The over-reaching isn’t only confined to the federal government. My latest Examiner column.
Paralleling the song, the answer should be “absolutely nothing” with a testosterone laced “Huhn!” thrown in for good measure. Personally, I have my doubts.
This is not a new topic here at QandO, as my esteemed brethren have weighed in on numerous occasions, each time settling on an emphatic “No! Torture is not acceptable.” While it would be difficult, if not impossible, to put into words the esteem that I hold for my blog brothers, I have to say that I disagree. That may be because I have never been in the military, nor been subjected to anything close to the sort of forced life-or-death decision making that breeds a camaraderie distinct unto itself. And it may be because I have the luxury (thanks to said camaraderie) to simply ponder these things at my leisure. Just the same, I cannot say that I am opposed to torture of our nation’s enemies, nor can I honestly say that any experience will change my opinion.
First, the reason I even broach the subject: release of “secret torture memos” (link added):
President Barack Obama’s administration said it would Thursday release four memos, with sections blacked out, covering the Bush administration’s justification for CIA interrogations of terror suspects … The memos were authored by Jay Bybee and Steven Bradbury, who at the time were lawyers for the then-president George W. Bush’s Justice Department Office of Legal Counsel.
The memos provided the legal framework for a program of interrogations of “war on terror” detainees that included techniques widely regarded as torture such as waterboarding, in which a detainee is made to feel like he is drowning.
I have not read the memos, and I probably won’t. The sole reason being that I’ve slogged through enough of these legal documents to have a pretty good idea of what’s in there, and to know that there is plenty of qualifying language to mitigate whatever damning quotes are eventually culled therefrom. In point of fact, these “memos” are little more than legal research projects specifically drafted so as to provide both the underlying judicial framework for the issue at hand, and the best guess at how the current policy might fit into that framework under certain factual parameters. They are merely legalese for “this is what the law says, and this is how the policy may not run afoul of that law.”
Leaving aside definitional problems (does being confined with an insect constitute “torture”?), let’s just assume that what the memos described was not only policy, but a policy that was carried out. Why is that a bad thing?
Tom Maguire provides some thoughts:
IN OUR NAME: The newly released torture memos are cold-blooded and clearly client-driven – the lawyers knew the answers they wanted and reasoned backwards. Quick thoughts:
1. The US concern about actually harming someone comes through on every page. In fact, at one point (p. 36 of .pdf) the legal team wonders whether it would be illegal for the interrogators to threaten or imply that conditions for the prisoner could get even worse unless they cooperate. I suppose these memos will provide welcome reassurance of our underlying civility to both the world community and the terrorists in it.
2. There are some fascinating legal gymnastics on display. My favorite might be on p. 39, where we learn that Article 16 of the Geneva Convention does not apply because the CIA is operating in areas not under US jurisdiction. Nor do the protections of the US Constitution extend to aliens being held prisoner under US control but abroad outside of US jurisdiction.
However, another contender for the “It Would Take A Lawyer To Think Of This” prize is the argument that waterboarding does not constitute a threat of imminent death because, even though the prisoner thinks they are drowning, they are not, and anyway, the mental effect is transitory and does not result in long term mental harm – call it the “Psych!” defense. (The absence of long term harm comes from the experience of US sailors and soldiers passing through SERE school in the service of their country; whether a jihadist waterboarded by the Great Satan would also rebound psychologically is not explored here). I would think that a game of Russian Roulette played with a fake bullet might pass all these requirements other than the SERE experience.
Tom’s comparison to Russian Roulette intrigues me because I think it is the perfect analogy. I’ve written before that, in my opinion, waterboarding crosses the legal line because of the way the law is written. I’ve never been convinced that the technique crosses any moral boundary because I’m not so sure that it’s any different than placing a caterpillar in the same cell as a man who’s deathly afraid of caterpillars. Playing on the mind’s fears is part and parcel of both manipulation and torture, but does not mean that the two are equivalent. Morally speaking, therefore, I have doubts that techniques akin to waterboarding amount to “torture” per se.
But assuming that they do, again, what exactly is the problem? Aficionados of the subject will say that torture is ineffectual. Yet, Khalid Shaikh Mohammed would appear to be a test case in contrast to that wisdom, as would the fact that our own soldiers are routinely informed that “everyone breaks eventually.” Moreover, if it really is ineffectual, why does it continue to happen? Clearly, somebody somewhere is getting results.
Even leaving aside the efficacy vel non of torture, does it hold such moral deficiency as to abandon it altogether? Here I plead ignorance because, in my mind, I view enemies to my country as enemies to my family. By that I mean, if anyone were to hurt, or even threaten to hurt, a member of my family, I can’t even begin to express the unholy hell I would visit upon such a cretin. When I view A Time To Kill I can’t help but think that that the murderous, rapist scum got off too lightly (which, of course, was the point of Grisham’s characterization). Other than the fear of anything nefarious happening to my children, my greatest fear is of what I would try to do to those who hurt them or even suggested that they might do so. I have the same feeling when it comes to anyone who seeks to destroy my country and her citizens with whom I’ve (gratefully) cast my lot. My morality directs me to say that what any of you visit upon the least of my fellow countrymen, I will repay you a thousandfold and more. That may be my Irish bravado speaking, but it speaks as honestly as any man possibly can.
So I am left with the conundrum of how my actions in response to an attack on my family should be any different than an attack on my country, and why I should feel any differently about the perpetrators of such actions, whether they have followed through with their plans or not. I understand that my response — i.e. the sanctioning of “torture” — may not be entirely rational. Indeed, if a firetruck runs over my child while rushing to save an orphanage, I would feel no less grief, and probably wish an equal amount of horror upon the transgressors as I would upon 19 hijackers who murdered 3,000 of of my fellow citizens. In fact, probably more. There is nothing particularly rational in such a response. But I have little confidence that, should I have the chance to avoid either disaster, I would refrain from running the perpetrators’ minds through a psychological cheese grater if there was even a small chance that the disaster could be avoided. That may be little more than a testament to my weakness as a moral human being, but I think that I’m not alone.
Torture, however defined, is not a pretty thing. I make no bones about having zero regard for my enemies (i.e. those who want to destroy my country a la 9/11). If subjecting them to extreme psychological and/or physical discomfort, or the threat of such, will prevent further attacks, then I confess that I am happy to reward those monsters with the penalty they richly deserve. I accept that I may be wrong in such thinking, but I don’t find that case has been successfully made as of yet. Indeed, I defy you to take this test and declare that “torture” can never be acceptable.
The ultimate point is, torture is a horrible thing and should be avoided if at all humanly possible. But, unfortunately, we live in a world where the “humanly possible” has limits. In those cases, why is it that torture should be off limits? Is there a rational reason? I’m willing to be convinced, but I have my doubts.
If you look at the big picture, you realize that the pirates off the Somali coast are more of a nuisance than a problem. Estimates are that 25,000 to 30,000 ships per year transit the Gulf of Aden (headed for the Suez Canal) or the east coast of Somalia. The bulk, of course, go through Suez. The successful hijackings over a multi-year period have been very low in comparison. In 2007, for instance, there were 12 successful hijackings.
The area of ocean in which these events take place cover approximately a million square miles. Here’s a great map (pdf) which shows the areas and the incidents through 2007. Obviously the pirates can pick and choose where to strike while the navies of the world can only react and hope they are close enough to prevent the hijacking. That was demonstrated quite clearly in the latest hijacking of the US ship in which Capt. Phillips was taken hostage. It took hours for the USS Bainbridge to arrive on scene and the rescue was only effected because the skiffs the pirates had used had been destroyed and they were forced to use a lifeboat.
20 countries are now concentrating naval assets within the area, most concentrated in the Gulf of Aden. A coalition of nations commanded by a US admiral constitute Task Force 151 which is strictly an anti-piracy task force. TF 151 operates in the Gulf. China and Russia have also committed naval assets to the task but do so outside TF 151. They coordinate with the TF but only escort their country’s flagged ships.
With the amount of traffic which transits the area, it is obvious that no navy has the assets to escort all of the ships.
But there is a tool through which the TF can coordinate its efforts and ensure those ships which are most likely to be attacked have a safe passage. One of those tools is a website. There vessels transiting the area can register their vessel and alert the TF of their time of arrival in the area in which hijacking is most likely. There are also tips for the masters of vessels transiting the area, maritime intelligence reports and alerts.
Obviously with that number of ships transiting the area, some are more susceptable to attack than others. What type of ship are the pirates looking for? According to Admiral Terry McKnight, (pdf) the TF 151 commander, they’re looking for ships traveling under 15 knots and with a low freeboard with aids boarding. As Adm. McKnight says, those sorts of ships seem to scream “pirate, me, pirate me”. If the TF knows ships which fit this template are going to be transiting the region, they can arrange to group them with other ships, track their movement and arrange for that movement at a time when the pirates are less likely to be out hunting.
The pirates have also adapted their tactics, especially off the eastern shore in the Indian Ocean. As shipping has moved further and further off shore to avoid the skiffs employed to board them, the pirates began using “mother ships”. Those are larger ships which carry a number of skiffs and 10 to 20 pirates. This enabled the pirates to go further and further off shore to attack shipping.
As you’ll note on the map linked above, there are three major areas on the eastern shore (to include Mogadishu) where the pirates seem to be concentrated, one on the tip of the Horn of Africa and one on the north shore of Somalia on the Gulf of Aden. Admiral McKnight said that “99.99 percent” of the pirates they’ve run across have been exclusively Somali.
The question, however, is would a land-based military mission which attacked these centers of piracy successfully end the attempted hijackings?
In my opinion, probably not. To date the risk to reward has been so low that there is a seemingly endless supply of would-be pirates. And, as long as shipping companies are willing to pay the ransom when one of their ships is hijacked, it will, in relative terms, remain a fairly low-risk way of making huge sums of money. Shipping companies know the numbers and recognize that the real chance of hijacking is very low, relatively speaking, and seem to prefer to pay off the hijackers if their ship ends up hijacked. And, of course, they’re all insured, so that is also part of the equation.
While we may clean out the nests of pirates for a short time if we mount a military operation, I find it hard to believe that others won’t step in, adapt to the new reality (perhaps by moving their base of operations frequently) and again head out into the Gulf or Indian Ocean in search of easy prey.
Punitive military operations may be satisfying in some way but in reality I would think their effect would be a very short term one. Just like war against insurgents, war against the pirates will see a constant adaptation by the pirates to any tactics the military might use. But this isn’t a military problem – it is a failed state problem. The problems ashore – a failed government, abject poverty, and few choices for gainful and legal employment – are what must be solved if we hope to see piracy in that area defeated. Until they are solved, there will be plenty of eager replacements for whatever casualties we might inflict on the current pirates, and the attacks on shipping will continue.
Meanwhile, what can be done to make attacks on the high seas less likely? Well the obvious way is to arm the merchantmen. But for various and sundry reasons, most shipping companies don’t want to do that. They range from liability concerns, to concerns about essentially untrained crewman with weapons to concerns about gun laws in the various countries the ships go. We know there aren’t enough naval ships to escort each merchant ship, so options are limited. Some merchantmen have armed their ships with high-pressure water cannons which have succesfully thwarted a few pirate attacks.
What I expect to see offered soon, perhaps by Blackwater, now known as Xe, is rent-a-gun teams. For those that want them, a team is air-lifted to the ship as it enters the pirate zone and taken back off by air as they successfully exit the zone. I’m sure there are some legal and liability concerns there as well, but it may be one of those times when showing up at the rail and pointing a few automatic weapons at a very vulnerable skiff below you would be enough to disuade the would be pirates from attempting to board.
Food for thought.
Earlier in the week I pointed out that the Obama administration was defending their assumed right to continue the wiretaps they so roundly condemned when the Bush administration did them.
And, of course, we all remember the consistent condemnation by candidate Obama of Guantanamo Bay and the denial of habeas to prisoners there as a horrible denial of rights.
Of course that was then and this is now, and it appears what was considered a principled stand now appears nothing more than election year rhetoric.
The Obama administration said Friday that it would appeal a district court ruling that granted some military prisoners in Afghanistan the right to file lawsuits seeking their release. The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight.
But that was a mortal sin when BushHitler was in charge, wasn’t it?
As Insty reminds us:
Yeah, it’s as if all that talk about the evil power-grabs of the Bush Administration was just insincere electioneering. What made those power-grabs evil, in Obama’s eyes, wasn’t that they were power-grabs. It was that they were by the Bush Administration.
While some may want to make this a story about “Islam”, it’s not really. It is a pretty standard story in which some who disagree with what others choose to do, although perfectly legal, attempt to pressure the law to have their belief imposed on others use of their property.
On one side of the disagreement is a Muslim mosque, and some of its worshippers are unhappy about plans for a new restaurant that will serve alcohol.
On the opposing end of the clash is a business owner who says he’s invested $1 million to upgrade a blighted building and has tried to accommodate Muslim worshippers during spiritual holidays.
The two entities – The Hill restaurant and the Anoor mosque – are a mere 191 feet apart.
According to the local law they should be at least 300 feet apart for the establishment to get a beer and wine license. As it turns out, front door to front door they’re probably pretty close to that distance. But the distance is arbitrary anyway. And really, it’s not about the distance, it is about the desire to control behavior. The distance just gives cause to that desire.
The possibility that the restaurant could serve as a local drinking hangout bothers mosque attendees like board member Nadeem Sidiqqi.
Islam prohibits the consumption of alcohol, but Sidiqqi said the protest isn’t an attack on drinking in general, just a call for buffer zones for religious establishments.
“People may say ‘we may not want to go to this mosque’ if it’s not a good environment,” Sidiqqi said. “You want an area where you can bring your kids or your family.”
Sure are a whole lot of assumptions going on in those three paragraphs, aren’t there? And you’d like to believe this isn’t really about “drinking in general”, but obviously it is. Otherwise, there’d be no call for a buffer zone, would there?
As you’ll see in the story, as you read it, the mosque is in a walled in court yard, and the restaurant has taken a building which was a neighborhood eyesore and rehabilitated it. The restaurant owner seems willing to accommodate the mosque during its holidays.
But the petition signing continues. Because, you see, those on the one side want those on the other side to do what they believe is the right thing, even though there’s nothing wrong with what the other guys want to do nor is there any evidence that what they want to do will have an effect on the others.
As it turns out, it probably won’t matter anyway. Apparently if the state of Tennessee grants the restaurant a liquor license, the 300 foot requirement is waived (again showing you how arbitrary and meaningless the number is).
Of course, my guess is, that won’t sit well with the other bunch, and, unfortunately, this is just the beginning of the attempts to shut the restaurant down.
Oh, the location? Knoxville, TN – trust me the fact it is a mosque and not a church is only a matter of random circumstance. But it does point out that as much the cultural landscape is changes, it really remains pretty much the same.
Bankruptcy. Something many of us advised before the government threw 20+ billion of our dollars down the proverbial rat hole:
A week into his new job as chief executive of General Motors, Fritz Henderson said on Sunday he was confident in the future of the company but a structured bankruptcy remains a possibility.
Mr. Henderson has just 55 days remaining to meet President Obama’s timetable to come up with a new plan to save the struggling car giant. Speaking on NBC’s “Meet the Press,” he said that the company was working to avoid bankruptcy, but that if it failed to meet its goals for cutting costs and shrinking the company, it “may very well be the best alternative.”
“If it can’t be done outside of a bankruptcy process, it will be done within it,” he said.
Ah, how nice. And what, we had to fire the CEO, put a new board together and essenitally give control to the government to come to this conclusion?
Even Timothy Geithner, the tax-cheat of a Treasury Secretary, is now saying the “B” word is a possibility:
Treasury Secretary Timothy F. Geithner stressed Sunday that G.M. “is going to be a part of this country’s future,” but said that a managed bankruptcy was among the options for the company.
“These guys have made some progress in putting together a restructuring plan, but they’re not there yet,” Mr. Geithner said on CBS’s “Face the Nation.” “We wanted to give them the time to try to get it right. But, again, our objective is to allow — is to help these companies emerge stronger in the future so they can survive without government assistance.”
Of course had they left this all alone, we’d be 20 billion to the plus side and they’d already be in the middle of the bankruptcy process and well on their way to emerging as a stronger auto company.
Irony of ironies, I just picked up my new company car – a Chevy Malibu. It is a very nice car and has a lot of standard bells and whistles that I wouldn’t expect for a car of its price range. Frankly it’s not the engineering or the quality, as I see it – its legacy costs. And bankruptcy is the only way those are going to be actually approached and dealt with properly.
And you can’t lay this all off on the Obama admistration either – the Bush bunch was the first to throw money at the problem. However you can blame the Obama administration for continuing to do the same thing.
Time to back off, let the legal process that has worked for literally thousands of companies do its thing and see what comes out the other end. My guess is a stronger and more competitive GM.
No surprise to some, but a complete surprise to others I’m sure:
The Obama administration is again invoking government secrecy in defending the Bush administration’s wiretapping program, this time against a lawsuit by AT&T customers who claim federal agents illegally intercepted their phone calls and gained access to their records.
Disclosure of information sought by the customers, “which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security,” Justice Department lawyers said in papers filed Friday in San Francisco.
Kevin Bankston of the Electronic Frontier Foundation, a lawyer for the customers, said Monday the filing was disappointing in light of the Obama presidential campaign’s “unceasing criticism of Bush-era secrecy and promise for more transparency.”
The promise of transparency has been the most consistent casualty of the Obama administration. No bills thus far have been posted on the web 5 days prior to signing. The Treasury Department refuses to disclose how TARP money has been spent. And now this – something, as the EFF points out, which was unceasingly criticized by candidate Obama when the Bush administration was in power.
Now, that said, perhaps what the Obama Justice Department has discovered is argument the Bush administration was making at the time were valid. The case in question is an extension of the September case:
Like the earlier suit, the September case relies on a former AT&T technician’s declaration that he saw equipment installed at the company’s San Francisco office to allow NSA agents to copy all incoming e-mails. The plaintiffs’ lawyers say the declaration, and public statements by government officials, revealed a “dragnet” surveillance program that indiscriminately scooped up messages and customer records.
The Justice Department said Friday that government agents monitored only communications in which “a participant was reasonably believed to be associated with al Qaeda or an affiliated terrorist organization.” But proving that the surveillance program did not sweep in ordinary phone customers would require “disclosure of highly classified NSA intelligence sources and methods,” the department said.
It would appear the Obama Justice Department has examined the case and the evidence and, amazingly, has come to the conclusion that what the Bush administration claimed – that the taps were aimed only at al Qaeda and/or affiliated organizations – was correct, and is now defending that. They’ve also concluded that disclosure of the information involved in the case would be harmful to national security.
What I now wonder is if “secrecy” suddenly is ok? And since it is the Obama administration – the increasingly opaque Obama administration – saying the taps were used only on bad guys, are they now ok? And will that be enough to mollify those on the left who were so outraged when the Bush administration was accused of doing all of this?
And finally, I wonder if the NYT will devote the time and space to this defense of what it termed “illegal wiretapping” in the past as it did when it surfaced during the Bush administration?
A federal judge ruled on Thursday that prisoners in the war on terror can use U.S. civilian courts to challenge their detention at a military air base in Afghanistan.
U.S. District Judge John Bates turned down the United States’ motion to deny the right to three foreign detainees at Bagram Airfield in Afghanistan.
The U.S. Supreme Court ruled last year that detainees at Guantanamo Bay, Cuba, have the right to challenge their detention in court. But the government had argued that it did not apply to those in Afghanistan.
Bates said the cases were essentially the same and he quoted the Supreme Court ruling repeatedly in his judgment and applied the test created by it to each detainee. It is the first time a federal judge has applied the ruling to detainees in Afghanistan.
Similarly, extending habeas corpus rights to prisoners detained on the battlefield is an exercise in futility. Of course, that ship sailed with the ruling in Boumediene v. Bush. I’m not sure what argument the government could make that any prisoners under the control of the U.S., regardless of where they are being held, are not entitled to some sort of habeas proceeding. And since the very procedures deemed constitutionally valid by the Supreme Court in Hamdi were struck down as inadequate in Boumediene, I don’t know what options are actually left to the Obama administration other than the unsavory prospect of field executions.
Barring a contrary ruling from the Supreme Court, I think this most recent case proves the point.
But, Ed Morrissey seems to think the Bates’ decision does much more. Where he (reasonably) finds that the foregoing is an unconstitutional interjection of the judiciary into matters delegated to the Executive, Ed also seems to think that Bates’ order violates the Geneva Conventions (his bolding applied):
Not only does this violate the separation of powers in the Constitution, it actually violates the Geneva Convention. Article 84 states clearly that prisoners of any stripe shall not get tried in civil courts:
A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.
In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.
We do not try our military personnel in civil court for offenses committed in the service. Therefore, we do not have the right to try prisoners in our civil courts, either.
There are a few problems with that conclusion:
(1) The detainees are not being tried. They’re challenging their detention. Another way of putting it is that they’re the plaintiffs in such an action (habeas hearing) as opposed to the defendants (as in a trial).
(2) Civilian courts may be used under the GC where the crimes/offenses alleged are already illegal (i.e. no a bill attainder or ex post facto law) and the court procedures provide the minimum guarantees set forth in the GC (this is spelled out in the rest of Ed’s Article 84 excerpt starting with “unless”).
(3) The Boumediene decision pretty much made this ruling necessary since the SCOTUS designated anywhere under U.S. control as being “U.S. territory”, with a few exceptions. An active battlefield is one of them IIRC and the judge may have decided that Bagram AFB doesn’t qualify.
In fact, on that last point, Judge Bates specifically noted that:
… non-Afghan detainees captured outside the country and moved to Bagram for a lengthy detention should have access to the courts to prevent the United States from being able to “move detainees physically beyond the reach of the Constitution and detain them indefinitely.”
As Boumediene is written, I think Bates got it exactly right. I do think that the entire line of reasoning and case law is incorrect from both a policy and constitutional basis, but Judge Bates is required to follow Supreme Court precedent. That his ruling serves as a perfect example how reductio absurdum can happen in real life doesn’t make him wrong.
Furthermore, I don’t see how allowing detainees to challenge their detention could possibly violate the Geneva Conventions. Again, that does not mean detainees should be afforded such rights, just that such a grant does not in any way run counter to either the letter or spirit of those treaties.
Don’t buy or own any property in Mississippi, at least not while Republican Governor Haley Barbour is in the Governor’s mansion:
Mississippi Gov. Haley Barbour says he’s vetoing a bill that would limit the use of eminent domain because it would hurt the state’s ability to lure economic development projects.
The bill would’ve prevented the government from taking land for private projects. Barbour said Monday eminent domain was needed to lure projects such as the Nissan vehicle plant in Canton and the Toyota plant in north Mississippi.
And who is on the side of private property?
The bill was filed by Rep. Ed Blackmon, a Democrat from Canton. An attempt to override veto would have to start in the House, where Blackmon is head of the Judiciary A Committee.
Sen. Eric Powell, a Democrat from Corinth, said he voted for the bill and he doesn’t intend to change his vote.
Amazing. What in the hell happened to individual rights and small and less intrusive government among Republicans? And, at least in Mississippi, why are they ceding the fight to Democrats?
Is it any wonder the GOP is losing support at a dizzying rate? With “Republicans” like Barbour, the GOP doesn’t need any enemies.
As the Senate takes up its version of the violation of Article 1, Section 9 of the Constitution, also known as the bill to tax the hell out of the AIG bonuses, one note of sanity sounds through. Sen. John Kyl:
“I don’t believe that Congress should rush to pass yet another piece of hastily crafted legislation in this very toxic atmosphere, at least without understanding the facts and the potential unintended consequences,” he said.
“Frankly, I think that’s how we got into the current mess,” he added.
Heh … ya think?
Not that it matters – this will most likely pass the Senate as well and be signed into law by “Constitutional Law Professor” and President Barack Obama, but when it ends up in court and is declared unconstitutional, it shouldn’t come as a surprise. The Constitution always takes a back seat to populism and CYA.