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February 08, 2008

Comments

"IAAL, although not a criminal lawyer, and I'm having a hard time thinking of a criminal context in which advice of counsel would be a defense. It's not my area, so I'm unsure, but I'm not coming up with much offhand."

It's only a plausible defense for a crime that's malum prohibitum (wrong b/c illegal), but not for a crime that's malum in se (wrong b/c immoral). (Alternatively, it's a perfectly legitimate way of arguing that you lacked a relevant mental state, though whether or not the argument flies is context-specific.)

Re: Wesley Snipes. The "advice of counsel" defense doesn't apply to a lot of criminal law (nor do most arguments that turn on a subjective evaluation of mental state), but tax law is definitely a major exception, largely based on the fact that the tax code is so complex that no mortal could hope to understand it and thus act with a culpable mental state (at least as I understand the doctrine). I can go find a case cite for that if you like, but it's certainly true.

Cucamber: So, is it an improper conflict of interest for the same DOJ to give advice to the executive, and to pursue prosecutions against members of that same executive? Should there not be at least a mini-DOJ under another branch of government that can pursue the executive? Or is that not what the legislature is supposed to do?

Traditionally, the Office of Legal Counsel (OLC) is supposed to advise the President, and the DoJ is supposed to be largely independent. That hasn't been the case under this Administration. That's why that chart that Sheldon Whitehouse showed during the Gonzales hearings showing the massive increase in points-of-contact between the White House and the DoJ was such a big deal, though few people got that since it's kind of an abstruse point.

That is, of course, just the tip of the iceberg -- for example, the White House also ordered the D.C. U.S. Attorney not to pursue contempt citations against people invoking executive privilege (Harriet Miers, Karl Rove), which is just unheard of. (See how that whole appointing-attorneys-for-political-reasons thing can actually make a difference?)

Prosecuting the Executive is problematic no matter what the situation, though, largely because of the pardon power -- see, e.g., Scooter Libby. But that's not the issue here -- we're talking about starting the investigation at all, not making the consequences stick. What this comes down to is the way the Bush Administration has compromised the independence of the DoJ. It's really without precedent. Totally unreal.

In theory, the way this is supposed to happen is that there's a Special Prosecutor appointed (Starr for Clinton, Fitzgerald for Libby, etc.) who's delegated the authority to investigate without direct interference. The basis for that authority is the Accardi doctrine -- which is the bedrock of U.S. v. Nixon -- which essentially establishes that once a governmental authority has agreed to be bound, it can't revoke that authority retroactively.

That's why Nixon couldn't extinguish the power of the Special Prosecutor once he's already given it away -- though the DoJ is an Executive agency, once it 'gave up' enough of its power to enable the investigation, it basically wasn't theirs (the DoJ's) to take back anymore. Make sense?

Adam's 9:59 is right, tax law is generally an exception to the "advice of counsel" defense, based upon SCOTUS precedent, IIRC (which is noted in the linked article, I now see). Also, note that the sanctions usually imposed on tax protesters and their attorneys are for arguing that the tax was not legally imposed in the first instance, and have little bearing on a defense in criminal proceedings, as the "I didn't know it was illegal" defense is available in the tax law.

IOW, courts are much more willing to impose additional monetary penalties on tax protestors in a case filed by the gov't only for back taxes, as opposed to a criminal case where constitutional are more prevalent.

if the Justice Department were sufficiently corrupt or compliant -- and does anyone want to argue that it wasn't, under Alberto Gonzales? -- the administration could do whatever it wanted without worrying its little head about the law.

Lodging a protest against the past tense in this sentence.

I'll reserve judgment about 'corrupt', but the DoJ is every bit as compliant now, under Mukasey, so I'm not sure why this sentence focuses on Gonzales. I mean, isn't that the reality that occasioned this post? An Attorney General whose stated position is that if the President orders it and the AG is willing to go along, then it's the law... how can you describe that as anything but compliant?

However, given the precedent established at Nuremberg, I must warn you that an international tribunal would very likely be rather more hostile to your argument. They would likely be even less sympathetic to a CIA employee, or God forbid, a Blackwater contractor accused of torture.

This is incorrect. (a)The comparison to the Nazi doctors in totally inapposite. (b) There is no international court that would hold this. The only plausible tribunal is the ICC, which insulates individuals from prosecution so long as they are tried under the laws of their own country. There is a small outside change that a Blackwater contractor might be trouble. There is not a ghost of a chance (no pun intended) that a CIA employee would be.

The course of international law since 1945 has been pretty clear on war crimes. George Bush ignored this at his -- and our government employees' -- peril.

The only kernel of truth to this post is that the ICC does, in fact, require that the defendant's country investigate and prosecute them in accordance with their own rules.

Ironically, by refusing to investigate, the DoJ could well be relinquishing that pre-emption defense, which is additionally bizarre because it's the single biggest hole in the ICC.

Contrary to what Mukasey says, the DoJ should be prosecuting and investigating. There is no rule preventing them from finding that the CIA employees were following orders and thus released from culpability. This whole argument is asinine. If a police sniper shoots someone amidst a hostage crisis -- even under oblique orders -- the fact that they were acting under orders isn't a reason to not investigate, or to say that we'll never investigate situations where the police shoot anybody, ever. That's an insane argument. It's just an ironclad defense for the office. That's it.


--And von, the "it wasn't illegal at the time" defense here isn't "estoppel." It's the Constitutional prohibition on post ex facto laws. (You probably know this, I imagine, but it is an important distinction.)

Italics begone!

Consider the first paragraph of my post above a quotation from Hilzoy's post; my coments begin with 'Lodging...'

Um, sorry about the italics tag. I tried to close it...

Nell, you seem to be reading some sort of implication that because Hilzoy referred to past events, that she was somehow therefore making a distinction as regards more recent and current events. I don't see any grounds for that in what Hilzoy wrote.

Nell, I think the distinction is pretty straightforward. Gonzales consistently maintained that there was no problem, which at least preserves some pretense of plausible deniability, despite the fact that he was clearly lying. Mukasey, on the other hand, is simply saying that they don't care. From a rule-of-law standpoint, the difference is huge.

Okay, protest withdrawn; I read too much into the sentence. Sorry, Hilzoy.

I'm hypersensitive to the suggestion that Mukasey has one shred more integrity than Gonzales, particularly since his views on the president as dictator were known before his confirmation.

Thanks so much, Sen. Schumer.

I'm hypersensitive to the suggestion that Mukasey has one shred more integrity than Gonzales

Well, at least he's telling the truth -- so under some given definition of "integrity," that counts, I guess.

Personally, I agree with John Dean's assessment of Gonzales:

"Frankly, I have a degree of sympathy for Alberto Gonzales, who I suspect is a terrific Texas real estate attorney."
(You know, John Dean — Nixon's White House Counsel. The man does know what he's talking about.)

According to the Los Angeles Times
(link via truthout http://www.truthout.org/docs_2006/020808B.shtml>link)
the White House now officially declared waterboarding a legal procedure that could be used again, if the situation warranted it.

It's only a plausible defense for a crime that's malum prohibitum (wrong b/c illegal), but not for a crime that's malum in se (wrong b/c immoral). (Alternatively, it's a perfectly legitimate way of arguing that you lacked a relevant mental state, though whether or not the argument flies is context-specific.)

Adam, this distinction is not relevant to this discussion.

Re: Wesley Snipes. The "advice of counsel" defense doesn't apply to a lot of criminal law (nor do most arguments that turn on a subjective evaluation of mental state), but tax law is definitely a major exception, largely based on the fact that the tax code is so complex that no mortal could hope to understand it and thus act with a culpable mental state (at least as I understand the doctrine). I can go find a case cite for that if you like, but it's certainly true.

This distinction is. The principle that you enunciate (correct mental state), however, is not peculiar to tax law. It is a general principle of the criminal law. As a matter of fact, however, it is most often used in areas of law that where decision makers place great reliance on legal advice (tax, securities, etc.)

I'm not interested in hanging a handful of CIA guys from the nearest yardarm to make the point that we abhor torture. Making it clearly and unambiguously illegal and, as an explicit matter of policy, something we don't do, will satisfy me just fine.

....

It is, IMO, way, way, way more important that a clear limit to executive authority be affirmed than that illegal conduct be given a pass on some principle of "fairsies". I mean, *way* more important.

We actually agree here, Russell.

--And von, the "it wasn't illegal at the time" defense here isn't "estoppel." It's the Constitutional prohibition on post ex facto laws. (You probably know this, I imagine, but it is an important distinction.)

I chose to use the term "estoppel" because I was very hesitant to assume that the prohibition on "ex post facto" laws is relevant. The prohibition is, after all, in Article I (applying to Congress, not the Executive Branch/DOJ) and reads "No Bill of Attainder or ex post facto Law shall be passed." (Emphasis mine.) I don't read that as applicable to the DOJ, although I allow that Courts may have so applied it.

Adam and others: to support my point that advice of counsel "defense" is not limited to (and frequently invoked outside of) tax law, please see here: http://blog.kir.com/archives/000470.asp.

Here's another from the civil law context (patent law): http://www.patentlyo.com/patent/2006/12/inducement_requ.html. (Incidentally, for you patent lawyers out there, Patently-O is an invaluable resource.)

I freely admit that the advice of counsel defense will not be as applicable where the law at hand does not expressly include an intent element. But it is relevant here, because the issue is whether the relevant individuals intended to cause "severe physical pain or suffering" and the individuals who conducted the acts had an opinion from the OLC stating that (a) these terms had a particular meaning in the law and (b) waterboarding an individual did not cause "severe physical pain or suffering". So, the relevant question is: did the alleged torturers intend to cause "severe physical pain or suffering" within the meaning of the statute in light of the OLC opinion stating that they were not doing so?

It's not obvious to me why relying on legal advice that waterboarding doesn't cause "severe physical pain or suffering" is any more reasonable than relying on legal advice that a Jew is not a person because "person" has a particular meaning under the law. Where is the line drawn?

It's not obvious to me why relying on legal advice that waterboarding doesn't cause "severe physical pain or suffering" is any more reasonable than relying on legal advice that a Jew is not a person because "person" has a particular meaning under the law. Where is the line drawn?

That's a fair response (the answer to "where is the line drawn" is probably "by a jury of one's peers, case by case").

To return to my original point: AG Mukasey had two very good, and related, reasons for stating that he would pursue prosecutions against those who participated in the waterboarding of terrorists suspects: the fact that such individuals were authorized in thier actions by a DOJ opinion, and the injustice of the DOJ authorizing conduct and then reversing itself to prosecute the same conduct. These reasons are ignored by Hilzoy's criticisms of Mukasey. Accordingly, Hilzoy's criticims, and ensuing hyperboyle, are not particularly credible. The criticisms of Mukasey are particularly unwarranted (at least on the given basis).

Note, however, that none of the above absolves other administration officials of responsibility. Nor do they condone the referenced DOJ opinions. Moreover, and most importantly, none of my comments on this thread is an endorsement of waterboarding or past Administration policy. (I think my record on waterboarding = torture is quite clear, but I don't assume that everyone is familiar with my record.)

Aargh. "To return to my original point: AG Mukasey had two very good, and related, reasons for stating that he would [insert: not] pursue prosecutions against those who participated in the waterboarding of terrorists suspects:"

AG Mukasey had two very good, and related, reasons for stating that he would pursue prosecutions against those who participated in the waterboarding of terrorists suspects: the fact that such individuals were authorized in thier actions by a DOJ opinion, and the injustice of the DOJ authorizing conduct and then reversing itself to prosecute the same conduct.

So, because criminals in the Department of Justice opinionated that it would be legal for Americans to torture terrorists, it would be improper for the DoJ to prosecute those who obeyed this illegal order? How, then, is the US ever to clean itself of being a torture nation? If torturers can't be prosecuted because they were told they had authorization to torture, and the people who gave that authorization can't be prosecuted because...?

I perfectly see why Bush's Attorney General will not commit himself to prosecuting people who committed torture: at those trials, the people who committed torture would in justice to themselves be able to say "I was shown authorization from so-and-so saying what I was doing was legal." Were this to continue, eventually - we know - the investigation and prosecution of those who tortured and those who gave authorization for torture will, eventually, lead its way back to Bush & Co. As the President of the United States is, according to current practice in the US, above the law, any prosecution or investigation which might incriminate him mustn't be permitted to start.

I see all that. I just don't see why you think that's good, Von.

Or, shorter:

If, in future, someone is given the order to commit torture, that person needs to know that they are supported by the legal system when they say no, they won't do it - not even though their superior officer is saying "You can and you will, I have authorization here saying it's legal". The only way to do this is to prosecute the people who did obey those illegal orders.

This isn't "unjust": it's cleansing and restoring justice.

"To return to my original point: AG Mukasey had two very good, and related, reasons for stating that he would pursue prosecutions against those who participated in the waterboarding of terrorists suspects...."

My word gremlin minions of have stolen the word "not" from this sentence, and we demand 10,000 quatloos from Von if he ever wants his sentence to mean what he intended again.

You'll receive instructions on how to make the drop within an hour. Follow them precisely, and no calls to the FBI, or the word dies, and with in the true meaning of the sentence. Tell no one!

Ah. That would have been better if I'd noticed that von made another comment.

Von-

The examples you give of advice of counsel being a defense are all fraud related, unless I've missed something. In a context where an element of the crime is knowingly making a misrepresentation, someone who believed all the representations they made, whether or not they were correct to have done so, hasn't satisfied all the elements of the crime, whatever their reason for their beliefs -- advice of counsel or anything else. (In Wesley Snipes' case, he doesn't get to not pay his taxes because of his beliefs about the tax law, it just wasn't fraudulent of him to not have done so initially, if you see the distinction.)

Knowledge of torture's illegality, on the other hand, is not an element of the relevant crimes, and so incorrect beliefs, however arrived at, about the law in that regard shouldn't be a defense.

Von, I don't quite grasp how you acknowledge that the line is to be drawn "by a jury of one's peers," and yet you support Mukasey's refusal to allow an investigation that might actually put the alleged torturers before said jury.

So, the relevant question is: did the alleged torturers intend to cause "severe physical pain or suffering" within the meaning of the statute in light of the OLC opinion stating that they were not doing so?

No. The question is whether they intended to bring about the physical and emotional state they did bring about. What the law considers the proper terminology to describe that state ("Severe physical pain and suffering"), and whether bringing about that state is a criminal act are not part of the necessary mens rea.

IANAL, but there's a general principle post-Nuremberg that "I was just following orders" does not inherently constitute a defense against crimes committed. In fact, I'm fairly sure that there's an explicit codicil in the UCMJ that says that following illegal orders -- particularly if ordered to commit war crimes -- is itself illegal, or something to that effect.

In light of that, von, let me posit a (reductio) hypo: the OLC advises the CIA interrogators that genital mutilation is legal under the relevant statutes. The CIA interrogators, under that advice, proceed to quite literally rip the nuts off their prisoners. Assuming you agree that that is in fact illegal under the law as currently written -- though God only knows whether it is, with John Yoo et al. running around -- what's the appropriate remedy?

I should add that, as I've read your arguments, there isn't one (viz. two wrongs not making a right). It's the bind mentioned above, the interrogators are covered because they were advised it was legal, the lawyers are covered because they merely gave legal advice. If that's the case, then I agree completely with what russell said: with one well-chosen appointment, the President can do whatever the hell he wants. Which is, I hate to say it, the very definition of tyranny; see, for example, Mussolini and the Grand Council of Fascism. The fact that ultimately the "virtuous" cycle collapsed in Italy when the Council defected (as opposed to Germany where the Enabling Act imbued the despotic power in Hitler personally) doesn't change the fact that Italy was ruled by a tyrant for over a decade.

[There are obvious points of dissimilarity between Fascist Italy and the US, of course, and I'm not suggesting that the US is under danger of fascist rule. What I am saying is that the Bush Administration, through Mukasey, seems to be asserting the underlying legal fabrication -- the powers, if you will -- of a tyrant during their tenure in office, and the protections of a tyrant after.]

This then speaks to the larger point I've ranted about in the past: a fundamental principle in law seems to be that something can't be corruption if it's legal. What happens when the corrupt are those making the laws? Do they get a pass because they can, legally, simply pass laws (or interpretations, as here) that declare their conduct legal? Is there no legal redress to that? If not -- as you seem to be arguing here -- then we have, contra Kung Fu Monkey, found the real exploit in the American system, and one which I'm surprised to find you (apparently) defending.

"Do they get a pass because they can, legally, simply pass laws (or interpretations, as here) that declare their conduct legal?"

Ah, speaking of Italians, you must know my good friend Silvio....

The examples you give of advice of counsel being a defense are all fraud related,

This (from my 12:45) is, of course, flat wrong. I meant that like fraud, intent is an element in all your examples. But my 12:49 still holds.

Anarch: a fundamental principle in law seems to be that something can't be corruption if it's legal. What happens when the corrupt are those making the laws?

This reminds of how a lot of tax legislation and loopholes get done. In one particularly egregious example, Andersen Consulting was lobbying to exempt itself from legislation intended to prevent U.S. corporations from re-incorporating overseas to reduce their U.S. tax burden. Andersen lobbied to get the effective date of the legislation changed to exempt themselves, and were successful. However, Andersen later realized that the effective date needed to be pushed back even further in order to exempt themselves, lobbied again and got the date changed again. Just ridiculous.

With respect to the CIA, what if they didn't believe the legal opinion they got from the DOJ? I.e., they read it and thought it was pure nonsense, but went ahead anyway, should they still be in the clear?

It's the Nuremberg defense laundered through OLC. I have never understood why Lederman is okay with it--if his old office needs the power to do this to function, maybe it shouldn't exist.

Classic Nuremberg defense:
President orders interrogator X to waterboard a prisoner. Interrogator X: "I was only following orders!"

New improved, Nuremberg defense:
President orders interrogator X to waterboard a prisoner. President orders his lawyers to write a secret opinion finding that waterboarding isn't torture, & that even if it is, it's STILL legal. Interrogator X: "I was only following orders, & relying on the lawyers' advice that it was legal!"

There's not really much difference here. And there's no logical limiting principle--no war crime this can't be used to immunize.

If the OLC is going to function like more powerful versions of mob lawyers, it ought not to exist.

Also? Everyone discusses this as if the only cases involve interrogators doing only exactly what was authorized. It doesn't. There are cases where CIA interrogators "enhanced" the techniques still further, & prisoners were killed. There are also cases where civilian contractors at Abu Ghraib did things that we prosecuted soldiers either. The Gonzales & Mukasey DOJ hasn't been willing to prosecute those cases either--as far as I know, they've not even started an official investigation.

Mukasey is also, of course, still keeping the OLC opinions secret, because he knows what the reaction will be when they're made public. There ARE problems with prosecution & reliance here--maybe insurmountable ones, this time. But if so that just proves that the current system is fatally flawed. And let's not pretend that Mukasey is some kind of neutral party here as opposed to part of an ongoing effort to ensure that the president is above the law, & detainees unprotected by it.

Mob lawyers, indeed. That's becoming a consistent theme here -- recall the hospital-room scene with Ashcroft.

Lederman and Von raise valid policy concerns; they err, IMHO, in failing to recognize that the policy consequences of their own position are much worse.

I return to my suggested compromise: OLC opinions must be public if they are to be relied upon. Would that have made a difference in the case of waterboarding?

Ugh: However, Andersen later realized that the effective date needed to be pushed back even further in order to exempt themselves, lobbied again and got the date changed again. Just ridiculous.

It's not just tax law. Mickey Mouse, anyone?

I'm grateful to Katherine for making this point about Lederman and the Office of Legal Counsel. Thomas Nephew had a post on that last fall also.

Given recent events, I'd be very interested in Lederman's response to this concern. Maybe he would reply to the right person raising it in the comments to a post on his blog.

The concern about Lederman's position is not an abstract intellectual question, as he's reasonably likely to be offered a position in the next administration.

Nell, I don't want to personally knock him. I would love to see him offered a position there (hell, I'd love to work there, so perhaps I should stop calling them mob lawyers & for the office's abolition). If it is staffed by people like Lederman, the OLC works just great. And his insider, OLC-alumni perspective is what enabled him to figure out exactly what those memos meant, & what the classififed memo said, long before anyone else. It was an amazing feat: CSI for lawyers. But I do think he may be a little close to the office to step back & see just how unacceptable this really is.

Knowledgeable commenter Charles Gittings @ Balkinization reminds us of this passage of the Detainee Treatment Act:

it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.

So, your "ordinary sense and understanding" might lead you to think waterboarding's torture, but "good faith reliance on advice of counsel" can weigh against that.

I wish I believed in hell, so that I could wish all the Democrats there who voted the DTA and MCA into law.

There's further discussion of Lederman's analysis (and its disheartening similarity to Mukasey's) in this thread at Emptywheel/FDL.

Nothing personal against the man; his posts have been invaluable during this slo-mo assault on the constitution. But he's simply wrong on this point. And wrong in a way that undermines all the other policies for which he's been advocating. It's a very interesting case of professional deformation.

John Dean took issue with Lederman's analysis on the Olbermann show, saying (in the paraphrase of an EW commenter) that OLC opinions have no effect as law, are not binding upon courts, and are not only proper to be reviewed by the Attorney General, but ought to be.

If anyone is interested, I have a long post critiquing Lederman's understanding of the "entrapment by estoppel" defense at Opinio Juris -- www.opiniojuris.org.

P.S. Listen to Lizard Breath. LB know his/her mens rea.

I'll try to respond to everyone, but I have limited time. Please excuse me if I miss an argument (and also excuse the typos, which may be numerous).

So, because criminals in the Department of Justice opinionated that it would be legal for Americans to torture terrorists, it would be improper for the DoJ to prosecute those who obeyed this illegal order?

Yes. Just as there are crimes without victims, there are crimes without perpetrators as well.

My word gremlin minions of have stolen the word "not" from this sentence, and we demand 10,000 quatloos from Von if he ever wants his sentence to mean what he intended again.

Will you accept a shubbery in their place? It's a rather nice shubbery.

I don't think that I said that no one can be prosecuted. My point was that the current AG has a defensible point, and it can be a sound exercise of prosecutorial discretion not to prosecute for these actions.

The examples you give of advice of counsel being a defense are all fraud related, unless I've missed something.

It's scattered through at least three different comments, but I cited tax evasion, mail fraud, an SEC violation, and inducement of patent infringement. So, loosely speaking, you're 3/4ths correct.

Knowledge of torture's illegality, on the other hand, is not an element of the relevant crimes, and so incorrect beliefs, however arrived at, about the law in that regard shouldn't be a defense.

Yes, I accept that. See above for my actual arguments.

Von, I don't quite grasp how you acknowledge that the line is to be drawn "by a jury of one's peers," and yet you support Mukasey's refusal to allow an investigation that might actually put the alleged torturers before said jury.

It's an exercise of sound prosecutorial discretion in light of the two available arguments: advice of counsel and quasi-estoppel (i.e., the DOJ can't both both approve and prosecute a given action). The latter is the stronger argument, but has been hardly discussed in this thread.

Note that I take no position in this thread regarding whether the authors of the DOJ memorandum should be prosecuted -- although they could not be prosecuted for torture as I read the relevant statute.

The question is whether they intended to bring about the physical and emotional state they did bring about. What the law considers the proper terminology to describe that state ("Severe physical pain and suffering"), and whether bringing about that state is a criminal act are not part of the necessary mens rea.

Sure it is, Lizardbreath. You must intend to meet the elements of the offense; whether you have the correct culpable intent surely depends on what those elements are, which in turn depends on how those elements have been interpreted.

IANAL, but there's a general principle post-Nuremberg that "I was just following orders" does not inherently constitute a defense against crimes committed. In fact, I'm fairly sure that there's an explicit codicil in the UCMJ that says that following illegal orders -- particularly if ordered to commit war crimes -- is itself illegal, or something to that effect.

All true, Anarch, but unrelated to my argument.

the OLC advises the CIA interrogators that genital mutilation is legal under the relevant statutes. The CIA interrogators, under that advice, proceed to quite literally rip the nuts off their prisoners. Assuming you agree that that is in fact illegal under the law as currently written -- though God only knows whether it is, with John Yoo et al. running around -- what's the appropriate remedy?

Well, as I've said: in the particular circumstances at hand, legal advice is only relevant to your intent to commit a wrongful act if it were reasonable for you to believe the advice correct. So, the answer will depend on the circumstances: who gave the advice, what was its nature, what the statute actually says, etc.

What happens when the corrupt are those making the laws? Do they get a pass because they can, legally, simply pass laws (or interpretations, as here) that declare their conduct legal?

Someone who believes in natural law might argue that the people enjoy an ultimate right of revolution against tyrrany.

This (from my 12:45) is, of course, flat wrong. I meant that like fraud, intent is an element in all your examples. But my 12:49 still holds.

Well, as noted above, I'd say that you were mostly right, Lizardbreath.

It's the Nuremberg defense laundered through OLC. I have never understood why Lederman is okay with it--if his old office needs the power to do this to function, maybe it shouldn't exist.

Katherine, neither of my two arguments have any relationship to the Nuremburg defense whatsoever. Please take a closer look at them.

Mukasey is also, of course, still keeping the OLC opinions secret, because he knows what the reaction will be when they're made public.

I agree with Katherine that this is a mistake.

I return to my suggested compromise: OLC opinions must be public if they are to be relied upon. Would that have made a difference in the case of waterboarding?

Although we have significant differences, Anderson, I agree that this proposal is a good one.

But I do think he may be a little close to the office to step back & see just how unacceptable this really is.

Respectfully, Katherine, you seem to be missing one or more important points of the argument. You might disagree with me and Lederman, but neither of us is making an argument even remotely similar to the Nuremburg defense.

All best. I'll try to check back later.


This then speaks to the larger point I've ranted about in the past: a fundamental principle in law seems to be that something can't be corruption if it's legal. What happens when the corrupt are those making the laws? Do they get a pass because they can, legally, simply pass laws (or interpretations, as here) that declare their conduct legal? Is there no legal redress to that? If not -- as you seem to be arguing here -- then we have, contra Kung Fu Monkey, found the real exploit in the American system, and one which I'm surprised to find you (apparently) defending.

Well, one potential answer is that yes, it is a loophole -- the U.S. Constitution lacks an explicit rule-of-law provision that was incorporated into many of the post-war European Constitutions for pretty much precisely this reason. In the Soraya case in Germany, for example, the Constitutional Court relied on that provision as a trump card to invalidate an otherwise facially legitimate piece of legislation.

The best paper I've ever read on the subject is Kim Lane Scheppele's ""When the Law Doesn't Count: The Rule of Law and Election 2000." It's very readable -- you don't need any sort of legal background -- and is probably the best primer on the rule-of-law backdrop to these issues you'll ever find. I'd highly recommend that everyone chatting on this thread give it a lookover.

"I'd highly recommend that everyone chatting on this thread give it a lookover."

Why has shrubbery become a recurring motif here? Explain, Mr. Spock.

Anderson, So, your "ordinary sense and understanding" might lead you to think waterboarding's torture, but "good faith reliance on advice of counsel" can weigh against that.

I don't really think that provision says anything substantive -- the legislature has always been able to set the bounds of mens rea and actus reus requirements for the criminal law, but there's nothing anyone can do to override the due process principles established by, e.g., In re Winship, Lambert v. California, Morrison v. California, Montana v. Egelhoff, Patterson v. New York, Apprendi v. New Jersey, Accardi etc., etc. Also, the comments to 1.13 of the Model Penal Code, among other authorities, lay out the baseline grounds for permissible burden-shifting pretty clearly.

Regardless, we're not exactly on unfamiliar ground nor hurtling toward anarchy. We just have another scumbag President -- we've had quite a few in the past and managed to survive them (the Gilded Age in general, Andrew Jackson and the Cherokees, Teapot Dome, etc. etc. etc.). And even our best Presidents have pushed the boundaries at times, too (Lincoln and habeas, Jefferson and the LA Purchase, Madison and the Bank, FDR and court-packing, etc. etc. again).

Even if that provision of the DTA that you cite didn't strike me as completely toothless, I'd hardly call it the end of the world. It doesn't really even strike me as so horrible as you seem to see it -- AFAIK, it just reiterates the current state of military jurisdiction and clarifies it.

If anything, I'd argue the provision's significant in what it doesn't say (i.e., if you don't get counsel, watch out) and in that it clarifies the weight of the opinions in question (so if you're giving said counsel, watch out double). The latter point is important, I think -- it helps prevent government lawyers from arguing, "But I didn't know it'd be used as a defense!" Sorry Gonzo, it was written right there in black and white. See ya.

Gary: Why has shrubbery become a recurring motif here? Explain, Mr. Spock.

Oh, come on, how can you not love an academic paper that starts out with a Monty Python analogy? :)

Actually, I do admit that the intro reads a little odd the first time, but I think that if you read on you'll find that it's a pretty amazing piece of scholarship.

"Actually, I do admit that the intro reads a little odd the first time, but I think that if you read on you'll find that it's a pretty amazing piece of scholarship."

I have to confess that I contented myself with reading the first few pages, and the last few pages, and skimming the middle. It's kinda long.

Anyway, I was referring to von's offering me a shubbery shortly before you directed us to that paper, and its shubbery discussion.

I sense the hidden hand of Phil Dick.

Well, one potential answer is that yes, it is a loophole -- the U.S. Constitution lacks an explicit rule-of-law provision that was incorporated into many of the post-war European Constitutions for pretty much precisely this reason.

Your argument is misplaced. A "rule of law" provision in the US Constitution has nothing to do with my contention, viz., that a prosecuting body should not be permitted to criminalize that which it previously endorsed. (Note that there's nothing in that statement that forbids action against the prosecutors for their errors and/or wrongdoing, so long as there is a law that applies.)

Additionally -- and this is a tangent -- a rule of law provision is necessary and useful only if you are a legal positivist. Positivism, however, is not the only game in town. Indeed, there is not a single Supreme Court justice serving today who could be so described. (That's my most significant criticism of the article that you link: It would have been far more relevant in, say, 1938 -- when positivism was ascendant.*) (Wonder if events in the Weimar Republic had anything to do with the death of positivism ....)

von

*I'm sorry if the author of that article was a favorite teacher, aunt, or mother, but, speaking professionally: It's really bad.

Oh my f-cking God, I just read footnote 20. I'm sorry, Adam, but this is just embarrassing. A "Wittgensteinian defense"? Please: the author picked up this knowledge in a bit of drunken banter and put it in a law review article because she thinks it makes her sound clever. (Trust me, I'm the same kind of person and have done the same stupid thing -- we can smell our own -- but that's no excuse.) Better would have been for here to recall W.'s famous truism and not put all this embarrassing crap down: "Whereof one cannot speak, thereof one must be silent."

*I'm sorry if the author of that article was a favorite teacher, aunt, or mother, but, speaking professionally: It's really bad.

No, Scheppele's actually one of the co-bloggers at Balkinization. I first ran into the article in this post by Scott Lemieux at LGM.

von, are you telling me you read the whole 77-page article in <45 minutes?

I think you're misapprehending my argument, at any rate (and I apologize if I was unclear) -- I absolutely agree that a rule-of-law provision in the U.S. Constitution would be superfluous/useless, but that's not what I meant by "loophole" -- and regardless, the Scheppele essay doesn't hinge at all on that issue... Perhaps you should go back and read it again?

von: Oh my f-cking God, I just read footnote 20. I'm sorry, Adam, but this is just embarrassing. A "Wittgensteinian defense"?

I think you mean footnote 26 -- I'm pretty sure that's supposed to be tongue-in-cheek, at any rate.

(Look, I'm not in the mood to defend the paper's academic bonafides, though I'm perfectly capable of doing so -- I mean, come on, it opens with a Monty Python joke, it's not exactly "The Path of the Law" -- but it's still an excellent piece of writing that helps to clarify a lot of the discussion in this thread.)

(And just so it doesn't appear that I was totally trying to derail this thread, in my own defense I do want to mention that I had a much longer post that was actually topical, but too many links to the caselaw caused it to get eaten by the spamfilter, and it's still telling me that it's being held in the queue, even if I try to repost without the links. Maybe an admin can hope me.)

I think you mean footnote 26 -- I'm pretty sure that's supposed to be tongue-in-cheek, at any rate.

You're right. The PDF was blurry. (And, in answer to your other question, (a) although I'm a very fast reader (b) I admittedly skimmed the article.)

You're right. The PDF was blurry. (And, in answer to your other question, (a) although I'm a very fast reader (b) I admittedly skimmed the article.)

Well, it gets better as you go on. Page 12 uses the decline of positivism as a segue into the main thesis of the article, which I don't think contradicts the point you just made about the relevance of a rule-of-law provision to the U.S. Constitution, and arguably even supplements it.

It's really not a bad paper (in my very humble opinion), though it is admittedly a bit rough around the edges. As mentioned, I think the tradeoff is worth it for accessibility reasons -- I've often used this essay as a vehicle for discussing the topic with people who don't have legal backgrounds.

von, in particular I read this passage as running parallel to your argument:

"Badly drafted statutes do more than make the situations they regulate unclear; a statute as badly drafted as this one positively invites abuse... The whole reason for having law to guide election challenges is precisely to provide a nonpartisan mechanism for resolving disagreements, and the nonpartisan character of the law is assured primarily because the framework is settled before a particular dispute has arisen. But where a statute fails this elementary test—fails to channel challenges in such a way that they can be resolved according to standards that are known to be in place before the election—then the rule-of-law justification for following the law in the first place disappears." (1429-30)
The analogy to the retroactivity problem that Mukasey's created seems clear to me, at least.

"...and it's still telling me that it's being held in the queue, even if I try to repost without the links."

It didn't work for me last time, so I offer no guarantees whatever, but try deleting the Typepad cookie, making sure "Remember personal info?" isn't checked, and trying again, possibly with different information in the ID fields, each time making sure the cookie is deleted.

If you want to go to that much trouble, that is. It might let you post the non-linking version. Or it might not. Who knows? Mysterious are the ways of the cursed Typepad.

[OK, none of what I'm saying probably makes sense without the context of my comment that got eaten, so per Gary's advice, I'm going to try it one more time from Safari:]

Anderson, in reference to the DTA, says: So, your "ordinary sense and understanding" might lead you to think waterboarding's torture, but "good faith reliance on advice of counsel" can weigh against that.

I don't really think that DTA provision says anything substantive -- the legislature has always been able to set the bounds of mens rea and actus reus requirements for the criminal law, but there's nothing anyone can do to override the very basic due process principles established by, e.g., In re Winship, Lambert v. California, Morrison v. California, Montana v. Egelhoff, Patterson v. New York, Apprendi v. New Jersey, Accardi etc., etc. (Also, the comments to 1.13 of the Model Penal Code, among other authorities, lay out the baseline grounds for permissible burden-shifting pretty clearly.)

Regardless, we're not exactly on unfamiliar ground nor hurtling toward anarchy. We just have another scumbag President -- we've had quite a few in the past and managed to survive them (the Gilded Age in general, Andrew Jackson and the Cherokees, Teapot Dome, etc. etc. etc.). And even our best Presidents have pushed the boundaries at times, too (Lincoln and habeas, Jefferson and the LA Purchase, Madison and the Bank, FDR and court-packing, etc. etc. again).

Even if that provision of the DTA that you cite didn't strike me as completely toothless, I'd hardly call it the end of the world. It doesn't really even strike me as so horrible as you seem to see it -- AFAIK, it just reiterates the current state of military jurisdiction and clarifies it.

If anything, I'd argue the provision's significant in what it doesn't say (i.e., if you don't get counsel, watch out) and in that it clarifies the weight of the opinions in question (so if you're giving said counsel, watch out double). The latter point is important, I think -- it helps prevent government lawyers from arguing, "But I didn't know it'd be used as a defense!" Sorry Gonzo, it was written right there in black and white. See ya.

[Removed links to cases to appease the Mighty Spam Filter.]

Gary: thanks for the suggestion -- still doesn't work, though. :( Even tried removing all the links and posting it from a different email address in a different browser. Typepad > me.

Adam: has your comment reappeared? I tried to find it and uncork it from the spam thingo, but I'm not sure I got it.

Got 'em! Many thanks, hilzoy.

Actually, you got both of them -- feel free to delete the second one that lacks the Findlaw links. :)

von: Just as there are crimes without victims, there are crimes without perpetrators as well.

Possibly, but you are saying that of someone who committed torture. To argue that torturing a prisoner is "a crime without a perpetrator" because the torturer was told (ultimately, by the US DoJ) that this wasn't a crime? You do seem to be arguing, pretty much, that torture is the kind of trivial thing that a person might easily believe was legal to do. Is this your intent?

My point was that the current AG has a defensible point, and it can be a sound exercise of prosecutorial discretion not to prosecute for these actions.

So, reframing that sentence: "It is a sound exercise of prosecutorial discretion not to prosecute CIA and US military for torturing prisoners."

That is your point; you are arguing that torturing prisoners is the kind of thing it's reasonable to assume that a person might believe was legal. Your argument rests solely on the idea that torture is not this big, forbidden thing like murder: it's small potatoes, no big deal, how would a person know that it was illegal to do that to a prisoner? They really couldn't know unless they consulted a lawyer, right? That's your position on torture?

It's an exercise of sound prosecutorial discretion in light of the two available arguments: advice of counsel and quasi-estoppel (i.e., the DOJ can't both both approve and prosecute a given action). The latter is the stronger argument, but has been hardly discussed in this thread.

I'm always interested in new words, so I looked up "quasi-estoppel". The definition I found says "Legal bar preventing a party from repudiating what it represented through conduct or language if it would harm the other party which reasonably relied on that representation."

Well, one, I don't see how anyone could seriously argue that the torturers who did their work on prisoners of the US reasonably relied on the representation of the Department of Justice that torture is this minor thing that anyone could think was legal. (I mean, you just have, but this is a blog: I'm not going to assume you would argue that torture is trivial in a more serious environment under your own name.)

Second, that argument is either a reason for claiming that the Department of Justice have to go on claiming that torture is legal - since they already have said this, they can't repudiate it: or else it's a clear argument for appointing independent counsel to investigate and prosecute everyone involved in the torture of prisoners, including the people at the Department of Justice - or elsewhere in the administration - who were responsible for giving the opinion that torturing prisoners is legal. The DoJ can't and shouldn't repudiate the fact that the opinion was given: but given that the opinion was itself unlawful, the notion that the DoJ should stand by it puts the DoJ - permanently? - outside the law.

Do you think it's important that the US should be known as a nation that does not torture prisoners? Because your arguments on this thread certainly suggest that you don't think this is especially important.

Note, I recognise that if Mukasey did appoint an independent counsel with powers to investigate and prosecute everyone involved in torturing prisoners, at no matter how high a level in the administration, Mukasey would shortly find himself in dire trouble with the President of the United States. It's not realistic to suppose a Bush appointee would do any such thing. My astonishment is that you're arguing that he doesn't have to: torture, you seem to think, is something that's very easily made legal.

That is your point; you are arguing that torturing prisoners is the kind of thing it's reasonable to assume that a person might believe was legal. Your argument rests solely on the idea that torture is not this big, forbidden thing like murder: it's small potatoes, no big deal, how would a person know that it was illegal to do that to a prisoner? They really couldn't know unless they consulted a lawyer, right? That's your position on torture?

This may be a bit outside the point, but keep in mind that we're generally talking about waterboarding here. While that might clearly seem to be torture to you and me, it's my understanding is that being waterboarded is a standard part of SERE training for special ops, so it's entirely possible that many of the people doing the waterboarding have actually been through it before. From the perspective of someone who's been through SERE training, I imagine that the question of whether waterboarding is "torture" is not nearly so black and white as it seems to us, on the outside looking in and entirely in retrospect.

That's not a way of justifying waterboarding, but it has a strong bearing on the guilt of the low-level operatives. The point is that the middle- and upper-level officials at the DoJ and OLC not only made this into a gray area, they then intentionally kept it that way (and are still keeping it that way) so that they could keep doing it -- they're the ones at fault for not clarifying the situation.

In fact, it's worse than that, because they've been passing down intentionally useless directives to the people on the ground, and it's those people who they'll then cast the blame if the hammer ever falls. (Which is, of course, entirely the point if you're Alberto Gonzales or Donald Rumsfeld.)

Incidentally, avoiding that sort of behavior -- the duty to take appropriate responsibility -- is the real guiding maxim of Nuremberg, not that "following orders is not a defense," as some posters above have inaccurately claimed.

Adam: I imagine that the question of whether waterboarding is "torture" is not nearly so black and white as it seems to us, on the outside looking in and entirely in retrospect.

Well, no.

If you've been waterboarded, you know it's torture. I know of no one who was waterboarded who has said otherwise - indeed, there are a couple of notable instances where people who had not been waterboarded underwent the experience to find out if they would consider it torture.

That's not a way of justifying waterboarding, but it has a strong bearing on the guilt of the low-level operatives.

No. I consider that the low-level operatives who were involved in the torture of prisoners at a different level - who were "merely" instructed to keep a prisoner awake all night, or keep him standing, or put him in a cold room - may have been confused as to whether this constituted torture. Operatives who had themselves been tortured as part of their SERE training and who then inflicted the torture they had experienced on prisoners may have been under the impression that the Department of Justice was empowered to legalize torture - but they could not have been confused about whether or not they were torturing prisoners. They knew they were.

First: SERE training isn't torture; it's training to resist interrogations. The assertion that people exposed to SERE training "should" be able to recognize it as meeting the legal definition of "torture" is untenable, both factually and legally. That claim simply cannot be proved with the requisite level of certainly necessary to satisfy the reasonable-doubt standard, and to posit it as a general truth is nonsense.

More specifically, put yourself in the interrogator's shoes: you're told to do something to a prisoner to which you yourself were exposed as part of your training. It's not as if you're being asked to flay someone with a whip or put them on the rack. In fact, the "enhanced interrogation techniques" were designed to maintain some level of plausible deniability, both for the interrogators and for the people who designed the policies, which is probably why they based them on SERE techniques in the first place. No matter what your background, the decision whether to do what you're told (and the consequences if you don't) isn't nearly as cut-and-dry as you're making it out to be.

What you're talking about are personal doubts -- maybe even serious personal doubts -- but from a legal perspective, that's simply not enough. You may have heard that soldiers are asked to kill people on a pretty regular basis -- it's somewhat naïve to expect them to be able to make unimpeachable moral judgments in an environment where killing is actually one of the key goals of their job. That's a tough position.

Put simply, those interrogators simply aren't qualified to say what is and isn't "torture," particularly not in the strict legal sense that's required here -- that's a very complex question. So even if they are conflicted about it, they're utterly dependent on the supposed "experts" to provide them with clear guidelines, which they didn't get. That's the tragedy here. The Administration has paid lip service to the need to provide clear guidelines, but they've done nothing to provide the front-line personnel with the guidance they need to be able to make these distinctions you're talking about.

To the extent that you do think that these torture/not-torture distinctions are clear-cut, all the does is make the failure to provide guidance all the more shameful. Based on Mukasey's testimony, it seems that any interrogator who expressed reservations about what they were doing couldn't even expect an investigation; at best they got some vague legalese that didn't provide any sort of clear guidelines. This is about a concerted strategy to avoid answering questions about what is and isn't torture, and expecting to pass the blame off on the guys below. It's disgusting, and I think it's important to keep the finger of blame pointed in the right direction.

Night.

First: SERE training isn't torture; it's training to resist interrogations.

You were just arguing that SERE training includes torture - that SERE trainees are tortured as part of it - so I'm not sure why you're now backtracking on this.

More specifically, put yourself in the interrogator's shoes: you're told to do something to a prisoner to which you yourself were exposed as part of your training.

Yes: I'm supposing that, as part of my training, I was tortured. Now I'm being told to torture a prisoner with a technique used on me, which is how I know it's torture. It's quite clear cut

It's not as if you're being asked to flay someone with a whip or put them on the rack.

So? Because those torture techniques are not in common use - because torture by sleep deprivation or waterboarding has been shown to be a much more effective method of making a prisoner say anything the torturer wants him to say - why should this be an excuse?

Put simply, those interrogators simply aren't qualified to say what is and isn't "torture," particularly not in the strict legal sense that's required here

The strict legal sense of torture is actually quite easy for even a layperson to understand - by which I mean someone who is neither a lawyer nor a torture victim nor a torturer. Article I of the CONVENTION AGAINST TORTURE and Other Cruel, Inhuman or Degrading Treatment or Punishment spells it out:

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
So, the guards at Guantanamo Bay who supervise the prisoners in detention may reasonably argue as a defense that although Guantanamo Bay cages are intentionally inflicted "severe pain or suffering, physical and mental" the guards themselves are not torturers because they have been lawfully ordered to Guantanamo Bay, informed that this is a lawful prison, and that the sanctions they are required to impose on the prisoners are only "inherent in or incidental" to keeping these hundreds of "dangerous terrorists" jailed.

But, an interrogator who waterboards a prisoner cannot claim that this is only "inherent in or incidental" to keeping a prisoner in detention: it is unquestionably an "act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person".

The grey areas here are not for the trained interrogators who have themselves experienced torture as part of their training: they are for the guards who were ordered to do things to the prisoners as if this was an inherent part of keeping them in prison - sleep deprivation, forced standing, etc.

It's disgusting, and I think it's important to keep the finger of blame pointed in the right direction.

There we agree. But while blame flows upwards in this instance - the soldiers who followed what were unlawful orders are culpable, but not as culpable as the interrogators who knew they were committing torture, but not as culpable as their seniors who told them to do it and who should have resisted instruction from the executive that prisoners were to be tortured, but not as culpable as the executive that decided to torture prisoners...

In order to make clear that people may not obey illegal orders, people who do obey illegal orders must not be allowed to escape culpability. It's as simple as that. Yes, the more senior the more blame: that's why the CIA interrogators who knew that what they were doing was torture are more culpable than the guards who had been told simply "Keep him awake" or "Keep him cold" - though there again, there are known examples of NCOs, at least, saying they would not do it and would not order their squads to it.

If the US military wants to make it clear that orders to commit torture are illegal and ought to be refused, then even the soldiers who obeyed the orders must be penalized - lightly, perhaps, compared with their seniors, compared with the professional interrogators - but not let off on the grounds that it's not for a soldier to decide if an order to commit torture is or is not illegal. It always is - according to a UN Convention to which the US is a signatory.

Jesurgislac says it much more eloquent than I can, but I fully agree. The people doing it should be punished too. They saw what they did, they knew the effect.

I actually don't believe those waterboarding videotapes would have been destroyed if you didn't see the agony of the victims, but that cannot be proven.

I actually don't believe those waterboarding videotapes would have been destroyed if you didn't see the agony of the victims, but that cannot be proven.

Not yet.

von: Yes. Just as there are crimes without victims, there are crimes without perpetrators as well.

Wait, wtf? Torture is a crime without a perpetrator? This makes absolutely no sense whatsoever; it's not like the victims just tripped and accidentally fell onto a waterboard. The very definition of torture necessitates an agent doing the torturing. How in the name of god can there fail to be a perpetrator?

All true, Anarch, but unrelated to my argument.

Whether they're directly related to your argument isn't relevant; the point of relevancy is that they're related to this specific crime (or allegation of criminality if you prefer). In that case, there is a very, very pointed link that I think you need to address if you want to bolster your position.

Well, as I've said: in the particular circumstances at hand, legal advice is only relevant to your intent to commit a wrongful act if it were reasonable for you to believe the advice correct. So, the answer will depend on the circumstances: who gave the advice, what was its nature, what the statute actually says, etc.

First, AFAIK there is no meaningful requirement that you have an intent to torture to be guilty of same; you only need to have intent to commit the act which is torturous. As such, the advice of counsel is moot. It is the act itself which determines culpability, not the mens rea dedicated to parsing that act as culpable.

[For example, it's illegal to run someone over with your car even if a lawyer tells you otherwise. One could argue for mitigation at sentencing, I suppose, depending on the circumstances, but what's relevant is the mens rea pertaining to the act of running them over, not the mens rea pertaining to the criminality of said act. IOW, deliberately running someone over with your car is a crime in itself, the mustache-twirling is optional.]

Someone who believes in natural law might argue that the people enjoy an ultimate right of revolution against tyrrany.

Are you seriously suggesting that the only appropriate remedy here is revolution? Or is this just an evasive non-sequitur? I genuinely can't tell.

-Now I feel like I'm starting to see the real Von. You are 'against' torture, but you don't think anything can or should be done about it. The comment about revolution is a nice touch. The sophisticated version of 'what are you p#ssies going to do about it anyway?'

Von is a real piece of work. This casts a new light on the whole bit where Von said those who exposed Ross Douhat's plagerism had nothing to be proud of.

Another SERE graduate writes today about being waterboarded.

You were just arguing that SERE training includes torture - that SERE trainees are tortured as part of it - so I'm not sure why you're now backtracking on this.

No, I didn't. I said that SERE training includes waterboarding, and it's not "torture resistance training" at any rate -- it's interrogation resistance.

Regardless, my point is that being told to do something to a prisoner to which you yourself have been subjected as part of standard training -- (a) it strikes me as plausible how you could see that as not in the realm of torture, and (b) it's certainly a plausible defense to prosecution, true or not, e.g., "this is the same stuff they did to us in basic training." Do I buy that personally? Not really. Does it meet reasonable-doubt? Absolutely.

In order to make clear that people may not obey illegal orders, people who do obey illegal orders must not be allowed to escape culpability.

Yes. This is exactly my point. Soldiers are told to do all kinds of things that you would never do in civilian life -- I mean, killing people as a civilian is murder; as a soldier, it's your job. The people at the bottom of the ladder are utterly dependent on the people above them setting out clearly what is and isn't "illegal" -- hence, the need for rules of engagement, etc.

What's so incredibly revolting about this situation is that, if you were a soldier on the ground, you couldn't get any sort of legal guidance. Even if you were (rightly) appalled at the treatment of prisoners, were you to ask up the chain, the answers that came back down never actually set clear guidelines as to what was and wasn't "legal."

The way this would generally work is that it might happen once, you'd ask for clarification, as in, "Um, isn't this 'severe pain and suffering'?" and you'd get back a clear response. In this case, all that appeared to go back down the line was a bunch of gobbledygook and order to basically keep doing what you're doing. The purpose of the Administration's policy, as far as I can tell, is to not give clear policies at all so that in the end they can say "Look! We gave guidelines!" and pass the blame to the soldiers, who, as you say, probably knew better.

Despite what you suggest about NCOs refusing to follow orders soldiers generally don't have that luxury and could well get court-martialed for doing so (and many did, as I understand it) -- the best they can do is say, "Hey, the guidelines aren't really helping here, can you please give us a straight answer," in which case all they got was a new set of guidelines that -- surprise -- didn't clarify anything.

I agree with you that there were probably a lot of soldiers who knew that the "interrogation techniques" were wrong and didn't care. But I also know that there were many soldiers who did care very much, and the Administration did everything it could to tie their hands. In the end, I don't think that we have any principled way of separating the willing from the unwilling torturers, and that that was the intent of the policy, so I say double the blame on those responsible for the doublespeaking policy for trying to screw over the people they were supposed to be watching out for.

Adam: No, I didn't. I said that SERE training includes waterboarding, and it's not "torture resistance training" at any rate -- it's interrogation resistance.

Ah, so you're contending that waterboarding is not torture? Everyone who has been waterboarded and who has written of their experience disagrees with you. The people who argue that waterboarding is not torture are, so far without exception, people who have never been waterboarded. Are you yourself speaking of personal experience of having been waterboarded and your gained conviction that this is not torture? Or what are you using to defend this contention?

Regardless, my point is that being told to do something to a prisoner to which you yourself have been subjected as part of standard training -- (a) it strikes me as plausible how you could see that as not in the realm of torture

Not waterboarding. No one who has been subjected to waterboarding argues that it is not torture. It is just not plausible that someone who had been tortured would then argue that they didn't know it would be torture to do it to someone else.

(b) it's certainly a plausible defense to prosecution, true or not, e.g., "this is the same stuff they did to us in basic training."

Yes: the stuff they did to people in basic training to teach them how to resist torture. It's not a plausible defense to claim that it would have been torture if it had been done to US soldiers, but it wasn't torture when Americans did it to prisoners.

Do I buy that personally? Not really

So you're actually just trolling this thread? Nice.

The people who argue that waterboarding is not torture are, so far without exception, people who have never been waterboarded.

False (see below).

No one who has been subjected to waterboarding argues that it is not torture.

I hate to say it but this isn't true. To be more accurate: I've seen plenty of clips -- there was a moron from FOX News [seen on The Daily Show] and another moron from CNN [seen on, god help me, CNN], plus god knows how many YouTubers -- showing exactly that, most of them not saying that it was "unpleasant" but not torture.

[Seriously, check YouTube. Last I cared, there were about five people waterboarding themselves away. Makes for a really boring Friday night, let me tell you.]

The key point on which you're sticking, and this is something of a variant of the No True Scotsman, is: there are a lot of different things that go by the name of "waterboarding" and people are susceptible to them in various degrees. I believe it to be true, though I obviously haven't witnessed this personally, that any person will find some variant of waterboarding torturous; but whether a given person will have been waterboarded in that manner is much less certain. It's equally uncertain whether they were being waterboarded by trained interrogators bent on teaching them their breaking points, or whether they were facing something much less intense.

[To put it more bluntly: a skilled interrogator should be able to break anyone using some form of waterboarding. Whether both of those preconditions were met in any given scenario is another question.]

Given these uncertainties, I despise it but Adam has a point here: it's a plausible defense to prosecution -- and god forbid, it's even a legitimate defense in those less, uh, intellectually adroit -- and one I'm not sure how to circumvent.

Yes: the stuff they did to people in basic training to teach them how to resist torture.

No, it's teaching them how to resist interrogation. There's a meaningful distinction.

So you're actually just trolling this thread? Nice.

Get off it, Jes. Adam's been a boon to this community since he started posting; you may not like what he has to say, but accusing him of trolling is just stupid.

I agree with you that there were probably a lot of soldiers who knew that the "interrogation techniques" were wrong and didn't care. But I also know that there were many soldiers who did care very much, and the Administration did everything it could to tie their hands. In the end, I don't think that we have any principled way of separating the willing from the unwilling torturers, and that that was the intent of the policy, so I say double the blame on those responsible for the doublespeaking policy for trying to screw over the people they were supposed to be watching out for.

Which basically means that you will not be punised for torturing ('just following orders', 'befehl ist befehl') but the organisation *will* punish you if you refuse to follow those orders.

That feels wrong because it denies the people who do the honorable thing their protection. It also means that it is more likely that people *will* do things that are against their conscience and afterwards have to live with it. Bad for those people too - and their families - and the society they return in.

Anarch: Adam's been a boon to this community since he started posting; you may not like what he has to say

Not the point. Whatever Adam really has to say about what he himself believes, let him say it honestly and I'll debate it honestly. But when he defends torture and torturers and then adds "of course I don't really believe this myself" he admits he has been writing a series of posts contentiously defending a position he himself says he does not actually hold, just to spark an argument. And this is the classic definition of someone trolling a board.

Otherwise, what Marbel said. But I'd prefer to argue this out with Von, who I credit with actually outlining what he believes, than with someone who is just taking a side for the sake of argument.

Otherwise, what Marbel said. But I'd prefer to argue this out with Von, who I credit with actually outlining what he believes, than with someone who is just taking a side for the sake of argument.

I really don't appreciate the personal attack, but I'll try to ignore it, because I don't think I'm being clear about my point, or this wouldn't be a matter of contention.

Let me put it this way: if I'm an attorney or judge in a case where a soldier is claiming no-mens-rea because he'd been subjected to waterboarding in his SERE training, I'd be skeptical of that defense. Now, I don't know how familiar you are with the criminal justice system, but being skeptical about a defendant's alibi isn't exactly a shocking development.

But for obvious reasons, the standard for criminal guilt is very high -- beyond a reasonable doubt for every pertinent element of the crime. Personally, I suspect that most of the interrogators probably knew better, but then again, I think that a lot of defendants who get off on any advice-of-counsel defense probably knew better. The underlying fact is that they're innocent until proven guilty, and at least a few of the people in question certainly didn't know better. Them's the breaks, and that's how it works. Better ten guilty men go free than one innocent man be wrongfully imprisoned, and so forth.

The point is -- again -- that most of these techniques were selected precisely because they provide the legal wiggle room to allow for that defense. To be perfectly clear: I am not defending waterboarding, which in my opinion is torture, nor anyone who inflicts it on another human being. What I do believe is that the criminal justice system demands absolute fidelity to due process, and both the SERE problem and the advice-of-counsel defense just make it too damn hard to cross the state-of-mind hurdle as a general principle. This is first-year Criminal Law stuff.

That said, if there's additional evidence that the interrogator in question knew better, then he/she's getting no sympathy from me at all -- it wouldn't take much to tip me the other way in any specific case. But as a general matter, requiring soldiers to have knowledge of the ins and outs of the Geneva Convention, whether their SERE training was "interrogation" or "torture," whether their prisoners are "enemy combatants" or "prisoners of war," whether they can trust the directives coming down -- holding them accountable for that is simply wrong to my mind. That's what JAGs are for.

You're acting like all of this is as straightforward as My Lai, but that's simply not the case. The abuses were ongoing, the interrogators were not getting appropriate guidance, and they were intentionally kept in a gray area. Look what happened to the guys who spoke out against Abu Ghraib, like Samuel Provance, Taguba, and Joe Darby. And again, keep in mind that soldiers are employed to kill people, so it's inapposite to say "well, they should know better." You should know better than to kill people too, but if even that basic rule doesn't apply, it's absurd to expect a layperson to be able to infer appropriate standards of conduct in the context of a war. The normal rules for civilian life are totally inapplicable in a war zone, hence the absolute need for good legal guidance from those in charge (and all the more reason that the DoJ's actions here were just flatly repugnant).

Another way of putting this (that I think I intended to put in my previous post but deleted) is that the Administration "policy" of giving useless guideline after useless guideline is not exactly a new trick; it's SOP in corrupt corporations (if you read a history of the Enron debacle, the parallels are stark), where some responsible person will ask "is this OK?" and the legal counsel or other person above then drags their feet, or passes back a directive that said the right thing without clarifying, or just answers a different question. It's all just about CYA and plausible deniability.

My point is that no matter how many willing torturers there were, the Administration set up the game so that they can't be distinguished from the unwilling torturers anymore. Their whole strategy is to create a headless bureaucratic beast to carry out their policies, so that no one's really in charge and there's no good place to assign blame if the hammer ever falls. They know what they're doing. The ultimate travesty here, to my mind, would be to let any penalties for all this (if there are any) land on the Administration's fall guys (the interrogators) rather than the so-called "experts" who constructed this whole "Who, Me?" regime in the first place. That'd just be playing right into their hands.


And Jes, again, please stop accusing me of supporting torture or waterboarding. I find it really insulting. I also thought I'd disclaimed it pretty clearly. I'm not sure why you're taking my argument in that way, but I assure you that's not my intent, and I'd respectfully ask that you try to sort out what I'm trying to say, however poorly I might be expressing it, rather than say things like that about me or anybody else.

...Also, Turbulence, thanks for the vote of confidence. I tend to come and go, but the conversations have been interesting of late, so I feel I might stick around this time. (ObWi is a good place for my wonkishness and tendency to pepper my comments with dozens of bullet points, I feel.) --Assuming others are OK with that ;)

My point is that no matter how many willing torturers there were, the Administration set up the game so that they can't be distinguished from the unwilling torturers anymore. Their whole strategy is to create a headless bureaucratic beast to carry out their policies, so that no one's really in charge and there's no good place to assign blame if the hammer ever falls. They know what they're doing. The ultimate travesty here, to my mind, would be to let any penalties for all this (if there are any) land on the Administration's fall guys (the interrogators) rather than the so-called "experts" who constructed this whole "Who, Me?" regime in the first place. That'd just be playing right into their hands.

The fact that they should be prosecuted does not mean that the so-called experts should NOT be prosecuted. But by not prosecuting the people doing it (and by punishing the ones who try to stop it) you are in effect making it harder and harder to stop this kind of behaviour. Which is pretty damaging too for decent folks who become unwilling torturers - and I actually assume that most of those people are decent folks.

Both orders and legal counseling are mitigating circumstances and should be taken into account. The people issuing the orders should be punished more severely (command responsibility). But people doing obviously wrong things should be rewarded for trying to stop them and punished for participating in them.

Let me quote general McCaffrey at "Nuremberg and the Rule of Law: A Fifty-Year Verdict,":

How do operational commanders go about avoiding human rights abuses? Let me offer you some obvious and not so obvious thoughts:
Zero Tolerance of Abuse--We had a great debate in my own division, the 24th Infantry Division, prior to the war against Iraq. Our lawyers were trying to persuade me that I could not state in an annex to our division order a directive that if you committed a war crime you would be arrested and sent back out of Iraq to Saudi Arabia. But the concept that the command sergeants major, the colonels, and I had to uphold was that if you mistreated prisoners, civilians, or property, we would not allow you the honor of continuing to fight. We would send you to the rear in disgrace and handcuffed. I was convinced, and am still convinced, that as military professionals we have to state that there is no acceptable level of violence against civilians. There should be zero tolerance when it comes to abusing human rights. That must be the point of departure for all of us.

[...]

Armed forces spend very little of their time actually fighting. Instead, most of their energy is dedicated to preparing themselves for eventual employment. In these peace-time activities, they interact continuously with their fellow citizens--recruiting new soldiers, living alongside civilian communities, purchasing goods and services, or participating in the national debate about what constitutes proper force structure, roles, and missions.
Our experience has been that our citizens are supportive of the armed forces if they think highly of us. How do they form their impressions of us? They form them when their sons and daughters--our soldiers, sailors, airmen, and Marines--go home and tell their families and friends that they are treated well while they serve. They form them every time that they come in contact with the armed forces: when they see a soldier traveling on leave; when they see a military convoy; and when they live beside a military base. Finally, they form them when they see us in action in a conflict or in a peaceful mission.
Consequently, our every action in peace or war affects the very prestige of our institution. We must always protect our honor. A single incident, another My Lai, will cause long-term damage to our institution.

The fact that they should be prosecuted does not mean that the so-called experts should NOT be prosecuted. But by not prosecuting the people doing it (and by punishing the ones who try to stop it) you are in effect making it harder and harder to stop this kind of behaviour. Which is pretty damaging too for decent folks who become unwilling torturers - and I actually assume that most of those people are decent folks.

I think that's a much more succinct explanation of the point I was trying to make than I was able to articulate. Thank you, dm.

A few caveats:

1. Another reason I don't think we should be prosecuting the "low-level" folks is that there's no sort of whistleblower statute here -- in fact, based upon Jes' argument above, objecting to something that sounds like torture could well be evidence of culpability. Without some sort of shield, there's a disincentive to speaking out.

2. One big problem I see is this: a "shield" for dissent is somewhat contrary to military management. Soldiers are supposed to follow orders. Protecting dissent is really problematic from an institutional perspective. It also means that you could be putting your comrades in legal danger, which is also anathema to the military ethic in a bunch of ways (and let's not forget that these are people who'll often be standing behind you holding guns).

3. We should never even get to the point where soldiers should have to even ask these sorts of questions. I mean, these are people who are being asked to kill based on nothing but trust in the judgment of their leaders. PTSD doesn't come from nowhere.

Offloading moral judgments on soldiers just to avoid responsibility isn't just criminal with regards to international law -- it's a criminal offense against those soldiers and the honor of the country. --I'm not generally the type of person to wax patriotic, but the thought of Donald Rumsfeld sitting behind a desk and passing the buck on this sort of thing literally makes me sick. It's repugnant. It's the worst kind of slimy behavior I can imagine, and there really should be no mercy for the people who are supposed to be setting these policies.

The buck stops at Alberto Gonzales' desk, not in the hands of some poor NCO in Afghanistan who's being told to waterboard some person he doesn't even know. I'm with publius -- some people need to go to jail.

A slight clarification on SERE training: It is not part of the normal training received by all soldiers. It’s not part of basic or advanced training.

It is for those who would have a higher than average possibility of finding themselves behind enemy lines – flight crews, special forces, etc.

A slight clarification on SERE training: It is not part of the normal training received by all soldiers. It’s not part of basic or advanced training.

It is for those who would have a higher than average possibility of finding themselves behind enemy lines – flight crews, special forces, etc.

This is entirely true and I probably didn't emphasize it enough in the initial post. However, my understanding is that a lot of this interrogation was done (at first, before it was spread to Abu Ghraib and other places, which is an entire debacle on its own) primarily by special forces units.

Also, this isn't the crux of my argument -- it was just a way of illustrating that I imagine it's a lot harder to say "waterboarding is torture" with complete confidence when you're the one being ordered to do it. It's not like you're sitting in a Securities Regulation class writing a blog comment (not that I'm doing that right now) and you have access to Google. It behooves us to give credit to just how hard a dilemma that situation presents to a potential interrogator. I wouldn't wish that decision on anyone.

Adam: I don’t disagree with your larger point. I just didn’t want others to get the impression that SERE is something all soldiers experience.

... something that many soldiers are quite thankful for, I imagine, based on my conversations with those who have gone through it ...

Adam, you confuse me. You agree with me that the lower levels should be prosecuted too and continue explaining why they should not be prosecuted. So eiter I didn't explain properly or I don't understand what you say properly, but there is some form of miscommunication.

Adam, you confuse me. You agree with me that the lower levels should be prosecuted too and continue explaining why they should not be prosecuted. So eiter I didn't explain properly or I don't understand what you say properly, but there is some form of miscommunication.

No... I think we're just drawing different conclusions. We agree about holding higher levels accountable. You believe that holding lower-level personnel accountable would have a deterrent effect, which is a colorable argument but one that I respectfully disagree with. It strikes me as giving in to Bush Administration blackmail -- they intentionally made it impossible to make appropriate decisions about the guilt of interrogators, and they should be punished for trying to shift the consequences of their actions onto the subordinates they're supposed to be responsible for.

Our disagreement is really just that I think that we're not in a position where we can prosecute lower-level personnel without catching up innocents in the net, and that this problem is an intentional aspect of the policy the Bush Admin has instituted. I can't support a solution that doesn't have a safe harbor for unwilling torturers. I think that the guidelines and standards of conduct should be clear enough, and the system and oversight responsive enough, that we could confidently prosecute low-level torturers without worrying that the unwilling torturers would be left in the lurch.

if I'm an attorney or judge in a case where a soldier is claiming no-mens-rea because he'd been subjected to waterboarding in his SERE training, I'd be skeptical of that defense.

So why are you arguing a point you don't believe in, if not to troll the thread? Seriously: why?

Adam: You believe that holding lower-level personnel accountable would have a deterrent effect, which is a colorable argument but one that I respectfully disagree with.

So your argument is now that it's a waste of time to prosecute underlings, because holding "lower-level personnel" accountable when they commit crimes is a pointless exercise?

Adam, seriously: do you believe anything you've just argued on this thread? This is not a personal attack - this is a genuine, serious question. You've admitted you're arguing a defense to torture that you don't yourself believe in. You're now arguing that the criminal justice system is useless for "lower level personnel" because there's no deterrent effect. None of this makes sense.

I can't support a solution that doesn't have a safe harbor for unwilling torturers.

Your solution seems to be to exempt people who obeyed illegal orders to commit torture, at the expense of people who refused illegal orders to commit torture. (Fairly clearly: your solution means the soldiers and agency personnel who refused to commit acts of torture are hung out to dry, if it's decided that obeying orders to commit torture is lawful and proper.) Again, I just can't believe that you've thought this through or are arguing sincerely for what you believe in. You've already admitted that you don't believe a talking point you were promoting - the claim that having experienced torture means a torturer can claim he didn't think it was torture.

So why are you arguing a point you don't believe in, if not to troll the thread? Seriously: why?

You're misunderstanding my argument. My "point" is that although I would be skeptical of anyone raising this defense, as an attorney I can't say that it's per se untrue, so the "innocent-until-proven-guilty" maxim means it doesn't do anything. I am not saying that I don't believe the claim can be true, I am saying that it has enough plausibility that I couldn't dismiss it out of hand, and that I don't think I could prove or disprove it in a court of law.

To put this in simpler terms, the fact that I'm also skeptical of "temporary insanity" defenses doesn't mean that I don't believe that it's possible or that it should be abolished as an argument.

So your argument is now that it's a waste of time to prosecute underlings, because holding "lower-level personnel" accountable when they commit crimes is a pointless exercise?

No, I don't think it would be pointless. In fact, I think it might work, if the only goal is to imprison willing torturers. I think that the risk of catching innocents in the net is too high to make it an acceptable policy.

Your solution seems to be to exempt people who obeyed illegal orders to commit torture, at the expense of people who refused illegal orders to commit torture.

My solution is to make the guidelines clear enough to divide the innocent from the guilty; until that basic precondition is satisfied, I don't support penalizing anybody who performed questionable interrogations under the aegis of intentionally muddied guidelines.

I also believe that the fact that the Administration negligently or intentionally muddied the guidelines means that they should bear all of the responsibility for any crimes that were committed. This is a very, very basic application of the principle of vicarious liability. I don't support "exempting" anyone -- I simply think that if a soldier commits a crime because he or she hasn't been given clear guidelines, the responsibility for the crime falls on the person writing the guidelines.

This is really simple stuff. I'm not sure what the issue is here.

Oops. Forgot to close my bold tag. Sorry about that.

t strikes me as giving in to Bush Administration blackmail -- they intentionally made it impossible to make appropriate decisions about the guilt of interrogators, and they should be punished for trying to shift the consequences of their actions onto the subordinates they're supposed to be responsible for.

But you can prosecute both, can't you? And give the people in command heavier punishments because the lower levels have mitigating circumstances? Unwilling torturers are still torturers and should be punished - and if I have to choose between punishing unwilling torturers OR protecting torture whistleblowers I'd go for the latter.

If I look at the slap on the wrist a lot of the perpetrators in Abu Ghraib came away with I'm not afraid that prosecuting immediately means locking away for 20 years when you are just a naive follower of commands and didn't do things that were too obviously wrong. However if they were the kind of things where every normal person would understand that they were torturous they may have been less enthousiastic but they are still accountable. I'm leftwing enough to believe in mitigating circumstances but I'm a firm believer in personal responsability.

Its an interesting academic discussion, but sadly I don't think there is much chance of either the higher-ups being prosecuted or the lower ranking types being prosecuted. Obviously the latter is more likely. About the best we realisticly can expect is that utimately many of those involved in condoning torture will get caught up in it.

Adam: as an attorney I can't say that it's per se untrue

As an attorney you can't say that someone whose training included a specific act of torture in order to train them to resist it if used on them, is lying when they claim that they "didn't know" that it was torture because they'd experienced it themselves?

the fact that I'm also skeptical of "temporary insanity" defenses doesn't mean that I don't believe that it's possible or that it should be abolished as an argument

Of course not. But that does not mean you are compelled to accept "temporary insanity" as a defense whenever it occurs to someone to proffer it, regardless of what direct evidence you have that the person was in their right mind!

No, I don't think it would be pointless. In fact, I think it might work, if the only goal is to imprison willing torturers. I think that the risk of catching innocents in the net is too high to make it an acceptable policy.

Someone who is proven beyond reasonable doubt to have committed torture is not innocent of committing torture. There is no risk there. Obviously, a person who has not committed torture is innocent, but you've arguing that the people who have refused orders to commit torture - who are innocent - ought to be the ones who pay the penalty for it. So clearly, you're not concerned with protecting the innocent.

My solution is to make the guidelines clear enough to divide the innocent from the guilty

*points at UN directive* Perfectly clear. ALready done. The innocent are those who refused orders that put them in conflict with the UN direcctive. Why do you want the innocent penalized?

I don't support penalizing anybody who performed questionable interrogations under the aegis of intentionally muddied guidelines.

So rather than penalizing people who tortured prisoners, you feel it's more appropriate to penalize the people who refused to torture prisoners despite the muddled guidelines? Why do you feel these people ought to suffer?

I also believe that the fact that the Administration negligently or intentionally muddied the guidelines means that they should bear all of the responsibility for any crimes that were committed. This is a very, very basic application of the principle of vicarious liability. I don't support "exempting" anyone -- I simply think that if a soldier commits a crime because he or she hasn't been given clear guidelines, the responsibility for the crime falls on the person writing the guidelines.

What Marbel said. What's your problem with that?

This is really simple stuff. I'm not sure what the issue is here.

The issue for me is that I don't believe in penalizing the innocent and rewarding the guilty. Whereas for you, it appears the innocent ought to be punished for disobeying orders, because you think they deserve to suffer for doing the right thing. I don't. Simple.

But you can prosecute both, can't you? And give the people in command heavier punishments because the lower levels have mitigating circumstances? Unwilling torturers are still torturers and should be punished - and if I have to choose between punishing unwilling torturers OR protecting torture whistleblowers I'd go for the latter.

In an ideal world, I would like to see investigations at all levels, and allow the interrogators an advice-of-counsel defense, or a "Alberto Gonzales wouldn't give me a straight answer" defense. Whistleblowers should be fully exonerated and probably given medals of honor.

I would favor a rebuttable presumption favoring de minimis (symbolic) sentences for all the interrogators in the "gray area," with real and serious punishments for the obvious bad guys if the evidence warranted it.

I still think that the bulk of the responsibility should fall on those who wrote the policies.

I'm leftwing enough to believe in mitigating circumstances but I'm a firm believer in personal responsability.

Yeah, this is true for me as well. I feel exactly the same way, but the thing that makes this extremely difficult for me is that we're not talking about civilian life, and I just don't know what rules apply.

There's a line in "The Last True Story I'll Ever Tell" where a soldier in Iraq from East LA marvels that he's asked to do things on a daily basis that would get him sent to jail for life back home.

I've never been a soldier, and I don't plan to be, but quite a few of my friends have been -- and based on my talks with them, I don't feel like I have the wisdom to pass judgment on what they're asked to do, my strong feelings on war and torture notwithstanding.

An environment where killing is expected is just unfathomable to me. I mean, I feel confident in my ability to make moral choices as an attorney, but only because I feel I have some point of reference in the law. In a world where the rule "thou shalt not kill" is situational, how can I hold some grunt accountable for knowing what "torture" (which is a legal term of art in this case) means, in the context of the Geneva Conventions, combatant classifications, the useless guidelines, the conflicting messages, etc.? A lot of these soldiers are still in their 20s.

Maybe we're talking about different things here. Attaching electrodes to a detainee's testicles seems pretty clear-cut to me. Sleep deprivation? Loud noises? Agh. I know it's wrong, but I imagine a soldier expressing discomfort to a superior and being told, "No, it's fine, come on -- it's just rap music." I'm not sure that I can say that accepting that is straightforwardly wrong -- those superiors are the same people who tell them whether or not it's OK to kill people -- since I don't think that the soldier should disobey combat orders, I'm not sure how I can draw a principled line that says it's OK for them to disobey the interrogation orders. And none of that even gets into the military-ethics issues -- a whistleblower is potentially sending all of their comrades up the river, and even if they can deal with that, they're still probably going to get court-martialed (that's what's happened to most of the recent whistleblowers, which is ridiculous), and let's not forget that all the people you're ratting out sleep in the same barracks with you and have guns.

So in the end, I just don't think that I can condone making those judgments. I don't think anyone can. The system has to be set up in such a way that those decisions never have to be made, so that soldiers never have to doubt whether they're following the rules.

The Administration's refusal to investigate, their legal nonsense, their inconsistent enforcement, their treatment of whistleblowers -- to me, those are the real crimes, and they're crimes against the soldiers, too. Many of those interrogators will be haunted forever by what they did, whether they should have said no, what it says about them as people -- while the people who actually told them to do it, like Alberto Gonzales and Donald Rumsfeld, sleep peacefully in their cushy beds at night, and to them "torture" is just a word that you try to define in the way that keeps you out of trouble. That's just wrong. Wrong, wrong, wrong, wrong, wrong.

Someone who is proven beyond reasonable doubt to have committed torture is not innocent of committing torture. There is no risk there.

"Torture" is not a self-evident definition. AFAIK, the directives that were passed down were intentionally designed to obscure the question of whether or not "torture" was being committed. Regardless of whether you think it's ludicrous to say that waterboarding isn't torture, an interrogator's simply not in a position to gainsay that without running some serious personal risks.

Also, to the extent you think that is ludicrous, that's an indictment of the person writing the justification, for forcing the soldier to disobey orders in order to contest something so facially wrong.

Obviously, a person who has not committed torture is innocent, but you've arguing that the people who have refused orders to commit torture - who are innocent - ought to be the ones who pay the penalty for it.

What? You're really misreading me if you think I said that. I said that the current system penalizes whistleblowers and objectors in a whole bunch of ways, and to the extent that it does, that's intolerable. However, I don't think that "whistleblower" protections solve the problem, especially not in a military context. The threshold issue is having guidelines clear enough that innocents are not forced to choose between their conscience (and small chance of any practical effect) and the very real threat of retribution. The current guidelines don't provide that assurance, and so I don't think that whether or not they're followed is a very good way of determining ill intent.

"Torture" is not a self-evident definition.

Torture has a clear definition, which I've quoted and linked to.

Regardless of whether you think it's ludicrous to say that waterboarding isn't torture, an interrogator's simply not in a position to gainsay that without running some serious personal risks.

Which is why the interrogators who did refuse to commit torture ought to be protected and supported. Instead, you want to hang them out to dry. Why?

Also, to the extent you think that is ludicrous, that's an indictment of the person writing the justification, for forcing the soldier to disobey orders in order to contest something so facially wrong.

Of course. But how do you intend to prosecute the person who wrote the justification, when you feel it's impossible to prosecute the people who obeyed the justification?

What? You're really misreading me if you think I said that.

Nope. You've been saying all along that the people who obeyed these illegal orders ought to be protected from prosecution because it was unreasonable to expect them to refuse - they are safe to obey orders, even orders to commit torture, because they were required to do so.

That means that the people who refused to obey these illegal orders are not protected at all. They're subject to the usual disciplinary procedures for refusing to obey. If you want to protect the people who obeyed the order to torture, you can't do that without destroying the careers of the people who didn't obey. Had this really not occurred to you?

The threshold issue is having guidelines clear enough that innocents are not forced to choose between their conscience (and small chance of any practical effect) and the very real threat of retribution.

Again: *points at UN convention* Clear guidelines. Clear enough that some soldiers refused. Yet you want to destroy these soldiers' careers, because you feel it's more important to protect the guilty. Why?

OK, Jes, I'm done arguing with you about this. I'm really not in the mood to listen to accusations that I'm pro-torture. I will try to give this one more shot, but that's it.

First, you say:

That means that the people who refused to obey these illegal orders are not protected at all. They're subject to the usual disciplinary procedures for refusing to obey. If you want to protect the people who obeyed the order to torture, you can't do that without destroying the careers of the people who didn't obey. Had this really not occurred to you?
I'm amazed that you're able to summarize my argument while simultaneously completely missing the point. Yes, the current system punishes whistleblowers and protects unwilling torturers. You are advocating a system that protects whistleblowers and punishes unwilling torturers, without addressing the underlying problem, which is that whistleblowers should not be necessary in any reasonable regime, which would lay out clearly what is and is not acceptable without requiring any deduction or deliberation on the part of soldiers. None. At all.
Torture has a clear definition, which I've quoted and linked to.
If that was true, there wouldn't be an issue here. But it's not. If you don't understand that the entire point of the torture memos was to weasel out of these definitions, you simply don't understand the problem at hand.

Also, you also don't seem to understand what a "self-evident definition" entails legally, nor even the relevance of the definition you seem to be placing so much stock in. The Geneva Convention definition of torture isn't bad, but it has no legal bearing on this issue. It wasn't clear to me that you actually thought that definition was meaningful, so I apologize for the confusion, and I'll try to clarify things for you:

First, you're quoting a generalized definition from a treaty that the U.S. has explicitly subordinated to its domestic law, among other reservations. Those reservations specifically refute your characterizations of torture.

Second, and even more specifically, the MCA preempts the application of the Geneva Conventions and your ad hoc characterization of the term "torture" as it's used there. Per Hamdan, the MCA (and, by extension, the UCMJ) are the only relevant references for determining whether "torture" has been committed in these cases. It's the monkeying with the UCMJ that's created most of the problems I've been discussing.

Third, a "self-evident" definition of torture would be enumerative, not inferential -- the leaps of logic you make are exactly what should be laid out in order to provide appropriate guidance. No matter how objectively correct or simple your arguments, they are utterly unhelpful to "unwilling torturers" unless written down somewhere where they can be referred to in support of objections.

Fourth, none of the specific techniques we've been disputing are enumerated as "torture" in any document that is binding on or even advisory to United States military or intelligence officers. None. My contention is that appropriate guidance would provide that level of specificity. No such document exists.

Fifth, and relatedly, the interrogation techniques in question are not even remotely as clear-cut examples of "torture" as you seem to believe, even by international standards. For example, the European Council on Human Rights held under the European Convention on Human Rights that neither "stress and duress," sensory deprivation, nor beatings constitute torture. There is no authority, international or otherwise, that resolves this problem. Even the International Criminal Court, were it applied to the US as a non-signatory, would be preempted by internal prosecutions under the MCA.

Sixth, even if the Geneva Convention definition was useful or binding, you're ignoring all the threshold issues that precede the "torture" question in the first place. For example:

(a) The last sentence of the Geneva Convention definition carves out an exception for "lawful sanctions" -- good luck with that one.

(b) The United States currently argues that the Geneva Conventions provide no coverage for "unlawful combatants" not affiliated with State Parties referred to in the "torture" definition. You also still have to get through the "protected Persons" hoop to reach the GCIII protections.

(c) The restrictions are territorial, so it's not clear how they apply in cases of extraordinary rendition, Iraq, Afghanistan, black sites, or even Gitmo.

(d) (b) notwithstanding, GCIII Article 5 allows a "competent tribunal" to override the detainee classifications as far as they're outlined in the treaty.

(e) (b) and (d) notwithstanding, the loophole in GCIV Article 5 basically lets the U.S. waive detainee rights anyway.

OK, so that's, what, 10 colorable reasons why your "clear guidelines" are legally not that clear at all. Personally, I disagree with all of them, and I have at least some of the background to argue against them. But even if I were a soldier, I wouldn't even have the opportunity to do so. How in the world can you demand -- under pain of imprisonment -- from a layperson whistleblower what you can't even get right yourself?

The bottom line is that you support shifting the responsibility for understanding and acting on intentionally-convoluted legal arguments from those who are supposed to be responsible for those issues onto everyday soldiers. And worse, you think that the soldiers who make what you consider to be the wrong decision -- a decision they aren't qualified to make and shouldn't have to make in the first place -- deserve to be punished for it.

If you have any problems with any of the arguments above -- and I think you should -- then maybe you should think more about punishing the people who've issued them to soldiers as authoritative, and less about punishing the soldiers who you seem to think should be experts on the Geneva Conventions.

Pretty easy to condemn people from behind a keyboard.

Adios.

I posted what will be my last comment on this thread, but it's been held in the queue by the filter. If an admin frees it, then y'all can see my thoughts on this ridiculousness. I'm sure the anticipation is unbearable.

In lieu of the posting guidelines, I'll leave it at that.

FWIW, Adam, you can e-mail the kitten (from the kitten pic) or e-mail one of the administrators with keys to the kitten - currently commenting, that would be Hilzoy and Slartibartfast. Either is probably faster and therefore more effective than commenting in a thread.

Thank you, Jes.

Incidentally, in response to an earlier question, yes, I have spent some time thinking about this question. Before I attended law school, I read the Geneva Conventions and the ICC treaty hundreds of times, and read and distilled literally thousands of pages of secondary-source material on international human rights law.

I can confidently assure you that I am not pro-torture, and that while I might not be right on these questions, I am fairly certain that I am not as wrong as you seem to believe, and not for the reasons you've cited thus far.

I apologize, because saying that sounds dismissive and defensive, but I'm seriously unhappy with your tone thus far. I really find it inappropriate, and the accusations offensive.

Obviously, a person who has not committed torture is innocent, but you've arguing that the people who have refused orders to commit torture - who are innocent - ought to be the ones who pay the penalty for it.

What? You're really misreading me if you think I said that.

I frequently agree with Jes's basic positions, if not with her arguments. I basically like her, despite her flaws.

But you're apt to find that she regularly rewrites people's arguments in her head to what they mean to her, and then proceeds to insist that that's what they mean, the only thing they mean, and the only thing they can mean. And then may call you dishonest if you disavow what you "obviously" or "clearly" "mean."

But with luck, I'm wrong, and you'll never have this experience, and I'll owe Jes an apology for this baseless calumny.

Jes has many strengths, and I truly value her commenting here; I'm disappointed when she goes away. But putting herself in the mind of someone with different assumptions and knowledge and a point of view different than her own, and understanding how thinks look from that point of view, doesn't seem to be her greatest strength. This is clearly compensated for with other useful strengths, such as articulateness, and passion, and a strong moral sense, as well as many other admirable qualities.

Adam: I can confidently assure you that I am not pro-torture

So can President Bush.

Not that I want to compare you to President Bush in any other way, but Bush can confidently assure us that he's not pro-torture - by redefining methods of torture as "not torture". This is done by the same method you appear to be using: claiming that the clear guidelines in the UN Convention are not clear enough, and redefining certain methods of torture - such as waterboarding - as not torture at all.

I apologize, because saying that sounds dismissive and defensive, but I'm seriously unhappy with your tone thus far.

Actually, it just sounds unconvincing. Recent events have demonstrated that anyone can be pro-torture and say they're not by the sleight of hand I just described.

Your urgency to exempt torturers from prosecution, and your reluctance to admit that methods of torture used by the US are torture, suggest that you are exercising that sleight of hand.

But, I apologize for my tone making you unhappy. It was my intention to make you unhappy about the ideas you were defending, because they strike me as indefensible ideas that no one should be happy with, but not to make you personally unhappy.

...Let me try that one last time.

International human rights law was a Gordian knot before the Bush Administration got their hands on it, and since then they've twisted it around so badly that it probably can't be described with string theory. Words can't express my anger at what they've done, the buck-passing tricks in particular.

These issues have never been as simple as taking a single quote from the Geneva Conventions like it's the Word of God and trying to beat people over the head with it. Even if the Geneva Conventions weren't as horribly written as they are, they still wouldn't be a solution to the problems we're facing. Dismissing anything more nuanced than "lock em all up!" as "pro-torture" makes the problem worse, too.

OK, I'm seriously burnt out now. This is why I hate this topic.

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