But what I meant is reasonably clear, I think.

[Nell Lancaster]

Katherine said: It's kind of funny that the staunchest defenders of the laws against torture have been members of the U.S. military

In addition to the reasons for this cited by other commenters, there is the huge contradiction between the practice of torture and the deep military value of honor.

Beyond the pragmatic concern of what will happen to captured U.S. soldiers by others if the anti-torture laws are flouted. It's what the practice of torture will do to those practicing it.

[Katherine]

I just meant that it's at odds with the stereotype. If you think about it of course it makes perfect sense.

My race card prediction was really, really accurate. Here's the best response I've seen"

"Orrin Hatch thinks Hispanics are offended by seeing someone questioned about the quality of his work?

New stereotype: Latinos give bad advice to presidents. "Go back to Mexico, you purveyor of legal theories of questionable merit!"

[hilzoy]

Katherine: it was really interesting, to utterly civilian me (I know vets, but all from my Dad's generation when there was a draft, and none of them liked military service), to talk to a lot of serious, committed career military people during the Clark campaign. And one of the first things that hit me -- it shouldn't have surprised me, it's obvious once you think about it, but I never had -- was that while everyone I know was changing their views and learning lessons from the Vietnam war, so were they. And as I got to know them, I found the way they had been thinking about it, and their real moral seriousness, extremely impressive. I was against the Iraq war to start with, but the -- ? -- timbre of my opposition altered in response to them. Because here were these people who had devoted their lives to the task of rebuilding an army that they loved after it practically came apart in the aftermath of Vietnam, and they had worked so hard and done it so well, and they were watching everything they had worked for be just thrown away, and the sort of catastrophe that they had spent all this time trying to help the army recover from be repeated, and they were just very quietly but very, very deeply appalled. And there's something about seeing people who I really admire, for whom the idea of opposing the Commander in Chief goes against every grain they have, in this state, that just broke my heart.

[Jesurgislac]

from Jeanne at Body and Soul:

I'm sending each of the sleazy six [the Democrats who voted for Gonzales] a copy of this article by Sister Dianna Ortiz, who was tortured in Guatemala fifteen years ago, so they can have a better sense of what they voted for.

Figured Charles Bird and others who plan to campaign actively against Gonzales, and Bush for appointing him, and the Senators who voted for him, would find these links useful.