From The Onion:

Is Using A Minotaur To Gore Detainees A Form Of Torture?

An argument I’ve never heard before

I’d never heard the following argument against “tough” interrogation techniques: 80% of our police force is comprised of ex-military folks. If we encourage (or allow!) these soldiers to “do what it takes” to get the job done, they will import that when they return home. I’m not sure this is outcome-determinative, but it’s nice to hear the moral slope argument. Someone who starts down a slippery slope will continue on that slope. We should consider the categorical nature of our actions and consider a choice in any direction to be an imperative. we’ve heard all this before. I just hadn’t heard it as related to the interrogation question!

Weekend Links

Michael Stokes Paulsen weighs in on OPR’s threatened torture memo sanctions.

Prof. Balkin’s response to MSP.

Girl power at Preakness: First girl takes it since 1924! Go Rachel Alexandra!

An old but interesting Atlantic article: Lost in the Meritocracy.

BoingBoing citing Mercatus: Index of Freedom by American states.

I can’t decide whether to call this one plain “disrespectful” or actually Obama biting off more than he can chew. For somebody who looks like he supports diversity he doesn’t have a lot of respect for defensible points of view different from his own. Obama incites abortion discussion at Notre Dame, America’s “leading Catholic university.”

Kimberly Strassel on the NIMBY of Gitmo.

Why pirates escape jurisdiction. That post includes a link to Foreign Affairs mag’s list of “must reads” about pirates in general.

Unitary Executive

Yesterday at an AFF panel debating the future of Executive power under Obama Gene Healy noted that the phrase “unitary executive” is primarily associated with Bush 43, particularly w/ his “torture” policies.  Gene leaned loosely on the Federalist papers for the origin of the phrase, but later told me that the evolved phrase is synonymous simply with “strong.”

I have a hard time with this.  The point of a term of art is that a word or phrase keeps a consistent meaning so we can communicate effectively.  It’s cheating to cite to the Fed papers and at the same time claim that the meaning has evolved so that the original phrase is unrecognizable.   

The phrase was Hamilton encouraging the Framers to let one person be responsible for ultimate decisions.  Spooked by a tyrranous king, some founding fathers suggested hobbling the Exec w/ a co-presidency, or a joint branch like a mini-legislature.  Hamilton pointed out that if there’s no single person responsible for decision-making at the margins then no one will be accountable and we’ll all switch to passive voice as decisions simply…don’t get made.  If, for instance, a foreign army attacks the US and the structure of gov’t restrains the other branches from responding, Hamilton’s “unitary executive” recommendation provides that the one guy voted into this power would have to decide what to do.  He has counsel and advisors, of course, but ultimately one guy celebrates or takes the fall.  It’s a decision-making role.  Hamilton just pointed out that decision by committee doesn’t work, and it’s that kind of nontransparent lack of accountability that leads to tyranny.

Gene claims that the phrase has come to mean “powerful.”  The new unitary excecutive, then, is just powerful when compared with the other branches.  Singularly strong, if I understand it correctly.

I get that meanings evolve, but this has evolved in two ways that separate it completely from the original meaning.  First, we’re looking at a shift in the meaning’s scope.  Where Hamilton’s meaning was intra-branch, this proposed evolution spans the entire government.  The Executive has always been the only branch permitted to “act” (whereas loosely the Legislature funds and the Judicial branch provides the king’s thumbs-up or -down at the margins).  So Hamilton was just saying: If two people at once are equally charged with “action” then we will never know who’s doing what.  

This new meaning implies that the Executive subsumes powers from the entire government like some sort of vortex.  This latter “unitary” implies that the government is just converging in one spot.  Which makes sense, except that Gene admits that Bush’s presidency was a kind of 2+man show.  So the original meaning must have ceased to exist and been replaced whole cloth by this evolution; Bush’s unitary presidency wasn’t “unitary” at all.

What’s more is that spurring the torture talks was among the least unitary things Bush did, and among the most unitary parts of Obama’s first 100 days.  Bush was like a many-headed beast in that respect, so the only people accountable for drawing the line between what is and is not torture were the lawyers named on the memos.  

Meanwhile Obama has made himself singularly responsible in that department.  Though he now claims he has no intention of indicting the memo writers, legal action murmurs persist from the White House.  Bush delegated to the point that his lack of accountable decision making became a fault.   Obama on the other hand has thoroughly disincentivized an active cabinet and a forthcoming Justice Dept.  With two branches now completely aligned the only check on Obama’s singular power is the slow arm of the Supreme Court.  

Our founding fathers envisioned a government with some power overlap in the Venn diagram of gov’t.  The President should be able to act, decisively, and the Legislature may choose not to fund his choice.  In that case the President directs the immediate response to a crisis, but the sustained reaction falls out of unitary hands.  The Legislature decides what prolonged course of action the gov’t will take.  And, ultimately, if everyone is outside the lines then the Court remands the whole thing back w/ a directive against a given avenue.  

Part of the point of having a strong one-accountable-guy Executive model is the added benefit of forging a kind of ambition cantilever.  The President’s ability to act quickly when necessary is among his only major check on other branches that survives the periods when the Exec/Leg branches are aligned.  For instance right now the veto is a pretty impotent tool when everyone kowtows to this particularly messianic — ahem, unitary — leader.  But the power to act retains its strength if, say, a company needs nationalizing and no one else is poised (or morally inclined) to seize.*

So is it possible for a phrase to change and absolutely replace its previous meaning?  It happened to “due process,” I suppose.  I just say: If your meaning is the exact opposite of the original meaning, then don’t cite the original sources.  The difference is primarily in scope, but the differences at the two iterations’ cores are so fundamental that it’s effectively a totally new phrase.  

On a broader scale I get frustrated when we don’t define the words we’re using.  Democracy?  What does that mean?  “Democracy” in Iraq is different from sought “democracy” in Cuba, which is different still from what we have here (in fact a REPUBLIC, but dem w/ a big “D”).  Clearly meaning is all context, but the semantic drift phenomenon makes conversations more complicated than we admit.  I love language and love how it evolves, but just cite to the relevant source.  Only if we keep track of the context can we keep track of words’ definitions.  Only then can we even start to discuss a viable recommendation moving forward.  

 

*I’m a nerd, I know, but are we basically making an argument here that GM is blighted?  Is this tacit nationalization really just eminent domain by another name?

Torture? It Requires, well…Empathy.

Andrew Sullivan has been discussing Torture (and the meaning of words) lately. Today, in response to a reader describing other species’ “torture” instincts:

Torture, it stikes me, cannot be a base instinct. We cannot know what is going on in the consciousness of whales or dolphins as they appear to torture. Some scientists have observed it as a kind of play, or training for the young. Cruelty? It requires human consciousness, so far as can know at this point.

Yes. It requires human consciousness. It requires, well… empathy. Which is why we should keep “empathy” out of Court. Let’s keep this a government of law, rather than of man. When we start getting too deep into the “man” territory–when Justice removes her blindfold–then things stop being clear. When things are unclear, even those charged with the duty to define words may be reprimanded for their actions. And…that’s just not how America rolls.

Slippery Slopes, Language

Another torture stance, from Mother Jones, care of Daily Dish:

I don’t care about the Geneva Conventions or U.S. law. I don’t care about the difference between torture and “harsh treatment.” I don’t care about the difference between uniformed combatants and terrorists. I don’t care whether it “works.” I oppose torture regardless of the current state of the law; I oppose even moderate abuse of helpless detainees; I oppose abuse of criminal suspects and religious heretics as much as I oppose it during wartime; and I oppose it even if it produces useful information.

The whole point of civilization is as much moral advancement as it is physical and technological advancement.

But that moral progress comes slowly and very, very tenuously. In the United States alone, it took centuries to decide that slavery was evil, that children shouldn’t be allowed to work 12-hour days on power looms, and that police shouldn’t be allowed to beat confessions out of suspects.

On other things there’s no consensus yet. Like it or not, we still make war, and so does the rest of the world. But at least until recently, there was a consensus that torture is wrong. Full stop. It was the practice of tyrants and barbarians. But like all moral progress, the consensus on torture is tenuous, and the only way to hold on to it — the only way to expand it — is by insisting absolutely and without exception that we not allow ourselves to backslide. Human nature being what it is — savage, vengeful, and tribal — the temptations are just too great. Small exceptions will inevitably grow into big ones, big ones into routine ones, and the progress of centuries is undone in an eyeblink.

Sir no one is arguing with you. Many of us agree with you. The debate isn’t at all about whether or not we allow torture. The question here is about defining the word “torture.” If I break into a chorus of All the Single Ladies, is that torture? Yes? How do you know? “Torture” has no meaning except the meaning assigned to it. It means a different thing when it comes to my singing, or what I’m doing to this over-discussed subject, and a different meaning entirely in a legal sense.

If we don’t define the word, it means nothing. I think when you see the phrase “torture memos” you imagine Judge Bybee sitting somewhere searching for loopholes in the laws that allow us to do whatever we want. That’s not at all what the debate is. You oppose “even moderate abuse?” Great. What does that mean? Does that mean you demand that detainees get fed three times a day? Does it mean that they get hot showers? Does it mean they get a maraschino cherry on top of their ice cream? Because when I don’t get a cherry I call it moderate abuse of a perfectly good sundae.

As journalists you guys have an even higher duty than lawyers do to protect language. Lawyers are in the business of creating a coherent lexicon. We define words, remember how words have been defined in the past, and then apply those definitions to new fact patterns.

Journalists have a very different job. Journalists aren’t trying to find how other people have used and recognized words in the past; journalists decide what a word means and how they will use it. It creates a very high responsibility, because it’s journalists who translate what everybody else does–yes, including lawyers–into language that people can follow. You’re not responsible for understanding the lexicon, but you are responsible for identifying facts and issues, for advancing the debate, and for keeping the public educated.

When you blur the issue so completely as to forget that the point of the recently-released documents have much more to do with the definitions of words than with loopholes or grants of permission, you actually work against the generally sophisticated public. Demoting the public from “sophisticated” is particularly dangerous in this sense, because if you prefer that words are not defined, every member of the public makes a judgment call in every instance.

If words are just syllables without meaning, then everybody gets to do what they want. If no one defines the word “torture” then every person in every situation simply decides what they’re in the mood to do. I promise you, we would much rather have a rule of law where words are defined and standards applied. The alternative is simply too slippery a slope.

Taming the Prince

I don’t necessarily agree with the below, but something to mull:

Lifted directly from The Daily Dish, on executive power and torture:

Taming The Prince, Ctd.

A reader writes:

One small point that I think is worth noting, and that I think can be used against some of the conservative defenders of both unlimited executive power and torture, is the following. Isn’t it the case that, say, Locke’s understanding of prerogative is such that by definition we cannot restrict its use ahead of time, but that after the fact there will be a judgment of sorts, a post-hoc reckoning with what happened?

I fully admit that in Locke — and, I would argue, The Federalist and Lincoln — there’s a fairly robust notion that action sometimes will need to be taken with great dispatch, or where the law is silent, or even, at times, against the law. Because such situations will not be regular or normal, they necessarily fall within the realm of prudence and prerogative. They are exceptions to the rule and thus, in a way, extra-legal. Locke writes that such actions can be undertaken for “the common good;” Lincoln believes they can be undertaken to defend the Constitution itself (violating some facet of the Constitution to preserve the continued use of the document itself).

But all these theories include the idea that because such actions cannot really be limited beforehand, they can be judged, and punished, afterwards (thus Locke’s famous “appeal to the heavens”). And isn’t that what we are doing now?

We are sorting out what happened, seeing what information was gained by the use of torture (or techniques close to it), and ultimately determining to what extent, if any, it was “worth it.” The admission that prerogative power can be quite expansive, almost unlimited, prospectively means nothing in excusing the use of such power retrospectively. According to the conservative political theorists who reminded us of the nature of executive power, we are doing precisely what their own theories said we could and must do! My suspicion is that after they lose the arguments about the more technical legal aspects of torture, which your own work has done so much to expose, they will move on to more broad, theoretical arguments about prudence, prerogative, and the executive branch. They should lose that argument too.

Links

Wait, what’s this “supply” they mention? I thought Obamanomics sublimated supply and went straight to demand…?

What should Republicans do? It’s not at all about shrinking. It’s about coming to center. It’s about becoming libertarians. Everyone is a libertarian ; it’s just a matter of remembering that if we don’t defend the gypsies and the communists (hey, I don’t agree with what they say, but I will defend to the death their right to say it) then they won’t be around to defend us.

Who called it? GM’s hybrid is a bust. Volokh, citing WaPo.

More tortured literature on charging lawyers.

Should a legislature be allowed to forbid “frivolous” name changes? Should morality be an acceptable basis for legislation “protecting” the people? Who is John Galt?

Clifford May on Torture Memos

I haven’t seen the interview (w/ Jon Stewart) itself, but National Review ran the transcript online here.

Some excerpts:

CM: No one who reads the memos can think that [these memos authorize folks using “enhanced interrogation techniques” to go ahead and “knock themselves out”]. The media keep calling these “torture memos.” They’re really “anti-torture memos.” They tell the CIA where they must draw the line. They instruct them not to cross from coercive interrogations — sometimes called “stress and duress” — to torture, a practice which is made illegal under law. You can disagree about where the attorneys drew the line — but drawing it was indisputably what they were doing in these memos.

Yes! Perfectly put! The whole point of legal counsel is to determine where the line is between “legal” and “illegal.” Note: I’ve pointed out here and here that the “legal/illegal” line is not the same as “moral/immoral,” the latter of which has, frankly, little place in war. And do our adversaries’ actions indicate that they consider this “war”?

CM: Defining torture is not easy. A simple legal definition is that it “shocks the conscience.” Cutting off Daniel Pearl’s head on videotape — that shocks my conscience. Sending a child out as a suicide bomber — that shocks my conscience. People jumping off the World Trade Towers because they’d rather die that way than by burning — that shocks my conscience. Khalid Sheikh Mohammed, mastermind of the 9/11 atrocities, gagging for a few minutes and, as a result, providing information that saves lives, then going back to his cell for dinner and a movie — no, my conscience is not shocked by that.

Ok, so again: The point of legal memos is to point out where the reasonable line is, when “reasonableness” is somewhere shy of “shocks the conscience” and somewhere south of mandating that we treat enemy combatants like this.

May notes that when Khalid Sheikh Mohamed was captured he was asked repeatedly: Will there be another attack? KSM smiled (I picture an archetypical mephistophelian smile) and said: Soon, you will see. May’s response:

The current administration appears to have ruled out any coercive techniques: No sleep deprivation — not even for a night. No loud music — it drives the terrorists crazy! So it’s torture! Better to let the attack proceed. The victims and their families surely will understand.

We basically have three weapons against terrorists: capture them, interrogate them, kill them. But there’s no point in capturing if you can’t effectively interrogate, so that leaves just killing. How do you justify that? How do you say, “Yes, you can hit that terrorist with a Predator missile but you can’t make him listen to Slim Shady”?

Now forgive my gigantic closing block quote, because May finishes the interview perfectly:

JS: Fair enough. But those who have already broken the law, shouldn’t they be prosecuted?

CM: What we’re talking about is astonishing: Government lawyers in the current administration prosecuting government lawyers from the previous administration because they disagree with their legal opinions. Never before in American history has policy been so politicized. It’s as though Eisenhower prosecuted Truman for dropping the atomic bomb on Hiroshima.

The one indisputable achievement of the Bush administration was keeping Americans safe from terrorism for seven years. It’s one thing to minimize that; it’s quite another to try to spin it as a war crime.

JS: But surely no one is above the law?

CM: If there was any real basis for prosecutions, those cases should have been brought. They could have been brought anytime since 2003 — when, as I said, waterboarding stopped being used. Instead, leaders of Congress from both parties were briefed on these interrogation methods and they not only approved of them — they funded them. And there were occasions when bills were brought before Congress to specifically outlaw waterboarding. Those bills did not pass.

If members of Congress want to make a statement now, let them pass a law against waterboarding. Let them do that this week. But no witch hunts or show trials. That’s not good for the country.

A resounding yes, yes, yes! Ignorance is not bliss. If we are going to run a government, let those in charge be educated. If someone is going to educate government leaders, let those educators (*cough* lawyers *cough*) be subject to sanctions if their advice is wrong or in bad faith, or to discipline if their method is flawed. But if government officials would prefer not to define a line between “legal” and “illegal” and instead simply assume that we should tickle enemy combatants like the slow loris then to those officials I would suggest heading to one of the many, many countries in the world where peace, rather than citizens’ freedom to pursue happiness, is the primary goal of the government.

NB: Click through to NRO above, and find a link to the Daily Show interview embedded in that article.

Because why not disincentivize cabinet members from providing thorough legal advice?

Terrifying.

President Obama raises the possibility of prosecuting Bush administration lawyers who approved so-called enhanced interrogation techniques on terror suspects.

Link: Because it would be more efficient if one guy could just rule by uninformed edict…

WASHINGTON — President Barack Obama raised the possibility of prosecuting Bush administration lawyers who approved so-called enhanced interrogation techniques on terror suspects.

Mr. Obama, speaking to reporters Tuesday in the Oval Office, also laid out the parameters for a bipartisan commission to examine government tactics used in the wake of the Sept. 11, 2001, terrorist attacks, although he was careful to say he wasn’t endorsing such a panel.

Qualified immunity/political question would probably take care of this. Obvi Obama knows con law better than I do. But here’s the thing: If Obama seeks “legal action” in this case it’ll effectively disincentivize an active cabinet. It would be the definitive Hamiltonian executive, with only one messiah-like dude reining supreme. This does come from 78 (and…84, I think?), but it’s the unitary part he’s obviously focusing on, not the “energetic.”

I agree that the executive power should rest in one person. But the point of this unitary element is that the President should be able to act quickly. This requires thorough education of what avenues are available to him — and avenues that are not. By raising this hue and cry against the lawyers who attempted to educate Obama’s predecessor he’s instilling some fear in government lawyers to find the line between legal and illegal — which we all know is a different line from the moral/immoral distinction.

However we feel morally about torture, don’t w want a government that goes to the edge of what is available to it to protect its citizens? I’m not necessarily expressing an opinion on torture, but aren’t there a lot of people who wish there were no wars? Would we want a government that didn’t engage in war when necessary to protect its citizens? If you admit that there are instances when a government must do things it would not ordinarily want to do, in order to protect its constituency, then you have to agree there is some legal line. We will all — citizens, aliens, and terrorists alike — be better off if the President and all associated with his branch are clear and educated as to where that line falls.