You know, I’m not sure what Barack Obama did to get the newsmedia to have his speech followed by an address by former Vice President and current Sith Lord Dick Cheney, but he should do it more often. After all, a speechifying contest between Obama and Cheney is rather like a tennis match between Venus Williams and Chris Farley; one is in a league of their own, one of an elite few who can do what they do, and the other is dead (or undead, as the case may be).
Cheney gamely defended torture — er, “Enhanced Interrogation Techniques” — well, actually, he pretty much just flat out defended torture, proving with one paragraph that he has no clue as to what country he lives in:
Critics of our policies are given to lecturing on the theme of being consistent with American values. But no moral value held dear by the American people obliges public servants ever to sacrifice innocent lives to spare a captured terrorist from unpleasant things. And when an entire population is targeted by a terror network, nothing is more consistent with American values than to stop them.
The irony, of course, is that America was founded on the principle that no, there were things that the American government could not do, that there were lines they could not cross. It would help prosecutors immensely if people could be forced to testify against themselves; if they could walk into your house and search it anytime they wanted; if they could simply present evidence against you to a star chamber, rather than to a jury of your peers. But the founders of this republic made the decision that these were things we could not do, even — and this is important — if it means some people will commit crimes that could have been otherwise prevented.
The fact is that Cheney, and those who embrace his sadistic philosophy, is simply arguing that the ends always justify the means. This, of course, is dangerously wrong; under this thinking, it is justifiable to snatch the children of suspected terrorists off the street, and to threaten to kill them, indeed to kill them, if it will make a suspect talk. It is justifiable to lay waste to a small village where a possible terrorist lives, if it will protect a larger American city. It is justifiable to do literally anything, so long as it can be said to protect American lives.
There is a reason that we have believed in a bright-line prohibition on torture, and that is simply that we believe the moral cost of torture is more damaging to America than any terrorist attack could be. It’s funny, but the party that claims to be the most religious seems the least aware of the concept of a soul, the idea that there are things that are, in fact, worth dying for. If I am alive today because we tortured someone, then my life was purchased at too high a price.
I’m be curious to hear Dick Cheney define “American values.”
I just saw Jon Stewart’s “why is it that times are so grave that we must torture, but not so grave that we must retain even the gay Arab linguists,” and it was brilliant. It’s that kind of thing that makes me think there is a creeping sadism at work here, or at least a serious indifference to human suffering where the people suffering have been deemed not to count even as much as Michael Vick’s dogs counted. Cheney and his allies will talk all day long about supposed costs to unit cohesion, etc. if non-straight people are in the military, but ask them what the costs of waterboarding are and they’ll say, “Um…. the cost of water?”
I watched this REALLY cheesy star trek episode – one of the few written by Gene Roddenberry – recently.
Kirk and Spock go to a planet with a US Constitution and US flag (just exactly the same as ours, really strains the suspension of disbelief, even mine) . . . the constitution is held on this planet as a sacred thing that only the very elite could even look at. Well, of course Kirk et al. show them the error of their ways and tell them that this document has to apply to everyone, the people in the tribe and the people out of the tribe, or else it is meaningless (cue the patriotic music).
As cheesy as it was, it struck a chord. Yes, this guidance about how governments should relate to human beings – set down so eloquently by some over-educated rich guys in the 18th century – is hypocritical if only applied to the people in our tribe. It’s the best thing we’ve got to give to the world, and they only love us because of this. The universality of it. It’s meaningless if we don’t apply it to everyone.
E! plegnista! We! The people! At the time, “The Omega Glory” was an explicit condemnation of the Vietnam War when it aired in March of 1968. The two tribes, after all, were the Kohms (communists) and Yangs (Yankees), the latter of which had high ideals (e plegnista) but had turned into savages.
That word, “explicit”, I do not think it means what you think it means.
(Example of use: international treaties explicit-ly require us to prosecute those who order and commit torture.)
PG Writes:
Thank you for mentioning it. I suspect but don’t know that this is what you were referring to. It’s Jon Stewart at his best, making me laugh and angry enough to want to spit at the same time.
Grace
The irony, of course, is that America was founded on the principle that no, there were things that the American government could not do, that there were lines they could not cross.
True.
It would help prosecutors immensely if people could be forced to testify against themselves; if they could walk into your house and search it anytime they wanted; if they could simply present evidence against you to a star chamber, rather than to a jury of your peers. But the founders of this republic made the decision that these were things we could not do, even — and this is important — if it means some people will commit crimes that could have been otherwise prevented.
Also true. But – those examples you give are things the Federal government (and by extension any level of government) cannot do to citizens – and likely at least resident aliens – here in the U.S. The Constitution does not bar the government from taking actions of that nature against non-citizens outside our borders. In fact, what the Constitution does say is that it’s the government’s job to provide for the common defense, which pursuing and stopping terrorists certainly is. Breaking down the door of someone here in the U.S. without a warrant and using torture to question a suspected (or known!) terrorist outside our borders are not comparable.
RonF,
So how do you deal with domestic terrorism? The guys who recently were arrested in the Bronx conspiracy to blow up synagogues spoke wistfully about pulling off something like the World Trade Center attack, yet they are citizens and (so far) have the full panoply of rights. I’m not sure how one can say that stopping domestic terrorists isn’t part of the common defense.
Breaking down the door of someone here in the U.S. without a warrant and using torture to question a suspected (or known!) terrorist outside our borders are not comparable.
I agree. The latter is worse.
I’m pretty sure it also violates treaties we’ve signed, which have the force of law, but I’m not in a researching mood right now, so I’ll leave that for others to address.
This is such a great expression of my own thoughts on this. Here we have a young, charismatic speaker at the height of his popularity, coming forward to offer a hopeful message that panders to Americans’ high regard for their own morality, contrasted with an old, disgraced guy who is not all that attractive even in the best of times, giving an unsentimental message that we need to shelve our idealism in the name of necessity. All substance aside, this debate was destined to be a slaughter on a purely symbolic level.
What conclusion can we draw about this?
1. Cheney must surely realize that he’s nearly the worst person in the world to present the argument he’s offering. I surmise that Cheney can’t actually persuade anyone of comparable stature to argue on his behalf. All the other likely proponents of this view appear to be leaving the Bush legacy for dead.
2. Cheney must surely realize that he’s continuing to re-open the Republicans’ self-inflicted wounds, harming the party’s interests. Wait Wait, Don’t Tell Me quoted an unnamed Republican operative as saying, “We’re trying to turn the page, but this guy won’t stop rising from the dead!” Perhaps Cheney is playing the role of Cassandra because he thinks his message is so important to the nation that party interests must be sacrificed. Perhaps Cheney thinks the Republican Party will never be able to live down its association with torture, and therefore the only strategic move is to make a solid defense of the practice. Or perhaps Cheney is so desperate about his legacy that he’s will to pursue any strategy that might have some hope of repairing it, whatever the cost; he has nothing left to lose.
Much as I relish the schadenfreude, Proverbs 24:17 cautions “Rejoice not when thine enemy falls, and let not thine heart be glad when he stumbles.” Symbolism is a bad way to make public policy. There will always be difficult trade-offs between the interests of the individual and of the group. Recall Jefferson’s words to John Colvin in 1810:
Let us not confuse the weakness of the messenger with the weakness of the message.
So how do you deal with domestic terrorism? The guys who recently were arrested in the Bronx conspiracy to blow up synagogues spoke wistfully about pulling off something like the World Trade Center attack, yet they are citizens and (so far) have the full panoply of rights. I’m not sure how one can say that stopping domestic terrorists isn’t part of the common defense.
It is part of the common defense, certainly. But since they are citizens of and in the U.S., they are due rights as spelled out in the Constitution. My point is that Jeff’s comment seems to presume that those rights apply to people who are not citizens and are not in the U.S.
chingona:
I agree. The latter is worse.
My point was not to assign a relative value to the two, but to argue that Jeff’s conflating of the two as being equally banned by the Constitution is not valid.
RonF,
Except I don’t think the Founders contemplated that the U.S. would have sites like Gitmo that are on the one hand not part of any other nation’s jurisdiction, and on the other hand will be argued by the president not to be part of U.S. jurisdiction either. I don’t think the 18th century had a lot of no-man’s-lands of that sort; Britain’s holdings, for example, were supposed to be under British law, and it was precisely the British government’s efforts to pretend that residents of the Americans colonies didn’t have the same rights as residents of the mother country that led to the American Revolution.
Also, this David Brooks column is unusually good on the subject of how Cheney is arguing not just with Obama but with moderate (i.e. sane) members of the Bush Administration who were skeptical of Cheney’s enthusiasm for torture. I realize that Jack Goldsmith isn’t popular with most people on the left, but if you’re interested in seeing the Bush Admin’s internal debates or in being able to explain to hardcore Obamaphiles that Obama isn’t really making that big a shift from where Bush was by the end of his presidency, this TNR article that Brooks cites is a great read.
nobody.really,
But remember the end of that letter:
Jefferson was not saying that those who violate the law should be able to do so freely if they can claim that they only did so for the public safety — which is what immunity from prosecution for the Bush Administration and for the people who carry out torture would constitute. Rather, he said that it should be similar to the legal process of claiming self-defense after a homicide: an affirmative defense that is made “at his own peril” and dependent upon “the justice of his country” and our belief in “the rectitude of his motives.”
If someone stands up and says, “I broke the law because I thought it necessary; I will now put myself before the judgment of my peers to determine whether I acted rightly,” I would praise his genuine sacrifice. It is not noble, however, to pay for one’s safety solely with another person’s suffering, which is what this regime of torture-without-consequences allows. If I believe that torture is absolutely crucial to save millions and that there is no other way to accomplish my goal, then I can argue my case to a jury when I am tried for breaking the law, and if it looks like I acted reasonably, I will be acquitted.
In short, Jefferson was not advocating what Cheney advocates.
@hf: The anti-involvement-in-Vietnam message was obvious at the time it aired. It was the reason they wrote it as they did. It wasn’t a nod-and-wink.
nobody: perhaps he knows that he’ll go to jail if we ever hold an investigation of torture. I don’t know of any statute of limitations (aside from Cheney’s life span, of course).
Nice cite; I didn’t know where to find the whole letter.
Note that many people argue that the law bans torture, period. From this perspective, the fact that you acted reasonably is irrelevant.
More to the point, what does it mean for an officer to “throw himself on the justice of his country and the rectitude of his motives”? I agree that people who argue that they are entitled to immunity are not what Jefferson meant. But to the extent that people REQUEST immunity, that they argue that they shouldn’t be prosecuted because they acted with rectitude and that prosecution would create an injustice, this seems to me to be exactly what Jefferson was arguing. If you want redress on the basis of reasonableness, you need to get it either from the discretion of the prosecutor – an agent of the executive branch – or the clemency of the executive himself.
I’m sympathetic to the blanket prohibition position. Which doesn’t mean that public officials would not engage in torture; it would only mean that public officials would recognize that they will be punished for doing so, and will therefore willingly inflict suffering on others only under circumstances in which they know they will have to also pay a price. “I broke the law because I thought it necessary, but I decline to ask my peers to relieve me of the consequences of this action. We create a blanket prohibition on torture precisely because we know a jury of our peers will be tempted to identify more closely with someone committing torture on their behalf than with the person I tortured. Consequently I recognize that I must be punished to vindicate the prohibition on torture, and to signal to the world that I acted on my own initiative and accept the full responsibility. While this policy will work an injustice in my case, it will result in fewer injustices than any alternative policy would.”
Note that many people argue that the law bans torture, period. From this perspective, the fact that you acted reasonably is irrelevant.
The law also bans homicide, yet Anglo-American law has long provided for affirmative defenses to such prosecutions, wherein the defendant concedes that his action is generally prohibited, but argues that in a particular circumstance (such as self-defense or necessity) it was not a crime. Cops aren’t supposed to shoot unarmed citizens who haven’t committed any crime, yet they can avoid punishment if they convince a jury that they held an honest and reasonable belief that the victim posed a threat.
I don’t think that procedurally you can give blanket immunity to an entire class of actors (everyone who approved or enacted torture on detainees), because their factual situations varied. Someone who approved the 80th, just-in-case waterboarding of a guy who’d already spilled information is going to have a harder time explaining why this was reasonable, than someone who waterboarded in a ticking time-bomb scenario (of which the Bush Administration has not yet presented a single example). The rectitude of motives seems like an individual matter, and note that Jefferson refers to singular cases of exceeding one’s legal authority, not to large groups of people doing so.
ETA: Arthur Schlesinger Jr. has probably thought more than anyone else about what “throw himself on the justice of his country” means, and he notes that this letter was written in the context of the Burr conspiracy, where Burr was not indefinitely and illegally detained, but instead was tried and acquitted.
Any citations to the crime of “homicide”? That is, a crime for which there is no mental state element? The prosecutor simply demonstrates that one person’s act caused another person’s death, and has no burden to demonstrate anything about the defendant’s mental state? Must be tough to be a physician in that jurisdiction….
But conceptually such a law is legal. It is conventionally argued that prosecutors must bear the burden of proof regarding all elements of a crime. The elements of homicide crimes typically involve proving that someone acted with some mental state: knowingly, intentionally, with malice, recklessly, carelessly, in the heat of passion, etc. Some courts go so far as to hold that the prosecution bears the burden to show that the defendant is NOT insane. But most courts hold that the legislature is free to shift the burden to the defendant to raise – and prove – that the defendant IS insane; this is the insanity defense.
These holdings illustrate the arbitrary nature of burdens of proof. Consistent with such holdings, a legislature could conceptually create a crime called The Criminal Code. The elements of the crime would be pissing off a police officer. Once a prosecutor proves that you indeed did piss off the police officer, the burden of proof would shift to you, the defendant, to raise an affirmative defense prove that you did NOT commit 1) murder, 2) manslaughter, 3) trespass, 4) tax evasion, 5) littering, etc. In this manner, the prosecution would fulfill all its burdens of proof, yet the principle for which the burden of proof exists would be completely eviscerated. You’re basically guilty until proven innocent.
Anyway, this conceptual problem is completely overshadowed by the fact that courts also recognize “strict liability” crimes for which no mental state is relevant. In many states if the prosecutor can prove you had sex with that 13-yr-old, you’re guilty of statutory rape; arguments about your good-faith mistake regarding her age will be inadmissible.
So, basically, the question remains: Is torture a strict liability crime or not?
Uh, the mental state for homicide generally is that one intentionally or recklessly caused death. So if you’re a physician who does that — say, in an assisted suicide, or in some beyond-negligent malpractice — then in most jurisdictions, yeah, you’re going to jail unless there’s a jury nullification. However, if you intentionally or recklessly caused death in self-defense, out of necessity, due to mistake, etc., then you had the mens rea for homicide but have an affirmative defense that excuses or justifies your action.
Strict liability is irrelevant here and I’m not sure why you’re bringing it up. Under strict liability, we’d be charging people for waterboarding who intended to give the detainee a sponge bath and — whoops! — didn’t realize he had a condition that made a sponge bath feel like he was being drowned. So far as I know, no one is suggesting that overenthusiastic spongers be charged under the torture statutes. What’s under debate is charging people who knew that they were waterboarding people, and intended to cause the bad mental and physical results associated with torture, because they wanted the detainees to do something they otherwise wouldn’t — rat out their associates — in order to make the torture stop.
See 18 U.S.C. 2340: “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control”
I don’t know how much more mens rea you need than “specifically intended to inflict severe physical or mental pain or suffering,” and it’s a pretty crappy interrogation technique if they’re not doing it in order to inflict paint or suffering. Strict liability has f*ck all to do with this, unless you’ve come up with a new statute that prohibits sadism, in which the necessary mental state is that one commits torture in order to derive personal pleasure from it, rather than to extract useful information.
Uh, the mental state for homicide generally is that one intentionally or recklessly caused death.
Exactly. Which is what prompts my request for a citation to the crime of “homicide.” I am not acquainted with a law against causing another person’s death; I’m only acquainted with laws against causing another person’s death with a wrongful mental state. The prosecutor must allege and bear the burden of proof with respect to the defendant’s mental state. The mere act of causing another person’s death, without more, is not a crime – at least, not in any jurisdiction with which I am acquainted.
If I believe that torture is absolutely crucial to save millions and that there is no other way to accomplish my goal, then I can argue my case to a jury when I am tried for breaking the law, and if it looks like I acted reasonably, I will be acquitted.
* * *
See 18 U.S.C. 2340: “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control”
It remains unclear to me, given that definition, that “reasonableness” is an affirmative defense to the crime of torture.
nobody.really,
Homicide is a category term that refers to a set of specific crimes with various mental states and circumstances. Murder is a type of homicide; so is manslaughter. For use of the term homicide to denote this category, see e.g. title 18, ch.51 of the U.S. Code. If it makes you feel better, I’ll refer to a specific type of homicide, manslaughter, for future examples.
And for the last time, as I’m beginning to get the feeling that you’re not actually reading my comments very closely:
REASONABLENESS IS NOT AN AFFIRMATIVE DEFENSE.
REASONABLENESS IS THE OBJECTIVE STANDARD APPLIED TO THE DEFENDANT’S BELIEFS IN HIS ASSERTION OF AN AFFIRMATIVE DEFENSE THAT EXCUSES OR JUSTIFIES HIS CRIME.
SELF-DEFENSE AND NECESSITY ARE EXAMPLES OF AFFIRMATIVE DEFENSES.
IF THE TORTURER CAN PROVE THAT HE REASONABLY BELIEVED HIS ACTIONS WERE NECESSARY* (OR THAT HE REASONABLY BELIEVED SOMETHING WHICH TURNED OUT TO BE A MISTAKE OF FACT, OR THAT HE REASONABLY BELIEVED HE WAS ACTING IN SELF-DEFENSE, OR THAT HE REASONABLY BELIEVED [PLUG-IN-AFFIRMATIVE-DEFENSE-HERE]), THEN HE WINS.
HE MAY MAKE THIS SHOWING EVEN BEFORE A TRIAL AND A PROSECUTOR COULD REFUSE TO PURSUE THE CASE BECAUSE SHE IS SURE THAT THE AFFIRMATIVE DEFENSE WILL WIN AND A TRIAL WASTES HER TIME. OR, IF THE PROSECUTOR CHOOSES TO PROSECUTE, THE DEFENDANT CAN MAKE HIS SHOWING BEFORE JURY OR BENCH.
* Necessity under the model penal code requires a threat of imminent injury to persons or property, for which there is no (reasonable) alternative except the commission of the crime; the defendant’s act must prevent an equal or more serious harm (“lesser of two evils”); and the defendant must not have created the conditions of his own dilemma. This is the scenario we are given with the classic “I tortured because we needed to find the ticking time bomb in Times Square and nothing but torture would make the guy talk.”
But as I’ve already said, the Bush Admin hasn’t said that such a situation arose — all their examples of information they extracted from tortured detainees has been of past acts (e.g. KSM’s information about 9/11) or non-imminent ones. I expect this is why they don’t actually think the necessity defense will protect them, no matter how sympathetic the jury; they don’t meet the elements of the defense. So they need immunity from prosecution.
Now I’m confused. This treaty says:
Emphasis added. Words like “necessity” appear only in the context of actions the State Parties to the treaty must take, like prosecuting Cheney:
The crap that Cheney’s been spewing seems more suited to the sentencing part of his trial.
Which treaty? I was looking at the statute that our own Congress passed and therefore must apply to Americans acting color of law. Treaties, on the other hand, are not always self-executing.
The US signed the UN Convention on Torture etc. As you might expect, I don’t see any mention of a necessity defense in the law that we wrote to fulfill our obligations. I do see Yoo arguing that the lack of any mention meant he could use that defense, which logically means that Yoo thinks America has violated the treaty.
hf,
Yes, but as has been done by the U.S. with regard to many other international treaties, the Senate put forth several reservations regarding the UN Convention.
What am I supposed to be seeing there?
hf,
Well, there are a couple of the reservations and understandings that could be argued as relevant:
“That the United States shall implement the Convention to the extent that the Federal Government exercises legislative and judicial jurisdiction over the matters covered therein” — no mention of executive jurisdiction. Actions taken by the military, FBI, CIA or contractors thereof are governed by the executive.
“That it is the understanding of the United States that Article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State Party” — part of the point of having Guantanamo Bay is to be able to argue that it is territory not under the jurisdiction of the U.S. courts.
Also, the 18 U.S.C. 2340 to which I referred is the statutory enactment that was passed pursuant to our signing the UN Convention on torture. That enumerates the specific punishments for someone who violates the law, which the UN Convention does not do because only the member countries have jurisdiction over their citizens and residents.
There’s not much of an international criminal law, but inasmuch as there is one that follows Anglo-American law, it would allow for people to plead various defenses such as those I’ve noted here. Those defenses I’ve noted aren’t in that specific federal statute; they’re mostly common-law.
If a CIA agent violated the Convention on torture, what can the UN can do about it in terms of enforcing the Convention? So far as I know, nothing — all they can do is call on the U.S. to enforce the law that it enacted pursuant to that statute, and prosecute the CIA agent. If the agent is prosecuted in American courts, he can raise those defenses because they are not barred by statute.
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