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August 01, 2014

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Actually, I suspect what I would miss most is pizza. Partly because I have it more often that burgers. But mostly because, when I do have hamburgers, I generally fix them myself rather than going out.

I enjoy burgers, but wouldn't have said that I love them. But you're right... hot off the backyard grill, they're the definition of summer. I'd miss them quickly.

On burgers, I'd highly recommend adding some shredded bacon into the patties themselves. Keeps them super moist and helps them stick together.

It's similar to adding bacon to a burger, but since the bacon never chars, you get a different flavor.

Some crumbled bleu cheese in the mix adds a little something, too.

On comfort food, I'd agree with wj. Pizza. I eat far too much of it and quickly get a craving if I haven't had it for a week or so.

Pizza and a pint. It's the perfect end to any day.

for burgers, i recommend mixing up a batch of what you'd make if you were making meat loaf, but then make patties and grill it.

outta sight.

While I really like pizza and burgers, my soul-warming item is a good hot dog. Regrettably, I think they are quite far from being desirable elements of even a modestly healthy diet.

my favorite burger is 1/2 beef, 1/2 lamb.

for food I'd miss if I lived in another country, I'd say fried chicken.

it's hard enough - way hard enough, now that bob the chef's is gone - to find good fried chicken in new england, let alone in other countries.

I miss hanging out with my old man's GA family, those folks surely knew how to eat.

When I've lived overseas, I've never found there to be any American food that I've missed. When I've sojourned in vegetarianism, it's always been sushi and pepperoni. Which is interesting, because those were things I was doing without while living overseas. Presence makes the heart grow fonder, I suppose.

But we're not prosecuting anybody, because that would be worse:

"We tortured some folks," Obama said at a televised news conference at the White House. "We did some things that were contrary to our values."

But hey, he has confidence in his rather truth-averse CIA director. Whee!

any chance they don't think the legal argument is a sure thing, so they're opting to skip the drama ?

Could be. They'd have a large hill to climb for anyone acting within the scope of the OLC opinion. But the senate report (supposedly) says CIA folk went beyond that. And lied about what was going on and its efficacy. What does the CIA have to do to be prosecuted?

What does the CIA have to do to be prosecuted?

Surrender their copies of the incriminating photographic negatives.

Or, nowadays, emails and selfies.

When I've lived overseas, I've never found there to be any American food that I've missed

Key lime pie from the bakery in Capitola.

Never quite been able to replicate it.

Why would you miss burgers when you can make them yourself? Don't they sell ground beef in Japan?

I would miss pizza if I couldn't have it, but since I finally learned the secret of making it at home (baking steel), I'm good anywhere that sells mozzarella cheese - everything else is easy to do from scratch.

Why would you miss burgers when you can make them yourself? Don't they sell ground beef in Japan?

Finding decent buns, Bermuda onions (god, I love those on a burger) and firing up a bbq is all a little difficult here. (I have this memory of the first time I came to live in Japan and thought that I had found hamburger buns, brought them home with visions of burgers in my head and finding they were filled in anko paste)

I've got friends who regularly bbq here, but it takes on the air of 'things that ex-pats do' which is a vibe I try to avoid.

N Carolina pork BBQ.

So you can't get ground cow in Japan? Or cow meat - you can grind it yourself with various appliances. A hibachi is very good for grilling burgers. Try some other Japanese veggies rather than onions - that would be interesting.

Obama's press conference

He keeps talking about Israel's right to defend itself and mentions the Palestinian right to live a decent life. Of course what that means is that Gazans in particular live in a prison and we were fine with that until this war broke out and Hamas made it a front page issue. He forgot to mention that the prison guards sometimes shoot at the civilian inmates--i.e., the IDF shoots innocent Palestinans. It might suggest interesting questions regarding symmetry and self defense rights. Of course this isn't his fault and I'm not even being sarcastic. There's hardly a Democrat in DC who'd back him up if he said anything like this and Netanyahu would call him up and read him the riot act.

April HRW report


Obama has sympathy for the patriotic folks who were torturers, and expresses the pious hope that we never do this again. In other words, it's a mistake, not a crime, and people make mistakes under intense pressure. Gee that's good to know--people who are under intense pressure get a pass for committing war crimes. Someone phone Hamas. Don't bother phoning Tel Aviv--it's understood already.

Do you have any idea how difficult it is to get a decent burrito in central Italy? Or even to find the ingredients for one?

As for BBQ in Japan: one of the problems is that ground beef is very expensive.

OTOH, the yakisoba is much, much better.

Could be Obama is also afraid and/or complicit.

http://m.theatlantic.com/politics/archive/2014/08/does-john-brennan-know-too-much-to-be-fired-by-barack-obama/375431/

http://www.washingtonmonthly.com/political-animal-a/2014_08/its_not_easy_to_hold_the_cia_a051481.php?fb_action_ids=10154498688650121&fb_action_types=og.likes

From the Atlantic article:

"There's inevitably a need to review the job performance of people party to these secrets. They typically keep their jobs. So George W. Bush left us a CIA staffed partly with people willing to torture, and Obama will likely leave us with a CIA that includes torturers, people willing to kill American citizens in secret without due process, and people willing to spy on their Senate overseers. The Senate intelligence committee was established precisely to stop this sort of thing from playing out, but it is failing in its duties, as yesterday's crimes spawn today's efforts to spin or suppress those crimes. If the Senate doesn't act now to rein in the CIA, what will it take?"

who would be prosecuted?

the people who asked lawyers to outline what was legal and what wasn't? the lawyers who told their employers that these kinds of torture were OK? the people who followed the lawyers' legal guidance?

Could be Obama is also afraid and/or complicit.

afraid? doesn't seem likely.

complicit? are we talking about torture, or are we talking about drones? Friedersdorf cleverly tries to conflate the two.

Why am I put in mind of the way that J. Edgar Hoover stayed in office so long because he had dirt on every politician in government?

Especially with all the information NSA has been collecting, it doesn't seem impossible that the CIA could be doing something similar....

Is it really that easy to commit a felony and escape prosecution? Just ask a lawyer who tells you it's legal to torture someone and nobody is guilty? I'm not snarking or making a bitter observation about American impunity. But if that's the sort of argument people can make--A asked lawyer B if action X was legal and B said yes, what couldn't you do given that B says yes?

The first thing we do, let's kill all the lawyers ;-)

Seriously, if the whole torture mess should ever be dealt with legally, then Yoo and Bybee must be among the first to be hold responsible and to the full degree. The mutual protection of shyster (I only gave a legal opinion) and criminal client (I only followed my lawyer's advice) is maybe the most pernicious part of this case.

Hartmut, that is why Yoo was advised, before Bush even left office, to not travel overseas, lest he be arrested for war crimes as a result of the legal memo he wrote on torture. (He is reported to have looked shocked at the realization that his actions might have consequences for him.)

Rumsfeld too insisted on a guarantee of free conduct for a NATO conference in Europe while he was still in office. Unfortunately, being limited to 'just' the US is not much of a restriction. And he probably still has enough of personal protection not to have to fear the fate of Talaat Pasha.

But if that's the sort of argument people can make--A asked lawyer B if action X was legal and B said yes, what couldn't you do given that B says yes?

that's not an argument i'm making. those aren't rhetorical questions.

Donald,

But if that's the sort of argument people can make--A asked lawyer B if action X was legal and B said yes, what couldn't you do given that B says yes?

My own non-lawyer understanding is that "I acted on advice of counsel" is not a perfect defense. It's helpful in ambiguous borderline situations, but a lawyer's memo is far from absolute protection.

I've seen this arise in a white-collar case where the matter really was unclear, and it kept things at the civil, as opposed to criminal, level.

Maybe McKinney or some other commenter who knows a lot more than I do could weigh in.

byomtov, your analysis seems correct to me.

Just ask a lawyer who tells you it's legal to torture someone and nobody is guilty

Lawyers didn't tell anyone that it was legal to torture. They stated that the activities in question were not torture. The legal opinion was, IMO, invalid and unethical, but since the issue in the context it was presented had never been litigated, the idea that the "torturers" would be held criminally liable (in a prosecution which would require proof of criminal intent), after being advised that their actions would be lawful, is very uncertain. If people have the right to engage in certain coercive acts under particular situations in order to obtain information from a prisoner, and they are told by a lawyer that other coercive acts are also allowed, it's not as clear-cut as if a lawyer says, "Sure, go ahead, torture!" which is advice that would not exonerate anyone.

That still sounds like an ambiguity one could use to do anything. It's really not that difficult to understand that waterboarding is torture--I assume that's part of what we're talking about, though I've now forgotten which techniques were approved. Waterboarding was always seen as torture. So it's bizarre that if someone says "No, waterboarding isn't torture", people can go ahead and waterboard and everything is fine. There's really no limit to this. Many Americans (judging from what I see on Gaza comment threads) think that you can use as much force as you want in war--if the other guy started it (and nevermind who started Gaza), then you get to finish it. I'm sure some lawyers could be found who could interpret the laws of war in a very elastic fashion to allow the leveling of whole neighborhoods based on the presence of a few snipers.

For Gaza comparing purposes I was looking at Neil Sheehan's 1971 NYT Book Review piece on war crimes in Vietnam.

link

Here's a relevant quote--

"Hoopes argued that since the President is elected, since the war was prosecuted from well-meaning if mistaken motives, since Congress voted the funds and there was broad public support at the outset, no official should acquire criminal liability. Judgment, he said, should be confined to voting the Government out of office. Attacking this position in his introduction to the Russell Tribunal proceedings, Noam Chomsky of M.I.T. states that Hoopes is claiming an immunity for American leaders which this country denied to the leaders of Japan and Germany. Marcus Raskin, co-director of the Institute for Policy Studies in Washington, the think-tank of the New Left, asserts that Congress cannot be held responsible as a body because many Congressmen voted funds merely to ensure that American soldiers had the means to defend themselves. Telford Taylor, a mugwump Democrat, remarks that though good intentions may be mitigating circumstances, they do not negate the fact of a crime, if one occurred.
Taken to its logical end, the Hoopes argument also means that all Americans were responsible for the actual conduct of the war. If so, then the adult majorities of Japan and Germany should have been punished for war crimes. They applauded the beginning of World War II. And if everyone is responsible, of course no one is responsible. The Nuremberg and Tokyo tribunals rejected Hoopes’s argument by making a distinction between those in the audience and those who held power, as do the laws of war. The Army Manual denies a collective copout: “The fact that a person who committed an act which constitutes a war crime acted as the head of a State or as a responsible government official does not relieve him from responsibility for his act.”

I know how people feel about Andrew Sullivan around here and with good reason. But I find he's usually worth reading these days. Still want to strangle him occasionally. But he is very good on this torture piece today--

link

Either the rule of law applies to the CIA or it doesn’t. And it’s now absolutely clear that it doesn’t.

Sullivan's not my favorite guy, but I have the same take-away as he does in this case.

Sullivan after the part russell quotes above:

The agency can lie to the public; it can spy on the Senate; it can destroy the evidence of its war crimes; it can lie to its superiors about its torture techniques; it can lie about the results of those techniques. No one will ever be held to account. It is inconceivable that the United States would take this permissive position on torture with any other country or regime. Inconceivable. And so the giant and massive hypocrisy of this country on core human rights is now exposed for good and all. The Bush administration set the precedent for the authorization of torture. The Obama administration has set the precedent for its complete impunity.

America has killed the Geneva Conventions just as surely as America made them.

It is inconceivable that the United States would take this permissive position on torture with any other country or regime. Inconceivable.

I understand Sullivan's rhetorical move ("we used to be not like that and now we are") but I'm not sure I agree. First of all, we've taken a permissive position on torture for any number of our allies and actually have outsourced some of this to them, using black sites. Even earlier, we supported several governments that used torture. I suppose the argument might be made that this was before the UN Convention on torture (1984), though that's parsing things a bit fine.

But second, it seems to miss the connection between our regime of domestic prisons and what has happened overseas. I believe that the pictures are from the Lynndie English/Charles Graner trials, and it was noted by several that many in that unit, including Graner, were reservists whose regular job was as a prison guard.

This is on my mind because of John Oliver's recent segment on the problem on Last Week Tonight. If that rhetoric is useful, that's fine, but I'm not sure that it really homes in on what is really happening: That we are more and more able to treat people who are perceived to be some threat to us in a way that is more and more inhuman.

it can lie to its superiors about its torture techniques; it can lie about the results of those techniques. No one will ever be held to account.

I question Sullivan's assertion that "lying" to superiors, or "lying" period, is relevant to the torture discussion. Torture was an open "secret" during the Bush administration, and Bush was reelected. The torturers had the votes.

That we are more and more able to treat people who are perceived to be some threat to us in a way that is more and more inhuman.

The evidence of history - and prehistory, as the following three archaeological stories from the last month suggest:
http://phys.org/news/2014-08-violent-era-ancient-southwest.html

http://www.pasthorizonspr.com/index.php/archives/07/2014/findings-indicate-ritual-destruction-of-iron-age-warriors

http://www.ibtimes.co.uk/worlds-first-race-war-revealed-13000-year-old-skeletons-1456584

- strongly supports the view that treating people in this way is every bit as 'human' as traits such as empathy.

Civilisation is very much a work in progress.

The torturers had the votes.

and i suspect they would today, too. the people who truly and deeply care about this appear to be in the minority. the notion that "we" are somehow above those who would torture seems incredibly naive.

"Torture was an open "secret" during the Bush administration, and Bush was reelected. The torturers had the votes."

This is why I quoted the Sheehan piece-my 8:20 comment above. It's very often true that entire populations or a good chunk or a majority support a government knowing that it is committing atrocities. But we still make a distinction between the population and the officials. The officials are the ones legally responsible.

If you are saying that all hell would break loose if Obama allowed a prosecution of Bush war criminals, that's true. Certainly they would come after him in every way possible--it would not surprise me if anti-drone activists even found a significant number of alllies among Republican congressmen. But he doesn't have to endorse the reasoning that they should be allowed to get away with it.

I agree with LJ that US support for torture didn't begin with Bush--he's more the President that legalized it for Americans and made the pro-torture stance a mainstream political position.

That we are more and more able to treat people who are perceived to be some threat to us in a way that is more and more inhuman.

Civilisation is very much a work in progress.

The observation about the long history of human brutality is apt.

The particular problem we face, in this country, is that we pay at least lip service to the idea that the state cannot overrun the rights and integrity of those governed. And, that idea is rooted in the idea that the rights of the individual are inherent - endowed by a creator - rather than simply something granted by the state as a matter of noblesse oblige.

So, it would seem, at least in principle, that we would eschew brutality toward folks even if they weren't American citizens.

A lot that is of great value has, historically, derived from that basis. When we start carving out exceptional cases where extraordinary brutality is acceptable, we undermine that.

endowed by a creator

Unfortunately fewer and fewer people believe in a creator. Fewer thus believe that these rights are anything more than a few men's ideas of righteousness. Hardly the level of faith and commitment needed to deprive the masses of whatever level of brutality required to keep us safe and them at bay.

It is sometimes amazing to me that people don't realize the keystone principle in our countries existence is a statement of faith. No one here included.

LJ - re the Sullivan quote. I almost took that sentence out when I posted as it is manifestly untrue. But it serves as a pivot for the sentence beginning "And" and I also felt I couldn't leave it out without being misleading.

But yes, he's gone a little nutty on that one.

It is sometimes amazing to me that people don't realize the keystone principle in our countries existence is a statement of faith.

There are a lot of different kinds of faith. Some of the people who are most brutal are also most passionate about believing in a creator. Some of the people who are most humane believe in the concept of human compassion and justice. Not saying at all that religious people are all brutal, and secular humanists are all kind, but I don't think that faith in a creator is the linchpin of human rights.

Clinton is apparently attacking Obama-- from the right. Well, I'm not a politician, but this doesn't seem like the best way to wave the progressive banner. But maybe she's assuming she's got the nomination sewed up and is going after those centrist independent voters that (whether they exist or not) seem to represent America in the hearts of some pundits.

link

Not saying at all that religious people are all brutal, and secular humanists are all kind, but I don't think that faith in a creator is the linchpin of human rights.

I wouldn't say that the belief in a creator is the lynchpin, but it has been the lynchpin in this country as the very basis of all human rights arguments. That these rights are inalienable, why are they? They are endowed. BY a creator. The very faith that is the brunt of many of the histrionic attacks is the bedrock on which the argument is built.

Clinton is apparently attacking Obama-- from the right. Well, I'm not a politician, but this doesn't seem like the best way to wave the progressive banner.

Well, maybe it will open some room for a moderate Democrat to challenge her for the nomination, instead of just someone from well to the left in the party. It would certainly cheer me up to have some better choices than Clinton and Warren on that side. Especially given what appears to be the way the GOP nomination is likely to go.

Maybe McKinney or some other commenter who knows a lot more than I do could weigh in.

I'm not an expert on the law of torture. I've read the US statute prohibiting torture and it has a loophole the size of Dallas, i.e. the torturer has to intend to inflict severe physical or mental injury, IIRC. So, if the intent is to secure intelligence essential to protect innocent American citizens, the statute is not implicated, one could plausibly argue.

Torture does violate the UN Convention which we ratified, so it's a moot point.

What Yoo et al did was write an opinion letter. I write those all the time, but usually on whether there is or is not civil liability, chances on appeal and other mundane stuff. It is rare to get a definitive statement from me or any other lawyer to the effect that X is or is not of specific legal significance or standing IF reasonable minds can disagree.

Bottom line, anyone who opines that waterboarding is not torture, period full stop, is not giving a legal opinion; rather, that is cover. Clearly, there is a counter argument. I can opine that sex with a 16 year old isn't statutory rape if he/she looks 18 and has a fake ID, but that doesn't make it the case and acting on my advice would be just really, really stupid.

If I'd been hired to address the issue, and assuming the client wanted a valid legal opinion and not cover for something that was going to happen no matter what, my opinion would be on the lines of "whether waterboarding, sleep deprivation, extreme temperature exposure or cold water immersion is torture is open to debate (this is how lawyer's avoid telling their clients they are nuts--we act as if there are two sides to the story and then tell them the other side is, sadly, the better side) and there is no guarantee that these activities would not be held to be torture; however, if the circumstances are exigent, and if you go forward on these activities, *and* if charges are brought, the defense would be 'necessity'" and I would go on to lay out the defense. Cold blooded? Sure. But, ask a lawyer for a legal analysis, that is what you get. Also, I would qualify the shit out of my opinion, as would any competent lawyer. Finally, I would recommend, in this specific instance, that all downstream employees ordered to do the dirty work be given a presidential pardon and that the senior administrative official ordering the conduct be prepared to take responsibility.

I can, and have, made the argument for an 'exigent circumstances' use of some torture techniques. It is a fact that soldiers in the field have gotten nasty to get information they needed in a big way with no time to be nice about it. This goes way back in history. It isn't right, of course, but it's like a lot of other things--it's really easy to second guess from a safe distance and with no skin in the game.

Leaving the religious and/or theistic question aside, it seems to me that the assertion of inherent human rights found in the Declaration is basically axiomatic.

It's a reality that is held to be, and asserted to be, self-evident. And then, a lot of stuff flows from that.

So, certainly a statement of faith in something, even if not a god in the traditional theistic sense. If nothing else, an affirmation of human dignity and value, independent of and prior to whatever political institutions are in effect.

Not everyone in the world, or in history, is on board with that, and even in this country we haven't been on board with that for all folks at all time.

But IMO that assertion is the distinct contribution that we've made, as a nation and a people (to the degree that we can be considered "a people") to the overall discussion of what human political life should be.

"Well, maybe it will open some room for a moderate Democrat to challenge"

Wouldn't Clinton be who you'd want? Or is it the baggage that she carries? Clinton fatigue? (I can see that.) Or is it that you are a moderate, but don't like some of her particular positions? The Clintons always seemed to be centrist Democrats to me, for better or worse.

Clinton is apparently attacking Obama-- from the right. Well, I'm not a politician, but this doesn't seem like the best way to wave the progressive banner

should she win, Clinton will disappoint the far left a lot more than Obama has. she's already to his right on pretty much everything, even though she's completely free of the need to compromise - she apparently comes to her positions naturally.

I've read the US statute prohibiting torture and it has a loophole the size of Dallas, i.e. the torturer has to intend to inflict severe physical or mental injury, IIRC. So, if the intent is to secure intelligence essential to protect innocent American citizens, the statute is not implicated, one could plausibly argue.

Serious question here, and not just looking to start an argument: does the law really typically accept the notion that an individual cannot have multiple intentions? E.g., the alleged torturer foremost intended to obtain intelligence, and therefore cannot be held to have intended to inflict severe mental/physical suffering despite having chosen, planned, and systematized the infliction of such as the means by which the intelligence would be obtained? Does the doctrine of double effect really trump what I'd like to say is common sense?

It would seem more reasonable (yeah, I know, not always the best standard to apply) to assume that the loophole would be if the suffering was inflicted without knowing it would be or was being inflicted; i.e., by accident, and/or more pointedly, without foreknowledge and certainly without systematic planning.

"Clinton will disappoint the far left a lot more than Obama has. "

I don't doubt that. I'd still vote for her over the Republican nominee, but would probably have to avoid watching her on TV lest I start shrieking or thinking useless third party thoughts.

Clinton will disappoint the far left a lot more than Obama has.

Although I wish that Clinton's nomination weren't a done deal, the Supreme Court is at stake, and we can't have a Republican choosing another Justice. Never, ever again.

A technical question: Since at the moment likely no candidate could be confirmed to SCOTUS and there seems to be no change incoming (unless Senate and presidency both fall to the Republicans), could a president recess appoint justices or is SCOTUS exempted by law from that? If the blockade became permanent, is there a state where SCOTUS would become legally inoperable due to justices parting (death/retirement/impeachment) or could in theory a single surviving chief justice be SCOTUS?

McK: I'm not an expert on the law of torture. I've read the US statute prohibiting torture and it has a loophole the size of Dallas, i.e. the torturer has to intend to inflict severe physical or mental injury, IIRC. So, if the intent is to secure intelligence essential to protect innocent American citizens, the statute is not implicated, one could plausibly argue.

You can't be serious.

Did you point the gun at him? Yes.
Did you know it was loaded? Yes.
Did you know the ammunition was live? Yes.
Did you pull the trigger? Yes.
Did you know the safety was off? Yes.
Did you intend to shoot him? No. I wanted secure intelligence essential to protect innocent American citizens.

Not torture, case dismissed.

Serious question here, and not just looking to start an argument: does the law really typically accept the notion that an individual cannot have multiple intentions?

A fair question. Keep in mind I'm working from memory of 1st year Crim Law--the Model Penal Code (which is pretty widely accepted as the basis for most state penal codes, or so I am told--it was in Texas FWIW) recognizes 4 levels of mens rea: intent, knowledge, recklessness and negligence. You can 'know' something is a by product of an act intended for another purpose without 'intending' that byproduct. Ergo, the differences in mens rea levels. If the actor intends to save lives (that's his argument, not a description of objective reality), and affirmatively intends not to cause physical or mental harm (that is what the jury believes), then the actor walks. I'm not saying a judge dismisses the charges, just that it would be tough to convict. Which, BTW, I think would be the case: as much as many folks would like to see prosecutions, for those who thought the Trayvon Martin/George Zimmerman verdict was controversial and disappointing, I would expect heads to explode after a bunch of torture acquittals.

You can't be serious.

Yes, I can. See above. Penal statutes are strictly construed. The US statute--IIRC--is 'intent'-based, not knowledge based. High end criminal defense lawyers walk clients with a lot less to work with than Defending the Homeland Under Attack. Your second post envisions a dismissal. I didn't say that. It's a loophole, not a complete defense. The jury would decide the 'intent' issue. Also, if the Feds follow most state laws, 'necessity' is an affirmative defense to most criminal prosecutions. "Affirmative defense" meaning the defendant essentially or at least inferentially admits the charge and then proves to the jury's satisfaction that his/her acts were justified by 'necessity' which gets us back to Defending the Homeland Under Attack.

it's really easy to second guess from a safe distance and with no skin in the game.

First, I would say that in the context we're talking about "safe distance" and "no skin in the game" did not and do not apply.

The difference between people who used torture, and affirmed the use of torture, and folks who are now (and have been for some time, usually) critical of it is that the folks who decided to use it were in the position if having to decide whether to use it or not.

That's not the same as "having skin in the game" vs "not having skin in the game". We all had, and continue to have, skin in the game.

If you travel, fly, spend any time in cities, or did or continue to do any of the very many things that expose you to risk of terror, you have skin in the game.

Unless by "skin in the game" you're just referring to the ongoing CYA shell game of taking or not taking responsibility for the fact that international laws were broken.

In any case it's not a peanut gallery discussion we are having. The folks who were killed on 9/11 were, in the main, normal people going about their daily lives.

That's you and me. On the issue of whether torture should be employed to "keep us safe", we all have skin in the game.

The duration and systematic nature of the torture program speaks against exigence being the driving factor. At least after the first handful of cases.

What we are discussing is a choice to use methods that were derived from torture training programs (both administering and resisting), methods widely known and considered to be torture, and to do so consistently, with careful monitoring and record-keeping, over months and years.

It was a deliberate and thoughtful decision to use, and justify the use of, torture.

Mr Johnson, I'm with you. I really really wish I wasn't. But the world persists in not being run according to my preferences.

That's you and me. On the issue of whether torture should be employed to "keep us safe", we all have skin in the game.

Yes, in the large sense, since we are/were potential victims, we have skin in the game; however, those who decided to use torture, particularly in the immediate aftermath of 9-11 weren't so much in the larger class of potential victims, but in the very, very small class of those responsible for finding out if there was a follow on attack scheduled and heading it off. The latter is what I meant by 'skin in the game.'

Sure, it was deliberate. I didn't say otherwise. I disagree that hypothetical, potential victim status confers standing to judge those who, as anyone in the administration's shoes would have to see the world right after 9-11: another mass casualty event, of unknown origin, coming down the pike and who knows how much time there is to prevent it.

We have those who think waterboarding is not torture and is just another tool in the intelligence gathering arsenal. We have others who take a bright line, no-torture-of-any-kind-ever-no-matter-what approach. I am of the latter school of thought except in demonstrably exigent circumstances, but I shy away from second-guessing decisions in the weeks and first few months after 9-11. As time passed, so did the exigency.

It was a deliberate and thoughtful decision to use, and justify the use of, torture.

It was, and there is no excuse for it. But the deliberate and thoughtful decision was made at the highest level of government, and supported by the American people, as shown by the reelection of the administration which authorized it.

I wouldn't object to a truth and reconciliation commission. But, y'know, we're not going to prosecute my neighbor who still has a Bush/Cheney sticker on his car, even though he knew, and knows, and voted, and endorsed. We are responsible for the people we elect, and we should quit shifting blame to pretend that it was a handful of CIA guys.

I disagree that hypothetical, potential victim status confers standing to judge those who, as anyone in the administration's shoes would have to see the world right after 9-11: another mass casualty event, of unknown origin, coming down the pike and who knows how much time there is to prevent it.

First, I'm unclear on what you mean by "hypothetical".

I have family members who work in the financial district in NYC. People from my town were killed in the 9/11 attacks. At the time of the attacks, my wife traveled frequently, domestically and internationally, by air for business.

If you mean "hypothetical" in the sense that "it didn't actually happen to me", then yes. If you mean there was no reason to think it would ever happen to me, or to people quite close to me, then no.

That aside, I absolutely disagree that people who live in this country, and who elect and pay for its government, and who live under that government, have no standing to judge what is done in their name.

They not only have standing, they have the obligation and responsibility to do so.

Which brings me to:

We are responsible for the people we elect, and we should quit shifting blame to pretend that it was a handful of CIA guys.

I agree with this completely.

I'm not looking for anybody to round up the "bad apples" at the CIA and send them off to hang. IMO that would turn into more or less an exercise in scapegoating.

I wouldn't mind if those guys were fired, or moved along to some other line of work, and/or if we stopped hiring contractors whose specialties seem to be knowing a million ways to f***k people up.

Something along the lines of "truth and reconciliation" commission would be good.

What I would mostly like is some clear understanding that we affirm, and comply with, international and domestic law. That we don't torture people.

Not just don't waterboard them, but don't drench them with water and leave them naked in freezing rooms, don't slam their heads into the wall, don't chain them to the ceiling for days at a time, don't keep them awake until they become psychotic, don't beat them until their joints are pulverized. Stuff like that.

I would like a clear understanding that we don't do it, that it won't be tolerated, that we won't outsource it to some other crappy place to have it done for us.

That's what I'd like.

That, and for the folks whose decisions created the torture program to be out of the freaking picture, for good.

Not hung, not hog-tied and delivered to the Hague, just not in the freaking government anymore. Get them the hell out of there.

It was a very bad idea. It was a mistake, a colossal blunder, an exercise of incredibly bad judgement. To carry it off, they perverted the law, corrupted the intelligence community, and put a lot of people at significant risk of criminal prosecution.

Get them the hell out of the government.

I'd be more than happy with that.

If the actor intends to save lives (that's his argument, not a description of objective reality), and affirmatively intends not to cause physical or mental harm (that is what the jury believes), then the actor walks.

Got it. However, I think anything resembling the second part would be a very hard sell given how the "enhanced interrogation" regime was engineered (e.g., reverse-engineering SERE training) and how its efficacy was being argued (basically, it works 'cause it's brutal). OTOH, as you sorta allude to, one rarely loses money betting that the courts will almost unhesitatingly defer to the executive on matters presented as national security and/or intelligence.

Also, if the Feds follow most state laws, 'necessity' is an affirmative defense to most criminal prosecutions. "Affirmative defense" meaning the defendant essentially or at least inferentially admits the charge and then proves to the jury's satisfaction that his/her acts were justified by 'necessity' which gets us back to Defending the Homeland Under Attack.

I must wonder if there is a Constitutional issue here, in that the anti-torture law is a statutory implementation of a duly signed and ratified treaty (with no relevant reservations), and the treaty explicitly excludes necessity as a defense. I have read analysis (e.g., for the first example I can find from Google) suggesting it most certainly is, and that Yoo's dismissal of this point does not withstand scrutiny; indeed, I find it essentially laughable given that the Senate specifically stated in their advice and consent which portions of the treaty they did not intend to include within the American implementation, and Article 2(2) was at no time mentioned.

(I will concede that a better defense of the necessity defense would be an argument that 18USC §2340a is insufficiently specified in its exclusion of necessity, and as the treaty is enforced in the US exclusively via statute, that is a potential problem for dismissing necessity. However, Yoo's Congressional intent defense is quite incredible, and attempting to justify an "enhanced interrogation" program founded on that understanding is at best highly problematic... as is an actual assertion of necessity given that there were other portions of the American intelligence community rejecting or decrying said "enhanced" techniques as ineffectual or even counter-productive, and that the unwavering official position of the US as stated by e.g. State is that the US categorically rejects exigency-based justifications of torture in keeping with our treaty obligations.)

Ahem. I appear to have sunk an overly-hyperlinked comment into the spam trap.

russell, I wholly agree with your post of 8:10 p.m. Absolutely and entirely.

That, and for the folks whose decisions created the torture program to be out of the freaking picture, for good.

Yes, yes, yes. John Yoo is at Berkeley. WTF?

As cleek said, who are we going to prosecute? Where do we start? The guy across the street with the bumper sticker also made this happen. If people really wanted the torturers to be out of the picture, they could raise a ruckus. Where's the ruckus?

Me: Where's the ruckus?

Actually, where are the votes?

The same Congressional districts that are voting for the current House are those who will keep the torture culture intact.

russell: And, that idea is rooted in the idea that the rights of the individual are inherent - endowed by a creator - rather than simply something granted by the state as a matter of noblesse oblige.

Marty: That these rights are inalienable, why are they? They are endowed. BY a creator.

"A creator" is not, of course, the God of Abraham, or His Son. Young Tom Jefferson and old Ben Franklin knew how to be explicit. Had they meant "God" they'd have written "God".

They also knew how to NOT be explicit, of course. So they probably figured that "Creator" would fire up the god-botherers without riling up the free-thinkers. Should they have foreseen the likes of Sister Palin? That they apparently did not is a blotch on their escutcheon.

By "the likes of Sister Palin" I mean the modern-day Americans who persist in thinking of the Declaration (if not the Constitution, which they often confuse with it) as "Christian" documents.

Many people are not Christians because they are Jews, or Muslims, or Hindus. I am not a Christian because I am a (d)emocrat. I can't vote God out of office, sue Him in court, or overthrow Him by force of arms. So I prefer not to construct my mental universe on His existence.

Maybe I'd change my mind if God spoke to me personally, and told me explicitly what rights He has endowed me with. But until He does, I only have the word of the likes of Sarah Palin -- who take the word of the likes of Pat Robertson, who purports to take the word of Bronze Age shepherds -- for what my rights are. Fie on that.

So let me be clear: foolish, weak, and vicious as my fellow citizens may be, I prefer to risk my "inalienable" rights on their good will, rather than the supposed promises of an alleged god.

--TP

"As cleek said, who are we going to prosecute? Where do we start?"

I don't see what the problem would be here if it weren't for the politics. Which is a big "if" and I'll get back to it. You find the guys who tortured and prosecute. You go up the chain of command. Maybe you get the lawyers who gave the bad advice, but I don't know if that's illegal or not. But no, not the guy with the bumper sticker. There's the same issue with any country guilty of war crimes--you may often find that large chunks of the population agreed with the policies and supported them, but unless they actually committed the crime or gave the order, nobody thinks they should be prosecuted.

Whether a prosecution would be successful is another matter--I tend to think McKT may be right about the likely result. I wouldn't place any faith in an American jury trying American war criminals claiming to have acted on our behalf. Some of those guys might have had the bumper stickers.

Failing that, because in our wonderful democracy which happens to be a superpower there is no accountability for war crimes since no one can make us accountable, you then go for Russell's option of a truth commission. Which also won't happen. People who talk about how democracies are places where there is accountability really need to rethink their position. It's defeated or overthrown dictatorships which have accountability. Democracies really stink at it, if the criminal is big enough.

I don't see what the problem would be here if it weren't for the politics.

Where's the ruckus?

To me, "where's the ruckus" and "where are the votes" get to the heart of the matter.

Most folks either enthusiastically support it, are sort of OK with it given the context, or just have other stuff to worry about that's of greater import to them because the torture thing doesn't touch them directly.

At some point, somebody - CIA, chain of command higher-up, lawyer, whoever - might make a mistake, leave the country without taking appropriate precautions, and get grabbed and brought before a foreign or international court.

That's not a hypothetical thing, it's feasible, has happened to other people, and could happen to some of the folks involved.

Nothing of consequence is going to happen here.

Most folks either enthusiastically support it, are sort of OK with it given the context, or just have other stuff to worry about that's of greater import to them because the torture thing doesn't touch them directly.

Is that really true ?

I think the "other stuff to worry about" might be, but that, as much as anything, is thanks to a remarkable lack of political leadership.

For me, the single most disappointing thing about Obama's presidency is he way in which he has determinedly avoided grasping this nettle.

hear, hear: Tony P.

I was really looking forward to reading a lengthy discussion on hamburgers, just to lighten things up a bit. I guess I'll just read the obituaries instead.

DJ: You find the guys who tortured and prosecute. You go up the chain of command. Maybe you get the lawyers who gave the bad advice, but I don't know if that's illegal or not. But no, not the guy with the bumper sticker. There's the same issue with any country guilty of war crimes--you may often find that large chunks of the population agreed with the policies and supported them, but unless they actually committed the crime or gave the order, nobody thinks they should be prosecuted.

And that's the core of the matter. One can argue that those who supported the policy, and/or voted for the politicians who ordered it, are morally guilty. But as a legal matter, we have a lot of precedents running back (at least) to WW II, and they all show the same thing. Those who committed war crimes, those who ordered them, and those who provided the "legal" justifications can be tried. But not the general population.

"I was really looking forward to reading a lengthy discussion on hamburgers, just to lighten things up a bit. I guess I'll just read the obituaries instead."

I think Liz Cheney once shanghaied a line of questioning regarding torture by offering the interviewer tickets to "Sweeney Todd" and encouraging a side of freedom fries with a slice of her Dad's favorite mincemeat pie.

This thread kind of took the same course as Roald Dahl's infamous short story "Lamb To the Slaughter".

On the other hand, this beats threads at Redstate or the roundtable discussions at NRA National Conventions wherein the discussants wade about in human blood up to their man nipples while wondering what marinade was used on the raw meat they hold aloft on their hors d'oeuvres spits.

Putin and Netanyahu recently threw a picnic while listening in on American diplomatic phone calls and licked their chops over their joint declaration that soylent green is Obama.

I like my burger elegant, 80/20 good ground chuck with worcestershire sauce added for flavor, grilled to blood red in the middle, a little salt and pepper, plain on a good bun, but maybe a slice of red onion, or some raw horseradish on top.

In closing, how come the food is so bountiful and delicious at wakes?

"I'm in mourning, if you don't mind, but I will try some of those baby backs. Is that Aunt Sue's coleslaw I see over there?"

I consider burgers to be an abomination. Buns/breadrolls have to be crunchy (and I prefer meat unminced unless it is sausage). Call me back about the soft stuff when I can no longer afford dental care.

Those who committed war crimes, those who ordered them, and those who provided the "legal" justifications can be tried. But not the general population.

Note that those who are prosecuted are on the side of those who lost. The general population on the losing side of a war probably suffered generally.

Okay, food related but still depressing. I don't eat warm blooded animals--I may slowly move towards vegetarianism, but that's gonna be tough.

Sullivan quoting someone on the cruelty of fishing

That is harsh. I mean, it's nothing I didn't know, but when I've done pescatarian spells, I always managed cognitive dissonance by not actually letting myself think about it. But that's a really good, unpleasant point, and it's hard to unthink it once it's been so clearly stated.

(I'm currently a mostly unrestricted omnivore, but that's circumstantial, and will probably change back to some stripe of restricted diet in the next eight months or so. That one paragraph makes it pretty hard to countenance only going back as far as pescatarian...)

I must wonder if there is a Constitutional issue here, in that the anti-torture law is a statutory implementation of a duly signed and ratified treaty (with no relevant reservations), and the treaty explicitly excludes necessity as a defense.

Not a constitutional issue; rather, a memory error by me. The UN Convention excludes necessity as a defense, so a prosecution under the Convention would not be subject to that defense as an instruction to the jury. Has the US codified the Convention to make a violation subject to prosecution? I don't know.

I have family members who work in the financial district in NYC. People from my town were killed in the 9/11 attacks. At the time of the attacks, my wife traveled frequently, domestically and internationally, by air for business.

Ok. Going with this, we have three classes of people: those who fly regularly (I'm in that group--made my second of four flights this week today),those at risk of having been killed in 9-11 because of proximity to NYC's financial district and those who were killed in 9-11.

Here a question that gets to the heart of the matter:

Would you have authorized torture if doing so would have given authorities a reasonable chance to have prevented 9-11?

9-11 happened. In the weeks leading up to 9-11, it was a ticking bomb scenario: everything was in place, plans made, etc. And, to repeat, it actually did happen. So, would torture have been justified to prevent it?

I suggest the families of those killed, not to mention the victims, would have one view of it. Do they have greater standing than us frequent flyers to weigh in on the torture question?

It's a difficult question, but it's fair.

I will answer my own question: yes. The circumstances were exigent. It would have been illegal, but it would have been the right call.

I like my burger elegant, 80/20 good ground chuck with worcestershire sauce added for flavor, grilled to blood red in the middle, a little salt and pepper, plain on a good bun, but maybe a slice of red onion, or some raw horseradish on top.

A friend gave us half of an axis deer he'd shot, with the fillets wrapped in bacon and the rest ground. I use worcetershire, salt and pepper too. Cooked medium for safety reasons. Eaten topped with guacamole, pico de gallo or a bit of pimento cheese. Good stuff.

McKinney wrote:

Here a question that gets to the heart of the matter:

Would you have authorized torture if doing so would have given authorities a reasonable chance to have prevented 9-11?

... It's a difficult question, but it's fair.


It's a silly question, and here's why:

1) Vagueness. Who are you asking anyone to authorize the torture of in your alternate summer of 2001? Any Arab? Any Muslim? Any American? Any member of the board of the NRA?

The 9/11 attack has not happened yet, by your stipulation. We just happen to know that "bin Laden is determined to attack inside the US". Do we know the attack is scheduled for a particular day? Do we know that it involves multiple hijackings? Do we know any specific people who might be worth torturing? It seems to me that the less information we already have, the wider the scope of the authorization needs to be, and the less likely the torturers are to ask the right questions. And the more information we already have, the easier it is to thwart the attack without torturing anybody. What happy medium between knowledge and ignorance do you postulate?

2) Asymmetry. We know -- we just KNOW -- that there will be another Sandy Hook, another Aurora, another Columbine. We could prevent at least some of them by "torturing" so-called "responsible gun owners" with what they would call "oppressive" regulations. Just that; no waterboarding involved. So if you want a difficult but fair question, try this one on for size:

"Would you authorize registration of guns and licensing of gun owners given that there's a reasonable chance it would prevent a future massacre?"

--TP

TP,

I certainly would, it certainly wouldn't.

The circumstances were exigent. It would have been illegal, but it would have been the right call.

Assume, for the sake of discussion, that we had any clue about just who to question. The problem is that it has been pretty thoroughly demonstrated that torture is a terrible way to get accurate information.

People being tortured will say anything, true or not, just to make it stop. And once you lose the prospect of actually getting accurate information, the whole justification falls apart.

Here a question that gets to the heart of the matter

No, McK, your question does not get to the heart of the matter.

We're not talking about hypothetical one-off acts of torture, carried out under extreme duress, we are talking about a fully developed program of torture, carried out systematically and with full-regalia legal justification and how-to manuals.

People were tortured for stuff that was immaterial to 9/11, and in fact was not even in evidence or likely. Like for instance was there a connection between Al Qaeda and Iraq. Funny about that.

The answer to the question you ask is yes, in certain circumstances it may be justifiable to torture someone to prevent massive loss of life. It's likely illegal in those cases, but it's justifiable.

And in those circumstances, the correct direction forward is to lay out what happened, give the reasons why it was necessary, and make your case.

Not 10 years of CYA stonewalling bullshit.

Your question does not describe the situation we're talking about, so it not only doesn't "approach the heart of the matter", it's not to the point at all.

As far as what "the families of those killed" would wish, the widow of a doctor in my town who was killed on 9/11 gave his medical library to a school in Afghanistan as her response to the attacks.

So, that's one view of it, from somebody who I imagine has sufficient "standing" in your eyes to have an opinion on the topic.

Sheesh, are we doing the ticking time bomb thing again? McKT's question is for a jury--nevermind whether it is a realistic scenario, if torturers thought it was the situation they were in, would we let them off or consider it to be a mitigating circumstance? Yes, if someone thought that by torturing a few key people he was saving 3000, that would be a mitigating circumstance or whatever the correct legal term is. I would lighten the sentence. If it keeps happening, then no. There was a massive book on torture by Darius Rejali that I read several years ago. One problem with torture is that once people start using it, they think as McKT apparently does, that it's the magic bullet, the solution to all one's intelligence gathering needs. In reality it produces a lot of worthless crap. The signal to noise ratio is tiny. In the Algerian War, I think the most significant piece of info uncovered was that the French Government was secretly negotiating with the "terrorists", who were of course the future government of Algeria. That upset the military--I forget if this is what led to the attempted coup.

"Would you authorize registration of guns and licensing of gun owners given that there's a reasonable chance it would prevent a future massacre?"

--TP

Posted by: Tony P. | August 05, 2014 at 06:59 PM

TP,

I certainly would, it certainly wouldn't.

Posted by: Marty | August 05, 2014 at 08:24 PM

Assuming Marty is not being disingenuous, I think there may be a linguistic derailment here, over the term "a future massacre," which may (reasonably) be read two different ways.

Would gun regulation prevent ALL/ANY future massacres? Of course not; I certainly don't think so, and I assume Tony P agrees.

Might gun regulation prevent A (singular, unspecified) massacre? I would bet that it would - sweeping enforcement of draconian regulations would stop at least one gun nut who otherwise would go out and shoot a bunch of people from doing so, because he (and it's virtually always a "he") would not, in this instance, have access to the kind of firepower he would otherwise be able to deploy to shoot people.

Marty: do you disagree?

"Here a question that gets to the heart of the matter

No, McK, your question does not get to the heart of the matter."

Actually, I think it cuts right to the heart of the matter that intelligent people such as McK.T. can still think, after all the debate of the last few years, that the 'ticking bomb scenario' is a 'fair' basis on which to make policy.

But what about the massacres committed because regulations are impending (now or never acts)?

Okay, that's a (deliberately) stupid question but it is on a similar level as those torture advocates that condemn those spilling the beans about the torture or object to its condemnation because 'it encourages the enemy because he knows that we will not harm him' and instead treat torture like Israeli nukes (not admitted to exist but known to everybody to do so).

There's the same issue with any country guilty of war crimes--you may often find that large chunks of the population agreed with the policies and supported them, but unless they actually committed the crime or gave the order, nobody thinks they should be prosecuted.

At the risk of further fanning the flames, there is good evidence that many believe that collective punishment - rightly outlawed in the Geneva Conventions - is entirely justified:

http://religiondispatches.org/violent-genocidal-anti-palestinian-rhetoric-moving-to-us/

(That is merely a recent disturbing example amongst many, and is not intended to single out Israel in this regard.)

I guess before we started to torture whomever required torturing after the infamous 9/11 memo was brought to the attention of the White House as al Qaeda prepared their attack in the summer of 2001, first we should have tortured whomever set the memo aside with a "Nothing to see here."

That would have proven the case that torturing ignoramuses will yield no intelligence, or did they know something?

Yeah, Chris Hayes had the President of the Board of New York Rabbis on his show Friday.

link It was about his little "if you voted for Hamas you are not a civilian" speech outside the UN a little over a week ago. It didn't seem to occur to him that there are voters for rightwing Israeli parties that could have targets painted on their backs by that reasoning. The rabbi obviously lives in a cocoon where you can say outrageous things and make stupid arguments and everyone just nods, so he was also gave the argument that Hamas is so bad that Egypt and Saudi Arabia side with Israel. Brilliant, given that Sisis murdered 1000 Muslim Brotherhood demonstrators last year. General Sisi along with the Saudi government are people that you really want on your side in any moral discussion.

"was also gave"--

Good lord. Hope no one proposes that people guilty of grammatical atrocities are fit subjects for waterboarding or extermination or war crimes trials. Incomplete editing--I was shuffling sentences around. That's my defense.

Dr Ngo,

Under that definition, draconian enforcement and one or, even a few, acts avoided my response would change to:

I certainly wouldn't, it almost certainly would.

But that calculus is not dissimilar to airport security, how much would you be willing to put up with to avoid some number of future potential casualties? Is their an aggravation/benefit analysis?

Marty: A reasonable response, thanks. I suspect there should be some aggravation/benefit analysis, but (1) it would be hell on wheels to calculate and (2) for political reasons, it would be even harder to implement. But yes, moving toward such a calculus (in both cases) seems to me going in the right direction.

Nothing like a tortured discussion of hamburgers, I say.

@bobbyp: evidence that cows were tortured to death in the making of hamburger ("Mmmm, it's the 'fear and pain' that make them taste so good!") would certainly push me in the direction of vegetarianism, in spite of my omnivore preferences.

Some years ago, I tried an experiment: batches of grilled burgers, mostly the same (ground beef, diced onion, raw egg to help bind, pepper and salt). The only difference from one batch to another was the amount of salt.

Interestingly, there was a clear "optimum salt" amount; but if you were to graph "tastiness" vs. "salt", it was a linear increase up to the optimum, then a quick drop off to "too salty!".

I just wish I could remember where I wrote down the results, my vague recollection was 3/8tsp/lb, but I wouldn't swear to it under torture. Maybe.

I might light myself on fire to prevent my children from being eaten by lions, but so what?

But that calculus is not dissimilar to airport security, how much would you be willing to put up with to avoid some number of future potential casualties? Is their an aggravation/benefit analysis?

Marty, if there was any evidence that the inconvenience that TSA inflicts on us was actually providing security of some kind, rather than just security theater, your question might have a point. As it is, we have inconvenience which maybe gives some people a sense of security, without actually providing security. (Except, I suppose, job security for politicians who are thus able to say "action has been taken" -- unconcerned about whether the action taken is relevant, let alone useful.)

Wj, so imagine what the aggravation dide of that equation would be to provide actual security? The plus or minus of the actual effect doesn't negate the question.

Marty: But that calculus is not dissimilar to airport security ...

Not dissimilar to torture, either.

--TP

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