July 14, 2004

Legal, or Pardonable?

Yale's Jack Balkin takes aim at defenders of the Torture Memo:

Balkinization: Two very fine young scholars at the University of Chicago, Adrian Vermeule and Eric Posner (son of Judge Richard Posner), have defended the OLC torture memo's legal analysis, and its restrictive view of what constitutes torture as "standard lawyerly fare, routine stuff." They also argue that the there is nothing particularly problematic about the memo's conclusion that the President cannot be bound by federal laws prohibiting torture overseas:

[T]he memo explicitly limits their context to the interrogation (1) outside the U.S. (2) of identified enemy combatants (3) concerning the enemy's plans of attack.... Everyone... agrees that Congress may not, by statute, abrogate the president's commander-in-chief power.... The only dispute is whether the choice of interrogation methods should be deemed within the president's power, as the memo concludes.

. . . .

The Justice Department memorandum came out of the OLC, whose jurisprudence has traditionally been highly pro-executive. . . . Not everyone likes OLC's traditional jurisprudence, or its awkward role as both defender and adviser of the executive branch; but former officials who claim that the OLC's function is solely to supply "disinterested" advice, or that it serves as a "conscience" for the government, are providing a sentimental, distorted and self-serving picture of a complex reality.

There is an important intellectual context.... An older generation of legal academics developed something like a consensus in favor of enhanced congressional power... a favorable attitude towards Youngstown and other decisions that restrict presidential power. That conventional view has been challenged in recent years by a dynamic generation of younger scholars... who argue for an expansive conception of presidential power over foreign affairs.... Among this rising generation... John Yoo at Berkeley. The memorandum thus focuses not on restrictive Supreme Court precedents, but on the constitutional text, the structure of foreign affairs powers and the history of presidential power in wartime. From this perspective, the academic critics' complaints have a distinct methodological valence, one with intellectually partisan overtones.

Vermeule's and Posner's citation of John Yoo is not adventitious.... [T]he torture memo... is the work of John Yoo during his days at the OLC.

The memo... has been widely criticized for seeming to flout conventions against torture.... NEWSWEEK has learned that Yoo's August 2002 memo was prompted by CIA questions about what to do with a top Qaeda captive, Abu Zubaydah, who had turned uncooperative. And it was drafted after White House meetings convened by George W. Bush's chief counsel, Alberto Gonzales, along with Defense Department general counsel William Haynes and David Addington, Vice President Dick Cheney's counsel, who discussed specific interrogation techniques, says a source familiar with the discussions. Among the methods they found acceptable: "water-boarding," or dripping water into a wet cloth over a suspect's face, which can feel like drowning; and threatening to bring in more-brutal interrogators from other nations.

Vermeule and Posner must deal with the rather embarrassing fact that the OLC memo does not even cite... Youngstown... which held that President Truman did not have constitutional authority to seize steel mills in the U.S.... Youngstown... explodes the OLC torture memo.... Vermeule and Posner... argue that OLC... can simply disregard existing precedents... and rely solely on their own interpretations of the Constitution's text, history and structure. This view is deeply flawed. The decisions of courts, and in particular the Supreme Court, are binding law, and in particular, they bind the parties to the original litigation, in this case the President of the United States.... Vermeule and Posner argue that government officials need not follow existing law if it conflicts with the academic theories of a "dynamic" new generation of legal scholars. They argue that critics of the torture memo "have a distinct methodological valence, one with intellectually partisan overtones." But it seems to me that the OLC's memo better fits this description....

I'm deeply worried about the abdication of moral responsibility in this op-ed.... The notion that government officials can simply discard relevant precedent if it gets in the way of ideology is inconsistent with the basic obligations of government lawyers. Is this truly, as Vermeule and Posner tell us, characteristic of the next generation of constitutional scholarship? I shudder at the thought....

UPDATE: In the L.A. Times, Professor Yoo, in his role as academic commentator, defends the OLC Torture Memo, which Newsweek tells us he wrote himself:

It is easy now for critics to claim that the work was poor; they haven't produced their own analyses or confronted any of the hard questions. For example, would they say that no technique beyond shouted questions could be used to interrogate a high-level terrorist leader, such as Osama bin Laden, who knows of planned attacks on the United States?

Here Professor Yoo shows himself to be the master of the false dichotomy. Either the torture memo is right or Osama gets off scot free. How silly of us to think that there might be a third alternative that doesn't give the President carte blanche to torture and maim. Professor Yoo is certainly right about one thing: It is easy for critics of the torture memo to claim that the work was poor. That's because it is poor work. Yoo has done many fine things in his career. This is not one of them.

Two comments:

It seems to me that Vermuele and Posner are in more trouble than they need to be because they do not dare--for various reasons--make their real argument. Their real argument is this: September 11, 2001 changed everything. It produced what Bruce Ackerman calls a "constitutional moment": a moment in which we all--including the Supreme Court--rethink our previous commitments and decisions. During such a "constitutional moment," precedent counts for naught, for our understanding of who we are and what the Constitution is changes. Thus Youngstown is irrelevant, and should be irrelevant. I think that their conclusions are wrong, but I do wish they had made their real argument.

It seems to me that Yoo misses a great many points. The hypothetical he describes--Osama bin Laden himself, a ticking nuclear bomb, a city that cannot be evacuated, et cetera--is not a situation in which torture should be legal. It is, however, a situation in which torture is pardonable. If you find yourself interrogating Osama bin Laden in such a situation, you do what you must do--and then you ask the president for a pardon. And the president has the power to give you one.

That's what the procedure is with respect to torture. And I think that's what the procedure should be.

Posted by DeLong at July 14, 2004 06:46 PM | TrackBack | | Other weblogs commenting on this post

Ooooh Brad...with this bunch, be careful saying that...be very careful.

I think the slow thought version of what you say is that the perpetrators are held accountable for the results and necessity of the illegal procedure. A pardon, like some of the blank ones given to some of the Iran-Contra people, can probably make it easy to simpy squelch investigations, especially if applied before Congress is aware.

They should be tried in open court or congressional setting, based on the strict definitions of justice...THEN, the pardon. At the least the president has to do it in public and not a little notice at 5PM on Friday.

Posted by: shah8 on July 14, 2004 07:09 PM


Damn... Brad, you're the first person I personally have seen mention the obvious-in-hindsight answer to all the ludicrous arguments from extreme situations.

Not just good old "torture should be legal because what if there is a known nuclear bomb about to go off and you catch the one guy who knows where it is and there is time to stop it if he talks but he won't talk unless you torture him". There are a legion of other equally (un)likely possibilities, such as "it should be legal for John Ashcroft to eat babies because what if there is a madman threatening to nuke Manhattan unless John Ashcroft eats a baby, there is no other way to stop him, and we know the madman is telling the truth because we tortured everyone in sight and they all confirmed it".

Which is, that you don't make horrible things legal just because there is an extreme situation where they could be justified. You keep them illegal, and rely on executive pardons and similar extraordinary mechanisms to deal with the possibility of extraordinary circumstances. The plain fact is that in an actual "ticking time bomb" situation, the people responding would likely do whatever they felt necessary, and if it worked there is no chance they'd be convicted of it. The people wouldn't stand for it and the political leadership would certainly find a way to respect the popular will.

Make torture legal, on the other hand, and there is no way to limit that to ticking time bomb situations. It will be done time and time again when it doesn't do any good, and time and time again even completely innocent people will be tortured.

And nothing will be done about those abuses so long as torture is legal. Even if torture is only "sort of" legal with clauses about certain techniques or only being done in certain parts of the world, in practice nobody except a few scapegoats will get punished because magically, it will always turn out that torture which had seemed beyond the pale, was in fact just barely sort of legal under exceptional clause #247.

I for one think that the best-of-all-worlds suggestion is to make it clear that torture is illegal, but if there ever is a truly extreme ticking-time-bomb emergency, the president could let it be known that he will pardon anyone accused.

BTW, the president should NOT have the power to authorize torture in advance. This is because in practice, presidents would sign the memo, hope it never gets out, and hey if it does get out it'll probably not be an election-deciding issue after they get through with playing a complex game of point-the-finger where it'll turn out that the President has some vestige of plausible deniability about not authorizing it, but except for a few scapegoats the military chain of command also has some vestiges of plausible deniability about just following orders. If it is explicitly illegal (but pardonable in extreme circumstances), the guys on the sharp end will know without a doubt that torture is illegal and they will get put on trial for it, and the only way out will be if the President fully and publicly puts himself on the line for them - AFTER it becomes known what they did, not long beforehand in some half-forgotten memo that will allow the president to say that clearly, when he wrote that memo he didn't anticipate these reprehensible events.

Posted by: Ian Montgomerie on July 14, 2004 07:22 PM


Balkin cites Youngstown, but if you read the opinion, it is clearly distinguishable from the contents of the memo, which was limited to interrogation of enemy combatants on foreign soil about the intentions of the enemy.

Youngstown dealt with whether the President had the authority to appropriate steel mills in the U.S. during the war because their workers were striking and Congress had previously passed legislation on the subject.

That being said, I don't know the extent to which Youngstown has been extended and expanded since 1952 (and presumably Balkin does, though he doesn't mention any other case on his blog).

Posted by: Ugh on July 14, 2004 07:32 PM


Funny how these so-called "conservative intellectual" just seem to stumble from one "constitutional moment" to the next.

When will it stop?

Posted by: bobbyp on July 14, 2004 07:38 PM


Talk about the need for a constitutional amendment!

"The government shall not inflict torture on any human being."

or is that already covered under #8?

Posted by: bakho on July 14, 2004 08:02 PM


A few weeks ago I heard the head of Amnesty International USA (William Schultz) talk about torture. He said that Amnesty International was not aware of a single instance in which information gained through torture had saved even a single life. When someone makes the "ticking bomb" arguement about the possible utility of torture, they need to be challenged to name a case in which torture has saved lives. Maybe it has happened, but the burden of proof should be on those who advocate or excuse torture. The right moral and practical approach is that torture is NEVER justified.

Posted by: doncoop on July 14, 2004 08:52 PM


The problem with saying that we accept torture, somewhere, somehow, under some theory (presidential pardon later etc.) is that people saying that never expect to end up on the receiving end. How about that: Brad gets tortured to death because there was a bomb ticking and his interrogator mistook him for Mafuuz-Shmafuuz and was sure he would get presidential pardon and big medal of honour afterwards.

Posted by: bubba on July 14, 2004 09:06 PM


I can't see anyone in the Bush administration adopting Bruce Ackerman's framework. Ackerman brings mighty resources to bear (including reaching for the Derrida and Lacan) all in the interest of justifying Walter Mondaleism. To Bush's Federalist Society vampires a glimpse of Ackerman would be like stepping under the shadow of a cross.

Besides, if WWII didn't rise to the level of a "constitutional moment" I doubt that 9/11 does. In Ackerman's analysis, there've really only been two "constitutional moments" -- the Civil War and the New Deal -- both of which involved a face down, either between regions of the country (i.e. the Civil War) or between branches of the government (i.e. the switch in time). In the case of torturegate, the constitutional moment would only arrive if the Supreme Court ordered Bush to knock off the torture and he defied the order and, in essence, pulled off a coup by threatening the Court or arresting U.S. marshalls who sought to enforce the court's order.

Given his current political strength I'd like to see Bush try it.

Posted by: kaleidescope on July 14, 2004 09:51 PM


Well if somebody knew where a bomb was ticking or where an abducted child was trapped, and I was the authority in charge, I'd have at him with a pipe wrench, and accept all the consequences! However, this is not my policy!

But it's troubling and frightening, how easily the American public, or most of it, has accepted the existence of legal boilerplate for standing torture policy. Of course, they could all be in a diabetic coma. This, and the fact that they grew up with the role model of the new "anti-hero," which I think started with the 007 and Death Wish movies, and propagated endlessly therefrom. Here is an extraordinary moral change in the arts! It is a new standard for heroic actions, perhaps unique in the history of literature and storytelling. (And it's in stories of heroes where we learn our morals. Religion was always a distant second.) About the only thing of its prior likes, would be my man Richard III, but he of course was not a hero but a great villain-as-protagonist, ending up on his own pile of bodies.

So what we have here is Charles Bronson finally throwing a wrench into foreign policy. Now WE'RE the torturing raping murderers, and everybody knows it. No matter how we try to spin it, we're scumbags too. To avoid frying the moral development of our children, Bush may have to stick to his story that it was only a few wayward souls under the pressures of war. It's not credible, but then neither is the direct 9/11--Saddam connection, and he's sticking to that, too. Or he appears to be; it's getting hard to say...

Do you think Abu Ghraib and the torture at the other four known sites was spurred-on by the fact that the search for WMD's was flagging, and the Administration hoped to avoid disappointing the voters?

Or perhaps they've gone and eaten too much mad cow?

Posted by: Lee A. on July 14, 2004 10:33 PM


Hey bubba, I fully agree with you. Fine point.


Posted by: Dano on July 14, 2004 10:48 PM


I don't know about 9/11 "changing EVERYTHING".

But ONE thing 9/11 "changed forever" was the (then raging) national debates over trivial matters like:

A) The "legitimacy" of Supreme Court's decision to abort the 2000 election,

B) Why it was taking "the consortium" so long to "audit" the Florida ballots,

C) The "wisdom" in the repeal of the Estate Tax,

D) Whether A PRESIDENT* (or ANY President) could unilaterally abrogate a duly ratified international treaty (Specifically: the ABM treaty)

E) What to do about Washington's "non-response" to the (even THEN) "unraveling" West Coast energy "crisis"

F) Whether or not Cheney's new "National Energy Policy" made any sense

G) What to do about the (then 'looming') "melt-downs" at WorldCom, Enron, Global Crossing, Arthur Andersen, Tyco, ImClone, Adelphia--


F) The new Administration's* (even then) DISMAL "approval ratings" in the polls.

THAT much I'm PRETTY sure about...

Posted by: Mike on July 15, 2004 03:47 AM



Did I forget to mention that some of us Americans were a little peeved at that time too about the Administration's* post-election decision to abandon the Kyoto "process" AND their realization that 'the candidate' "misspoken" when he vowed to regulate CO2 emissions?

Posted by: Mike on July 15, 2004 04:00 AM


I think that in the case of the ticking bomb torture would be morally right, that is, morally mandatory. I also agree that it would be and should be a crime to be prosecuted and, maybe, pardoned. Finally, I think that it should not be pardoned.

It might seem to violate some basic moral principle for me to say that someone should do something indeed must do something and then must be punished for doing it.

However, if one believes that rights are trumps, one should consider torture unacceptable no matter what the costs. If one is to be pragmatic and utilitarian enough to consider the moral ban on torture contingent on circumstances, one should have no respect at all for the vague pseudo-principle that people have the right to do what they morally must do without being punished.

In this case, punishment for a morally necessary action serves to deter actions which seem similar to the perpetrators but are morally wrong. It is clear that legal torture put us on a very steep and very slippery slope to Abu Ghraib. I think pardoned torture would move us too close to the edge.

On the other hand, I would be glad to visit the poor guy who is in prison for doing what had to be done.

The power to pardon is a good thing because, to be clear and understood, the law must be too simple to catch all the subtleties of right and wrong. However, I think this is also true of the meta-law of precedent pardons. I also think I better stop typing until I regain the ability to type English not jargonogobbledegook.

Posted by: Robert Waldmann on July 15, 2004 04:37 AM


The Vermeule/Posner argument seems to ignore the fact that OLC advice ends up having practical consequences. This is an inside-the-profession argument about which school of thought is ascendent and which "name" swings the biggest bat with other university lawyers. Bush seems to have taken to heart the notion that he had unlimited authority within the context described in the memo, but it turned out to be just one view of things, a view the Supremes find troubling. If OLC advice is meant to be used as a guide to behavior, rather than as a defense of behavior after the fact, you'd think this "my-theory's-better-than-your-theory" might need to be counterbalanced just a teeny bit. Tell me why what I did was legal when I get caught. Tell me what the wider world is likely to agree is legal before hand.

Posted by: kharris on July 15, 2004 04:56 AM


I'm confused. I'm not a lawyer, maybe that's why. But I was under the impression that when the United States Congress ratifies a treaty that treaty becomes part of United States law. Since when does the President have the right to put imself above the law?

As someone wrote months ago on a post I read here or on Atrios, the constitutional provision making the President the head of the armed forces was inserted to prevent the military from becoming the de facto head of government. The Founding Fathers were well read in classical history. It simply asserts the authority of the civilian government over the military. It was not intended (nor as I understand can it be read) to give the president unlimited authority in time of war -- undeclared or not.

The legal paper you cite seems a travesty.

Posted by: Knut Wicksell on July 15, 2004 07:27 AM


"...is not a situation in which torture should be legal. It is, however, a situation in which torture is pardonable. "

But why would it be pardonable? What possible justification could there be for promising pardons in all such cases??

I can think of only one: we know the pardonable action is the right thing to do in such cases.

But if it's the right thing to do, why should it be illegal?

The "pardon" logic seems a bit of a glib attempt to avoid dealing with legal complexity and tough issues.

We could apply it domestically too, of course. A policeman shoots someone dead to keep that person from killing or maiming others. Willfully killing someone is even worse than abusing someone, certainly, so it must be illegal and the policeman is guilty of murder. But he can ask the governor for a pardon ...

Posted by: Jim Glass on July 15, 2004 09:04 AM


"Damn... Brad, you're the first person I personally have seen mention ..."

Actually Brad's proposal is very similar to Posner's, Richard Posner's I mean. R. Posner was replying to a proposal to legalise torture given "torture mandates" seriously made by
Alan Dershowitz. This was in the New Republic (I don't know the secret to non-subscription links).

Posner senior actually noted that there is prosecutorial discretion. Someone who saved New York from an atmo bomb would not, in fact, get to the point of needing a presidential pardon. Unlike prof.s DeLong and Posner, I think this is (mildly) unfortunate.

The intellectual and moral decline from Richard to Eric Posner reminds me of the president's Bush. At least we don't have to worry about President George Bush III who would, I assume, go nuts on the job, but what about Jenna la pazza ?

Posted by: Robert Waldmann on July 15, 2004 09:16 AM


Anyone can ask for executive clemency, but they should never be able to comfort themselves before committing a criminal act with the knowledge that a future grant of clemncy is guaranteed in a particular circumstance.

Posted by: Donny on July 15, 2004 09:36 AM


Like father, like son.

This principle has been well confirmed in recent years. Paradigm exemplars like George H.W./George W. Bush and Saddam/Uday&Qusay Hussein come right to mind. Now add Richard/Eric Posner. "Dick" Posner has no problem with "pragmatic" dishonesty in the Bush v. Gore case or, for that matter, "pragmatic" dishonesty in general. His son apparently has no problem with "pragmatic" torture.

This is postmodern conservativism at its most debased.

Fuck these lying sack of shit conservatives.

Posted by: The Wild-Eyed Fool on July 15, 2004 09:57 AM


Slavoj Zizek made the same point back in 2002:

"If the choice is between Dershowitz's liberal 'honesty' and old-fashioned 'hypocrisy', we'd be better off sticking with 'hypocrisy'. I can well imagine that, in a particular situation, confronted with the proverbial 'prisoner who knows', whose words can save thousands, I might decide in favour of torture; however, even (or, rather, precisely) in a case such as this, it is absolutely crucial that one does not elevate this desperate choice into a universal principle: given the unavoidable and brutal urgency of the moment, one should simply do it. Only in this way, in the very prohibition against elevating what we have done into a universal principle, do we retain a sense of guilt, an awareness of the inadmissibility of what we have done."

As for what would happen next I, for one, still have some faith in juries. Here in the UK, while they essentially always stick to the closely to the law, no one can tell a them that they were wrong to find a defendent not guilty. Judges also have some leeway in sentancing, which is on balance a good thing.

Posted by: JK on July 15, 2004 10:14 AM


I'm so sick of "9/11 changed everything" We are a nation of cowards. We lost one building and 3,000 civilians. Not good, certainly, but what did the British lose in WWII? Fighting the IRA? Did they resort to torture THEN? Did they try to make it legal?

And what makes us think that, with the capture of Zubaydah, AQ didn't completely change their plans, knowing they'd be compromised? Where's the "ticking bomb" then? He knows a lot, to be sure, people and procedures, but nothing that's tactical.

Torture has an enormous corrosive effect on US. It isn't worth it.

Posted by: Feeling Cranky on July 15, 2004 10:20 AM


I'm with Feeling Cranky. Brad, you're an economist, and not a political scientist, so I'll forgive your logical lapse when you say that 9/11 created a consitutional moment.

Ok, first, this isn't the first terrorist attack on the US, and frankly, when Tim McVeigh blew up the Oklahoma federal building, he did just a good of a job as terrorizing the us as OBL. Esp as McVeigh's method could be copied by just about any one with 1000 bucks and a grude. So stop it with the consitutional moment stuff - NY was like Pearl Harbor in that it woke the entire country out of its stupor about a problem, and made an international issue their problem.

Second, from a pure security standpoint, Osama Bin Laden does not represent a credible threat to the security of the United State of America. In fact, he lacks the ultimate credibility, the C3I - that would disrupt our command, control, and communciations while negating our intelligence. He's not Doctor Evil, and he ain't the anti-Christ. American can survive multiple attacks from him. Even if he gains nuclear capabiliyt, in part because he cannot paralyze the entire country.

Third, the use of torture as a means of information gathering is debateable. We can argue if auto-de-fe actually produced usable intelligence. We can argue the same about Guantanomo, the Afghan, and Iraqi prisons. Do we have any evidence that useful intellgence data has resulted due to torture?

Fourth, if the marginal benefit of torture is less the marginal cost, why are we torturing people? It's not clear to me that anyone has demonstrated that our intelligence gathering via these methods is useful. However, the marginal cost seems high. Internationally, we've confirmed our paraih status and may have jeopardized a key alliance relationship with an ally, Great Britian. The pictures of torture and admission of it undoubtedly influenced the dramatic anti-american stance of the entire Iraqi populance. The President has suffered political losses due to the memos (at the height of the picture taking his approval dropped to his all time low). Legally, American citizens now must be wary that their governement is returning to star chamber like behavoir and anti-Consitutional action. That's a sign of the increasing Tyranny of governement, and as Hobbes, Locke, the Founding Fathers, and Justice Scalia all poitned out, it's a violation of the social construct that binds this country together. IF we're going to void the rights of man, then we're talking about going back to the drawing board on the Consitution and the raison d'etre of the United States.

So we need to ask our selves - it is worth it to legalize this violation of human rights? And if it is, do we as citizens want to take the risk that it will be used against us at the whim of the state?

My answer should be obvious. Of course if the American people disagree with me, then perhaps we should start doing a state by state referendum to see if governement by the people, for the people will perish from the earth. If the answer is yes, then I'll be voting with my feet. The price of freedom is eternal vigilance, but that works internally and externally. If my government won't guard my freedom, then I'd better do it myself.

is not confused on this issue

Posted by: devgirl on July 15, 2004 12:14 PM


Did Brad get a law degree at some point and forget to put it on his resume? If not, this post is useless.

Posted by: Bob on July 15, 2004 12:31 PM


Over at the Minute Man's blog we have:

But by now we *have* custody of the guys who made the trip to Niger, don't we? And we have "interrogated" them, haven't we? And what have they said?

Posted by: Brad DeLong | July 14, 2004 08:02 PM

So, presumably the professor doesn't believe it's only "name, rank, and serial number" for these guys. If a comparatively trivial matter such as just what Baghdad Bob was doing in Niger in 1999 (it's water under the bridge now) justifies "interrogation", then surely the imminent detonation of a nuclear weapon justifies more.

Posted by: Patrick R. Sullivan on July 15, 2004 12:46 PM


For the, "has torture ever saved a life crowd":


"But in intelligence briefings given here to the Tribune last week, the Tribune learned that recent information from Guantanamo has derailed plans for attacks during the Athens Olympics next month and possibly forestalled at least a dozen attacks elsewhere.'

Assuming by, "torture", you guys are assuming the intellectually sloppy habit of calling the good cop-bad cop routines at Gitmo that.

Posted by: Patrick R. Sullivan on July 15, 2004 12:52 PM


It's a tough nut to crack, and the dangers limned by Ian Montgomerie and others aren't small beer. But for those who rely upon prosecutorial discretion, sentencing discretion, and the good will of the Executive Office to pardon, well, I have two words: Gerald Amirault.

Posted by: Bruce Cleaver on July 15, 2004 01:09 PM


@>For the, "has torture ever saved a life crowd":
The article quoted by Patrick starts like this:

"GUANTANAMO BAY, Cuba -- For nearly two years, the prisoner refused to talk about terrorist connections. Then, a few days ago, an interrogator got him chatting.

Puffing on a cigarette, sipping coffee, and eating chocolate cake, he sat for hours in an orange jumpsuit and shackles talking to U.S. operatives in the "Gold 12" room of a trailer at the Navy's Guantanamo Bay base in eastern Cuba."

Even as your classical European leftie, I would not call this "torture". The article states that prisoners provided useful information, but not that torture was of any help in gathering it.

Posted by: konrad on July 15, 2004 01:48 PM


We’ve got to come to terms with the “9/11 changes everything” meme. It’s just another way to pull your emotional strings and ask you to release a preformed set of emotional responses. Our leaders need to think long term and not be manipulated by genes (e.g. alcoholism and drug dependence) or memes. Stanovich’s The Robot’s rebellion is a moderately successful attempt to deal with these issues. It’s possible that torture occasionally produces valuable information- Bill Schultz wouldn’t know, and science can’t analyze the false data that governments might produce. It’s like the question “Is the percentage of wife beating different between groups a & b?”.
What is certain is that torturing others is addicting- once started, it is perpetuated. You should kill a man whom you humiliate or torture rather than letting him go free, because he’s not going to forget or forgive. Yet very few of those we have tortured in domestic or foreign prisons are killed. Most in fact do go free- at home they add to the roster of professional criminals and in the Middle East, they become lifetime antagonists. Every generation faces dire problems-Islamic fundamentalism won’t be the last.

I say, 1. read the Stanovich book 2. speak out against the torture of anyone anywhere. We don't need lawyers or a Geneva convention, we know that stripping people naked and hooding them is wrong and we wouldn't want that to happen to our sons and daughters. 3. Go back to the last successful guerrilla war- the defeat of the Huks in the 1950s. The special abilities of Ramon Magsaysay, reform of a corrupt government (we have a corrupt system, never mind the joke that we’re pushing on Iraq) and overuse of violence by the Huks which antagonized Filipino peasants were the things that brought this difficult uprising under control, not torture and machismo.
I completely disagree with Yoo and Ashcroft. Now, don’t get me started on this electoral postponement idea…

Posted by: anciano on July 15, 2004 02:15 PM


So, 9/11 changed things?

Remind me, what did the Reichstag fire change?

Posted by: Frank Wilhoit on July 15, 2004 03:15 PM


The problem with these guys, Posner & Vermeule, is that they are political hacks dressing up their screed in legalisms. See how easily the switcheroo goes down. Instead of the premise that the president is not above the law, this begins with the false premise that the commander-in-chief power IS above the law. WRONG! You don't have to look at Youngstown. You don't have to look at U.S. v. Nixon. The Constitution, Article I, Section 1, says all lawmaking power is in theCongress. Article II, Section 2 says the president is Commander in Chief, but it does not say he is above the law. On the contrary, Article II, Section 3 explicity says it is the president's responsibly to see that ALL the laws are faithfully executed.

Now you might think there is nothing logically wrong with a lawbreaking law enforcer. But then there's that word "faithfully". The lawbreaking lawman is kind of an American paradigm for bad faith, isn't it?

These guys' arguments run aground on these shoals right off the bat, and their bluster about how everyone knows otherwise suggests they know it.

I can't say enough bad things about Yoo. He embodies the worst everyone thinks about lawyers: twisting words and logic to cover their client's indiscretions. And then he whines that though he did a poor job of it, you wouldn't have done any better.

Posted by: 2fair on July 15, 2004 04:24 PM


Torture is always evil. When powerful entities decide they need unlimited power to save themselves, this always ends with them getting after all possible potential enemies which end up being a lot of hapless people.

History shows this happening all the time.

Posted by: Elaine Supkis on July 15, 2004 04:33 PM


For more on Akerman's "constitutional moment," see Bobbitt's excellent Sheild of Achilles.

Posted by: Eric on July 15, 2004 04:35 PM


The whole point of having a constitution is to prevent anyone with clout or passion from declaring a "constitutional moment" any time they please.

Posted by: sm on July 15, 2004 05:18 PM


2fair is more than fair. The switcheroo occurs here:

Everyone, including even the most strident of the academic critics, agrees that Congress may not, by statute, abrogate the president's commander-in-chief power, any more than it could prohibit the president from issuing pardons.

Now, of course, abrogation of the president's commander-in-chief power is not the issue. The question the Yoo opinion asks is whether the president is bound by any law directly or indirectly related to military activity. The Yoo opinion assumes that he is not. That is blatantly wrong, for the exact reason cited by 2fair: the President is required to insure that the laws are faithfully enforced.

The failure to discuss the actual issue is the mark of the incompetence of Prof. Yoo. Maybe his students can learn a practical issue here, about the actual practice of law. It will fit them well for many law firms.

Posted by: masaccio on July 15, 2004 06:25 PM


I find it a bit disturbing that this discussion is so polite. Most (all?) commenters are opposed to torture, but most are also willing to discuss it cal mly. For example, some address the question of whether torture has, in fact, been useful to the USA recently.

Who for example ? Well me for example , when arguing that, if intelligence had anything to do with what Bush does, we would be paying a huge price for having used "strong interrogation techniques" on Ibn al-Shaykh al-Libi

Sorry for 3 comments on 1 post. I have two questions.

1) had Patrick Sullivan reached a new low with

"Assuming by, "torture", you guys are assuming the intellectually sloppy habit" ? He asserts that his claim is based on a false assertion and makes the claim anyway. Or is this a display of his intellectually sloppy habits ?

2) Is Devgirl married?

Oh wait *I'm* married. Never mind.

Posted by: Robert Waldmann on July 15, 2004 07:03 PM


I've read that the torture we used to sneer at as being "typical Oriental cruelty" was initiated in ancient China for humane & just reasons.

They thought that you shouldn't put anyone to death who hadn't confessed to a capital crime. Kind of an honor system, almost Socratic attitude there, that all men long for the good, and out of respect for justice someone would rather confess and accept redemption, than live out of balance with the Tao, sort of idealism.

But what if you *knew* the bastard had done it, and yet he obstinately refused to confess?

So you give him the third degree, a la LA Confidential or Dirty Harry, right?

Because you *know* s/he's guilty of murder/treason/conspiracy to commit same...and it would be *wrong* to punish the innocent...

So remind me, why do we think putting bamboo slivers under people's fingernails is "uncivilized"-?

Posted by: bellatrys on July 16, 2004 04:44 AM


"t seems to me that Vermuele and Posner are in more trouble than they need to be because they do not dare--for various reasons--make their real argument. Their real argument is this: September 11, 2001 changed everything. It produced what Bruce Ackerman calls a "constitutional moment": a moment in which we all--including the Supreme Court--rethink our previous commitments and decisions. During such a "constitutional moment," precedent counts for naught, for our understanding of who we are and what the Constitution is changes. Thus Youngstown is irrelevant, and should be irrelevant. I think that their conclusions are wrong, but I do wish they had made their real argument."

The constitutional moment was Bush v Gore, everything else has been exigesis of this. More over, unlike previous constitutional moments, the reactionaries won this time.

Bush won, you lost - and the trillions that have been added to the deficit are the ultimate proof of this. Right now everyone is ignoring it because it is being financed at sacrificial rates by the Asian Central Banks. Suddenly the fed is saying "we can't be too accomodative" and that after years "it is unsustainable". Why? Because the people willing to buy the debt aren't willing to buy it any more.

Posted by: Stirling Newberry on July 16, 2004 05:36 AM


Brad DeLong writes, "It seems to me that Vermuele and Posner are in more trouble than they need to be because they do not dare--for various reasons--make their real argument. Their real argument is this: September 11, 2001 changed everything. It produced what Bruce Ackerman calls a "constitutional moment": a moment in which we all--including the Supreme Court--rethink our previous commitments and decisions. During such a "constitutional moment," precedent counts for naught, for our understanding of who we are and what the Constitution is changes."

Oy, vey! This is the sort of mentality that makes us far *less safe.* September 11 changed nothing. It demonstrated that small groups of people can kill large numbers of people. We already knew that from Oklahoma City, and dozens of other bombings. And it demonstrated that *governments* (e.g. the Taliban) can be very dangerous to people in the U.S., when those governments refuse to extradite criminals (e.g. Osama bin Laden). That was also already known (just ask Israel about the governments of their Arab neighbors). So neither of these situations is in any way new or world-changing. Furthermore, the Constitution--surprise!--actually comes with a procedure for changing it. (How about that for prescience?)

If we need the Constitution changed to permit torture in certain circumstances, then ***Congress*** should puzzle out what those circumstances should be, and draft the #@$% amendment (and withdraw from or request changes in the appropriate treaties). If the Executive Branch thinks they have some special insight for how the amendment should be written, there's nothing in the Constitution that forbids them from helping. Let's think the possibilities out, draw up the necessary amendments, and have them in place if such situations should ever arise.

It's stupid to ***ever*** encourage people in federal or local governments to break The Law…and then hope for pardons for such violations. If The Law needs to be changed, then CHANGE IT. That's the difference between the Rule of Law and Rule by Men. And it's the Rule of Law that protects us...NOT the Rule of Men, when clever men figure out in “emergencies” when laws "need" to be broken. (Like that slimebag, FDR. But I digress. ;-))

Again, if the Constitution or treaties we’ve signed need to be changed in certain circumstances to permit torture, then have Congress determine what those circumstances are, and draw up the necessary Constitutional or treaty amendments. Don't rely on people in government breaking the law, and a president pardoning them for doing so. That ain't no way to run a country.

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