by Doctor Science
I’m on the second day of a medium-bad head cold, so I’m going to do something I don’t generally approve of: posting with very few links. Let me know if there’s a point you REALLY need a source for, and I’ll see if I can dig something up.
Ever since news about US “enhanced interrogation” policies came out (2003, maybe? before the 2004 election, I’m pretty sure) I’ve been both horrified and confused. The horrified part is obvious, because I grew up believing that every American truly agreed with this WWII poster:
Not only did I think everyone agreed that torture was reprehensible and beyond the pale, I thought we all agreed that it doesn’t work. At least, it doesn’t work if you want *information*. What it gives you is *confirmation* of what you, the torturer, already know or want to be true. Torture is how you get people to confess to witchcraft or capitalist plots against Stalin. I seem to remember an incident in the 90s when some (US?) pilots were shot down over Iraq, and were displayed on Iraqi TV a couple days later confessing to all sort of things (around the bruises and lacerations). Everyone basically laughed at Saddam, saying “it was obviously torture! none of this *counts*!” and moved on.
But then, almost immediately after 9/11, that all went out the window, wheee! As far as I can tell, the move to approve and rely on torture was considered a “no-brainer”: so reliable that any moral qualms could be dismissed.
Where did this confidence come from? What gave the people who planned and authorized torture the idea that this was a reliable way to gather information?
My brain is extremely muddy (snotty) right now, so I can’t work my way through all the logical possibilities. The two that spring to mind are:
a) They were snowed by the CIA, which never believed that tortured didn’t work.
b) The images of torture that come to mind — that have the most “salience”, as psychologists say — are likely to be from movies and television. After 9/11, 24 did a lot of the pro-torture work, but maybe there was enough beforehand to give everyone involved the impression that it works. At least when the “good guys” do it — where the good guys are not, as the WWII poster suggests, *defined* by not torturing people.
So what do those of you whose heads aren’t full of mucous think?
when you get right down to it, morals are provisional and are much easier to obey when you’re not terrified.
‘we’ were terrified.
that doesn’t justify anything, and shouldn’t be an excuse to avoid punishing those who did it. if ‘we’ really think torture is bad, that is. and i’m not convinced ‘we’ do.
Well, this is even less sourced (and probably no more mucous-free) than the OP, but… I recall a bit of a meme that we had brought the 2001 attacks on ourselves by being soft, limp-wristed touchy-feely liberals, and if we wanted to triumph over the unspeakably and boundlessly evil enemy, we had to be harder and more ruthless than them. The closet sadists who always were of the opinion that torture works – because how could it not? – eagerly obliged by trotting out their pet theories and ticking timebomb scenarios. Beyond that, I’ll admit that growing up I always heard more that torture was something we didn’t do because it was crude than because it didn’t work; pop culture had plenty of lessons telling us that unless you were a brave, hard heroic type (like Our Guys) or brainwashed fanatics (like the Reds), torture was really damned effective, just cruel and “uncivilized” – the kind of thing that cold, practical CIA agents would quite effectively do to weak, cowardly subhuman wretches in Central America, but that we wouldn’t dirty our hands with back home.
How are you defining ‘torture’? I’ve always understood it to refer primarily to cases of inflicting pain, in which the victim has a major motivation – panic, even – to do something, anything, to make the pain go away. That seems to me a pretty easy case. Obviously, if you are desperate to get the pain to stop, you will say whatever you believe will stop it.
But I wonder if the same understanding automatically applies to cases of inducing fear, such as water boarding (and here I admit to being totally ignorant of the details of how it is done). If you cannot stop it from happening, but can only hope to prevent them from doing it to you again immediately, does that make a difference? What if they will do it to you again once a day until you satisfy them that they have gotten as much as they can? What if they have some means of verifying your claims? Is it necessarily the case that this technique cannot get reliable information? I don’t think it’s quite as clear-cut.
And what if it is not pain or visceral fear but something else, such as inflicting the breaking of a taboo (such as alleged cases of a Muslim forced to touch a dog or watch a Koran mishandled, or anybody forced to listen to music they really hate). Is it really appropriate to class those in the same category has having parts of one’s body crushed or wood forced until a fingernail?
I think it’s possible to stretch a definition past the breaking point.
I don’t think that information was ever a reason for the torture; more of a post hoc justification.
I thought it was more a simple case of we (or at least some of us) wanted revenge. Details, like having the actual people who had worked to harm us? Minor by comparison. So we tortured who we could get.
I think the most telling aspect of the US ‘enhanced interrogation’ regime is how public it was — at least after any initial secrecy was blown. The US tried to craft a *policy* around torture effectively making it a bureaucratic function of the national security interest.
One (specious) approach to justifying torture was the so called ‘ticking time bomb’ scenario; a terrorist knows the location of a bomb and, because time is of the essence, the terrorist is tortured into revealing the bomb’s location and the day is saved. The *publicness* of the torture regime pretty much undermines that scenario. Who is scarier: the professional torturer acting within policy and guidelines? or the rogue interrogator acting without the knowledge or authority of his government?
Given that it is generally agreed that torture does not (usually) produce reliable information, and because of the bureaucratic *openness* of the policy, I can only conclude that the purpose of the program was to dehumanize the enemy. They are not like us, any grievances they put forth are invalid, there is only one way to deal with this sort of enemy: rain fire and death and pain upon them until the enemy is eradicated.
Steve,
Aren’t you ascribing a lot of competence to the government , here? Surely a simpler explanation is that those in charge actually believed that torture could work – at least when *they* did it?
What gave the people who planned and authorized torture the idea that this was a reliable way to gather information?
This assumes that the motivation was to get reliable, accurate information.
here I admit to being totally ignorant of the details of how it is done
You’re placed on an inclined board with your head on the low end. A cloth is placed over your nose and mouth, and the cloth is soaked with running water.
It creates the sensation that you are drowning, mainly because you basically are drowning. Or, at least, you cannot breathe.
Most folks that have experienced it describe it as profoundly terrifying.
So, no pain, just profound physical terror, based on the body’s natural reaction to drowning or asphyxiation.
Fuzzy Face does bring up a good point. When the enhanced interrogation regime came to light, an awful lot of criticism was met with “it depends on what ‘is’ is” quibbling and poo-pooing of legal and ethical concerns with such lovely notions as “torture-lite” and “frat pranks”. There was a strong push to declare that waterboarding, sleep deprivation, stress positions, walling, and such weren’t really torture. The real torture we might trot out when the ‘ole time bomb’s a-tickin’, but just scaring the inhuman monsters a little or interrupting their beauty sleep? That’s A-okay for routine officework, since it’s not even torture. Yes, we’d (rightly) declared all these practices to be inhuman and cruel tortures when criticizing other regimes engaging in them, but we threw that down the memory hole when we wanted Results No Matter What and tried to redefine torture quite narrowly as bamboo under the fingernails and the like.
The kind of “warfare” that intensified after 9/11 was a matter of secret infiltrators, saboteurs. Torture and other secretive techniques presumably are of more use in that context – or at least those in power and the intelligence agencies were able to use that justification for increasing their own importance. In real war, saboteurs are much less important and there is less value in getting false confessions from suspects.
What is the value, ever, of “getting false confessions from suspects”? The only thing I can think of is a monetary value to a prosecutor who is compensated based on the number of convictions achieved per month.
OK, and maybe a value to the person actually guilty of something, if someone else is tortured into a false confession. But do we really care about benefitting him?
Might be something to the “24” theory; I don’t find torture respectable, and I’ve never watched “24”. (I don’t watch TV.)
I’m not terribly surprised at our government using torture; We do a terrible job in this contry of keeping the mentally disturbed out of positions of authority and power. The decision to use torture is being made by people who want an excuse to use it.
Fuzzy Face, in regards to your question:
“Is it necessarily the case that this technique cannot get reliable information?”
I think the fact that they did this for years and years, but according to the Senate Intelligence Report, did not get any useful information in all that time, is pretty conclusive evidence that torture is pointless as an information gathering tool, no matter how you go about it.
I’ve always believed that the decision to torture was an emotional decision. There may have been more effective ways of gathering information (as it turns out, even doing nothing at all is a more effective way of gathering information), but it would not have been as satisfying to people who felt attacked and wounded. Most other methods also involve more time, sometimes a lot more time, and torture at least seems like it should work fast.
They probably did honestly believe torture would work, despite all the evidence we have against it. Humans are generally not rational, and usually believe what we want to be true, rather than what is true.
What is the value, ever, of “getting false confessions from suspects”?
The value is in building an argument for something that you either don’t know is true, or know is not true.
So, for example, Al-Libi, whose coerced testimony was used to build a case for a link between Al-Qaeda and Iraq. Which, in fact, did not exist.
Several other of the folks who we grabbed and tortured were compelled to sign confessions, arguably or even demonstrably false, that they were members or affiliates of Al-Qaeda.
The value of a false confession in the latter case would be that it’s a hell of a lot easier to justify grabbing people off the street and torturing them if they’re Al-Qaeda members than if they’re not.
“Is it necessarily the case that this technique cannot get reliable information?”
I think it can be safely said that it can’t get reliable information. It can certainly get accurate information, but it’s notoriously unreliable in doing so.
I always thought the comparisons of “enhanced interrogation” to fraternity hazing had unintentional truth, seeing as frat initiations can turn lethal with alarming frequency. Bush himself got in trouble in college for branding pledges, and as his schoolmate Gary Trudeau said, “It does put one in mind of what his views on torture might be today”.
It came from the top. When we captured Abu Zubaydah and still thought he was highly placed, President Bush was briefed on him. He was told progress was slow, because Zubaydah was resistant to questioning and because the painkillers given to him because of his injuries meant his mind was not sharp.
Bush responded, “Who authorized putting him on pain medication?”
This was part of the “get tough” ethos of the Bush White House, and appealed to those among them who had never gone to war and had never interrogated a witness.
Personally, I think Bush and Dick Cheney panicked. They didn’t know what to do, so they tried to act tough, and didn’t know how. They seemed to think winning was something that came from an attitude, rather than from careful preparation and hard work. Colin Powell, who knew a bit about preparing for war, was cut out of preparations for invading Iraq because he insisted on preparing for the occupation.
They preferred to have their attitudes encouraged, so instead of listening to people who knew about interrogation, such as the FBI, they brought in “experts” who told them what they wanted to hear. They relied on two psychologists, James Elmer Mitchell and Bruce Jessen, who had no experience in interrogation. They did have experience in the SERE program, which was intended to help our soldiers prepare for being tortured.
They declared they could reverse-engineer the program to get anyone to talk. They ignored the difficulty that SERE had shown people would say anything under torture, regardless of the actual facts.
I think it is no accident that Bush adopted torture. The purpose of torture is to get someone to say what you want them to, not to get the truth. In selecting their sources of intelligence, Bush and Cheney had done the same, always choosing confirmation of their preconceptions over discovering new facts.
The Bush administration didn’t use the euphemism ‘enhanced interrogation techniques’ because torture had become respectable. Precisely because torture was not–and is not–respectable, and because the administration was water boarding suspects (which is torture), they had to come up with a new name for it.
As for motivation, I seriously doubt it was some inchoate bent toward sadism suddenly released by 9-11. People were afraid of follow-on attacks, and the people responsible for preventing follow-on attacks were under the gun, literally and figuratively.
People do things when they are scared to death that they wouldn’t do otherwise.
It is easy to say that, under no circumstances whatsoever, torture of one kind or another should never be used. Particularly if the person saying so will never, ever be accountable for some horrifying tragedy that, in hindsight, could arguably have been prevented if a suspect had been more aggressively questioned.
In other words, I can be an absolutist on anything that I will never be called upon to actually do or be responsible for.
It is wrong to steal, but if one steals to feed his/her family, there is at least an extenuating circumstance. Killing is wrong, but not in war or self defense.
Torture is different because it is a calculated act of inflicting physical or mental pain, or threatening physical or mental pain, in the absence of an immediate threat of harm to oneself or another. There may be, in an extreme and so far unheard of situation, a threat looming in days or even hours, but that is not analogous to self defense or defense of another.
So, is torture different in degree or in kind from killing, and either way, does it matter if there is an objective, imminent threat and an individual who likely has knowledge of that threat is in custody and will not divulge voluntarily?
Absolutists on the no-torture side say ‘no’, others disagree and offer at least one theoretical circumstance where the ‘wrong of it’ morphs into ‘it’s wrong, but that fact is overridden by compelling necessity’ and others are quite promiscuous in how they define imminent threat such that it virtually has no meaning.
I am in the ‘it’s wrong, but I am not quite an absolutist’ camp.
Wrong, however, does not equate to ineffective. For an absolute fact, I would sing like a bird if waterboarded. Hell, I wouldn’t wait for the actual experience. If I thought someone was really going to board me, I’d start talking. But even if I tried hard, I’d break pretty quickly. Even more so, I would break if a loved one were threatened.
Others won’t break, or will hold on well enough and dissemble enough that whatever valid information they spill is so mixed up in misinformation that maybe something is learned, maybe not. The kicker though, if you accept the premise that torture works better on some people than on others, is you don’t know until you try. I’m not talking morality here, just utility: will it work? Maybe, maybe not.
But, people, being different, will react differently to torture. So, I don’t know about ‘doesn’t work.’ And even if we all *agreed* it doesn’t work, that would be like agreeing that prayer doesn’t work. It’s hard to say prayer doesn’t work in some form or fashion, although perhaps not in a direct “I ask, God gives” fashion.
Back during the Vietnam War, I wanted LBJ to go on national television and say he had issued orders that captured soldiers (or sailors or airman) threatened with torture should say any propaganda their captors wanted them to say, however heinous (I specify propaganda as opposed to divulging information), in order to avoid torture. And that’s an order son!
The propaganda value of beating false (or even true) confessions out of our captured soldiers would then be zero, saving them useless pain. I’m not sure why no one has ever tried this.
Darius Rejali’s book “Torture and Democracy” is maybe the definitive work on the subject. You can also google his name and find a lot of articles on or by him, including this one–
link
On the level of popular culture, it seems to me that even before 9/11 there were shows where the “good guy” had some really nasty person in his custody and would hold the bad guy out the window or threaten him in some other felonious way and the bad guy would break and would tell everything he knew–the audience was supposed to cheer for the guy in the field who was willing to do what was necessary. I have no examples handy–it just seems like something I’ve seen quite a bit, both before and after 9/11.
I do not pretend to have an answer to the main question, which is a good one, but I share some of the reservations of Fuzzy Face as to one of the premises. (And this is not just because one of my nephews used to call me “Uncle Fuzzy.”) That is, that torture “doesn’t work” when it comes to extracting information.
To me, this assertion flies in the face of reality. Surely it does work sometimes, perhaps particularly in battlefield conditions, when dealing with combatants (or nearby civilians) who are not particularly trained in resistance. The US used torture in the Philippine-American War and the Vietnam War – to mention but two conflicts that fall into my arena – and I have little doubt that sometimes those who deployed it gained useful information from it, with regard to, e.g., location of arms caches, troop movements, etc. To argue otherwise is implausible.
Nomb. Vil. makes the very good point that “It can’t get reliable information. It can certainly get accurate information, but it’s notoriously unreliable in doing so.” One aspect of the problem – besides other points mentioned above (blackening the “other”; revenge; actually enjoying inflicting pain; instilling fear; etc.) – is that we are notoriously bad at internalizing probabilities, especially when we don’t like them. By “we” I originally meant “we Americans,” but I suspect it’s really “we humans.”
That is to say, even if we know that torture doesn’t generally produce reliable information, we think it will for us, whether because of our superior skill set or just because we deserve it.
Compare, on this point, gambling – casinos or your neighborhood bookie, the principles are the same. Everyone knows the odds favor the house, yet billions of dollars are made (= lost) each year because so many gamblers believe that they, and they alone, have the skill or the luck to beat the odds. And most of them are not “trained” by experts in the “art” of gambling, as our interrogators generally are. People don’t want to admit that they can’t beat the odds, beat the house, win where others are losing. And there are just enough winners to sustain this illusion.
As an individual predilection, this error is understandable, if regrettable. As a matter of systemic policy – which it clearly is now, in high circles of our government – it is stupid, if only because those who we are most assiduous in torturing tend to be precisely those people who are most likely to be resistant to it. More than stupid: it is downright disastrous, not to say evil.
And so the original question remains, and it is a tough one. Why are we now (systematically) doing something that we used to acknowledge to be evil (and not in the Brett Bellmore sense of anything that keeps me from doing anything I want is “evil”)?
But trying to answer this question is not (IMHO) helped by simply asserting that torture “doesn’t work.”
I suspect that torture was more about anger than fear. Yes, Americans were afraid of another attack, and our leaders were more afraid than most since they knew they’d take the blame. But we and they were also angry about the death and destruction from the 9/11 attacks and wanted revenge. I don’t think it’s a coincidence that the biggest supporters of torture were also big believers in capital punishment. They’re both about applying the most extreme punishments we can think of as a way of expressing how much we detest the crimes they’re meant to punish.
I would suggest that people interested in reading about torture’s efficacy get a copy of the Rejali book and read it. It’s nuanced. The short answer is, yes, you can get information, but you don’t know whether it’s good or bad and no, it really isn’t a very effective method, even if you set aside moral issues. Other methods work far better. He doesn’t base his arguments on what we think should or shouldn’t work, but on looking at what was actually done in Algeria and other places and what the results were.
Here is a short review of the book–
link to review international affairs
You’ll have to scroll down a bit.
I don’t think it’s a coincidence that the biggest supporters of torture were also big believers in capital punishment. They’re both about applying the most extreme punishments we can think of as a way of expressing how much we detest the crimes they’re meant to punish.
Is this an objectively documented fact? I missed that study.
So, is torture different in degree or in kind from killing, and either way, does it matter if there is an objective, imminent threat and an individual who likely has knowledge of that threat is in custody and will not divulge voluntarily?
While it is worth considering (not necessarily accepting, but at least considering) this point, it wholly elides one of the most glaringly flaws with pie-in-the-sky “ticking timebomb” theorycrafting: the more immanent and pressing and time-sensitive the intel you’re trying to extract is, the more motivation the torturee has to hold out or dissemble because the information they’re being tortured for has a finite (and short) shelf life.
In other words, I can be an absolutist on anything that I will never be called upon to actually do or be responsible for.
That’s a reasonable point.
Richard Dreyfuss, the actor, tells the story of his father’s experience during WWII. His father, apparently, tortured captured German soldiers to gain information. As the story goes, he used a knife.
Nasty business.
One comment Dreyfuss always makes when discussing this is that, were someone to ask a roomful of people that included his father if they had ever tortured someone, his father would raise his hand, explain what happened and why, and then accept whatever consequences came from that.
We’ve seen none of that, ever. We’ve seen nothing but lies and CYA bullsh*t, to this very day.
It’s not a trivial thing, the folks involved are potentially liable to very serious consequences. We’ve had to intervene in some cases to prevent Americans spending time in foreign jails.
But we have never, ever, ever come clean about any of it. It just festers away.
IMVHO the reason that no-one ever wants to mention about why there is so much resistance to letting any of this enter the public sphere is that some folks would then be liable for serious criminal consequences, including at an international level.
As an aside, I’m less confidence that a tendency toward sadism was not a factor. People respond to danger in all kinds of ways, most folks don’t do so by reducing other folks’ bodies to pulp.
And here’s a link to the Amazon page, which has a look inside feature.
link
My point not being that I read this book and am now an expert. I did read the book, but have forgotten most of it. But it’s 800 pages long, is by someone who has spent decades studying precisely this issue, it’s superbly done, discredits some myths on both left and right, and it seems to me that anyone who really wants to know something about the subject should read the book or at least as many online summaries as possible and not flood the internet with more baseless speculations.
Well, come to think of it, this is the internet. Nevermind.
I think the answer to ‘why torture’ depends strongly on the person involved here. My personal estimate is:
Bush : did believe that it works and wanted to be precieved as strong
Rummy: did never believe that and his use of it was 100% cynical (getting the ‘right’ answers not the truth, dehumanizing the enemy = gookification, deliberate creation of a zone of lawlessness under control of the executive)
Cheney: mixed, might have believed in some info gathering value. But his main reason imo was support of his ‘king in wartime’, imperial presidency claims. If the president can break two taboos* and get away with it, then his actions can never be challenged again based on these precedents).
Lower down the ladder other motivations applied. I think turf wars were a part of it. The CIA could get a monopoly on intelligence by peddling its ‘superior’ methods, which made it necessary to a) discredit the real experts and b) please the customer (i.e.not getting the truth but the ‘right’ info).
At the very base good old sadism got a field day.
When it all got public, the reactions were not necessarily tied to the motivation (except for Cheney who to a degree needed the publicity to foster his pet theory) but had a lot to do with ass-covering and ex post facto arguments. The media in part had to justify their cheerleading or deliberate blindness, in part ‘sticking it to the libs’ became a major point.
I fear in the medium run Cheney has won his game. Even if (and to me it’s still an if) torture has stopped for the moment, it can and will get revived once another imperial cabal takes over the government. And the taboo against extralegal killing did never get reinstated in the first place.
*a) killing US citizens without trial abroad and at home b) ordering torture, in particular against court injunctions
McKinney, I agree like you I’d be hopeless under torture, but we’re still a problem for the torturer after good intel just as is the stoic dissembler.
I mean, just say they take one of us from our cell, show us the Room, and we sing like the aforesaid yellow bird “No officer, I’m just a cab driver, I’ve got no personal or professional association. I don’t think I’ve ever met the people you mention”.. and *they don’t believe us*.
Would you stop singing, and stand fast to the truth? For how long? I think I’d try, but I’d very quickly make up new songs and new verses and shade old ones imagine connections and basically anything I could think of until they stopped. From your comment it sounds like you too. Given that how can you get reliable intel from even the most cooperative victim? The method is poisonous.
The fact that torture doesn’t work is not a mere assertion. Even the best interrogator the Nazis had knew it.
http://kevinrobinson.wordpress.com/2006/10/05/on-torture-nazi-germanys-greatest-interrogator/
Our best interrogator in WW II, Maj. Sherwood Moran, used similar methods.
http://mythingthepoint.blogspot.com/2006_07_09_archive.html
And there’s plenty of evidence that torture doesn’t work. A tortured confession that Saddam was providing chemical weapons training to al Qaeda figured in the Bush administration’s justification for the war on Iraq, and the man who gave that confession later admitted that he was just saying what his torturers wanted to hear so they would stop hurting him.
Bush apparently thought this proved torture works, because people who weren’t being tortured weren’t telling him what he wanted to hear.
More on the research here:
http://www.thedailybeast.com/articles/2012/05/25/new-research-suggests-enhanced-interrogation-not-effective.html
This information is readily available, but some people prefer to think torture works. I don’t know why.
johnw: I’ve read your three links, and while they all assert – and I agree with this assertion – that the best interrogation techniques do NOT involve torture, I remain of the opinion (expressed above) that this is insufficient to say “torture doesn’t work.” It probably does, in certain situations, just often enough to reinforce the belief that it does, especially among those predisposed to believe that.
(Cf. gambling, above. It’s simply not true that no one comes away from Las Vegas, or their bookie, a winner. So losers continue to bet . . .)
As a matter of policy, which it now is, it is fair to say that “torture doesn’t work,” not to mention that it’s inherently wrong and debased and we shouldn’t do it. “False positives” undoubtedly drown out any “correct” information thus gleaned, and can, as we have seen, be used for dire political ends as well. It can also be argued that reliance on torture tends to distract us from far better techniques of gathering intelligence.
So I’m not disagreeing with you as to what we should(n’t) do, only with the logical framing of it.
define ‘work’. When it’s confirmation that one seeks, there are few more effective tools. The US used captured ‘red’ manuals from China etc. that were iirc outspoken about their purpose of getting false confessions to be used for propaganda.
—
As for the question ‘is inducing fear already torture?’, I think it is no coincidence that most if not all classical torture protocols start with ‘showing the instruments’.
—
Another point not yet mentioned afaict: iirc the Bush administration (or their henchbeings resp.) rejected some intelligence because it was NOT the result of torture. Only after torture gave the same info it got accepted. At the time this reminded me of the old Roman law that only allowed the use of statements of slaves in court when they were the result of torture because it was a dogma that untortured slaves would always lie.
The last time I remember this topic coming up at length (which almost certainly wasn’t the last time it did, just the last time I remember), russell put out the point that the Israeli SC green-lighted “ticking time bomb” torture in the late ’80s, saw a decade of torture running rampant, and finally determined it needed flatly banned because its practitioners were unwilling to concede that most “exceptional” circumstances, weren’t. Given e.g. how narrowly the LE community in the US has made use of provisions of the Patriot Act, I feel pretty safe in asserting that the US isn’t immune to this breed of expansiveness, and that we’d see the same rapid descent down the slippery slope were we to try institutionalize “leaving those tools on the table” for “exceptional circumstances”.
Torture: The tragic outcome of any election where a Republican takes the oath of office. A necessary evil in our two party system by definition, or a logical outcome of the Bellmore necessary evil theorem?
I leave it to the reader to decide.
On another note, I promise not to comment on this thread about the Obama administration’s “reluctance” to prosecute the torturers in our midst. Let sleeping Sapients lie 😉
McKinneyTexas would confess to being a liberal Democrat, under torture. Were he still drawing breath, I bet Usama bin Laden would, too.
To be fair, so would I. So the torturer would be batting .333 before he got to Brett Bellmore.
I don’t know how tough Brett is, but I suspect a threat to take away his guns for life would make him sing like a canary. What tune he’d sing would of course depend on the question.
So the torturer’s batting average might end up being .250 or .500 after Brett. Does either of those count as “torture works”?
–TP
‘”False positives” undoubtedly drown out any “correct” information thus gleaned’
This is just a way of saying it doesn’t work. Thanks for clearing that up.
bobbyp, sapient never sleeps. sapient doesn’t comment on threads like this where it seems that it’s a discussion about “I’m against torture!” and “I’m against torture more!”
In fact, there were plenty of people stating that torture was just fine after 9/11. Another case of 1) vocal public support for a horrendous policy; 2) horrendous policy goes forth unimpeded; 3) all of the sudden, everybody demands that the people who carried out the popular will be prosecuted. Same story as the bankers: (1) go, go, go deregulation! 2) I need to redo my kitchen – isn’t it great that we can get some cash out of our house, whereas yesterday we had no equity at all? 3) Oh no! Why aren’t all the bankers in jail?
Let’s recall that Bush, although he may not have been “elected” was reelected when most sentient people were aware of what was happening.
I think the electorate is responsible for torture, and they’re responsible (to a lesser degree) for the financial crisis. They fell for the rhetoric. By the way, I diligently wrote my Congresspeople passionate outraged letters against torture. I also refinanced my suddenly very valuable house.
I think the electorate is responsible for torture
I think it’s quite obvious that a lot of people are perfectly fine with torture, especially torturing Other People, in particular Muslims and/or Arabs.
The more pain, the better.
You can speak for yourself on the issue of financial deregulation.
I think my comment get eaten. Oh well.
I just think that lots of people are susceptible to the baser emotions, especially when scared, angered, or when their pride is involved.
Why? Revenge. Sadism. Pr0n for Darth Cheney.
We’ll probably never find out what video horrors went up in smoke, when Cheney had that so-convenient fire in his man-size safe.
The real bad guys, to me, are those who play on the baser emotions. In the case of torture, that would be the Bush Administration. And quite a few of the leaders of the Republican party.
The real bad guys, to me, are those who play on the baser emotions. In the case of torture, that would be the Bush Administration. And quite a few of the leaders of the Republican party.
Agreed.
McKinney: It is wrong to steal, but if one steals to feed his/her family, there is at least an extenuating circumstance..
Tell that to the judge you moral relativist said bobbyp sporting his best “Will you look at that!!” grin.
McKinney: I am in the ‘it’s wrong, but I am not quite an absolutist’ camp. Good you you, Tex.
But my sheer uninformed speculation: There’s a stink in the room. This is not to say that torture could not have happened under a Dem administration (the likelihood strikes me as less).
But let us consider: The Bush administration was caught totally flat footed by 9/11.
Throw in the following ingredients: Fear of another attack; considerations related to domestic political blowback (how the f@ck could you have let that happen on your watch?); a strong sense of american exceptionalism (the rules don’t apply to us); revenge; GOP manly manism; the built-in hubris of being the Hegemon. Add large dollop of hang ’em high sense of what constitutes justice. Last but by no means least: Ugly racism.
The perfect storm.
So yeah, one could try to understand. But they could have at least had the balls to admit, “We are doing some henious stuff for what we think are justifiable reasons. We are willing to take the moral blame that goes with that.”
Lincoln said similar stuff like that during the tragedy of the civil war. He did not lack for moral clarity and courage.
That today’s GOP could not get there condemns them in my opinion.
They revealed themselves to be moral midgets and cowards.
I understand that torture does work if it’s done right. Some pointers: everyone breaks sooner or later – *EVERYONE*. One key element to a successful torture session(meaning gaining actionable intel.)is to make it clear that false info. will lead to even more extreme pain, mutilation and such. False info is usually the result of torturing a person that actually doesn’t know that which you are trying to extract from him. Get the right guy, torture him correctly and he will give up valuable intel. Waterboarding is child’s play and barely, if at all, torture.
The torture doesn’t work mantra got started by anti-torture folks who were looking for a non-emotional peg on which to hang their hat.
The CIA has long used torture, long before the so called War on Terrorism. It only became leaked, in the guise of a good thing to boot, to the public post 9/11 because Bush (and now Obama) wanted to look tough on terrorism (also see Russell’s prison post where politicians feel the need to get tough on crime).
All of that being said, I am 100% against torture on moral grounds.
I understand that torture does work if it’s done right. Some pointers: everyone breaks sooner or later – *EVERYONE*.
Do you have any sort of a citation for this? It fairly flatly contradicts what I’ve read on the subject.
One key element to a successful torture session(meaning gaining actionable intel.)is to make it clear that false info. will lead to even more extreme pain, mutilation and such. False info is usually the result of torturing a person that actually doesn’t know that which you are trying to extract from him.
Yes, false positives are a huge problem. But so are false negatives. I’m again curious for your basis for asserting all this; it sounds an awful damned lot more like received pop culture “wisdom” than any sort of informed commentary on the subject.
Waterboarding is child’s play and barely, if at all, torture.
I believe the term you’re searching for is “fraternity prank”.
Although I’m fascinated: waterboarding is an effective that forces people to give up information they fervently seek to conceal… yet it’s magically doing this by not physically hurting them or inducing any sort of psychological trauma. How’s that marvel of modern science work exactly?
Why is waterboarding merely “child’s play”? Because if we admit that it is torture (or face the fact that we have prosecuted other people for war crimes for engaging in it), then we have to admit that what we are doing is exactly torture. No more euphemisms about “enhanced interrigation techniques.” Just — torture.
we have prosecuted other people for war crimes for engaging in it
We’ve prosecuted our own people for using the “water cure“. Even then there were plenty of defenders of torture who claimed “military necessity”
I think the electorate is responsible for torture…
Not to go all godwin and/or collective guilt here…but then equally, is the electorate to be praised for the alleged end to this state sanctioned behavior?
“Waterboarding is child’s play and barely, if at all, torture.”
If there’s anything more tedious than torture apologetics, it’s LAZY torture apologetics. Come at us, bro! Explain why water boarding is barely-if-at-all torture.
I’ve got a bit of a different take on this, in that our descent into torture is basically othering rather than some logical weighing of the value of the information obtained. As Dower points out in War without Mercy, stereotypes proceed the atrocities, and all of what happened was preceded by a flood of assertions and beliefs about Muslim believers and the incompatibility of their beliefs with notions of Western civilization. Folks may have dressed it up with gaining information, but at its heart, it was based on a notion that Muslims were less than us and therefore did not deserve the treatment we would normally assign to civilized people.
We just had a long thread about prisons, and imvho the punitive sanctions in US prisons, primarily solitary confinement are as much torture as anything else. That kind of thinking, that some behavior that is defined by experts as torture, is a useful tool to enforce compliance, makes it a very short leap to utilizing torture on outsiders who, we are assured, will happily accept suicide to kill us because we just know that this is what they believe.
Many moons ago, there was an idle front page musing that we should bury terrorists in a container filled with pig fat so as to prevent them from committing suicide. That was slapped down pretty quickly, but if you have these assumptions that your ‘enemy’ is operating on a level where they must be motivated by things you feel are ridiculous, you feel like you have to take any possible step to stop them.
It’s worth recalling that a lot of those selfsame punitive penal sanctions were being applied to detainees alongside the “enhanced interrogation” techniques, so they were getting the best of both civilian and martial worlds. Many moons ago, we discussed various aspects of this at length (e.g., forced feeding).
(Reading these old posts reminded me of three things I’d forgotten, but shouldn’t have: I miss Katherine. I miss Nell. I miss Hilzoy.)
Under some kind of compulsion I’d confess to being a wee bit shocked, or mildly put off, by a long thread about torture, with many postings that talk about whether something is really torture, in which no question is ever raised about whether there is some kind of widely accepted definition of what constitutes torture, perhaps a definition that has been formally accepted, or as you might say ratified, by some significant and relevant nation.
Odd, because surely every single person here, including newbies and drive-bys, knows the answer.
Hint to visiting Martians: The answer is Yes. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Signed by the President of the United States, ratified by 2/3 of the Senate, in a constitutional process that gives it the force of law; also in force in about 155 other countries.
Can somebody tell me why this is *completely* irrelevant? Not to the scofflaws who brought torture back to respectability, of course; but to people who are talking about whether waterboarding is or is not really to be counted as torture?
For the benefit of any non-Americans, excusably ignorant of things important to us, there is an exposition of the matter of “force of law” at http://porlockjr.blogspot.com/2005/03/just-say-no-to-torture_06.html
So, if anyone cares whether a thing is torture, the actual text of the Geneva convention on torture is available on the Internet, believe it or not. You can look it up.
IMHO but obviously you’ll prefer to read the original rather than taking my word for it: of course waterboarding is torture. So is pretty much anything you can do to force a confession. You’d almost think they had written the thing with that in mind.
Oh, and anyone in a position of authority in the United States or anywhere else who is aware of the use of torture and fails to take action against it is violating U.S. (or other nation’s) law. (Here’s one item you can safely bet on being omitted when the Republicans write up the bill of impeachment for Obama.)
BTW, discussions of the conditions under which torture might be necessary in spite of its badness suffer the same problem, though I won’t be so wordy about it. In fact, the question is answered in the same post already cited.
Hint to Martians who can’t follow the link:
No extraordinary circumstances whatsoever.
Direct quote from United States law. You could look it up, but fortunately no one in America cares about law or constitutions or anything. Citation, just for laughs: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 2, paragraph 2.
Porlock, you forget the one fundamental dogma: Treaties do not bind Rome, only other parties.
Plus, as was a standard talking point, The Constitution is not a suicide pact.
In other words, it is completely irrelevant what treaties*, laws or The Constitution say. Rome will do what she damn well pleases and objecting to that is a heinous act calling for Rome’s painful displeasure.
*tools of the weak to bind the strong in the parlance of a famous Bushie
Porlock Junior,
unfortunately, the US has a habit of making most of its treaties in bad faith. The concept of “non-self-executing” treaty is an essential parrt of US jurisprudence. It means that most international treaties, even when duly ratified, cannot be directly used as bases for arguments in US courts.
Contrast this with Europe. Here, many national constitutions give international human rights treaties a super-constitutional status, explicitly requiring the constitution and any subsequent amendments to conform with them.
“) vocal public support for a horrendous policy; 2) horrendous policy goes forth unimpeded; 3) all of the sudden, everybody demands that the people who carried out the popular will be prosecuted.”
Utter bull. Vocal support yes, but not universal. I keep recommending Rejali because a few people in this thread keep making stupid arguments that are factually wrong, relying on their gut, and generally wasting time, as though absolutely nothing had been learned in the ten years since Abu Ghraib. Anyway–
link to polling studies Point 3 is nonsense. “Everybody” who supported torture didn’t deman that the people who carried out the not universally “popular will” be prosecuted. Rather, some who opposed it all along continued to want investigations and prosecutions, while Obama and others said we needed to look forward and not back, a position somewhat different from the one taken with respect to Manning and Snowden. That’s predictable–no doubt people in the White House don’t really want to set a precedent where Presidents could be held accountable for human rights violations.
“I understand that torture does work if it’s done right. Some pointers: everyone breaks sooner or later – *EVERYONE*”
Oh great. Another expert speaks out.
” Waterboarding is child’s play and barely, if at all, torture. The torture doesn’t work mantra got started by anti-torture folks who were looking for a non-emotional peg on which to hang their hat.”
More expertise on display.
“All of that being said, I am 100% against torture on moral grounds.”
Sure you are. But who could be opposed to child’s play?
By the way, sapient, a portion from the Rejali polling article that you might find congenial–
“A major- ity supporting torture did not emerge until June 2009, six months after the inauguration of President Barack Obama, and simultaneous with the reappearance of former Vice Pres- ident Dick Cheney on the public stage to defend the use of coercive interrogation techniques. The appearance of a public majority who favors torture is a very recent phenomenon. We believe that torture may have become a partisan symbol, dis- tinguishing Republicans from Democrats, that demonstrates hawkishness on national security in the same way that being supportive of the death penalty indicates that a person is tough on crime”
A link regarding whether everyone breaks under torture. (Not to keep you in suspense–no, not everyone does.)
washington post article
“put out the point that the Israeli SC green-lighted “ticking time bomb” torture in the late ’80s, saw a decade of torture running rampant, and finally determined it needed flatly banned because its practitioners were unwilling to concede that most “exceptional” circumstances, weren’t. ”
That gives Israel too much credit. Their Supreme Court put out a ruling in 1999 that significantly decreased the use of torture, but didn’t end it.
Israeli human rights group study on torture by Israel
I just realized that someone reading my post criticizing sapient might think that all the quotes I criticized were from sapient. No, just the first.
johnw: “Personally, I think Bush and Dick Cheney panicked. ”
Bush probably panicked, because in the end he was and is a failure propped up by his family’s connections. Cheney probably didn’t panick for more than a couple of hours; he’s a sociopath who realized the opportunities available.
McKinneyTexas: “Others won’t break, or will hold on well enough and dissemble enough that whatever valid information they spill is so mixed up in misinformation that maybe something is learned, maybe not. The kicker though, if you accept the premise that torture works better on some people than on others, is you don’t know until you try. I’m not talking morality here, just utility: will it work? Maybe, maybe not. ”
So some people will tell the truth; some will lie for quite a while, before telling the truth, and then whatever lies they tell when the truth doesn’t work.
And you say ‘will it work?’. I think that you’ve answered your question.
“This is not to say that torture could not have happened under a Dem administration (the likelihood strikes me as less).”
Given that drone attacks on weddings and daycare facilities based on the location of a cell phone associated with a terrorist, without bothering to confirm who/what is around it, have taken place under a Dem administration, I’m not sure why. My understanding of the matter is that the current administration is likely outsourcing for deniability, rather than actually rejecting torture.
johnw: “And there’s plenty of evidence that torture doesn’t work. A tortured confession that Saddam was providing chemical weapons training to al Qaeda figured in the Bush administration’s justification for the war on Iraq, and the man who gave that confession later admitted that he was just saying what his torturers wanted to hear so they would stop hurting him.”
From the viewpoint of Bush, Cheney and Rumsfeld, that was torture working just fine. And a lot of Americans would agree, because like liked the lies.
Donald Johnson @7:46. I don’t doubt you (and Rejali) on the polling, and surely Presidents like Presidential Immunity* but I think that reinforces sapient’s point – if we don’t impeach the guy, and we don’t vote him out, and we don’t meaningfully pressure his successor to do anything about it then it’s hard to take seriously when we say “not in our name”.
Thing about this comment is I’m being really unclear who I mean by “we”, and I think that’s where an effective rebuttal might lie but I haven’t found it.
* Though if that’s the reason Obama’s people didn’t prosecute Bush’s, well, they’re putting to themselves that the Clinton impeachment never happened.
Some further thoughts:
1. NV makes a good point about the ticking time bomb scenario–I agree, a participant in that venture will likely be trained to resist and motivated to resist until the bomb blows and beyond. But, to complete that thought–and we are assuming a situation with which we’ve never been faced (although Dreyfus’ father’s situation is somewhat analogous)–the fact that the participant is recalcitrant doesn’t argue for milder means and probably would spur the interrogator to even more extreme measures.
2. Waterboarding as child’s play–I think the only people qualified to give this opinion are those who’ve experienced it. That said, on the continuum of torture, it falls far short of hot irons, the rack, iron cages, etc. Back in the day, it took a lot of that to shake loose a confession from true believers.
3. The taste for torture was bipartisan post 9/11. Pelosi has amnesia, but that is to be expected. I’m not in favor of prosecutions for several reasons. First, getting a conviction would be very, very tough. Second, the politics and widespread discussion would probably produce a strong pro-torture consensus in the country. The ObWi community is a very small and much ignored slice of the country. Third, it would have the smell of a political trial. I don’t like those. Fourth, the last thing we want as a country is a change of administration being followed by prosecuting the last administration. I’m not saying that won’t be necessary sometimes, but this class of prosecution has the smell of politics. Just look at the partisan nature of many of the comments here. there is no widespread consensus that Bush et al were corrupt. A prosecution of the Wall Street bailout would get more traction with the public, but that was unpleasantly necessary and also a bipartisan endeavor. John and Jane Q Public never got that and didn’t like it.
4. Just because I’d fold like a cheap suit–although confessing to being a liberal Democrat might be a reach–and just because many others might also fold, and to that extent, torture would work, a smart participant could spew hours and hours of seemingly relevant data and withhold key information. Torture is a continuum, running from mild to unspeakable. So is the concept of effectiveness.
5. LJ and others make the “othering” point. That resonates. It would be easier for me, in close combat, to stick a knife in an SS soldier to find out where and how large the unit I’m about to face was than for me to stick a knife in BP to force him to give me his honest handicap. And even then, he’d lie. Sandbagging bastard.
6. If we ever have a “who writes the longest, most awkward sentence contest”, I want to be in it.
Maybe I should have said, “The real bad guys IN THIS INSTANCE were Bush administration officials and many of the leaders of the Republican party.”
The Republican party has established over the last fifty years or so–since Lee Atwood certainly–a pattern of deliberately appealing to the worst in people as an election tactic. Often this is quite cynical as in the fear-mongering and lying about Obammcare, or the claims that Democrats created the budget deficit. Or the claim that Republican politicians care about reducing the deficit. And “niggers”–oops, “inner city” men–don’t want to work etc. Most Republican political rhetoric is cynically designed to inflame people who live in fear–mostly the fear that someone other than themselves might benefit from government resources, but other fears work as well .
So exploiting the fear of terrorists fits right in with established patterns of behavior.
But that doesn’t mean that a Democratic administration couldn’t be frightened or angered into unethical behavior. After all, the internment of the Japanese happened under Roosevelt.
I think that the failings of the Bush administration are symptomatic of a party that sold itself to the plutocrats and a mob of people who are consumed by the fear that tax dollars might be spent on someone other than themselves. I don’t think that either torture or the unnecessary invasion of Iraq would have happened if Bush had not been elected.
But that’s comparing the Republican party of a decade ago to the Democratic party of a decade ago. I’m not comparing liberals in general to conservatives in general or the parties of the last century to each other.
For those who don’t remember 24:
http://en.wikipedia.org/wiki/24_(TV_series)
Towards the middle of 24’s run, the series attracted significant criticism for its depictions of torture, as well as its negative portrayal of Muslims. The frequent use of ticking time bomb scenarios in storylines, as well as the main character, Jack Bauer portraying torture as normal, effective, acceptable and glamorous, was criticized by human rights activists, military officials, and experts in questioning and interrogation, with concerns raised that junior U.S. soldiers were imitating techniques shown on the series. In response to these concerns, members of the U.S. military met with the creators of the show. Partly as a result of these discussions, and the military’s appeal to the creators of the show to tone down the scenes of torture since it was having an impact on U.S. troops, there was a reduction in torture in subsequent seasons of the series.
The issue of torture on the series was discussed by President Bill Clinton who stated that he does not feel there is a place in U.S. policy for torture, but “If you’re the Jack Bauer person, you’ll do whatever you do and you should be prepared to take the consequences.” Supreme Court Justice Antonin Scalia, during a discussion about terrorism, torture and the law, took offense at a Canadian judge’s remark that Canada, “thankfully”, did not consider what Jack Bauer would do when setting policy. He reportedly responded with a defense of Bauer, arguing that law enforcement officials deserve latitude in times of great crisis, and that no jury would convict Bauer in those types of situations…
I gave up watching it somewhere along the way, as I can remember thinking it had veered from entertaining fantasy to propaganda (the depiction of torture working fairly reliably, and remarkably rapidly, on a regular basis).
I find Howard Gordon’s comment quoted on the wikipedia page quite stunning:
“I think the one thing that we all felt very confident about—although we had a vigorous behind-the-scenes debate—was at what point are we loyal and beholden to good storytelling, and at what level do you hold yourself accountable for things like stoking Islamophobia or promoting torture as a policy? There were just certain things that we needed to portray in order to make it feel thrilling—and real, even…”
Followup questions to torture-apologists:
Both torture and genocide are considered a “crime against humanity”.
Does genocide “work” ? Is it more acceptable if it “works”?
This interview with Mad Men’s Matthew Weiner is also on point…
http://www.theatlantic.com/entertainment/archive/2014/03/-em-mad-men-em-s-creator-don-draper-represents-american-society/284519/
I am always writing about the period we’re in, and sometimes I’m telling people things they don’t want to hear. Some people have an insatiable need for violent retribution and dismembered body parts and talk about powerlessness. The economy, the Internet—all these things are isolating us and making us feel defeated. Our national culture feels defeated, our exceptionalism. To see Don lose his confidence was hard for them: They want to be in a world where even if crime doesn’t pay, you go down shooting. Instant justice, and cops shoot people before they get due process—like Breaking Bad. That’s the beauty of, and the satisfaction of, that show. It was a great piece of timing. Walter White won the way they wanted him to. He made himself not a bad guy by killing all the really bad guys and providing for his family.
That, I’m not in that part of the business.
McKinnyTexas:
“3. The taste for torture was bipartisan post 9/11. Pelosi has amnesia, but that is to be expected. I’m not in favor of prosecutions for several reasons. … Fourth, the last thing we want as a country is a change of administration being followed by prosecuting the last administration. I’m not saying that won’t be necessary sometimes, but this class of prosecution has the smell of politics.”
If ever there was an administration that needed to be prosecuted, it was that of GW Bush. They made the Nixon admin look like a bunch of amateurs.
Both torture and genocide are considered a “crime against humanity”.
Does genocide “work” ? Is it more acceptable if it “works”?
Conflating genocide inflicted wholesale on a population with selective torture of likely participants in planning and executing mass casualty attacks on civilians is probably not persuasive in most quarters. Simply because both are “crimes against humanity” does not equate to commonality. Kidnapping and sexually brutalizing a young woman is a felony, or a series of felonies if you like, but it is not the same as failing to declare income; however both are felonies.
If ever there was an administration that needed to be prosecuted, it was that of GW Bush. They made the Nixon admin look like a bunch of amateurs.
You are making my point.
If we ever have a “who writes the longest, most awkward sentence contest”, I want to be in it.
If we ever hold such a contest, we would have to do some kind of handicapping. After all, wouldn’t anyone who has spent a career as a lawyer have a huge advantage, due to lots of practice? Certainly anyone who makes their living writing manuals for computer software would.
Hey now, when I say I am 100% against torture I mean I am 100% against torture, OK?
Re; waterboarding – some context: it’s been around a long time, decades at least. Many members of US special forces (e.g. Navy SEALs, Army Green Berets…..) and I suspect certain classes of CIA operators, have been waterboarded as a part of their training.
Now, waterboarding is largely psychological and I can appreciate that having it done to you in training, where you know they are not actually going to kill you, is psychologically different from being captured and having the enemy do it to you; an enemy that might actually kill you.
OTOH, the whole point of water boarding is to induce an autonomic nervous system response that overrides rational thought. So, in training, or otherwise, the sensation should be similar. Part of the purpose of training is to learn to deal with the irrational physical response. It isn’t actually going to kill you and it isn’t going to maim you; one reason I said it is torture lite. Another reason I feel it is child’s play in the world of torture is that it is hardly comparable to some techniques that are (or were) common in Israel and amongst her enemies; things like a car battery hooked up to the scrotum (often eventually fatal) and yet other more gruesome approaches that involve mutilation. Just a little context there.
So, when certain segments of the government scoff at waterboarding being all that bad it is because they themselves have been through it (albeit in training) or at least know/work with those who have. It is part of the culture of the rough men who stand on walls keeping us safe. I think that needs to be understood. That doesn’t mean I approve of grabbing people and waterboarding them for information. Again, I object on moral grounds and I object on strategic grounds because inevitably many of those subjected to the harsh treatment were the wrong guy and their reaction afterwards will be anti US. IOW, another terrorist or terrorist supporter is created.
Even if waterboarding isn’t as bad as, say, having your fingers cut off one at a time until you talk, “child’s play” is an extremely poor choice of words to use in describing it. IMO, it will only detract from whatever point you’re trying to make.
(Is it safe?)
Now, waterboarding is largely psychological…
OTOH, the whole point of water boarding is to induce an autonomic nervous system response that overrides rational thought.
It seems to me that these two statements contradict each other. Inducing an automatic, autonomic nervous system response is physiological, not psychological.
If I choke you until you pass out, then wake you up, lather rinse repeat, is that psychological or physical?
The fact that it freaks you the hell out is rooted in your body’s physical response. The fact that you know you’re not likely to actually die is sort of beside the point.
You might prefer to actually die, in some contexts.
Psychological is when your captor tells you he’s got your kids and he’s going to kill them.
Also, I’m not sure what the point is of measuring various forms of torture for their relative heinousness.
Which is worse, cut somebody’s fingers off, or pull their teeth out with a pair of pliers?
Does it matter?
I’m not in favor of prosecutions for several reasons
We will never see a prosecution of anyone involved with any of this here in the US.
We have, however, gone above and beyond that, and have obstructed folks in other countries and jurisdictions from prosecuting Americans involved in the torture regime.
So, bonus.
What I would like is answers to the following:
When did the torture begin.
On whose authority did it begin.
What information were we trying to obtain.
In other words, WTF did we think we were about, and who said we could do it.
We aren’t done with this issue. The bar was raised, significantly, regarding what is and is not acceptable. And, Obama or no Obama, it has not yet been fully lowered.
So, no more waterboarding. Well, what do we allow?
No more black sites. Does that mean no more black sites, or no black sites operated by *us*?
Will we ever close Guantanamo, or is that camp, along with the bizarre no-mans-land category of “enemy combatant”, with us from now until the end of time?
If we don’t understand how we got here, we will never be able to discuss, and make reasonable decisions about, whether this is where we actually want to be.
What we’ve had, for over ten years, is secrets, lies, and bureaucratic CYA bullshit.
What I think in general is that the entire episode was a clusterf*ck from beginning to end, and nobody wants to end up holding the bag.
We’ll get, someday, a 6,000 page dump, redacted by the CIA, which nobody will be able to look at, and with just enough tidbits released to the public for the pundits to say “regrettable, but you have to understand the times!”.
And that will be that.
Next time some kind of crap hits the fan, the Yoo/Bybee memoranda will be dusted off, and we’ll be back at it.
Yeah, Obama has renounced those opinions and memoranda, but Obama will not be President forever. When Bush wanted to grab people, he reached way back to WWII to come up with his “enemy combatant” bullshit. The Yoo and Bybee stuff is still around, someday somebody will conveniently discover that, after all, those guys had a point.
John Yoo sat on TV and told us all that it was OK to crush the testicles of a child, if the President needed it done.
He’s a professor of law at Berkeley, and and AIE scholar.
That’s everything you need to know about the tolerance of the American people for torture.
If you freak us out enough, we will in fact crap in our pants and behave like frightened children.
If that means some kids nuts get crushed, so be it.
Russell, “It seems to me that these two statements contradict each other.”
Not really. The autonomic response is translated into a psychological effect; being largely instinctual panic.
Where I was going with my waterboarding comments is in concert with your larger questions in your last. I guess I wasn’t clear enough.
Wars these days are fought over ideology. The US has this idea that it is exceptional. The neocons – who, btw still inform Obama – have the belief that the US, being exceptional, can rewrite history, creatively destroy societies and then build them up in our imaage all all of the claptrap. We are the good guys. We have the right, nay the responsibility, to impose our vision everywhere.
But good guys don’t torture, right? Well waterboarding is tough, but, hey, not really torture. Afterall, it’s something that out own best troops have experienced. There’s no blood, no permanent damage that can be seen. So we can waterboard, thus being tough on terrorism, and yet still maintain our good guy status.That’s where it started. Then there’s the good old slippery slope that comes into play once waterboarding has been institutionalized.
It isn’t just Bush. Obama, afterall, is the one that really accelerated the drone op.s to include zapping US citizens sans trial and based on secret panels dtermining death is necessary. Like I said, the actions of the US in the so called war on terrorism mirror the actions of pols in the so called war on crime.
Once there is a “war”, then people starting start gettining into a mode of thought that involves existential threats (e.g. drugs are killing off the youth of our society). Once death and societal annhilation are on the line, then extreme defenses against it become reasonable. That’s just human psychology.
So I would say that torture and a myriad of other unamerican practices and policies came to the forefront as a result of the public panic that 9/11 caused. Bush just happened to be the guy who was in office at the time. Obama has oicked up the ball and run with it.
Summary: causes = 9/11 induced panic + American exceptionalism.
Afterall, it’s something that out own best troops have experienced.
Yes, as part of their training to be resistant in the face of capture, including in the face of physical and psychological abuse.
In other words, torture.
Who made torture respectable?
Cheney. A barbarian.
Worst American in public life, maybe ever. The antithesis of American values. I spit in his general direction.
Bush just happened to be the guy who was in office at the time
Also, I’m skeptical that Bush being POTUS at the time is coincidental to our embrace of torture. Another President may well have taken a different approach.
That’s not a partisan comment, it’s my judgement about Bush as a person. And not just Bush, but the folks around him.
They were (and remain) who they were, regardless of whether there’s an (R) or a (D) after their names.
@Donald Johnson
That gives Israel too much credit. Their Supreme Court put out a ruling in 1999 that significantly decreased the use of torture, but didn’t end it.
Yeah, I questioned that (a lot) even as I parroted it, but was too undisciplined to go verify it despite it seeming more than a little incredible. Thanks for calling me on it.
@McK
But, to complete that thought–and we are assuming a situation with which we’ve never been faced (although Dreyfus’ father’s situation is somewhat analogous)–the fact that the participant is recalcitrant doesn’t argue for milder means and probably would spur the interrogator to even more extreme measures.
The problem with such “exceptional circumstances” arguments is they’re generally theory divorced from reality. Their starting point is either a pile of unrealistic assumptions about torture’s efficacy (which you’re not doing) or careful narrowing of the circumstances to make it still seem potentially fruitful despite them (e.g., specifying we know with high probability that the suspect has the needed information, which you did lean towards). Even if those circumstances exist, leaving the “tools” on the table for those exacting circumstances ensures that torture will be used in circumstances falling short of that bar, for reasons you alluded to upthread: we as a culture – across classes and political parties, but especially in our bureaucracies – are very often quite spineless about the thought of being the one holding the bag after a catastrophe. Leaving it an acceptable option for extreme circumstances is normalizing it, even if we expand our every last breath trying to stipulate that this is exactly what we’re not doing.
6. If we ever have a “who writes the longest, most awkward sentence contest”, I want to be in it.
I don’t think I need to brandish my credentials, but I’m pretty sure I’ll make it to the finals. I mean, not to boast too much, but I’ve got some background in technical writing, some in the legal domain (with cross-pollination involving military regs at that), some lingering overwrought styling from undergrad literary criticism, a wandering mind and short attention span to introduce straight-up structural confusion, and if all else fails, my Usenet “debate” training to fall back on… yeah, I’m a pretty serious contender. *buffs knuckles*
“if we don’t impeach the guy, and we don’t vote him out, and we don’t meaningfully pressure his successor to do anything about it then it’s hard to take seriously when we say “not in our name”.”
From past experience I suspect sapient’s point is to take any blame away from the Obama Administration on any and all topics and put it on anyone or everyone else.
Regarding the public, yes, to some extent it is the public’s fault that we haven’t prosecuted high-ranking officials for war crimes, but the public is not on the top of my list of people to blame. It’s more the fault of the people who actually have the power to investigate such crimes and choose not to, focusing instead on really serious criminals like Manning and Snowden. I don’t think there is any such person as “the public” anyway. There are just hundreds of millions of individuals who don’t spend a lot of time on political blogs because real life gets in the way, who are told every two to four years that it’s absolutely vital that they get out and vote, as though voting actually determines what happens, and while I agree it is important, voting is a really coarse-grained way of influencing policy. If you don’t think the Democrats are good enough, and they’re not, are you supposed to vote third party? That worked out great in 2000. I can’t make Obama investigate the torture policies of Bush or his own drone assassination program. There are people who write about these things and engage in activism, but there are a large number of important issues ranging from global warming, unemployment, massive prison populations, and people write and protest about all of them. But not in large enough numbers. Do I blame the great mass of American voters for inaction? It’d be nice if there were tens of millions of people writing letters to their politicians and protesting and demanding action or else on all these issues, but I don’t expect it. The bulk of the blame should be placed on politicians and the press.
“Conflating genocide inflicted wholesale on a population with selective torture of likely participants in planning and executing mass casualty attacks on civilians is probably not persuasive in most quarters.”
That word “likely” is doing a lot of work there. Torturing someone who might be innocent seems just a bit closer to the heinousness of genocide–no longer does the torturer get to hide behind the ticking time bomb defense, where the presumption is that one knows beyond doubt that the torture victim is some dastardly villain who is trying to kill innocents.
Anyway, if we did try high-ranking Americans, I wouldn’t start with Bush. Probably with Kissinger. A conviction should be easy. Then Cheney. And it wouldn’t just be torture–fudging up pretexts for an unjust war that probably caused the deaths of hundreds of thousands (the most recent study, not the Johns Hopkins paper, found 500,000 deaths through 2011) seems not too far short of genocide to me.
Won’t happen, of course. One thing the American political class all has in common is a vested interest in not letting this happen.
If trials for war crimes/torture are going to happen, they will almost certainly have to happen at the beginning of a new administration. (At least, the serious investigation in order to build a court case will.)
At the start of his first term, Obama was still under the illusion that it would be possible to achieve reasonable cooperation with the Republicans on at least some issues. And prosecution of this kind would have put paid to that possibility. Which, I suspect, is the main reason that they didn’t happen.
As it turns out, of course, cooperation was off the table pretty much no matter what he did. But by the time that became clear, it was too late in the game. So it will be left to some future administration to do what the law clearly requires.
NV–I agree, exceptions tend to swallow rules, particularly under duress or out of a sense of CYA. This is a universal phenomena, which–not to hijack the thread–is why I favor relatively limited gov’t. Every threat is imminent, nothing is remote.
Anyway, if we did try high-ranking Americans, I wouldn’t start with Bush. Probably with Kissinger. A conviction should be easy. Then Cheney. And it wouldn’t just be torture–fudging up pretexts for an unjust war that probably caused the deaths of hundreds of thousands (the most recent study, not the Johns Hopkins paper, found 500,000 deaths through 2011) seems not too far short of genocide to me.
Kissinger–statute of limitations and a hard sell to those who don’t have your worldview. The rest–you wouldn’t like the result, for the same reason: your worldview is not a majority position. Widely held norms are not seen to have been violated.
Widely held norms are not seen to have been violated.
Pie in the sky (But why not? It’s finally spring.) – Maybe if the implications of those widely held norms were put on full public display, they wouldn’t be so widely held thereafter – not that I’m holding my breath.
wj,
There were no prosecutions because it would have been impossible to insulate the Congressional Democrats from their complicity in everything that happened.
It was easy for them to say they didn’t know anything publicly, Bush and team weren’t going to argue at that point. But Pelosi and Feinstein et al knew pretty much what was going on all the time, probably even Hilary. Prosecution can be one of those things that gets away from you.
“But that doesn’t mean that a Democratic administration couldn’t be frightened or angered into unethical behavior. After all, the internment of the Japanese happened under Roosevelt.”
Riiight. Republicans rush to do evil, Democrats are frightened or angered into it. Keep telling yourself that.
Everybody thinks the other guy’s sh*t stinks worse. In the end, it’s just an excuse for not washing your hands after taking a dump.
What we really need is a jubalee. Set a date, and nobody who was in office before it is permitted to hold office after it. It’s the only hope, because neither side will hold the other accountable, for fear of being held accountable themselves.
Marty,
You can prosecute people for actions taken or ordered. (Or, if I understand correctly, actions enabled by specific actions, e.g John Yoo’s legal documents.) Which means we are talking about members of the Executive branch.
Criminal prosecuting people for failure to object to actions someone else was taking? Not really possible — although one of the lawyers may correct me on that. And unless Congress voted to authorize or order torture, it would be hard to make a case against any of the members. You can blame them, of course. But legal prosecution is another story.
Riiight. Republicans rush to do evil, Democrats are frightened or angered into it. Keep telling yourself that.
Evil of a particular kind, as opposed to building roads and such – which is bland, everyday government evil.
Maybe if the implications of those widely held norms were put on full public display, they wouldn’t be so widely held thereafter
Khalid El-Masri.
The Macedonians grabbed him, held him, and interrogated him for a couple of weeks. Didn’t like the look of his passport. They then handed him over to the CIA.
The CIA flew him to Afghanistan, where they beat the crap out of him for a few months. At some point they figured out he had nothing to do with anything, he just had the same name as somebody else they were interested in.
They dumped him off on some remote road in Albania, in the middle of the night, with nothing, no money, nothing.
He held a German passport, we talked the Germans into basically doing nothing about it.
He sued the US in a variety of venues, up to the SCOTUS. Case dismissed, state secrets. Pound sand, El-Masri.
Mistaken identity. Wrong place, wrong time.
He finally won some money from the European Court of Human Rights.
All of this is public knowledge, and has been for years. I don’t see anybody chaining themselves to the White House gates to get any kind of justice for El-Masri, or anyone else.
The court findings stand, BTW, to the best of my knowledge. If the executive says the magic words “state secrets”, you might as well save your breath.
Executive in this particular case was Obama, not Bush.
If you don’t exorcise your demons, they will haunt you forever.
McKinneyTexas: “Conflating genocide inflicted wholesale on a population with selective torture of likely participants in planning and executing mass casualty attacks on civilians is probably not persuasive in most quarters. ”
Except for the whole point that torture will not be selective, nor of likely participants.
McKinneyTexas: “Conflating genocide inflicted wholesale on a population with selective torture of likely participants in planning and executing mass casualty attacks on civilians is probably not persuasive in most quarters. ”
If “but it works!” is a persuasive argument for torture, how is it not a persuasive argument for genocide?
What I think gets lost in a lot of the discussion about torture is this:
What makes torture bad is not just what happens to the person who is tortured. In the context of any war, we do things to people that are, I certainly imagine and hope, far worse than what are done in the context of a CIA interrogation.
What makes torture bad is, at least equally, the corruption that it wreaks on the torturer. Both the individuals who do the nasty work, and also the society that sponsors it.
So, now we find ourselves lying to ourselves, concealing information from Congress and the courts, engaging in increasingly baroque classification regimes and assertions of “state secrets”, having to either plead with or strong-arm other governments to avoid them prosecuting our people and bringing our “secrets” to light, having to pervert the justice system to prevent people from standing up in court and saying what’s been done to them.
Finding the weaseliest, most spineless and @ss-kissing people available to run the DOJ and provide legal counsel, so as to not be called out on what are plainly illegal and wrong programs.
Aside from the sheer moral crappiness of standing up a systematic program of beating the snot out of people to make them talk, complete with legal foundations and videotapes and medical consultants and employee manuals, the inculcation of a culture of regular lying and denial is corrupting, and undermines self-government.
The number of hoops that we are required to jump through to avoid explicitly disclosing what *everybody already knows* is, literally, insane.
It is, again IMVHO, profoundly damaging. To us, not to the folks who were tortured, although they no doubt have their own damage to count up, but to us.
I’m still astonished that since 9/11 torture has aroused such a high level of debate and outrage – while most people are “kinda ok with killing people because war (on terror / is hell)”.
Obama has learned fast and prefers to kill people – less messy (not counting the odd wedding, even though nobody seems to give a shit about such cases either).
and yeah, Guantanamo Bay is still open and who knows what other hell-holes, outsourced or not …
nb: I am 100% opposed to torture
Haven’t had much to say on this, but I think russell has, as he frequently does, said something well worth repeating:
Aside from the sheer moral crappiness of standing up a systematic program of beating the snot out of people to make them talk, complete with legal foundations and videotapes and medical consultants and employee manuals, the inculcation of a culture of regular lying and denial is corrupting, and undermines self-government.
If it can’t be done publicly, it *can not be done* in a self-governed society. At least, not while remaining self-governed.
Except for the whole point that torture will not be selective, nor of likely participants.
If that is the case, then there is no colorable argument for it, ever.
If “but it works!” is a persuasive argument for torture, how is it not a persuasive argument for genocide?
I’m confident I never made that argument, just the opposite. I was simply disagreeing with Doc S that it doesn’t work. Now, if you leave morality out of it, and examine your statement on genocide, genocide *works* if perpetrator is successful just like rape *works* if the rapist is successful. The fact that something *works* doesn’t argue for its implementation.
If it can’t be done publicly, it *can not be done* in a self-governed society. At least, not while remaining self-governed.
Lots of stuff is done in private–nothing wrong with that. Also, some things have to be done in secret: military planning, weapons development, intelligence gathering at one end and conferring with a lawyer, investigating criminal leads, dealing with informants, etc at the other end. The thing is, we admit we do these things in a general way, we just keep the details quiet.
Torture, OTOH, as Russell notes, is given a new name, lied about, etc. We can’t or won’t say, “you know, it’s a shitty thing, but sometimes, on very rare occasions, we’re going to shake the shit out of someone we are highly confident has actionable intelligence on impending terrorist activity. We are going to have an internal review process to ensure that we don’t screw up. The procedures we use will be identified and limited to those on the approved list. They will be unpleasant, perhaps even intensely so to some people, eg, waterboarding, but that is what we are going to do.”
Even if we said this, as NV notes, and as I am sure others will point out, the exception will swallow the rule and the definitions of *actionable intelligence* and *terrorist* will be stretched beyond recognition.
“It is, again IMVHO, profoundly damaging. To us, not to the folks who were tortured, although they no doubt have their own damage to count up, but to us.”
That’s right.
“the exception will swallow the rule and the definitions of *actionable intelligence* and *terrorist* will be stretched beyond recognition.”
Exactly.
These two quotes are the bottom line regarding torture.
McK:
No objections to any of that, my phrasing was a little poor.
My point was just that if the entire concept is secret, from justification to execution to result, there is no way that can exist in an actually self-governed society.
The comparison has been made to military action, and it is apt. Our military does terrible things in our name, and the nature of the operations often rely on operational secrecy.
But we know (or should know) when the military is deployed or shortly thereafter. We might not know the specifics of every operation at the time, but records are kept and military interventions, past and present, are broadly debated in the public square.
wj,
Even in trying to say “it was just the Executive” you had to start building a case that those Confessional leaders “weren’t really guilty, despite knowing about it”.
Even if successful in the legal sense, it would have destroyed the whole “Bush was evil and we are good” line that Obama was elected on, and several political careers.
The Congressional leaders too.
Lurker:
Per Article VI of the Constitution treaties are the supreme law of the land. How to square that with the idea of non-self-executing treaties and how to determine which treaty is self-execuing or not is best as I can tell fraught and inconsistent.
That issue is moot here though as 18 U.S. Code § 2441(c)(1) explicitly makes violating the 1949 Geneva Convention and related protocols a crime. I’d also note that cruel, degrading and inhumane treatment of prisoners is also a war crime. Even if the various “enhanced interrogation” techniques aren’t technically torture they still qualify as crimes under those terms.
McKinney,
I’d gladly reveal my handicap, but it’s classified. However, if you threaten to torture me for that information, it can be had readily….though personally I prefer bribes.
They are much more civilized.
Marty,
If we are talking about prosecuting the use of torture, and I thought we were, the political damage to those (in Congress or elsewhere) who knew about it but did not say anything is irrelevant. You are correct, there would have been fallout. But not, as I understand the law, any possibility of successful legal prosecution. Whereas with Bush, Rumsfeld, tenet, Goss, etc. down the chains of command, there would be.
Note that, as far as I can tell, Cheney gets away scot free. However involved he may have been in arguing for and supporting the plan, he wasn’t (legally) in the chain of command. Nor was he in a position (like, for example, Yoo) where he was giving expert legal advice on the legality of what was being done. No doubt that would infuriate those who hate Cheney even worse than Bush. Tough.
Even if the various “enhanced interrogation” techniques aren’t technically torture they still qualify as crimes under those terms.
By what I’ve read in the literature, the “solution” to this “problem” is the one-two punch of defining torture so as to carefully exclude all the stuff we “want” to do, and clinging fiercely to the legal innovation of “unlawful enemy combatants” as a class of persons that conveniently “fall through the cracks” and have no rights whatsoever. So long as you can say your actions aren’t torture, you’re safe from the anti-torture statutes, and if you can deny that your torturees are either civilian criminals or enemy combatants according to the traditional understanding of the term (even if perhaps war criminals who are not following the laws of war), you’re theoretically home free WRT the GC.
It’s really a vile, despicable, tidy little scheme. It’s not particularly convincing to me, since it involves a bald-faced claim that for the prior 50 years or so no one noticed the supposed hole in GC’s framework or ever considered irregular combatants who don’t perforce abide by the laws of war, but there’s plenty of Serious Grownups who take great umbrage at the idea of even questioning it.
It’s my theory that the primary force to be appeased by not prosecuting torturers wasn’t Republicans in Congress, but military officers and intelligence operatives. Whose morale was important for the President’s agenda both directly and indirectly.
I think the WH was probably right about this (and about the politics of it) — if this is why they did it — which I’ll grant is a much darker view than just blaming the President’s weakness or Republican recalcitrance.
It’s my theory that the primary force is a bi-partisan consensus in Washington that the American people are morally depraved idiots, whose worst impulses need to be appeased, lest they rise up and elect somebody else.
You can predict a lot of the behavior of both parties, if you just assume that they each take as the truth the opposing party’s unflattering portrayal of their own base.
It’s my theory that the primary force is a bi-partisan consensus in Washington that the American people are morally depraved idiots, whose worst impulses need to be appeased, lest they rise up and elect somebody else.
No real disagreement there. I would just add ‘exploited’ to appeased.
http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule160
Sorry about that. Trying again.
@McKinney-
Statute of limitations? On war crimes? Tell it to Klaus Barbie: 38 years from crime to extradition, 39 to indictment.
To be sure, that prosecution was by one of the lesser breeds without the Law. I don’t know the exact status of these matters in the Land of the Free, but probably one could learn something by looking at the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (a title I picked up at http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule160).
But that would presuppose an interest in law, which is – nothing personal – remarkably lacking this whole thread; see next rant.
This will be short this time. The thread is full of speculations about definitions and loaded with legal terms like “war crime”, “enemy of the human race”, “prosecution”, “statute of limitations”, and so on, not to mention “torture”.
But the idea of looking at actual existing law in this context, as applicable here and now if law is applicable at all, is greeted with explanations that treaties are mere scraps of paper, so who cares? This surely is true in the USA as in other nations, so pardon me for not being much affected by the revelation. Perhaps I read too much Lawyers, Guns & Money.
russell, regarding El Masri:
Executive in this particular case was Obama, not Bush.
The Supreme Court declined to hear the El Masri case in 2007. As far as I remember, Obama wasn’t inaugurated until 2009.
The thread is full of speculations about definitions and loaded with legal terms like “war crime”, “enemy of the human race”, “prosecution”, “statute of limitations”, and so on, not to mention “torture”.
I personally didn’t bring up those matters because they’ve generally been brushed aside as non-applicable (usually for the weaselly reasons I did mention) or irrelevant in past discussions hereabouts on this and related topics. So yes, there was a certain degree of abstract theorizing out of deference to the parties to the conversation who aren’t really concerned with international law, commonly held definitions in international law, US treaty obligations, and the like. To be fair, one is tempted to conclude the main reason such attitudes and apathy manifest themselves here is because our corrupt political class treats these things with like deference. So the conversation didn’t ground itself in the letter of the law all that much because honestly, neither does the conduct of the US government. Not a happy fact, but one that’s kinda hard to avoid.
Well, many care but they lack the power to have those laws actually obeyed.
At least over here we had a recent precedent of the mere threat of torture leading to the ending of the career of a relatively high police official. And it was the most clearcut case any torture apologist could wish for. The suspect guy threatened had already volontarily confessed to be the right one and there would have been a ticking time bomb situation if the guy had not already murdered the person whose life seemed to be at stake (which he confessed only later after the torture threat).
At least those involved did not try any euphemisms and the only one to try (unsuccessfully) to get a lenient sentence was the kidnapper/murderer, a textbook sociopath with enough chuzpe (in the classical definition) to qualify for a high position in the GOP (werre he in the US).
“It’s my theory that the primary force is a bi-partisan consensus in Washington that the American people are morally depraved idiots, whose worst impulses need to be appeased, lest they rise up and elect somebody else.”
There’s probably some truth to this. I don’t know about “primary force”, but it probably plays a role.
Novakant–On torture vs other US war crimes, I agree with you and I suspect quite a few others here also agree with you. Torture is just the easiest of American war crimes to point out. Personally, I think starting the Iraq War on false pretenses was worse.
McT–
I think the only question with Kissinger and a conviction would be the jury, so in a sense I agree with you. I think American exceptionalism amongst a jury of some Americans (especially American government officials) would probably lead to an acquittal. If you could somehow trick the chauvinistic American jurors into thinking they were listening to a case against a Soviet apparatchik (switching a few appropriate words, but keeping the actions and death tolls the same), I think you’d get a conviction. You’d also get a conviction with most fairminded people from most parts of the world, I suspect.
Here’s a list of documents from the National Security Archive that I just googled–
link
I’m not sure if all of these actions are crimes. Is it a crime to encourage the Argentinian generals to do as much as they can before a more liberal Congress/President might be in office, knowing that this amounts to telling them to torture and kill as fast as possible? I don’t know.
I think it was a crime to plot the overthrow of Allende. I think it was a crime to give the green light to Indonesia to invade East Timor and then continue to supply weapons–there was (and is?) a law against giving weapons to governments knowing they’d be used to commit human rights crimes. I think it was a crime to carpet bomb Cambodian villages. It was at the least sleazy to aid Kurdish rebels against Iraq and then pull the plug when they weren’t needed. It was deeply immoral to side with Pakistan when they were killing hundreds of thousands (or more) Bengalis. But yeah, I’m sure that in some worldview all these actions are just peachy.
Gary Bass recently wrote a book about Nixon and Kissinger and Pakistan’s genocidal campaign in Bangladesh. Here’s a brief summary in the NYT–
link
While it’s one of the most immoral of Kissinger’s actions, I don’t know if this would count as a crime.
And some National Security Archive documents from the Pakistan genocide in Bangladesh–
link
Apparently the law was broken in supplying weapons to Pakistan during this period. I don’t know if supplying weapons and giving support to a dictator whose forces are committing genocide is something that rises to the level of a crime against humanity. Kissinger was at worst merely an accessory, which I suppose means there’s no particular reason why he can’t continue to be invited to dinner parties and public affairs television shows and treated as an elder statesman.
The Supreme Court declined to hear the El Masri case in 2007. As far as I remember, Obama wasn’t inaugurated until 2009.
I stand corrected as regards, specifically, El Masri v Tenant.
However, if you threaten to torture me for that information, it can be had readily….though personally I prefer bribes.
Sure, you can be bought–me too! But will you stay bought?
I think the only question with Kissinger and a conviction would be the jury, so in a sense I agree with you. I think American exceptionalism amongst a jury of some Americans (especially American government officials) would probably lead to an acquittal.
A conviction anywhere would be difficult, if not impossible. Not entirely without reason, wide leeway is allowed in foreign affairs.
I think it was a crime to plot the overthrow of Allende. I think it was a crime to give the green light to Indonesia to invade East Timor and then continue to supply weapons–there was (and is?) a law against giving weapons to governments knowing they’d be used to commit human rights crimes. I
Criminal statutes are narrowly drawn and narrowly construed. “Plotinng” and “giving a green light to” are the kinds of nebulous terms that competent defense counsel will drive large trucks through. Conspiracy–an agreement by two or more people to commit a criminal act–might be on the table, but any prosecution requires witnesses with personal knowledge of Kissinger’s own acts and words (that would themselves have to amount to an agreement to preform an illegal act). Or, documents signed by Kissinger that would be factually sufficient to support a conviction. In other words, a tough nut to crack.
Whether Henry the K ought to be prosecuted is a separate subject. I’m not debating that. I’m addressing the narrow observation upthread that getting a conviction would be easy. It would be very tough.
Not to mention having the smell of politics and score-evening.
Not to mention having the smell of politics and score-evening.
This can (not to say should, but can) be said about most prosecutions of any politician or former politician. If we really take this objection seriously, we pretty much have to grant de facto immunity to politicians for almost any misconduct they might commit while in office. The alternative, of course, is subjecting ourselves to the risk of our courts looking like something other than the towering alabaster bastions of objective purity we all currently perceive them to be.
The “smell of politics and score-evening” doesn’t seem to have crippled the Republicans after the Clinton impeachment, or the Democrats after the Nixon impeachment.
I defer to McKinney on the law, but I do say this as a layman: the verdict is not the only point of a trial. Laying out the facts is part of it too. The world at large, as well as the jury, gets to hear the story told and challenged. The world at large and the jury need not come to the same conclusion.
Obama decided up front to avoid “the smell of politics”. Fat lot of good it did him.
–TP
Although I would have been happy by some attempt to prosecute torturers, I pretty much agree with McKinney that when a crime committed by a politician is a “policy” that has the imprimatur of the voters (in this case by the 2004 reelection), a prosecution would be likely to become a political show trial, which would not serve the interests of justice no matter how it came out. In the case of the Bush administration torture policies, it likely would not have resulted in a guilty verdict.
It’s not like a politician who embezzles money, or like Nixon, who sent burglars to break into the opposing candidate’s office. In this case it was a policy. Had there been an impeachment, and then a criminal trial, that might have been a way for the country to absolve itself of the crimes of its leaders. Instead, the leaders were reelected. I think the idea that a subsequent administration should then have prosecuted the torturers is just not how things should work in a stable democracy.
On convicting Kissinger, there were laws on the books about supplying weapons to known human rights violators and Kissinger chose to ignore them. Evidently the laws are meaningless. So are the laws against torture. I’m told there are laws and treaties that obligate us to investigate our own war crimes. Those are meaningless too. I remember the debate in the late 90’s about subjecting Americans to an international criminal court. There was much handwringing about politically motivated prosecutions by evil foreigners of Americans. The response given by “liberals” was no, not to worry, because the court presupposed that countries with functioning judicial systems, like the US, could be trusted to investigate their own, and so the international court would not have jurisdiction. I wondered then if the “liberals” making that argument really believed this obvious nonsense.
On whether it would be hard to convict, I’d defer to lawyers who have firsthand experience in either defending or prosecuting high level Western officials for war crimes. I think the number is zero, because powerful people are above the law. That wide leeway you mention is real–what it boils down to is that when we invade countries on false pretenses, are complicit in genocide, assist terrorists and dictators who kill their own people and so forth, it’s a foreign policy decision. When some enemy of the US or a former dictator who has outlived his usefulness does it, then it’s a crime. This is widely understood, so yes, in the real world of course it would be extremely difficult to obtain a conviction. You can’t even get such people indicted. That’s why I presumed a sort of Rawlsian veil of ignorance, where Kissinger is tried by Americans who somehow magically don’t realize that the official they are judging is an American and the actions he took were in the name of American national security.
Oh yes, point scoring. When evil foreigners are tried it is in the interest of justice. When someone suggests Americans should be tried, it’s political point scoring.
getting a conviction would be easy. It would be very tough.
The issue with prosecuting people for torture is that it wasn’t simply the act of one, or a handful, of people acting on their own initiative.
It was policy, from the executive, complete with OLC opinions to back it up, and with acquiescence (at least) from Congress.
Once prosecutions were underway, it would be hard to know where to stop.
Sure, you can be bought–me too! But will you stay bought?
My policy on bribes:
“All bribes will be cheerfully accepted. They won’t do you a bit of good, but they will be cheerfully accepted.”
I figure that will discourage most offers. But if someone still wants to offer something . . . .
“I think the idea that a subsequent administration should then have prosecuted the torturers is just not how things should work in a stable democracy.”
I think that’s just a rationalization of Obama’s decision to look forward and not back. If he had appointed a special prosecutor to investigate how the torture policy had been put into place and carried out, the bulk of his supporters would have approved. Quite possibly the majority of the country would have approved. There might or might not have been prosecutions, but at least there could have been a thorough investigation, something like what Lawrence Walsh tried to do with Iran Contra.
It’s silly to take the presidential campaign of 2004 as decisive–the country was still in a state of war hysteria, and besides, why would anyone think that presidential elections are the appropriate way to decide whether war crimes or crimes against humanity have been committed? Unless you’re a single issue voter who only votes on what sorts of crimes the US is committing in its foreign policy , in the voting booth you’ve got a realistic decision to make between the lesser of two evils on a great many issues. US war crimes just aren’t ever going to be the deciding factor. Besides, both of the main parties are guilty to some degree, so the only way the public could make the right moral decision on such issues is to vote for some obscure third party candidate, which won’t happen except in small numbers, perhaps just large enough to allow the Republican to win. To say that “this isn’t how a stable democracy operates” is just to say that democracies have, in practice, the right to commit any crime a democratically elected official chooses to commit, up to and including the decision to launch a war of aggression. All they have to do is whip up enough hysteria. Torture and aggressive war–these are just policy choices, nothing more. The US is not bound by any treaty it signs. And because the voting populace won’t toss aside all other issues and focus singlemindedly on this one issue of justice, American officials are basically free to do what they choose.
Maybe the ICC needs a commando unit to grab suspects off the street worldwide and keep some secret prisons in order to avoid falling prey to the US Invade-the-Hague-Act. Is there any other country that passed a law authorizing the executive to invade another country in order to prevent criminal prosecution of its citizens for war crimes and related offenses?
Personally, I’d say: grab the main suspects and interrogate them with those same methods they declared to be lawful and let’s see what we can get out of them. Then at last we will have the confessed culprits in the rape of the Holy Virgin Mary, the true killers of the Kennedy brothers and the guys who were responsible for this: https://www.youtube.com/watch?v=nAdniWncWu4
Caveat: the above linked scene is slightly enhanced from the original with regard to the sound (not the video). Unedited versions can be found on youtube too.
Besides, both of the main parties are guilty to some degree
If that’s true, why prosecute a scapegoat?
I’d be happy to be wrong, for some proceeding (criminal or otherwise) to be able to proceed in good faith. And, yes, if Obama had instigated a criminal prosecution, I would have supported it. I’m fairly certain that it would have failed, though, and then the left would be howling at his incompetence, that he went about it all wrong, that he prosecuted the wrong people, etc., not lauding his courageous effort. The right would have tried to sabotage the entire thing (and his presidency, as they actually did try to do) from the get-go. Any other scenario is wishful thinking in the extreme.
Sooooo… by avoiding trying, Obama had the left howl at him for his fecklessness, and the right try sabotage his presidency. Quelle différence!
(Which is to say it’s kinda hard to see why your dire consequences should be viewed as dire, exactly, unless it’s you who was infected by wishful thinking in the extreme. Or possibly High Broderism.)
(Which is to further say, if you can’t even prosecute a scapegoat (albeit not one whose caprine status is born of innocence), you’ll never prosecute anyone. We’re not talking about prosecuting someone who’s not alleged to have engaged in misconduct, so prosecuting a “scapegoat” is possibly a start to unraveling the problem. Sure, it risks allowing the establishment to declare the problem “fixed” and something we shouldn’t further “dwell on”… but given that the alternative you propose is throwing up our hands and declaring the problem one we can’t dwell on, I am again bemused at why this dire outcome is dire.)
*…especially one whose caprine status was not born…
Muddled parenthetical is muddled.
This worked out really well. Also, the attempted suspension of Yoo’s license to practice law. You can read all about it on Wikipedia.
Doesn’t that make us all feel so much better?
@Hartmut: “Maybe the ICC needs a commando unit to grab suspects off the street…”
I think that’s a bit too complicated. How about working within the existing legal framework?
For example a “Torture Stand Your Ground” law: an order to torture someone can be opposed by deadly force.
If he had appointed a special prosecutor to investigate how the torture policy had been put into place and carried out, the bulk of his supporters would have approved. Quite possibly the majority of the country would have approved.
I agree with the first sentence, not the second. If Obama had prosecuted Bush and Cheney, odds are he would have been a one term president and ACA would never have passed. When we were debating this point back in the ’08-’09 time frame, I expressed the view that people like me–opposed to ACA, opposed to higher marginal taxes, etc–would benefit from prosecutions that would be wildly unsuccessful and would likely backfire in a very large way.
Of course, we were all debating how many angels can dance on the head of a pin–outside of very limited slices of the blogosphere, most people blew right by the whole discussion.
If you think I’m wrong about the likely success of prosecutions, ask these questions: how many Americans are unaware of waterboarding terrorist suspects? How many care? How many watched 24, Zero Dark Thirty or Homeland and, for example, watched Wahid getting a knife through his hand during interrogation and thought anything other than “ok, it had to be done” or “good work, now stick the other?”
That’s your jury pool; that’s your court of public opinion.
From sapient’s link:
it was not clear in 2001-2003, when Yoo was giving his advice, that what Padilla said happened to him did satisfy the legal definition of torture.
Last time we saw Padilla, he was a freaking zombie.
No particular physical damage, certainly nothing rising to the level of organ failure, so “not torture”, says the court.
russell, in fairness to the court, it did not decide that the treatment Padilla received was “not torture”. It decided the case on other grounds, that Yoo was entitled to qualified immunity.
Such a judgment, something unrelated to the actual question of torture, would likely come down in a criminal case as well, exonerating whoever was brought to trial. And, it is unethical for a prosecutor to bring a case against someone if he knows that a conviction can’t be obtained, either because of insufficient evidence or because of solid defenses. This holds true for financial prosecutions as well.
Still, I think this decision stinks to heaven and looks pretty much like a cowardly copout plus a case of deliberately torturing the rather clearcut letter of the law almost on par with ‘nobody may be subjected to…but he was a legal nobody, so it is OK’.
But I fear McKinneyTexas is right in his last paragraph of 4:21pm (and the country should be ashamed of it but clearly isn’t).
Agreed that the practical final word is McKTx’s 4:21.
The 9th Circuit decision is cowardly, and weaselly. By concluding that the treatment in question was not known to be torture in 2001-2003, for all practical purposes it’s finding that Yoo’s advice at that time was legally sound, though it may not be going forward. This decision hinges on that assertion, which is not presented as being derived elsewhere – at least, I have not seen at other times arguments to that effect, and the decision does do a reasonable job of sourcing the other side’s argument, so… More generally, it’s arguing that since (judicially unchallenged) legal opinions at the time held that certain conduct was not torture, we cannot hold people who followed that advice liable for having tortured (recall that their decision for the sake of argument assumes that Padilla’s treatment rose to the level of torture), nor can we hold the legal counsel who deemed it to not be torture liable.
I’m really curious how this can’t be read as saying that if an attorney blesses off on an illegal policy, and the administration manages to create controversy in re: its legality – not prove it’s illegal, mind you; just create controversy… and it’s not clear that the controversy needs to rise above vigorously brandishing said legal opinion – no one can be punished for engaging in that conduct. I really would like to be wrong about this. But that really looks like this despicable opinion’s upside. The decision, taken at face value, suggests that the executive should be free to assert any nonsense it chooses so long as it uses the right magic words while doing so, and cannot be called out after the fact for such abuses.
Starting at page 4538, the court does a reasonable job of presenting reasonable cause for an official to deem Padilla’s treatment torture in 2001-2003, but then turns 180 following its presentation of three foreign cases (one predating the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) and alluding once more to “great controversy”; on this basis it then asserts that there would be no reason for gov’t officials to know what was done to Padilla was torture. Tellingly, they do not even suggest that the gov’t should step softly if there is question. No, they instead declare that the presence of controversy – despite the existence of contemporary executive policy (that they cite!) clearly identifying treatment such as Padilla’s as torture, and with no mention of the origin of the liberating controversy – is sufficient to whitewash administration actions. It was the administration’s choice to assert that the pre-existing policy was wrong, and that those actions did not rise to the level of torture contra contemporaneous executive definitions, yet there was no obligation to act conservatively on the part of the gov’t, nor can there be any consequences for their choice to act according to their innovations. I’d be far less troubled by the notion that the gov’t needn’t show restraint in areas of unsettled law if the people who tell the gov’t they’re unconstrained were not being granted immunity on the basis of that being a controversial opinion. But no.
Like I said, slimy. It’s very much in keeping with a great deal of the legal reasoning (and to a lesser but still noteworthy degree, jurisprudence) in this broad area over the last decade, but that’s not a compliment. This area has long been plagued with legal reasoning of the “if we don’t blink they can’t call us on it” variety. Slimy, corrosive, and despicable.
in fairness to the court, it did not decide that the treatment Padilla received was “not torture”.
No, what’s “not torture” is in the US Code.
Turning somebody into a psychotic zombie is not torture, per the US Code.
Turning somebody into a psychotic zombie is not torture, per the US Code.
Well, whatever outrage one might feel about what the U.S. allows to have happen to people, it’s pretty obvious that prosecuting those who carry out policies that have the approval of “the people” isn’t a practical option.
A better strategy is to work to elect political leaders who reject those policies. We did that.
“Agreed that the practical final word is McKTx’s 4:21.”
Too many practical final words could kill this whole internet blogging thingy.
To keep the ball rolling, either be provisionally practical or absurdly final.
Otherwise, we might as well consult our mothers.
Sure, you can be bought–me too! But will you stay bought?
Certainly, if the price paid is high enough. You have my word on it.
In this case it was a policy.
I’m not seeing here a clear line separating ‘crime’ from ‘policy’. What I’m hearing is finely honed political calculations triumph over all.
I can understand this, but frankly, I’m not so sure that is a good place to go.
I’m not so sure that is a good place to go.
The best place to go is to avoid the crime by electing people who don’t countenance torture. Or, if in the news every day, spokespersons for the administration are trumpeting “enhanced interrogation techniques” and their favorite political pundits are unabashedly stating that sometimes torture is necessary: that’s when the American people should say, ummm, no.
Crimes are styled “The People v. [named defendant]”. or “The United States v. [named defendant]”. Crimes are an offense against “the people”. When “the people” are complicit in the crime, criminal prosecution isn’t really the thing to do.
When “we” reelected Bush/Cheney, “we” voted for their policies. Depressing as hell, I know.
The beauty of aggressive veils of secrecy in the name of National Security is that voting for a presidential candidate – even for re-election when there’s theoretically been time to gauge their ruling style – means “we” may or may not have voted for their policies. Pottery Barn electoral theories aren’t near so convincing when you’re discussing governments who give themselves free reign to conceal broad swathes of their policies from their electorates.
When “the people” are complicit in the crime, criminal prosecution isn’t really the thing to do.
So we shouldn’t prosecute war criminals because they might have had the overt or tacit support of the people? Are you serious? No Nuremberg or subsequent Nazi trials, no tribunals for Rwanda and Yugoslavia?
Not saying such prosecutions aren’t problematic, but certainly not for the reasons you state which are just silly since most war criminals manage to get the people behind them, cf. the famous Goering quote.
Not to forget Hitler’s observation that no one (of relevance at least) was still talking about the Armenian genocide of WW1. Conclusion: create (irreversible) facts on the ground and don’t lose*, then you can do anything you want and get away with it.
Btw, a common sarcastic bonmot about WW1/Versailles at the time was that the true crime committed by Germany was losing the war.
*cf. also McNamara on this detail
Well, whatever outrage one might feel about what the U.S. allows to have happen to people, it’s pretty obvious that prosecuting those who carry out policies that have the approval of “the people” isn’t a practical option.
Since I’m not calling for prosecutions of anybody, I assume this is not directed toward me.
A better strategy is to work to elect political leaders who reject those policies. We did that.
What turns people, including Padilla, into psychotic zombies are things like extended periods of isolation.
Being rendered a psychotic zombie ought, one would think, qualify as severe … mental pain, but apparently it doesn’t. At least not for purposes of qualifying as torture per black letter law.
So no, we haven’t elected anyone who rejects those policies. We did not do that.
Since I’m not calling for prosecutions of anybody, I assume this is not directed toward me.
Correct.
Being rendered a psychotic zombie ought, one would think, qualify as severe … mental pain, but apparently it doesn’t.
No, it doesn’t, according the U.S. Code. If we’re talking about solitary confinement being the method of “torture” that we voted against, it’s really a much bigger and more complicated issue than the “enhanced interrogation techniques” that I thought was the basis of the thread. In fact, prison reform generally is a topic that Obama has begun to champion through Eric Holder, so yes, we have elected someone who rejects torture, and wants to reform prisons to be more humane.
If you’re complaining that Obama didn’t reject torture because he didn’t reject solitary confinement, you’re moving the goalposts considerably, as per usual. That, after blaming Obama for the El Masri case …. well, I suppose you’re entitled to grasp at anything to prove that Obama isn’t pure enough.
So we shouldn’t prosecute war criminals because they might have had the overt or tacit support of the people? Are you serious? No Nuremberg or subsequent Nazi trials, no tribunals for Rwanda and Yugoslavia?
Ummm, no, that wasn’t my argument, as you know. I was talking about the electorate prosecuting public officials who they elected knowing that these officials were carrying out the very policies that the electorate later regrets.
If you’re talking about an international tribunal, or Bush, Cheney, Yoo or Rumsfeld being apprehended abroad, go for it.
That, after blaming Obama for the El Masri case
I mistakenly cited El Masri as an occasion where Obama had invoked state secrets. As you noted, El Masri v Tenant was prior to his tenure as President. As I stated quite clearly, my error.
Obama has, for the record, invoked state secret privileges on a number of other occasions. So, I wasn’t just pulling shit out of my ass.
For the record, I’m not grasping at a fucking thing. Padilla’s time in the brig apparently rendered him a psychotic zombie. That was likely not due to beatings etc., but to extended periods of isolation, and probably other forms of general psychologic headf*cks.
Per the US Code, those are not torture. To me, that is absurd on its face. Hence my comment.
It has bugger all to do with Obama. I’m not making any freaking comment about Obama, that is apparently your job.
My only comment that has anything to do with Obama is my more or less obvious observation that electing Obama hasn’t eliminated the use of practices that turn people into fucking zombies, nor has it changed the US Code definition of torture and the common reading of it, which allows those practices.
And yes, I damn well consider practices that destroy people’s minds to be torture. As does most of the rest of the world. And those practices, along with others that most of the rest of the world considers to be torture, are a part of the “enhanced interrogation” regime, and we still practice them. Obama has, apparently, damned little to do with it.
We differ in believing, or not, that simply electing the “right” people will make engrained problems go away.
you’re moving the goalposts considerably, as per usual.
If you make statements like this, especially the “as per usual” part, it’s incumbent on you to show your work or STFU.
Show your work, or STFU. Thanks.
here is my question for sapient, or anyone else who cares to answer.
After taking office, Obama stopped our use of waterboarding.
Were any of the other enhanced interrogation techniques stopped, or just waterboarding?
So, walling, sleep deprivation, hypothermia, stress positions, controlled fear using dogs, etc. – any of those stopped?
I actually don’t know what the answer is, I’m just curious to know if anyone happens to have the information.
well, I suppose you’re entitled to grasp at anything to prove that Obama isn’t pure enough.
This looks to me like a summation of every argument you make, sapient, if Obama has any remote connection to the issue at hand and there is any implied blame on his part. AFAICT, Obama is for you what guns are for Brett. (No offense, Brett…)
What turns people, including Padilla, into psychotic zombies are things like extended periods of isolation.
Being rendered a psychotic zombie ought, one would think, qualify as severe … mental pain, but apparently it doesn’t.
But if we decide that confining people in solitary qualifies as torture (and is thus illegal), there would have to be massive changes in how we run our prison systems. Where we have, in some cases, people who have been held in solitary for decades. If solitary confinement is torture, are all the folks who are running those prisons guilty of breaking the law? Or just of relying on a long-standing practice which had not previously been held to be illegal.
This looks to me like a summation of every argument you make, sapient
No need to read my comments then, hairshirt.
If you’re talking about an international tribunal, or Bush, Cheney, Yoo or Rumsfeld being apprehended abroad, go for it.
Your argument is crazy: “officials cannot be charged with war crimes because … democracy”.
As for international tribunals or apprehensions: you know very well that this will never happen – as has been mentioned above the US is crazy enough to invade the Hague if need be.
http://en.wikipedia.org/wiki/American_Service-Members%27_Protection_Act
So what you end up with is:
“The US can do anything it wants.”
You seem to like this state of affairs. The rest of the world, not so much.
McTX wrote:
“I agree with the first sentence, not the second. If Obama had prosecuted Bush and Cheney, odds are he would have been a one term president and ACA would never have passed. When we were debating this point back in the ’08-’09 time frame, I expressed the view that people like me–opposed to ACA, opposed to higher marginal taxes, etc–would benefit from prosecutions that would be wildly unsuccessful and would likely backfire in a very large way.”
Well then, hip, hip, hooray for torture and God bless Bush, Cheney, Kissinger, and Osama bin Laden.
As the guy who Cheney shot in the face reportedly said: “I’d have prosecuted the Vice President but for the fact that so many Americans would have been ticked off I was picking on him that he would have been dealt a political straight flush and gone on to defund my Medicare!”
And in a very belated tribute, in view of Steve Forbes comments around the time the Soviet Union fell apart and the Berlin Wall came down that now that Communism was a dead letter the United States could demolish the entire edifice of Social Security, Medicare, and other Federal life support programs without fear of rebellion, I would also like to give a shout out to Vladimir Lenin, Joseph Stalin, Mao Tse-tung, Felix Dzerzhinsky, and the Castro brothers for neutralizing the ever-present domestic terrorist threat all those years.
My relief about all of this can hardly be expressed, he smiled.
So, walling, sleep deprivation, hypothermia, stress positions, controlled fear using dogs, etc. – any of those stopped?
Should we assume that we might have heard about it if they’re still going on? Or are we playing the “when did you quit beating your wife” game?
@novakant: As for international tribunals or apprehensions: you know very well that this will never happen – as has been mentioned above the US is crazy enough to invade the Hague if need be.
I believe that Mr Yoo was, in fact, formally advised against foreign travel for exactly that reason.
Pucking up Bush would be chancy, since ex-Presidents continue to get Secret Service protection. But for the rest, it would certainly be possible. And no, I don’t see the US actually invading the Hague to “rescue” anyone charged. Possible (we have had some pretty whacky administrations, after all), but unlikely.
If Bush et al are picked up, I’d expect Vlad Putin would invade the Hague and hide the scofflaws inside his soul for safekeeping.
Look and ye shall find:
http://www.theguardian.com/commentisfree/2014/jan/25/obama-administration-military-torture-army-field-manual
http://dissenter.firedoglake.com/2013/11/05/blue-ribbon-task-force-says-army-field-manual-on-interrogation-allows-torture-abuse/
I’m glad we’ve finally established the link between the amount of un-prosecuted torture crimes perpetrated by the United States and low marginal tax rates.
There must be a calculus equation to express their suspect coincidence throughout our history.
Should we assume that we might have heard about it if they’re still going on?
Obviously not.
Or are we playing the “when did you quit beating your wife” game?
It’s a simple question.
The enhanced interrogation regime include a number of practices that are widely considered to be torture.
To my knowledge, Obama has publicly stated that we no longer use waterboarding. I’m curious to know if any policy statement has been made about any of the other techniques.
Do you know? If not, the appropriate answer is “I don’t know”.
I’m not making any point about Obama one way or the other, so kindly belay the BS about “when did you stop beating your wife”.
It’s a simple question, with a simple answer. If you happen to know, feel free to share. If you don’t, perhaps it would be a good time to say nothing.
I believe one of novakant’s links has answered my question: interrogation now has to comply with the Army Field Manual.
Thanks novakant.
But isn’t the part of the Army Field Manual applying here clssified, so the enemy does not know what to expect?
But isn’t the part of the Army Field Manual applying here clssified, so the enemy does not know what to expect?
Must be the Spanish Inquisition. Nobody ever expects that.
Should we assume that we might have heard about it if they’re still going on? Or are we playing the “when did you quit beating your wife” game?
We’re still forcefeeding. That’s for damned sure. And we’ve not moderated how we do it at all.
We’re still forcefeeding. That’s for damned sure. And we’ve not moderated how we do it at all.
I realize that many in the human rights community think that denying people the right to starve themselves to death is an atrocity. Some people disagree. I don’t think it’s such a simple issue.
That was likely not due to beatings etc., but to extended periods of isolation, and probably other forms of general psychologic headf*cks.
Per the US Code, those are not torture. To me, that is absurd on its face. Hence my comment.
I’d say the sleep deprivation and administration of psychotropics would have as much to do with his psychotic breakdown as the isolation, and it’s a lot harder to claim they’re not torture.
But what’s truly absurd absurd on its face is the claim that the US Code does not – and in 2001-2003 did not – recognize such flagrant abuses of personnel in custody as torture. The definitions for the implementation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment were laid out in 18 USC §2340 back in ’94:
It is utterly incredible to claim that the status of “enhanced interrogation techniques” as torture was seriously controversial in 2001-2003. Or now. This is 100% a case of “We’ll tell you the sky is green, and we won’t blink while we do it, so the sky is now green.” There is no sane reading of the Code that renders enhanced interrogation techniques legal. None. It only works if we ignore the text of the law and bluster through it to the end we wish to reach. It is absurd, incredible, and if taken at face value, insane. Every defense of it as legal pivots on claims that it’s not severe enough to rise to the level of torture, yet this flies in the face of historic discussion of the techniques, and indeed in the case of the mental techniques reference in 18USC §2340(1)(B), it flies in the face of the rationale for using them. There is little cause to use protracted mentally disruptive interrogation procedures if they will not disrupt the senses or personality to the point where an inhibited subject becomes an uninhibited one. Of course, a more blatant level of absurdity is the claim that the intent of extended sensory deprivation (e.g., hooding) to profoundly disrupt the senses was or is – or indeed, could be – controversial.
So yeah. What’s absurd on the face is the claim that the USC doesn’t recognize “enhanced interrogation” as torture, but the adults in the room have been vainly screaming that for more than a decade.
I realize that many in the human rights community think that denying people the right to starve themselves to death is an atrocity. Some people disagree. I don’t think it’s such a simple issue.
It’s not just that we we forcefeed. It’s how we forcefeed. We forcefeed in ways to maximize discomfort (I’d say suffering, because the discussion of its administration involves imposition of compliance, but for the sake of argument I’ll softpeddle it as “discomfort”). I can go into detail if you’d like. It’s not pretty, and it’s definitely done in a manner to enforce compliance via discomfort rather than to simply maintain life. Saying forcefeeding in general is complicated and not clearly torture is a reasonable claim. Saying how we practice forcefeeding isn’t is far less reasonable.
Nombrilisme Vide, as to your 1:41 p.m. comment, the court wasn’t speaking about enhanced interrogation techniques generally; it spoke about the specific abuses alleged by Padilla.
As to whether forcefeeding by nasogastric tube or forcefeeding by direct injection into the stomach is better, I don’t really know the medical reasons for one over the other. Perhaps the risk of infection is greater with opening up the stomach.
People have the right to go on a limited hunger strike, but they don’t have the right to starve themselves. They certainly have the stop button within their control.
A court will soon make a determination of whether force feeding is torture.
But although some of us may want prosecutions, some of us don’t really trust the legal system. So we’re pretty much doomed.
Nombrilisme Vide, as to your 1:41 p.m. comment, the court wasn’t speaking about enhanced interrogation techniques generally; it spoke about the specific abuses alleged by Padilla.
That still falls into the realm of “incredible to assert that 18USC§2340 doesn’t encompass it. E.g., the alleged administration of psychotropics, the sensory deprivation, the sleep deprivation.
As to whether forcefeeding by nasogastric tube or forcefeeding by direct injection into the stomach is better, I don’t really know the medical reasons for one over the other.
Because that’s the whole story, amirite? It’s not about refusing to leave the tube in between feedings so as to maximize the number of times it’s inserted. It’s not about the tube being larger than it needs to be. It’s not about placing the hunger striker in a restraint chair and leaving them there between feedings. It’s not about leaving the hunger striker to sh!t and pi!ss themselves in that chair. No, if nasal intubation is the medically preferable procedure for forcefeeding, then that’s the end of the story, and we have to trust that however it’s administered is the best possible way for it to be administered, or we’re pretty much doomed.
Amirite?
I don’t know why I’m bothering arguing this. We went rounds about this exact matter back in ’09, and your opinion was unswayed when my side had people far more knowledgeable and eloquent than I presenting it. Nothing has changed but the date on the calendar.
Nombrilisme Vide, your link regarding force feeding is from 2006. I thought we were talking about now.
I thought we were talking about now.
My impression is that the topic of the thread was the way in which torture had become, basically, an acceptable practice.
That covers, minimally, a period from about 2002 until now.
So, not just now.
Perhaps you and NV are discussing something much more specific. If so, that’s not completely clear.
I don’t know why I’m bothering arguing this.
And I’m not sure what you mean about “this”. This is what I’m saying: The court declined to rule on the issue of whether Padilla had been tortured, and stated that the issue hadn’t been settled in 2001-2003. But, honestly, any discussion of that fact would have been pretty meaningless, since the decision was made based on Yoo’s immunity, not on whether Yoo was correct or not in his legal memorandum. In fact, the court assumed torture for the sake of argument.
I personally believe that Yoo acted in bad faith when he wrote the legal memorandum defining torture. I think that he should have, at the very least, had his license to practice law taken from him. I was dismayed that Margolis overruled the results of the Justice Department inquiry into Yoo’s professional conduct. I can’t believe that he’s on the faculty at Berkeley. But whether the specific facts that Padillo alleged fit precisely within 18 USC §2340 is a different issue.
If by “this” you mean hunger strikes, I don’t know to what extent the medical personnel at Guantanamo are more brutal than they have to be. I don’t take one party’s allegations as being true under any circumstances.
Perhaps you and NV are discussing something much more specific. If so, that’s not completely clear.
I thought that Nombrilisme Vide and I were discussing force feeding, as in “We’re still forcefeeding. That’s for damned sure.” (a quote from Nombrilism Vide). The description he provides regarding how we are “still forcefeeding” is from 2006.
Hope that clears it up for you.
Hope that clears it up for you.
Leaving aside for the moment the issue of whether force-feeding is torture or not, are you arguing that the practice of force-feeding inmates at Guantanamo no longer occurs?
Or, hasn’t occurred since 2006?
are you arguing that the practice of force-feeding inmates at Guantanamo no longer occurs?
Or, hasn’t occurred since 2006?
No. I’m not arguing that.
Thanks, that actually does clear it up.
I googled and found an old 1999 NYT article about the International Criminal Court and US concerns that American officials could be frivolously prosecuted.
link
Some well-intentioned type (Posner) says that there’s no danger of frivolous prosecutions of US officials, because we have a functioning justice system. Really funny stuff even back then.
The notion that prosecution of war criminals would be “political” is self-serving. What is political is the choice not to prosecute or even consider prosecution, because “the people”, whoever the hell that is, are guilty and therefore no one is. If that’s the case, why prosecute anyone at any level? Those poor slobs at Abu Ghraib (I mean the torturers) were just scapegoats. We should give them medals of freedom.
Nombrilisme Vide, your link regarding force feeding is from 2006. I thought we were talking about now.
Off the top of my head, I can’t offer you anything but anecdata to back up specifics, but that anecdata tells me the 2006 article is still broadly accurate, sapient. The link was to throw graphic descriptions of procedural details in your face, and our procedures haven’t exactly underwent a seachange. I never went to Gitmo, and I never talked precise details with my unitmates who worked the tiers there, but we’re still forcefeeding to break hunger strikers and enforce their compliance, and we’re still using restraint chairs as SOP. That level of detail you get from casual shop talk. Among other things. Hopefully we’ve been forced back from the more sadistic and degrading portions of it, but there’s not a whole lot of reason to give the benefit of doubt on this. Especially among other things. This flies squarely in the face of your “trust and never verify” MO, though.
But ya know, speaking of your MO, Googlophobia is part of it, so let me help you out:
Wikipedia
Guardian 14 Feb 14
Miami Herald 11 Mar 14
Better?
(Also, a nitpick. And I bring it up partially because it’s been brought up in re: you. “The description he provides”. “he”. I’ve never in my seven years of commenting here identified my gender. Not even once. So yeah. Your assumption is or isn’t right, but either way it’s an assumption.)
Aamer v Obama, decided Feb 11, 2014, concerning hunger strikes and subsequent force feeding from last year (2013).
From the Aamer v Obama:
“The restraint chair, the declaration explains, ‘is ergonomically designed for the detainee’s comfort and protection, with a padded seat and padded back support.'”
I’ll believe my lying eyes, TYVM.
(I assume that there is not a wide range of variation in DoD correctional restraint chairs. I concede that this assumption could be wrong. I doubt it, but I concede it.)
So, aside from the ugliness of force feeding itself, there was this from Nombrilisme’s previously linked article:
People have been urinating and defecating on themselves in these feedings and vomiting and bleeding. They ask to be allowed to go to the bathroom, but they will not let them go. They have sometimes put diapers on them.”
Another former hunger striker, Isa al-Murbati of Bahrain, described a similar experience to his lawyer, Joshua Colangelo-Bryan, in an interview on Jan. 28.
On Jan. 10, he said, a lieutenant came to his isolation cell and told him that if he did not agree to eat solid food, he would be strapped into the chair and force-fed. After he refused to comply, he said, soldiers picked him up by the throat, threw him to the floor and strapped him to the restraint chair.
I would suggest that picking people up by the throat is excessive. Being denied the opportunity to go to the bathroom is excessive. On the other hand, the mechanics of the force-feeding is a matter that I would reserve judgment about. I would assume that since feeding is forced, a restraint would be necessary.
Force feeding seems like a nasty process. If prisoners are allowed to starve themselves, it seems that force feeding is torture. If they’re not, it’s not, unless it’s done (keeping in mind that it’s done without the consent of the prisoner) with undue violence.
As someone who sort of believes that people have a right to assisted suicide, I personally sort of think that people in prison should also have the right to starve themselves. But I have qualms. (An example qualm: If self-starvation becomes acceptable in prison, it would be quite easy for prisoners to be force-starved.)
Not sure what you were trying to teach me with your snide reference to my googlephobia, and your links to well-known stuff in your 3:59, Nom.
We know that “forced” feeding is “forced.” That would require restraint. We know that it’s uncomfortable. We know that it probably involves gagging and other stuff. Maybe people should shoot the food directly into the stomach – that’s a different way to do it, and probably involves restraint, hole poking into skin, and potential for infection. You tell me – how do you force feed in a more humane fashion? I confess not to knowing how to do it.
I thought that Nombrilisme Vide and I were discussing force feeding, as in “We’re still forcefeeding. That’s for damned sure.” (a quote from Nombrilism Vide). The description he provides regarding how we are “still forcefeeding” is from 2006.
I’ll admit I was bad, and didn’t read the link you provided at 2:06. So here’s my question: did you? Because I did go back to it, and read it. And I started reading Ibad Hassan’s filing therein. And I got all the way to page 10 before I found his detailed description of current forcefeeding protocol, and it’s not substantially different from the “out of date” 2006 article that you objected to me mentioning. And indeed, if you continue through the filing, you’ll find it’s been continuously applied since 2005, with what changes had been made being ones to make it “less convenient”, in the CO’s grim euphemism. So was your objection made in bad faith, knowing full well that you made your suggestion that it was an obsolete description with no bearing on current practice while knowing it was in fact in keeping with modern practice, or aren’t you reading your own references?
Nombrilisme Vide, allow me quote myself regarding the link you provided versus the mechanics of force-feeding:
“I would suggest that picking people up by the throat is excessive. Being denied the opportunity to go to the bathroom is excessive. On the other hand, the mechanics of the force-feeding is a matter that I would reserve judgment about. I would assume that since feeding is forced, a restraint would be necessary.”
As someone who sort of believes that people have a right to assisted suicide, I personally sort of think that people in prison should also have the right to starve themselves. But I have qualms. (An example qualm: If self-starvation becomes acceptable in prison, it would be quite easy for prisoners to be force-starved.)
This is a valid and real concern. I sympathize. Allowing for hunger striking does open the door for abuses. But that’s true of most any sort of confinement. Unless prisoners are on suicide watch, they can probably kill themselves, and as soon as they’re isolated from other prisoners, they can “kill themselves”. Eliminating hunger strikes doesn’t change that. It may make it harder for the prisoners to be killed in one particularly cruel manner (which is risky and prone to detection if the prisoner cannot be completely isolated), but it’s not going to save them from a homicidal jailer.
And in the context of Gitmo, the right to stop eating is a lot more meaningful than for most prisoners. These are uncharged indefinite detainees, with little to no recourse to effect their release, and no end date in sight for their confinement. At that point, there’s not a lot you can do but curl up in a ball and try to die – especially if the act of doing so might actually call attention to what’s happening to you.
I suppose you’re entitled to grasp at anything to prove that Obama isn’t pure enough.
Not to pick this particular scab unduly, but you might want to look at Mohamed v Jeppesen Dataplan, or the Rahinah Ibrahim case.
In both instances Holder invoked state secret privilege to try to prevent lawsuits against the government from going forward.
In Ibrahim’s case, the “secret” they were trying to protect was absurdly trivial.
In Mohamed’s case, torture and extraordinary rendition were most definitely involved.
My point is not to crap on Obama or make any kind of statement about how “pure” he is or isn’t. I have no point to make about Obama, specifically, one way or the other.
I bring these cases up simply to demonstrate that no “grasping” is needed to find examples of Obama’s DOJ impeding discovery and discussion of torture by the US.
And in the context of Gitmo, the right to stop eating is a lot more meaningful than for most prisoners. These are uncharged indefinite detainees, with little to no recourse to effect their release, and no end date in sight for their confinement. At that point, there’s not a lot you can do but curl up in a ball and try to die – especially if the act of doing so might actually call attention to what’s happening to you.
I agree that it’s a fair debate as to whether people should be allowed to die of their own volition. I don’t think that force feeding can be called “torture” until that preliminary question is resolved.
I can’t believe that he’s on the faculty at Berkeley.
sapient, Yoo was on the faculty, tenured faculty, at Berkeley before going to work for the Bush administration. Getting rid of tenured faculty is extremely difficult. If his law license had been pulled, it might have been done. But until/unless that happens, he would probably have to be caught committing a felony.
Not to pick this particular scab unduly, but you might want to look at Mohamed v Jeppesen Dataplan, or the Rahinah Ibrahim case.
Well, not to be unduly annoying in return, but when you first mentioned El Masri, it appeared that you were placing the whole kit and caboodle into the Obama administration, including the torture. Since none of it happened then, from start to finish, it seemed like an unfair accusation, any way you looked at it.
I don’t like the state secrets privilege, but it’s up to the courts to limit it. Attorneys aren’t trained to go into court and bag half of their legal defenses. It just doesn’t work that way. It’s a judicial doctrine, and the Supremes can put a limit on it.
Getting rid of tenured faculty is extremely difficult.
If the President says it needs to be done, we can and should crush the testicles of a young boy.
And, presumably, one who had not engaged in acts of terror. Just some young boy.
Let alone authoring the crap-tastic opinion that justified the existing torture program.
That’s not enough to lose tenure?
Who made torture acceptable? U.C. Berkeley, that’s who.
wj, maybe you’re right. In terms of baby steps, doing something about Yoo’s license would have been the most obvious. If that couldn’t even be managed, it’s really a leap to expect anyone to have been criminally prosecuted. Magic wands aren’t available.
I think that Hassan’s allegations that the forcefeeding regime has been crafted in ways to induce compliance via unnecessary suffering while forcibly sustaining life is compelling. Again, while I generally hold forcefeeding to be torture, I have a difficult time seeing the alleged protocol, particularly with charming statements like General Craddock’s regarding making the forcefeeding protocols less “convenient” for their subjects, not constituting torture in their own right.
Giving someone who doesn’t want an appendectomy one against their will isn’t perforce torture; there’s room for good-faith debate. Giving it to them twice as slowly as required under insufficient local anesthetic with a stated goal of changing their behavior, on the other hand, sounds pretty clearly like torture to me.
Well NV, you get the last word on the substance of this argument, because it’s giving me a headache to figure out how to force food down someone’s throat against their will, and making it a happy experience.
If they’re not fighting back, don’t use force. There’s hints in the filing that there have been moves in that direction; it spoke of prisoners being punished if they did not walk to the restraint chair following Forced Cell Extraction. To be clear, a by-the-book Forced Cell Extraction doesn’t culminate in walking; it culminates in the prisoner being picked up like a litter and carried by four troops in full riot gear. If the prisoners are not taking the tubes out, let them sit unrestrained. If they’ll leave them in between feedings, leave them in. The literature makes reference to some of these things being permitted pre-2005. Back when things were unacceptably “convenient”.
Pretty much just don’t be violent if it’s not required, even if it reduces the amount of suffering required to seek to (unsuccessfully) maintain the hunger strike. Allow the threat of force to substitute for force.
Allow the threat of force to substitute for force.
Sure, all good.
Well, not to be unduly annoying in return, but when you first mentioned El Masri, it appeared that you were placing the whole kit and caboodle into the Obama administration, including the torture.
I can understand why that might be so, my apologies again for my error in citing El Masri in reference to Obama.
To be clear, my intent was not to place the responsibility for the torture regime on Obama, but rather simply to give an example of how the precedent of torture, even if the practice is discontinued, tends to warp subsequent policy and law.
What I think would be useful for the US would be something akin to the post-apartheid South African Truth and Reconciliation Commission, the point of which was not so much to pursue and prosecute wrong-doers, but to expose and acknowledge wrong behavior.
Instead, our way of “dealing with it” is to act like it never happened.
I don’t like the state secrets privilege, but it’s up to the courts to limit it.
I agree.
I agree that a Truth and Reconciliation Commission is an excellent idea. I think that the reason it hasn’t been convened is that it has be undertaken in good faith. Our political leadership (and I’m blaming Republicans here – sorry to not be “both sides do it”) has not acted in good faith.
That’s not to say (in refusing the “both sides do it” chant) that Democrats aren’t guilty. They were far too ready to go along with all that happened. I just don’t think that there would be enough “truth” if a Truth and Reconciliation Commission were held today. I hope that it happens – I really do.
@wj: “Yoo was on the faculty, tenured faculty, at Berkeley before going to work for the Bush administration. Getting rid of tenured faculty is extremely difficult.”
Yet one of the few ways to fire tenured faculty is proving a charge of “Moral Turpitude”
Perhaps I’m just hopelessly naive, but authoring legal memos justifying torture, up to and including “crushing the testicles of a child” seems like the very definition of moral turpitude.
That’s not to say (in refusing the “both sides do it” chant) that Democrats aren’t guilty. They were far too ready to go along with all that happened.
Agree.
Having witnessed the acrimony and carnage this subject engendered on this and several previous threads, I would venture that this is, in fact, just about all your opponents have ever asked you to concede as long as the set of “Democrats” includes the current president.
The problem is the institutional arrangements that have metastasized since the onset of the Cold War. When such arrangements are constructed so as to broaden the scope of what is secret and assign broad unaccountable powers to those in charge, it will not matter “who” is in power. As they say, the beatings will continue.
As long as the societal consensus providing legitimacy to these arrangements holds, it will not make much difference how the People vote unless the vote is one that is specifically held to dismantle them.
The problem is the institutional arrangements that have metastasized since the onset of the Cold War.
what bobbyp said.
Having witnessed the acrimony and carnage this subject engendered on this and several previous threads, I would venture that this is, in fact, just about all your opponents have ever asked you to concede as long as the set of “Democrats” includes the current president.
No, not really. We can all agree that Democrats were culpable in enabling Bush/Cheney, the Iraq war, etc. Obama and the torture regime? No, I’m not conceding that. Thanks for the usual b.s.
By the way, bobbyp, where’s your candidate who could do the miraculous American post-Iraq-war Bush clean-up revival purification scheme?
Snarki, I would definitely agree. But faculty unions being what they are, if the moral turpitude isn’t enough to get him disbarred . . . .
Memos have surfaced which argue that torture is legal (the Yoo memos), but we haven’t seen any memos on the effectiveness of torture, and after this amount of time it seems reasonable to conclude that the reason we haven’t seen them is because they don’t exist.
If your goal is to extract information as effectively as possible, morality be damned, that leaves you with two concerns. The first is that the United States has developed effective techniques for interrogating people. Substituting torture for proven interrogation techniques risks losing information that could prevent a terrorist attack.
The second is that, once you make the decision to engage in torture, you want to select the most effective approach for extracting information. That would mean that your starting point in developing a torture program would be to look at the effectiveness of past efforts to extract information using torture. You wouldn’t look to a Chinese program designed to generate false confessions as your primary source of techniques.
I think that any serious attempt by the government to grapple with these concerns would have left a paper trail. I don’t doubt that the people who committed and authorized the use of torture believed that it would be effective, but I think that that believe was the result of a desire to believe rather than the result of examining the evidence. I think that the people involved wanted to prevent future attacks, but that dealing with the psychological fallout from the attack that had already occurred was more important to them than preventing future attacks.
Obama and the torture regime? No, I’m not conceding that…
I state what I believe your opponents are arguing, not what you are arguing. Restating your conclusion is not an argument.
bobbyp–
“As long as the societal consensus providing legitimacy to these arrangements holds, it will not make much difference how the People vote unless the vote is one that is specifically held to dismantle them.”
Sapient in President worship mode missing the point–
“By the way, bobbyp, where’s your candidate who could do the miraculous American post-Iraq-war Bush clean-up revival purification scheme?”
By the way, bobbyp, where’s your candidate who could do the miraculous American post-Iraq-war Bush clean-up revival purification scheme?
My candidate? Did I say there is such a candidate? Did I say we needed such a candidate or a “miraculous revival purification scheme”?
I simply point out that our current president is constrained by powerful and deeply ingrained institutional arrangements and/or constraints bolstered by an underlying policy consensus. That the consensus is more or less similar to that of Rome in the day, well, I leave for future discussion.
When you try to speak for others, try to repeat what they actually aver….just for a pleasant change of pace.
It only hurts a little.
By the way, bobbyp, where’s your candidate who could do the miraculous American post-Iraq-war Bush clean-up revival purification scheme?
There isn’t one. Isn’t, can’t, and won’t be. That’s the point.
One might think we were marshalling great national resources in futile attempts to create an ideal world, rather than discussing our ideal preferences on a blog, and, even then, using minimal bits to do so – far fewer than, say, people looking at porn.
Didn’t Obama repeat at some point the standard cliche that he wanted to be pressured to do the right thing? My memory is fuzzy on this and I don’t remember the context if it happened.
I didn’t realize that when Obama urged people to urge change, it was a cliche. In any case, he is responsive.
What would you be pressuring for in the case of the Bush torture legacy? Prosecutions? Truth commission? What do you want to have happen? I think he believes that any good faith resolution or attempt to address that history has been impossible because of the political climate. I agree with him, although I sense that perhaps things are changing.
bobbyp: our current president is constrained by powerful and deeply ingrained institutional arrangements and/or constraints bolstered by an underlying policy consensus.
I think that’s true. Acknowledging that fact, and understanding that he seems to try very hard to work within those limitations for positive change, is why I’m so puzzled that people are constantly blaming him for not changing the landscape. The landscape needs to be changed in Congress, in state goverments, etc. Obama isn’t the one who’s holding the country back.
Sapient,
As far as I can tell it is simply calling him out for two mistakes:
1) Assuming that people really wanted change
2) Having the hubris to declare that he would create it
Two sides, two reasons. Either way he failed because his assumptions and arrogance allowed him to create an unachievable set of expectations.
I didn’t realize that when Obama urged people to urge change, it was a cliche.
Are you suggesting that cliches are no longer cliches when Obama repeats them?
…why I’m so puzzled that people are constantly blaming him for not changing the landscape.
The extent to which this thread is about Obama is largely because of your comments, sapient. You read attacks on Obama into other people’s comments and leap to his defense. When people disagree with specific points in your defenses of Obama, it becomes a matter of “constantly blaming him.”
I don’t like doing the petty, meta-discussion thing, but it’s so damned annoying that I can’t help myself.
Also, too – AAARRRRGGGHHHH!!!
So, there we have it.
1. The American people made torture respectable.
2. All future Presidential candidates (for that matter, all candidates) should eschew hubris (the upside: doing away with tragedy all together in our leaders) and on this issue and all others, including lowering marginal tax rates, plainly state that they have no intentions of changing anything whatsoever.
The campaign literature will be highly simplified, but rather uniform across the board.
3. In the area of unachievable sets of expectations, I hereby declare every word, syllable, and punctuation mark in the Constitution to be null and avoid, given the document’s bullsh*t assumptions and arrogance.
My 2:24pm is M. G. Krebs response to the Dobe at 1:58pm.
Also, send the “a” in “avoid” in my last paragraph into the void.
All future Presidential candidates (for that matter, all candidates) should eschew hubris (the upside: doing away with tragedy all together in our leaders) and on this issue and all others, including lowering marginal tax rates, plainly state that they have no intentions of changing anything whatsoever.
And they would eschew cliche at the same time!
Gesundheit!
Good Stuff, Maynard.
Touché!
“I didn’t realize that when Obama urged people to urge change, it was a cliche. ”
Hsh mentioned this already, but it’s funny/tiresome (depending on one’s mood) how you can take the most banal of statements and read it as an attack on Obama. It’s as a few people have said–any issue which even touches on Obama tangentially in any way that isn’t absolutely reverential triggers an immediate defensive response on your part.
Anyway, I don’t think Obama was the first politician to say that if you want change, force me to do it. My vague recollection is that he was repeating what some other progressive politician had said.
And if Obama is responding, it means that those who have been criticizing both him and the NSA might have been doing what people are supposed to do in a democracy–they were pressuring him and he responded. You seem to want to get rid of the pressure, but give him credit all the same for responding to it.
Hsh mentioned this already, but it’s funny/tiresome (depending on one’s mood) how you can take the most banal of statements and read it as an attack on Obama.
Actually, it was more my editor side. I think it’s funny/tiresome for people to pretend that they’re so bored with life that everything is a cliche. In fact, regarding: ” I don’t think Obama was the first politician to say that if you want change, force me to do it. My vague recollection is that he was repeating what some other progressive politician had said”, I wouldn’t be surprised if he did borrow from someone else, but that doesn’t make it a cliché. But you’ve seen and heard it all, no doubt. Sometimes I feel the same way.
FDR I think.
FDR I think.
Well, I’ve heard of him a million times. What a cliche.
Not bored with life, sapient. Bored with people who worship politicians. And you clearly thought the “cliche” remark was an attack on Obama and not just an assault on the English language. I think the cliche, that we need to pressure politicians, is virtually self-evident, which is why I called it a cliche. But its obvious truth is obviously not obvious to the people who flip out whenever their favorite politician is pressured.
But since Obama agrees that the NSA needs to be reined in, I guess we can all move on.
It was FDR according to my two minutes of googling. My memory might be faulty regarding Obama saying something like this. I might have been remembering articles of this sort–
link to progressive magazine piece
I think it was candidate Barry Goldwater who promised to change everything back to the way it was in 1776, except for the words “equal” and “happiness” in the Constitution; those would have to go. The relevant phrases would read “all men are created, now get lost” and instead of the “pursuit of happiness” it would read “vague dissatisfaction stalking us at every turn”) and then freeze frame the rest as permanent cliche, like Lenin’s corpse.
And there would be no more fancy pants words like “cliche” permitted either. Too French.
The “omelot” would become “freedom eggs” and so on, “and so on” being the cliche term for “shut up, what am I talking to you for?”
In our culture today, we don’t even leave the requisite time for boredom to set in as something entirely new degrades and is embalmed into the rigor mortis of cliche.
It’s an instant classic!
It’s an immediate collectible!
It’s a ready-made antique!
A Bitcoin for your cliched thoughts?
FDR I think, therefore Paul Ryan am.
Speaking of resurrected cliches, today, in Supreme Court arguments about whether corporations, those very special effing people, are devoutly Catholic, Protestant as a jaybird, or atheist when it comes to their employees birth control, Antonin Scalia countered Elena Kagan’s comments regarding his big swinging dick hypocrisy by addressing her as “Elena, you ignorant slut!”
http://talkingpointsmemo.com/dc/elena-kagan-antonin-scalia-birth-control-mandate
What has this to do with torture? Well, Scalia will apparently vote to allow corporate gods to impose their religious beliefs on their employees, despite no Constitutional legal precedence for such, but he has also stated that he sees no role for the Supreme Court to impose its opinions on the government’s national security surveillance of our conversations, nor does he find much to quibble with when the U.S. Government imposes water boarding on prisoners of war.
This last he will, I hope, live to regret, when I walk into his holding cell, when the appropriate time arrives, and it will, carrying a car battery and battery cables to induce his corporate testicles to sing the entire score of Mama Mia in Italian at the top of his lungs.
No, he won’t. Why not? Because the corporations will be paying their employees in this thing called “money”, which among other things, can be used to buy the relevant birth control.
I refuse to discuss this as though birth control were not available unless paid for by insurance. That’s like pretending you can’t get an oil change for your car unless your insurance covers it.
This isn’t about whether employees can get birth control. It’s about whether employers who object to some form of birth control can be compelled to be complicit in something they think is evil.
In the end, it’s really nothing more than a kind of dominance display, Democrats insisting on proving that nobody gets to follow their own conscience, you do as you’re told.
Sorry for the threadjack and sucking you into it, Brett.
I’ll keep further thoughts to myself unless there is a post about the case or an open thread.
Well sucked, Count. I’m sure you’ll enjoy the delicious irony of this essay:
http://www.theamericanconservative.com/hobbylobby/
Because the corporations will be paying their employees in this thing called “money”, which among other things, can be used to buy the relevant birth control.
(…)
This isn’t about whether employees can get birth control. It’s about whether employers who object to some form of birth control can be compelled to be complicit in something they think is evil.
It looks like they’re complicit either way, Brett. Or they’re not complicit either way. You choose which, but there’s no mixing and matching complicity with non-complicity to suit your argument.
And reducing the question of insurance coverage or the lack thereof to a binary can-get/can’t-get situation is just silly. Maybe you know that already, but just find it a convenient way to look at the question for your immediate purposes.
While this, from bobbyp’s link, isn’t the most relevent to recent comments, it jumped out at me as being “delicious.”
Brett, why don’t you argue the far more solid position that having employers in the health insurance business is a mistake and should be ceased regardless? I suspect that you would get almost uniform agreement here — unless someone is secretly an insurance company employee.
That entire essay was delicious.
The American Conservative writer put something into words that I’ve been trying to get at and express for a long time, that this unholy alliance of markets-must-be-obeyed-at-all-costs and the moral fundamentals of a conservative religious worldview is a chimera that one day will consume itself and tear the country asunder.
I’m putting the Polyani book and the other work cited therein on my reading list.
I suspect that Brett would be fine with corporations, those superhuman moral agents, dispensing with healthcare coverage altogether, since the system is based on another government mandate from the World War II era, and I’m agreeable to that, except that my Titanic of government-mandated universal healthcare coverage with the care itself administered via the private medical actors in the marketplace would founder and sink on Brett’s insistence on purity.
In which case, he would be correct that birth control would be affordable and available to much of the population outside any mandated insurance scheme, but that would be about it.
Brain surgery, not so much.
As to the Hobby Lobby case, since the owners of the company, like Roger Ailes being shocked at his audience’s demographic profile, were providing the birth control methods for how long … decades, years at least …. and claim they had no idea, through their insurance scheme, one wonders if they are worried about burning in Hell for their sins.
They are like Hindus who discover that they have been unwittingly inhaling gnats and thus snuffing out life since birth.
NOW they decide that they and everyone else must hold their breath, and in the holding, consider themselves martyrs as well.
But it’s not really that, either. It was just another case hunted up by activist Republican attorneys to scuttle Obamacare. That’s it.
Crap from top to bottom and stem to stern.
Fine. Have at it. As the American Conservative article points out, go ahead and open that can of worms.
We’re all complicit and compelled hundreds of times a week to violate our personal opinions of Evil.
I have my own ideas about what is moral and what is not, and I can’t wait to adjudicate all 5000 of them.
For example, anesthesia during surgery, especially radical dental work, for Republicans, subsidized by my insurance payments.
People who cause pain for others need some goddamned effing pain of their own.
By the way, I would advise those who are trying to change their wife’s or girlfriend’s or sister’s or mother’s oil to make sure to properly secure their oil plugs after you drain the old oil from their sumps, else there might be a catastrophic leak and they will seize up on you, probably right in the middle of bringing you a beer from the fridge.
Every 5000 miles or so is advised by the Car Guys and you might as well rotate their tires as well at the same time.
Not mandated, but advised.
“Brett, why don’t you argue the far more solid position that having employers in the health insurance business is a mistake and should be ceased regardless?”
Well, yes, that’s the real source of the problem here, the linkage between health insurance and employment that was caused by the non-taxible nature of compensation in the form of insurance. And I HAVE argued that.
The third party funding thwarts normal market cost containment mechanisms, while the transient nature of employement introduces the problem of pre-existing conditions, and the pre-tax status drives all sorts of things that aren’t actually insurance to be included, because it’s cheaper to pay people if you call it “health insurance”.
OTOH, as a result the cost of health insurance has climbed to the point where most people could simply not afford it, were they to recieve the employer share of the cost as income, and pay taxes on it.
Either we should strip health insurance of it’s pre-tax nature, while lowering tax rates to produce the same net result, or we should extend that pre-tax status to health insurance obtained from any source. Either approach would allow for people to obtain their insurance through credit unions, fraternal organizations, or the like, allowing them to stay in the same insurance pool all their lives, while still getting the negociating strength of a large group.
And it would get rid of the distortions that cause all sort of predictable/elective expenses to be paid through “insurance”.
Like, to the point, birth control.
Fine. Have at it. As the American Conservative article points out, go ahead and open that can of worms.
This is kind of where I’m at.
Brett’s right, if the insurance company doesn’t cover it, folks can just buy it for themselves. The products in question are not extraordinarily expensive.
So, to be perfectly honest, nobody is going to be overwhelmingly burdened by Hobby Lobby being granted an exemption.
So yeah, have at it. I’m looking forward, in a good old Leninist heighten-the-contradictions way, to the multitude of interesting and no doubt peculiar ways in which the religious conscience of for-profit corporations is going to manifest itself, if the SCOTUS rules for Hobby Lobby and Conestoga.
In for a penny, in for a pound. Let a thousand freaky flowers bloom, y’all.
Also, many thanks to bobbyp for the link to the TAC article. I appreciate those guys, at least their understanding of conservatism extends beyond an obsession with property rights and guns.
I suspect very few self-described conservatives would want to live in a world that operated per TAC’s point of view.
Seriously:
Almost everything I’d ever want to say, about anything we ever talk about here on ObWi, all wrapped up in one paragraph.
I tip my hat.
Not to hijack the thread (as if it wasn’t already).
But suppose that the Court decides for Hobby et al. Could not an equally good case be made for a company having a religious objection to vaccination? Or to providing spousal health insurance to same-sex spouses? Or, concievably, to interracial spouses?
Sure, some of those seem wildly unlikely. But if a corporation can claim a religious exception for following the law in one particular type of health care insurance, why not in others?
Birth control for women is prescribed many times for non-elective medical reasons besides preventing impregnation.
But then no one forced them to elect to be female, so what’s the problem?
I would argue that net/net, freedom is increased by Hobby Lobby paying for birth control through their insurance. That way, the sacred, freely acting individuals who work for them may decide for themselves, as autonomous individuals units, whether to avail themselves of the prescriptions, depending on their individual moral scruples.
Instead of one family, the owners having their freedom curtailed, many other will have their freedom of choice curtailed if Hobby Lobby wins this case.
This would avoid the admittedly rare incidence of individuals who work there and wish to use birth control, but can’t afford the expense on their own, being prevented the service.
Yes, they are free to not have sex under some misunderstanding of the nature of the human species, but they aren’t free to avoid menopause and other female medical conditions.
Sure, some of those seem wildly unlikely.
No more or less unlikely than not wanting to contribute to paying for an insurance policy that includes coverage for an IUD that somebody, somewhere, might purchase and use.
One thing I’m curious about is what happens when a health insurance company gets religion. Is it exempt from ACA requirements regarding what its product offerings have to include?
There’s a nice niche market here waiting to be exploited.
Siding with Hobby Lobby would certainly open up the floodgates for crazy stuff.
I, for one, welcome the first company run by Scientologists, that claim that defrauding people is a core religious principle for them. What could go wrong?
Yet, somewhere down the road to crazytown, Nino will decide which religions are “real”, and which can be dismissed.
The OP is about torture. The conservative 5 on the USSC is getting set to torture “logic” and “precedent” in appalling ways.
First, thanks for the article, bobbyp, I enjoyed it.
Second, what russell said (12:22 and 12:34 PM).
That paragraph you quoted, russell, is incredibly in line with conversations I have with my wife (who is not libertarian in any way, shape or form). Where we agree is that this:
We have thoroughly accepted the separation of markets from social, moral, and religious structures
has happened. And that’s its bad. Economically bad and socially bad.
wj:
Sure, some of those seem wildly unlikely.
Either way they rule (right now I’m leaning towards in favor of Hobby Lobby, but the oral arguments were not great for the either), I think they will rule narrowly.
Religious objections have been overruled many many times for compelling government interests. I will suspect they will rule that in this case there is an undue burden and lack of compelling interest, but structure it as to not give expansive rights to large, multinational, publicly traded corporations and the like, nor broadly say compelling interests can’t overrule religious beliefs.
My guess, but I wouldn’t be surprised either way. The atty for Hobby Lobby did not do well.
Like I said last time around on this subject, I am unswayed by the arguments all the way around.
Brett:
In the end, it’s really nothing more than a kind of dominance display
I’d say both sides are engaging in a dominance display.
Hobby Lobby’s insurance had BC covered previously. Maybe they didn’t know, maybe they didn’t think about it: but this became a problem when the government said you have to do X (which they already did).
Likewise, the government could have made an accommodation process for closely held for-profit organizations.
I kind of feel like both sides are fighting over this purely because they want to win. Not because they care about what they are fighting over.
“I’m looking forward, in a good old Leninist heighten-the-contradictions way, to the multitude of interesting and no doubt peculiar ways in which the religious conscience of for-profit corporations is going to manifest itself, if the SCOTUS rules for Hobby Lobby and Conestoga.”
I’m trying to figure out what “contradictions” you see here, to be heightened.
I want butter pecan, you want chocolate, the court rules that neither of us can force the other to eat the flavor we don’t want. What’s the heightened contradiction to be afraid of? Pistachio? That different people make different choices isn’t a contradiction in a market economy, it’s life.
Health insurance isn’t like which side of the road we drive on, you don’t get twenty car pileups if this company’s health insurance covers IDUs, and that company’s doesn’t, if one person opts for a high deductable policy, and that person choses a first dollar policy. Rather, it’s like most things in the world, where Bob can make one choice, and Sally another, and… nothing happens.
And such a trivial matter to draw a line in the sand over: Whether a Hobby Lobby employee flashes their health insurance card, or their HSA card, when buying contraceptives.
That’s why I think this is some kind of political dominance display, an exercise in rubbing the other’s face in the fact that you’ve got the power to make him do what you want. This is just such a stupid line in the sand to draw, unless the point is just proving you can draw the line anywhere you want, and nobody else has a say in the matter.
Could not an equally good case be made for a company having a religious objection to vaccination? Or to providing spousal health insurance to same-sex spouses?
No and no. BC is a stand alone, severable, defined benefit under ACA (or under an insurance policy, for that matter). Vaccinations, like shots, transfusions, surgery, pap smears, etc, are clinical modalities that fall within the general grant of coverage contained in any health insurance policy. It would be like objecting that modern medicine violates a specific religious injunction and therefore the employer is exempt from providing health insurance.
SS married couples is far likelier to get to court, but the complainant should lose. First and foremost, the employer isn’t being asked to provide a specific service to all that the employer finds objectionable on religious grounds. Rather, the employer is seeking to withhold from one what it gives to all others. Second, unless the act of purchasing insurance per se is claimed to violate conscience–see above and good luck with that–complaining that the insurance will benefit someone in a relationship the employer objects to is like withholding a paycheck from someone who might spend the money on fast horses, loose women and demon rum. What happens outside the work place is not the employer’s affair, unless it also affects the workplace.
It’s like the nonargument against Hobby Lobby, i.e. that there is no difference between paying an employee who then buys BC and just paying for the BC through insurance. The employer has no right of control on how its employees spend their money, and every employer pays employees with money. It is the compelled act imposed on the employer that puts this issue in front of the supreme court.
thompson:
They may try to rule narrowly. But they tried that with Windsor, and look how that is working out.
Therefore, McKinney’s argument notwithstanding, I expect that Hobby ends up losing. If the Justices were confident that all those other medical practices wouldn’t be back to haunt them next year, it might be a different story. But recent experience will, I expect, cause most of them to bite the bullet on this one.
I’m trying to figure out what “contradictions” you see here
See below.
Vaccinations, like shots, transfusions, surgery, pap smears, etc, are clinical modalities that fall within the general grant of coverage contained in any health insurance policy.
I’m looking at the schedule of benefits from my more or less generic PPO, and there is absolutely no difference in how family planning services is presented or packaged as compared to anything in the list you give here.
Same for abortion, too, it’s just “voluntary termination of pregnancy”.
Maybe there’s some magic legal term of art meaning in words like “stand-alone”, “severable”, or “defined”, but as best as I can tell it’s not reflected in my insurance coverage.
Birth control, specifically, isn’t even listed, there’s just an entry in the schedule of benefits for “family planning”.
What are listed specifically are vaccinations, pap smears, and surgeries of various kinds.
And the things you name are by no means included under any kind of “general grant of coverage” included in “any health insurance policy”.
Take a look at what is and isn’t covered under a typical catastrophic plan, which is what many folks who don’t make a lot of money have been living with for some time now. Under many of those plans, you will not be covered for any form of preventive care, full stop.
If those things are now part of some widely assumed “general grant of coverage”, it’s because the ACA has made them so.
To Brett’s point, the “contradictions” will emerge when everyone with a oddball religious conviction gets to claim exemptions from any and every regulation that applies to how they operate their business.
The employer has no right of control on how its employees spend their money, and every employer pays employees with money. It is the compelled act imposed on the employer that puts this issue in front of the supreme court.
I’m still not seeing a difference here.
For one thing, employers are compelled to pay their employees with money, if I’m not mistaken. Nobody is working at Hobby Lobby for free stencils.
If an employer offers health insurance as part of compensation, the law says what it has to include, just like the law says how many hours you can be required to work without a break, or what the minimum number of dollars per hour is, etc etc etc.
What employees do with that compensation is none of the business of the employer.
If an employer offers health insurance as part of compensation, the law says what it has to include, just like the law says how many hours you can be required to work without a break, or what the minimum number of dollars per hour is, etc etc etc.
One of these things is not like the other, no matter how many etc. you put on there. The argument is another of those that is a waste of the governments time and energy, caused by a sense that government should take care of everything. In some sense the government has become too small(minded), why would it ever worry about this?
If you have a job that includes having insurance from an employer, you most certainly should be expected to pay the 9 dollars a month birth control costs at Walmart.
One of these things is not like the other, no matter how many etc. you put on there.
Then explain to me what the difference is.
They all require government’s time and energy to define and enforce. Whether it’s a waste is in the eye of the beholder.
They all come from a sense that government should “take care of everything”. Minimum wage, regulations about how long you can work without a break, all of it comes from the sense that government needs to intervene in the relationship between employers and employees.
What’s small minded about what insurance coverage should include, but not small minded about paying somebody $7.25 an hour instead of $7.00, or $5.00?
If there’s a difference in there somewhere other than somebody’s arbitrary personal opinion that regulation up to point X is OK, but up to point Y is obviously excessive, I’m not seeing it.
You see a distinction. Explain to me what it is.
Russell, still not seeing any “contradiction” here. Hobby Lobby could win beyond their wildest dreams, Roberts repent his vote in favor of the ACA, and the whole thing gets struck down, root and branch, and there wouldn’t be any contradictions.
We could have a legal regime under which companies run by Jehovah’s Witnesses offered their employees insurance that didn’t cover blood transfusions, and there wouldn’t be any contradictions.
What, exactly, do you mean by “contradictions”? I’m guessing it’s something other than, “Asserting “A” and not “A” at the same time.”
Because, so far as I can see, the government could renounce regulating the details of health insurance entirely, abandon all thought of mandates, and there wouldn’t be any contradictions involved.
Brett, it’s a figure of speech.
“Heighten the contradictions” is an expression generally attributed to Lenin.
The meaning, as used colloquially, is that you will allow or even encourage a bad situation to get even worse, in order to make it’s badness that much more manifest.
So, Hobby Lobby is granted an exemption from the ACA mandate due to 1st A freedom of religious expression, and 1,000 other for-profit corporations discover their own personal deities and claim exemptions from 10,000 other regulations.
Hilarity ensues.
Whether that’s good or bad depends on your point of view. As, in fact, was true of the “contradictions” of Lenin’s day.
We could have a legal regime under which companies run by vampires offered their employees insurance that covered nightly blood transfusions from Jehovah’s Witnesses children and there wouldn’t be any contradictions either.
I’m trying to imagine a person who needed a blood transfusion reacting to his Jehovah’s Witness boss saying: “I’m sorry, it’s unfortunate that we will not cover that, but it is no way contradictory.”
wj:
Therefore, McKinney’s argument notwithstanding, I expect that Hobby ends up losing.
Well, we’ll see. I’m curious to read the opinion. Legally curious, I don’t really care about the outcome as a practical matter. But, it will be interesting to read.
If the Justices were confident that all those other medical practices wouldn’t be back to haunt them next year
-and-
1,000 other for-profit corporations discover their own personal deities and claim exemptions
I really don’t see this happening. Even if they decide for Hobby Lobby, I think they will decide narrowly.
I think a company will have to prove that it has a sincerely held belief (which would pretty much limit it to tightly held corporations with a long history of actions consistent with that belief) and that there isn’t a compelling interest (which the USSC has previously had pretty broad and I can readily see vaccines falling in that category, even if BC doesn’t).
I think the government left themselves too open with the religious exemptions and accommodations to BC they had in the regulations. Accommodations that aren’t there for other treatments, IIRC. So, a distinction between BC and vaccines is being drawn by HHS, I don’t think the court would have a problem writing along those lines.
Bottom line, even if Hobby Lobby wins, I don’t think Exxon is going to decide they are part of the church of no taxes and get traction in the courts.
They will, as previously, get a lot of traction by lobbying congress to make our tax laws as ridiculous as possible.
russell:
Thanks for that lesson on “heighten the contradictions”. Didn’t know that, learn something new every day.
Josh
I think a company will have to prove that it has a sincerely held belief (which would pretty much limit it to tightly held corporations with a long history of actions consistent with that belief) and that there isn’t a compelling interest
B&H Photo, currently being sued for a disinclination to hire women.
Women are a protected class, of course, but freedom of religion is 1st Amendment.
Dueling lawyers at dawn!
It’s not that hard to find businesses that are (a) closely held by (b) distinctly religious people who (c) are bugged by some aspect of their legal obligations as employers or, generally, business owners.
The SCOTUS may rule narrowly today, tomorrow they may decide to read the findings more broadly.
It happens.
I don’t have extremely strong feelings either way about whether Hobby Lobby, specifically, gets an exemption.
IMO the apparent inability to distinguish between human beings, and legal entities specifically devised to not be those human beings, as regards their inalienable rights, is pernicious.
Also IMO, it’s so baked in at this point that it’s never going to be undone. We’re going to ride this particular pony right into the ground.
Whether that’s good or bad depends on your point of view…
That article was so, so….jeez..right on. I mean, here’s a guy writing in American Conservative approvingly citing Karl Polanyi, prominent academic Marxist, and capturing in many central respects Marx’s concept of “alienation” of the worker under capitalism from his labor.
I was, and remain, in awe. So the next time you meet a self described conservative who goes off on private property, so-called free markets, and capitalism…remind them they are not a true conservative.
They are just masturbating.
Dueling lawyers at dawn!
Yeah, that’s pretty much how things get decided when there are multiple perspectives on ambiguous and potentially contradictory laws. Which, in general, I view as a good thing. The court system has its problems, but someone needs to arbitrate disagreements on laws and the court system seems like a good choice.
(c) are bugged by some aspect of their legal obligations as employers or, generally, business owners.
If that’s the standard the USSC uses, yeah, I’d agree that would be bad. But I don’t think it’s likely.
Thompson,
“I think they will decide narrowly.”
The problem here is that so many of the arguments advanced by the HobbyLobbyists are either nonsensical, self-refuting, or simply not true.
In this instance the Court cannot decide “narrowly”. They either blow a hole wide open through precedent and law or they eat it.
They are between a rock and a conservative hard place.
But I’m sure there will be more discussion on this once they render their decision.
Until then.
Well, the American Conservative got excommunicated from the true RW faith sometime during the reign of the lesser Bush (to be right too early is an unforgivable sin, cf. people who stopped worshipping St.Jossif before Nikita discovered to his and everyone else’s shocking dismay what a pig the grand moustache had been).
“So the next time you meet a self described conservative who goes off on private property, so-called free markets, and capitalism…remind them they are not a true conservative.”
Ah, I get it: There ARE “true Scotsmen”, it’s just that nobody from Scotland has any say in determining who they are. Got it…
One almost sure bet is that it will be a 5:4 decision with Kennedy as the deciding vote as usual.
The four on the Right have shown again and again that precedent carries no weight for (or rather against) them, even if it is their own, and Sotomayor and Kagan rubbing Scalia’s nose in it will not sway him (rather the opposite).
With Kennedy it depends on whether he is caught on his conservative, Catholic or corporatist foot.
If it is a narrow decision (either way), it will be to appease his remnants of a soul. Roberts could be the other driver for a narrow decision in favor of Hobby Lobby because he must know that too broad a decision could easily turn out to be a nuke blowing his reputation and legacy up.
HobbyLobbyists are either nonsensical, self-refuting, or simply not true.
Yeah, I’d agree. I’d also say the same about the gov, however. If you haven’t read the argument transcript, I’d recommend it.
It reads like neither the SG or the HL atty were prepared.
In this instance the Court cannot decide “narrowly”.
I’m pretty sure the USSC has broad authority to render its decision as it sees fit. They frequently decide cases very narrowly and they could readily do so again.
But I’m sure there will be more discussion on this once they render their decision.
Until then.
I look forward to it. I should also probably stop supporting a threadjack.
Now, bobbyp, to paraphrase Woody Allen, there is no need to start insulting their hobbies, sincerely held as they may be.
Thompson wrote:
“I think a company will have to prove that it has a sincerely held belief …”
I sincerely believe there are few if any sincerely held beliefs, especially at the corporate level, nor do I believe one can prove a sincerely held belief.
Most of the truly sincere seeming individuals I’ve come across in life turned out to be sociopaths. But they can look you in the eye with the utmost sincerity.
If corporations can hold sincerely held religious beliefs, what do their deities look like? May I visit Delaware or the Barbados, open a mail drop box and view the Godhead?
Corporate CEO: My sincerely held belief and the sincerely held belief of this corporation is that ….. yes, yes Flanders, what is it?
Flanders: Sir, I’m sorry to interrupt, but I must tell you that our company’s stock price is in free-fall this afternoon and twelve analysts downgraded the stock and Moody’s has put us on it’s downgrade list.
Corporate CEO: Oh, and why is that?
Flanders: Well, sir, and don’t start with the yelling and cursing, but … well, it’s because of our sincerely held beliefs.
Corporate CEO: Yes, yes, alright, Flanders. (Taking one lapel in hand and gazing into the mid-distance with sincere gravitas) Now as I was saying, this corporation and I as its head have sincerely held beliefs, and if you don’t like those, we have others.
Flanders: Sir?
CEO (exhaling with exasperation): What now, Flanders?
Flanders: Carl Icahn on the phone for you, sir (then cowering and cringing to protect himself from blows about the head)
There was a great New Yorker cartoon the other week depicting two aliens (little green hedge-fund managers, I expect) just landed on Earth asking the nearest human who they should talk to regarding their offer about buying out Planet Earth.
One can imagine the corporate mergers and acquisitions department of say, Goldman Sachs, probably a bunch of skinny, fit bullies bluetoothing on treadmills, being placed in charge of representing our collective interests in this offer that will seem too good to refuse.
Sayonara, sincerely held beliefs.
The market speaks: Buy low, sell high. Cut your losses.
But I don’t think it’s likely.
And yet, here we are.
“I think a company will have to prove that it has a sincerely held belief …”
There are really only two options here. If a company only reflects the beliefs of its owners, then it has no religious beliefs of its own. Which means it cannot claim an excempton from following the law due to “sincerely held religious beliefs”.
On the other hand, if the company as a company, indepenedent of its owners, has religious beliefs, then it will have to find some way to demonstrate them. A way which doesn’t include whatever the owners happen to believe. For example, it will have to show that it could change its beliefs, without the owners changing theirs. (Other suggestions as to how it could do that are welcome.) If it can do that, then there is a case for giving the company an exemption of 1st amendment grounds. But otherwise….
It makes no more sense to ask about the beliefs of a corporation, but a corporation is nothing more than a tool of its owners, as much as a hammer or a knife is a tool. If the corporation is closely held by owners united in a belief, attributing that belief is just a form of shorthand.
Compelling the owners to do what they think evil using their corporation? No different than forcing them to do it with any other tool.
Sorry about the weird grammar; I entered that on my cell phone. What with my eyes, by the time I’ve blown up the screen enough to read, I’m only seeing a few words at a time, making editing problematic.
I would add, for the benefit of those who will say, “The Greenes did not have to form a corporation. They voluntarily gave up some control when they did that.”, BS.
Virtually every venture larger than a child’s lemonade stand is organized as a corporation, and this is not because forming one is fun, or there’s some kind of fad. It is because the government, whether or not with intent, has crafted a legal environment where cooperating to accomplish anything is extremely perilous if you don’t do it through a corporation. If you mean to do anything that requires people to work together, you must form a corporation, or risk all of you being rendered paupers if any of you are sued, in the government’s courts, under the government’s laws and doctrines.
The notion that the government can so force everyone to form corporations to do all manner of things, and then take away people’s liberty on the basis of having done so, is offensive.
Well, offensive to anybody who doesn’t mean to take away people’s liberty, anyway.
May we, the polity, compel a corporation to do good?
May we compel them to do cease and desist from doing evil, for example, compelling a corporation or any other entity to stop performing abortions?
I suppose the Court could rule that a corporation is a “person” for purposes of the RFRA and thus entitled to protection on the act, and then rule for Hobby Lobby. Congress could then go back and amend the law and say they were only talking about individuals and that would be that, other than perhaps for sole proprietorships.
I don’t think you’ll see the Court rule that corporations have first amendment freedom of religion protections the way corporations now have first amendment free speech protections. First, it’s not necessary to decide the case since it can be decided under the RFRA.
Second, they could just assume, without deciding, that corporations have such protections and then rule that it doesn’t matter because even an individual bringing the same case would lose, under precedent that pre-dates, and gave rise to, the RFRA.
Third, if I understand the current analysis of whether corporations have certain rights under the Constitution, it seems that as applied to religion the argument would fail so even if they were to decide they would decide against Hobby Lobby.
What I don’t see is room for some sort of principled “closely held” exception/limitation that would permit such corporations free exercise rights. Why should the number of shareholders matter (if that’s what is meant by “closely held”)? Perhaps there could be room for some sort of exception if the owners of the legal entity were unanimous in their belief, but that opens a whole host of issues that would need to be addressed and they are not.
But I guess we’ll see.
May governments invoke eminent domain to seize land for Transcanada’s pipeline from Canada to the Gulf of Mexico.
May they revoke Transcanada’s request for eminent domain based on the sincere belief that tar sands excavation contributes to global warming and thus may harm Americans.
Are Good and Evil absolutes or are they relative values, based purely on personal point of view, or the majority’s point of view.
Are Good and Evil absolute in their own right or must Brett Bellmore confirm their absolute nature, thus forcing me to abandon my relative view?
And if know my relatives, you’d make a law against them.
And, if I’m not mistaken, Hobby Lobby could refuse to offer health insurance and pay the penalty and be done with it.
I also still don’t understand how being required to offer a health insurance plan that covers BC is any different than being required to pay employees cash who may then use said cash to purchase BC. In each case there is an intervening independent actor that decides whether to purchase and use BC.
a corporation is nothing more than a tool of its owners
If you mean to do anything that requires people to work together, you must form a corporation, or risk all of you being rendered paupers if any of you are sued
OK, I found a contradiction.
If I take my hammer and destroy you or your property, I will likely go to jail.
If I take my corporation and destroy you or your property, I will likely not go to jail. Depending on details, nothing whatsoever may happen, to me or anyone. I might even get rich out of the deal.
That is because, as you quite correctly note, corporations exist specifically to shield their owners from liability for what is done in the name of the corporation.
Corporations exist to provide a legal entity which can operate in their owner’s interest, but which are specifically NOT their owners.
So, not like any other tool I can think of.
This comment originally went much longer, but it was just devolving into arguing about the same old ahistorical glibertarian horsecrap, and I just don’t have the energy to beat my head against that particular wall anymore.
Suffice it to say that if the weather suits you on planet Brett, by all means enjoy the ride, but the rest of us have to deal with reality.
That would be a contradiction, if you had to actually harm somebody to lose a lawsuit.
“Virtually every venture larger than a child’s lemonade stand is organized as a corporation, and this is not because forming one is fun, or there’s some kind of fad. It is because the government, whether or not with intent, has crafted a legal environment where cooperating to accomplish anything is extremely perilous if you don’t do it through a corporation. If you mean to do anything that requires people to work together, you must form a corporation, or risk all of you being rendered paupers if any of you are sued, in the government’s courts, under the government’s laws and doctrines.”
Welp, that’s not precisely how the arrangement came about, is it?
Without the government permitting corporations and the individuals working within them this legal confection called a corporation, when they sometimes cause harm to others by their actions, for which they should be held personally responsible through the Courts and lawsuits, I guess it would be up to individuals to seek redress of their grievances on their own and by their own methods.
Without the awful government intervening with its good offices to settle the differences, I’d start with the President of the corporation and work my way down with my AR-15 through the Vice Presidents, individually, until I sincerely believed my grievances had been settled.
You’re saying that if a corporate bulldozer knocks down your fence line and perhaps squashes your dog, that the government apparatus … well, what are you saying?
On the one hand, that without the corporate artifice individuals within the group of people who got together and knocked down your fence are victims because you might seek redress through the Courts, on the other hand, the corporate artifice protects the individuals responsible from your seeking of redress, on the third hand, there should be no legal venue via the government for you to seek redress, and on the fourth hand, get rid of the government legal system altogether and you and your militia will settle it mano-e-mano, and …. I’ve got as many hands as needed to figure out WTF you are talking about.
That would be a contradiction, if you had to actually harm somebody to lose a lawsuit.
Whether an actual harm is required or not, same/same as regards the differences between what I do with my hammer, and what I do with my corporation.
Folks want to pretend that there’s no daylight between corporations and their owners, or corporations and their employees, or corporations and whoever participates in them in whatever role.
They like to maintain that fiction right up until somebody does something stupid or harmful, and someone has to answer for it.
As an aside, it may not have occurred to you that the reason people actually can stand up organizations larger than a lemonade stand is *because* limited liability corporations exist, and that that is the reason they were invented.
Private individuals didn’t use to take on large, complex projects as a matter of course, as they do now.
Corporations enable big efforts. Enabling big efforts, things that actually affect a lot of people, comes with a price. The price is that you have to follow the rules.
Don’t like the rules, don’t play the game.
Freedom ain’t free, isn’t that the catchphrase?
corporations are
yes they are
they are they are they are
the creations of the Evil State.
is this a necessary Evil ?
that
is
a
good
question
then how can good come from Evil ?
there are chickens
and then
there are eggs
Vegas has them “pick ’em”
but the vig gets you always
Ugh notes, “corporations exist specifically to shield their owners from liability for what is done in the name of the corporation.” It would seem to logically follow that, if corporations shield their owners from (legal) liability for what is done in the name of the corporation, they would likewise shield them from morla liability for what is done in the name of the corporation.
After all, if you were morally liable for what a corporation that you own does, you would not want to avoid legal liability either. Right? Or else you think you should avoid financial risk for doing something which was immoral….
I also still don’t understand how being required to offer a health insurance plan that covers BC is any different than being required to pay employees cash who may then use said cash to purchase BC
I simply have to say that this, and russells earlier feigned inability to understand the difference, seem to be not arguing in good in good faith. In my view.
The difference is pretty obvious, and when someone keeps denying what is an obvious difference and demanding that someone explain, it just seems…not like those people.
If I pay you and you buy bc then I haven’t had any part in that decision. If I provide hc, that covers bc, then I have done something actively to enable something I believe is wrong. That is a point of view that is just as valid as you saying I didn’t.
That is NOT a comparable activity to paying a minimum wage or providing safe working conditions. Both of those things are universal and are workplace activities. BC is neither universal or a workplace activity. In fact, neither is hc in general, because it is the government deciding that hc as a specific means of compensation is a requirement. Why noit chickens?
I don’t really even have an ox to gore in this fight. As an employer I have no problem wrestling my conscience to the ground while giving unto Caesar etc. As an employee i think it is pretty irrelevant. As a taxpayer I think it is a waste of my tax dollars enforcing it, taking up the courts time or even having Congress spend a lot of time either way.
But it is not “the same”.
I’m not following all of this all that closely, but Marty accusing someone else (Russell, in this instance) of “not arguing in good [in good] faith” did raise a welcome chuckle.
Could someone switch off the italics please.
There are some angry theologians on line 1 to 11 to insist that of course giving cash that one knows will be used for sinful purposes is enabling sinful behaviour. If one gives a drunkard money, it does not suffice just to say ‘but do not spend it on booze’.
And unless you are one of the guys that thinks ‘I am insured against X, so where can I get X in order not to let that go to waste’ no one forces the insured to make use of the BC option (although statistically most will do). Actual churches (or church run businesses) can put a clause into the work contract that says ‘if you violate our moral code, you’re fired’ and that includes use of BC. For that reason most churches that oppose BC (but not the very concept of health insurance) will not opt out because they have other means to impose their views on their employees (and to a degree those affiliated with them).
If the religious argument by secular companies is brought up in good faith (which I doubt in the vast majority of cases) then either their theology lacks clarity and consistency or they should call for the ‘hire and fire at will’ option since they are enablers either directly or indirectly in any case, if the employees make use of ‘immoral’ options with the benefits (incluidng salary) of their job.
And the argument about taxes does not fly due to the Biblical cop-out of ‘render unto Caesar’ in combination with ‘no government not instituted by the will of God’ (even if totally unjust). Of course the Bible is itself not very consistent and neither is the application by churches.
“It would seem to logically follow that, if corporations shield their owners from (legal) liability for what is done in the name of the corporation, they would likewise shield them from morla liability for what is done in the name of the corporation.”
No, this does not actually follow. You’d have to lay out the argument more formally for me to identify the actual fallacies involved, but let me point out the most glaring problem with the reasoning:
It presumes the law actually has something to do with morality, such that violating the law implies a violation of morality. Whereas the law is mostly orthogonal to morality these days, and sometimes complying with it is the moral violation.
“There are some angry theologians on line 1 to 11 to insist that of course giving cash that one knows will be used for sinful purposes is enabling sinful behaviour.”
But, of course, you have to know or at least strongly suspect this. It’s not enough to merely know in a general sense that, if you give somebody money, they might spend it on something immoral. Where as the contraceptive mandate is rather like the government telling you that you have to pay people in a coupon book that includes a coupon for free visit to Sam’s House of Immoral Activities, and that you’re breaking the law if you remove that coupon.
The crazy thing about the situation is that the government’s position is that it’s legally ok for Hobby Lobby to not give their employees insurance at all, leaving them objectively much worse off than getting insurance that merely doesn’t cover a few types of birth control. It’s not really about the well-being of the employees, IOW. It’s an almost pure exercise in proving who’s the boss.
If I pay you and you buy bc then I haven’t had any part in that decision. If I provide hc, that covers bc, then I have done something actively to enable something I believe is wrong.
In both cases, the employer has provided, as part of compensation, the means for the employee to obtain an objectionable form of birth control.
In neither case has the employer participated, in any way shape or form, in the employee’s decision to use or not use the objectionable form of birth control.
If having coverage for objectionable (to the Greens) forms of birth control amounts to an endorsement, or at least some kind of tacit acquiescence to the use of, those products, you would have a point.
If your point holds, we should expect the same thing to be applied to vaccinations, transfusions, surgeries of various kinds, use of any kind of medical product derived from pigs, and any number of other things that somebody, somewhere, objects to.
Like you, I have no particular axe to grind in this case, however claiming that Plan B is somehow especially objectionable won’t hold. If Hobby Lobby prevails IMO we can expect to see a conga line of private employers queueing up to sue for their favorite exemption.
That is NOT a comparable activity to paying a minimum wage or providing safe working conditions. Both of those things are universal and are workplace activities.
Minimum wage and safe conditions are universal *because laws were passed to make them so*, and no other reason whatsoever.
Absent the meddling interference of Big Intrusive Government they would not exist.
Safe working conditions are a workplace activity. Minimum wage is not, it’s a legal constraint on the terms of compensation.
Why noit chickens?
Because nobody wants chickens as part of their compensation. Or at least, not enough people to make it happen.
I personally am not bothered either way if Hobby Lobby gets an exemption. What bugs me about this case is that, if Hobby Lobby prevails, it will establish that yet another inalienable right belongs not uniquely to human beings, but to for-profit corporations as legal “persons”.
You can sell me on the idea that rights pertaining to property can reasonably be extended to corporations, because they are actually capable of owning property.
Corporations are not capable of having a religious conscience. There is no corporate organ – no corporate mind or soul – capable of conceiving such a thing.
To argue the idea, you have to take the tack that corporations and their owners are indistinguishable. That’s a popular view, but it ignores what corporations are, and why they exist in the first place.
Basically, it’s a form of wanting to have your cake and eat it to. Nice work if you can get it, but not all of the rest of us want to put up with it.
Where as the contraceptive mandate is rather like the government telling you that you have to pay people in a coupon book that includes a coupon for free visit to Sam’s House of Immoral Activities, and that you’re breaking the law if you remove that coupon.
This is a not-bad analogy.
You need to extend it slightly, so that “you” are not paying the employees, a for-profit business that you own and operate is.
The range of things that J-random somebody might consider to be an Immoral Activity is pretty broad. Are they all fair game now? If not, what’s special about birth control? If the government grants exemptions for birth control but not, for example, transfusions, isn’t that an establishment of religion?
The recognition of 1st Amendment rights of freedom of religion in a for-profit corporation because its owners have a particular religious viewpoint is equally problematic. How “closely held” does the corporation have to be in order for the owners’ conscience to be recognized in the corporation? Can publicly traded companies whose governance, but not ownership, is very closely held also qualify?
If not, why not? Isn’t governance a more important factor in what companies actually *do* than ownership, per se?
How many religious principles must be observed in the operation of the corporation before it can be said to be “run according to Biblical principles”? If it’s not run, consistently, according to those principles, in all of its operations, why should those principles suddenly be grounds for an exemption regarding mandates on employee compensation?
What percentage of the owners have to share the same convictions before those convictions can be said to belong to the corporation? Fifty percent? Ninety percent? All-but-one owner?
Do other stakeholders get to play? If I lend $100K to a small business startup, can I suddenly dictate the makeup of the employee’s compensation package based on my religious convictions?
If you are looking for a situation where “drawing lines” is a recipe for insanity, parsing the line where “owner / operator” and “corporation” are one and the same, or not, will do very nicely.
Whereas the contraceptive mandate..
Whoa right there. There is no mandate.
http://www.lawyersgunsmoneyblog.com/2014/03/more-on-the-contraception-non-mandate
It is because the government, whether or not with intent, has crafted a legal environment where cooperating to accomplish anything is extremely perilous if you don’t do it through a corporation. If you mean to do anything that requires people to work together, you must form a corporation, or risk all of you being rendered paupers if any of you are sued, in the government’s courts, under the government’s laws and doctrines.
For my sins, apparently, I find that I have to come back to this comment of Brett’s.
The government has not created an environment where it’s extremely perilous to undertake large, complicated projects. It is *inherently perilous* to undertake large, complicated projects. The greater the complexity and scale, the harder it is to fully understand and predict all possible risks and complications.
The government, by which we mean a wide range of governments, operating in a wide variety of places and times extending around the world and for centuries, has employed the limited liability concept as a way of *mitigating the inherent difficulty and risk* and taking on large and complex projects.
It is true that the government, by which we mean the same thing we just meant a moment ago except for “centuries” please substitute “millenia”, has established laws and doctrines, and courts in which those laws and doctrines are applied and adjudicated. And, again, that was done not to lay an oppressive burden upon the people at large, but to provide a somewhat rational and acceptable alternative to blood feuds and mass violence and anarchy.
That’s the history, in the real world, in real life. You can look it up.
If I pay you and you buy bc then I haven’t had any part in that decision. If I provide hc, that covers bc, then I have done something actively to enable something I believe is wrong. That is a point of view that is just as valid as you saying I didn’t.
If these points of view are equally valid, why do you think anyone is arguing in bad faith? Or are you saying you’re arguing bad faith as much as anyone else?
BC is neither universal or a workplace activity. In fact, neither is hc in general, because it is the government deciding that hc as a specific means of compensation is a requirement.
One can agree with this and still support a penalty for failing to provide an insurance plan that covers birth control. Within the overall health-insurance requirement, which is a given – the context in which the requirement to cover birth control as preventive medicine exists – there’s are perfecty logical and reasonable purposes for the coverage. One, which seems to be ignored again and again, is that birth control is used for a number of medical conditions having nothing to do with preventing pregnancy. Another is that it’s cheaper to provide birth control than to cover unwanted – or even unplanned – pregnancies.
McKinney brought up, in another thread, the idea of attenuation as far as religious beliefs go.
To be the owner of a corporation, or whatever sort of business, which provides health insurance to its employees, which covers birth control, should an employee choose to use it, is not remotely like the owner either using birth control, or directly providing birth control to one of his or her employees, or advising an employee to use birth control.
They simply aren’t involved in that decision. If that’s not good enough, pay the penalty, if that’s easier on your conscience.
“One can agree with this and still support a penalty for failing to provide an insurance plan that covers birth control.”
One can, and I am ok with it. I just don’t believe that it is realistic to dismiss the other side of the argument because it is the “same thing” as minimum wage laws. Because it isn’t. remotely. the same.
I haven’t seen so many arguments stretching what “might” happen next since Republicans were pushing the single payer slippery slope against ACA.
BC and abortion all wrapped into this discussion are different than any other example given here, by a lot.
And, as far as I can tell, almost everyone supports using the bc medicines to treat medical conditions of the women. Different subject, not a problem of anyone’s conscience.
Makes the discussion, again to my other point, ludicrous. No one will be monitoring why the doctor prescribed the medicine, they simply recode the insurance form and everyone is happy.
No one will be monitoring why the doctor prescribed the medicine, they simply recode the insurance form and everyone is happy.
I would consider that belief quite naive. Busybodies will try to do exactly that legally or extralegally and there is ample precedent for that (not just in the US).
you have to know or at least strongly suspect this. It’s not enough to merely know in a general sense that, if you give somebody money, they might spend it on something immoral.
But if I don’t know or strongly suspect that you are going to do this, then the fact that the insurance policy happens to provide it as an option is irrelevant. After all, if you buy a gun, you could use it to murder someone. But (in the same “don’t know or strongly suspect” circumstance) that doesn’t make it immoral for me to sell it to you, does it?
What percentage of the owners have to share the same convictions before those convictions can be said to belong to the corporation? Fifty percent? Ninety percent? All-but-one owner?
Let’s look at this from the other direction. Is it immoral, if you are opposed to contraception on religious grounds, for you to own stock in any corporation whose health plan includes paying for that? Including any stock index tracking fund which owns stock in such a corporation? Or are is your ownership only relevant if you own controlling interest in the company?
Not at all. As Marty points out, nobody objects to the particular drugs if they’re prescribed for an actual medical treatment, only if prescribed for BC/abortion. So it’s more like the government insisting that I pay somebody to hire a hitman, than that I pay them for buying a gun they might use for self defense or target shooting.
As Marty points out, nobody objects to the particular drugs if they’re prescribed for an actual medical treatment, only if prescribed for BC/abortion.
That is a factually false statement. There is vocal opposition to the substances themselves because they CAN be used for the purpose of BC and doctors are suspected to prescribe them under false pretenses (as they did when BC was still illegal).
“So it’s more like the government insisting that I pay somebody to hire a hitman, than that I pay them for buying a gun they might use for self defense or target shooting.”
Is that what it’s like?
I thought it was more like George Zimmerman neglecting to inquire of Trayvon Martin whether the latter was conceived via the rhythm method before the former stalked him.
Hartmut,
I knew that nobody wasn’t quite true. It is a truly small vocal minority. And I am pretty sure it is no one here.
nobody objects to the particular drugs if they’re prescribed for an actual medical treatment, only if prescribed for BC/abortion.
Is your claim here that birth control and abortion are not actually medical applications for the products in question?
I just don’t believe that it is realistic to dismiss the other side of the argument because it is the “same thing” as minimum wage laws. Because it isn’t. remotely. the same.
Look, I’ll argue your side of it.
What makes mandated coverage for Plan B, IUDs, etc., different from minimum wage is that nobody has any particular religious objection to paying a minimum wage.
That’s the difference.
If we’re opening the door to for-profit corporations being exempt from regulatory mandates due to the religious convictions of their owners and/or management, we should be prepared for the door to be opened quite wide.
I cited B&H Photo upthread because they are currently being sued for not allowing women to work on the sales floor.
They don’t allow women to work on the sales floor because the company is owned by very observant Satmar Hasidim, and the Satmar Hasidim don’t believe that men and women should mingle publicly.
When they sit at temple, they sit apart. When they ride the city bus, the men sit in front and the women in back.
They do this because their religious convictions demand it.
And, when they hire women to work in their photo store, they don’t let them work on the sales floor.
Should B&H be exempt from equal opportunity laws? If not, why not, if Hobby Lobby is exempt from the health insurance coverage mandate?
If they should be exempt, how far should religious exemptions go?
If the health insurance mandate is fair game, why aren’t hiring and job assignment regulations fair game?
If those are fair game, why aren’t public accommodation laws fair game?
If I, as an employer, have religious objections to how income taxes are spent by the government, why can’t I refuse to participate in their collection via withholding?
I agree that, as a practical matter, the birth control mandates in the ACA are not the biggest issue on the block. The products are readily obtainable other than through insurance, and their cost is not especially burdensome.
What is going to be a nightmare is sorting out if, when, and to what degree for-profit companies are indistinguishable from their religious owners or managers.
If Hobby Lobby prevails on 1st Amendment religious expression grounds, the precedent will be set that the religious beliefs of the owners and / or managers of a corporation belong to the corporation as well, and in fact that they trump the interests of everyone else who holds a stake in that corporation, including the public at large.
It’ll be a mess.
If Hobby Lobby prevails on 1st Amendment religious expression grounds
Which I personally find extremely unlikely. I think they will prevail on a narrow reading of the RFRA.
Or maybe they won’t, I don’t care very much either way.
But I really doubt a broad ruling in either direction. I think it will be an interesting ruling, but I doubt one with broad impact.
“Is your claim here that birth control and abortion are not actually medical applications for the products in question?”
Would you assert that assisted suicide is a medical application for barbituates, just because you’re trying for a biological effect?
Would you assert that assisted suicide is a medical application for barbituates, just because you’re trying for a biological effect?
I’m sorry, did you answer my question?
I think they will prevail on a narrow reading of the RFRA.
What possible reading of the RFRA would *not* be based on 1st Amendment freedom of religion?
The RFRA itself is based on 1st Amendment freedom of religion.
Brett seems to have forgotten the concept of a medically necessary abortion as well as the fact that some women cannot safely become pregnant. But I’m sure Hobby Lobby will be able to sort all of that out on behalf of their heathen employees, despite being unaware that they were violating their religious convictions for years before the ACA alerted them of it.
Brett also seems to have forgotten that birth control pills and other products for plain old bog standard *birth control*, even in the absence of unusual or extenuating conditions, are normally obtained by being prescribed by a physician, and are normally used under the direction and advice of a physician.
How that is different from any other medical application escapes me.
Perhaps he considers birth control to be the equivalent of assisted suicide.
I really doubt a broad ruling in either direction. I think it will be an interesting ruling, but I doubt one with broad impact.
IF they rule for Hobby, I agree that they will try for a narrow ruling. But I suspect that the lower courts will construe it quite broadly. Meaning that the issue will be back in their laps fairly soon. Which is one (unstated intheir opinions) reason why I suspect that they will rule against. Narrow rulings seems to be harder to craft successfully these days.
Narrow rulings seems to be harder to craft successfully these days
They can always try inserting a “”Our consideration is limited to the present circumstances” clause. It worked so well last time.
Marty: If I pay you and you buy bc then I haven’t had any part in that decision. If I provide hc, that covers bc, then I have done something actively to enable something I believe is wrong.
Paying people in cash isn’t “doing something actively?”
IF they rule for Hobby, I agree that they will try for a narrow ruling.
Roberts is sending up smoke signals about limiting the exemption to subchapter-S corps, and leaving the question about publicly traded corps “for another day”.
About 4.5 million S corps in the US as of 2007. Most are single owner-operator, with no employees, but some (including Hobby Lobby) employ lots of people.
Roberts is sending up smoke signals about limiting the exemption to subchapter-S corps,
That would be rather ridiculous, not that that would keep him from doing it.
“Brett seems to have forgotten the concept of a medically necessary abortion as well as the fact that some women cannot safely become pregnant.”
I assume you were driven to this conclusion by my reference to self defense in response to the gun sale analogy?
The RFRA itself is based on 1st Amendment freedom of religion.
Yes, but the text of the RFRA coupled with the Dictionary Act extend 1A protections to corporations (arguably, currently under discussion, etc etc).
The USSC could rule the RFRA applies and extends 1A protections to Hobby Lobby without ruling that 1A protections exist for Hobby Lobby in the absence of the RFRA.
In other words, the USSC could very easily avoid making a claim on whether corporations have 1A protections based solely on the Constitution, but that congress, through the RFRA, extended corporations those protections.
In other words, the USSC could very easily avoid making a claim on whether corporations have 1A protections based solely on the Constitution, but that congress, through the RFRA, extended corporations those protections.
IANAL, but this seems like a good point.
We’ll see what happens.
The Dictionary Act provides an easy out where it says “unless the context indicates otherwise” a person include a corporation. It shouldn’t be too hard for the Court to conclude that in the context of 1A protections for religion, “person” means an individual only.
Which is one (unstated intheir opinions) reason why I suspect that they will rule against.
Quite possibly, I suppose. I don’t claim to have special insight into how their minds work.
I think it would be an extremely narrow ruling either way. Even if they rule against HL, I don’t think they will just go along with the government’s theory in this case.
But we’ll see. I’m curious to see what they decide the case on, and how they structure the opinion.
It shouldn’t be too hard for the Court to conclude that in the context of 1A protections for religion, “person” means an individual only.
Yeah, they certainly could. That doesn’t fly in the face of logic for me.
It gets a little more complex because there is already case law saying the RFRA applies to non-profit corporations. So they would have to either overturn existing case law or say a line exists between profit and non-profit.
Which strikes me as a slightly harder argument. But doable.
I mean, Roberts is talking about drawing a line at S-corps (Thanks russell, hadn’t seen that yet), so clearly they think they might be able to draw an arbitrary line.
But I think more likely, if they decide to rule against Hobby Lobby, it will be on grounds that the BC is a compelling government interest and ignore the question as to the extent of the RFRA. Narrow ruling, easy to write, doesn’t open cans or worms or anything else.
But, yeah, it’ll be interesting to see the opinion(s).
And however they rule, the most interesting reading may be the dissenting opinion(s), followed by the cuncurring opinion(s).
thompson: It gets a little more complex because there is already case law saying the RFRA applies to non-profit corporations.
I was unaware of that, but I don’t see SCOTUS thinking twice of overturning lower court precedent it disagrees with.
Narrow ruling, easy to write, doesn’t open cans or worms or anything else.
The thing is, I think some of the justices will be delighted to open that can of worms.
I could be wrong.
Also, here is where I saw the Roberts thing.
Russell:
Thanks for the link.
Ugh:
I was unaware of that, but I don’t see SCOTUS thinking twice of overturning lower court precedent it disagrees with.
IANAL, so maybe I’m missing something. But if I understand correctly, the USSC has previously extended the RFRA to corps:
I’m getting this from the 10th circuit opinion on the HL case:
http://www.ca10.uscourts.gov/opinions/12/12-6294.pdf
Near the bottom of page 27 there is reference to a case that was affirmed by the USSC: http://en.wikipedia.org/wiki/Gonzales_v._O_Centro_Espirita_Beneficente_Uniao_do_Vegetal
Although I admit I haven’t dug into those opinions specifically, but am relying on the interpretation in the 10th circuits opinion.
But if I understand correctly, the USSC has previously extended the RFRA to corps
In Gonzales v O Centro Espiritu, the corp was a church.
I thought the name had some mildly religious overtones.
thompson – thanks. Seems like they may need to go a different route or overrule their own precedent, which they are considerably more reluctant to do.
Although I don’t see any ruling that says “RFRA applies to non-profit incorporated entities” but maybe it is buried in there somewhere (or elsewhere). Or perhaps everyone just assumed that RFRA applied because, as russell notes, it was a church.
Or perhaps everyone just assumed that RFRA applied because, as russell notes, it was a church.
Drawing the line at a church is another angle they could take. EG: It applies to corporations that are churches but not beyond, etc etc. There are a lot of lines that could be drawn.
But considering this is all turning defining “person” in the context of the RFRA, it gets a little hairy to say: “person” clearly means natural humans and corps that are churches but not other corporations.
But maybe that’s what they’ll say.
But considering this is all turning defining “person” in the context of the RFRA, it gets a little hairy to say: “person” clearly means natural humans and corps that are churches but not other corporations.
We already make quite crisp distinctions between different kinds of corporations, based mostly on the purpose for which they were created, and we already grant an exemption on the birth control mandate to corps that are constituted specifically for religious purposes.
That part is not hairy at all, we do it now.
The issue here is whether to extend the same to for-profit corporations if their owners have specific religious scruples.
Open sesame:
http://www.washingtonmonthly.com/political-animal-a/2014_03/let_us_have_our_own_laws049668.php#
Within ten years, we’ll each have our own individual laws.
I can’t wait, because social and corporate conservatives are not going to like my laws and the invisible boundaries demarcating where their laws end and mine effing start.
There’s not going to be any DMZ in between either.
The buffer zone will be the length of the barrel, and maybe a silencer, on my weapons.
Within 30 years, each American will have their own individual weather as well, on account of freedom.