Friday, February 05, 2010

Torture, John Yoo, Obscenities and Silliness

My brother derailed his military career over issues involving torture, avoiding it and advocating changes in policy that peaked when fifty generals signed a statement in opposition to what he proposed. That was a score or so of years ago. He was right. They are still wrong.

Torture is never an option. That is because it never works (intimidating people, co-opting people, interrogating people -- all of those work -- but torture and breaking people does not). That is well known from the Israeli experiences, other history and the FBI's long studies of the issues. Torture is merely an obscenity, seductive, and pornographic. It should never be an option [see link in sidebar to blog on that point].

On the other hand, should we prosecute people for having opinions we disagree with, advocating positions and being persuasive? Should John Yoo be prosecuted?

Before you answer, consider the academic who felt that Secretary of State Rice's doctorate should have been revoked for political reasons. The academic was brought up short when it was pointed out that if doctorates could be so easily revoked, the most likely target was not a close friend of the President of the United States, but Ms. Rice's critics.

Those who would prosecute Yoo are, quite frankly, the same people Ann Coulter advocates having tried for treason. Put to a vote in before the public, we already know from opinion polls that Yoo would win and his critics would be exiled from the country. Most of the efforts to attack Yoo are silliness at best.

At the worst they are an attempt to criminalize advocacy for those we disagree with. I see it often enough in efforts to make criminal defense attorneys share the fate of their clients, the attempts to castigate investigative writers like Taubes, claiming that his advocacy will do nothing but lead to early deaths for thousands and that he should be preemptively jailed for murder.

Of course, you may say, Taubes is right. At least he looks right now. But if I were using the scientific consensus of ten years ago, Taubes would be in jail.

Some things are obscene. Torture is one of those. Others are at best silliness, such as attempting to jail or assault the advocates of those we disagree with us, especially when they
represent the thinking of the majority. Should that succeed, what protects the minority from payback? Personally, I think of payback fantasies, revenge fantasies, as a form of pornography.

Our country deserves better. It needs better. Neither the obscenely attractive pornography of torture in a "just cause" nor that of revenge fantasies is one that we should allow to captivate us. We need to free ourselves, in all ways, from torture, obscenity and silliness.

For more on torture, read


djinn said...

I'd like to thank your brother for his sense of justice, his decency, and his courage. Thank you.

As to John Yoo, we are signatories to the 1984 United Nations Convention Against Torture.

quoting Wikipedia: "Article 2 of the convention prohibits torture, and requires parties to take effective measures to prevent it in any territory under its jurisdiction. This prohibition is absolute and non-derogable. 'No exceptional circumstances whatsoever'" There is plenty of evidence to turn John Yoo over to the Hague to have him tried. He should be tried. So should Jay Bybee. This seems a no-brainer to me.

djinn said...

You stated: "Those who would prosecute Yoo are, quite frankly, the same people Ann Coulter advocates having tried for treason." This is completely incorrect. Yoo should be put on trial for torture for explicitly authorizing for US Government torture procedures that are explicitly against the 1984 UN Convention Against Torture. This has nothing to do with a random citizen saying something that has no governmental weight (as per your Ann Coulter analogy--she didn't coauthor any Justice Department Memos sent to the CIA of which I am aware.)

Yoo and Bybee coauthored the "Torture Memo" that said (quoting Wikipedia for convenience but I'm aware of the actual memo) "acts inflicting...severe pain or suffering, whether mental or physical." Physical pain "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Mental pain "must result in significant psychological harm of significant duration, e.g., lasting for months or even years," as well as be the result of one of the specific causes of mental pain contained in 18 USC 2340, "namely: threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual's personality; or threatening to do any of these things to a third party."

The memo also concluded that even though an act is "cruel, inhuman, or degrading," it does not necessarily inflict the level of pain that 18 USC 2340 prohibits, and thus does not subject an interrogator to criminal prosecution. Additionally, it stated that a defense of "necessity or self-defense may justify interrogation methods" that violate 18 USC 2340.

This is torture.

For starters:

djinn said...

Shorter comment: Yoo and Bybee's memos carried the force of law, and as such governed the way we treated prisoners for years. How many did we kill when torturing? Certainly some, and 'some' is too many. I was under the impression that we were the good guys.

Comments by a citizen such as Ann Coulter do not in any way change the way the government treats those it choosed to give the title "terrorists," most whom turned out to be random innocent Afganis sold for the bounty money.

Stephen said...

Coulter is trying to have liberals in this country tried for treason. She preaches about that all the time.

You are missing the point. She is saying that people who advocate certain positions are really traitors and should be treated as such, much like some are saying that Yoo should be convicted of war crimes for arguing for a position.

Once you start criminalizing thought, you invite the Ann Coulters of the world to take up where Joe McCarthy left off.

That is what I was trying to say.

The same people that say Yoo should be tried are the people that Coulter says should be tried.

djinn said...

No, Stephen, Ann Coulter, just like you, can say anything you like. However John Yoo and Jay Bybee are actual representatives of the United States Government whose various memos were treated as US law.

I understand you are a lawyer. I do not understand your reluctance to admit the difference between an official position of US law (Yoo and Bybee) and some random US citizen whose opinion matters naught.

djinn said...

For example, what international treaty that the United States has signed can Ann Coulter point to and say "this individual, acting in the capacity of the United States Government has violated it."


djinn said...

Presumably, Stephen, you think some things are crimes, no matter who speaks for or against them?

Stephen said...

Djinn, those individuals said "this is how I interpret the law" and Yoo has been advocating readings like that for a long time.

Bybee got in front of the train after things were rolling. You need to read about what he has to say about a bad situation. I think he made the wrong choice.

What I am saying is that there are a lot of people out there, on both sides of the debate, trying to criminalize advocacy and arguments.

Right now, if you put it to a vote, the right wingers would win the vote. They would be able to put the ACLU and other groups in jail for advocacy.

I do not think that is wise, legal or proper. I also do not like the inverse, where those in the minority start agitating to put those they disagree with in jail over advocacy and opinion.

All that does is tempt the majority into attempting payback.

Yoo did not pass a law. He did not create a law. What he did is give his opinion as to what a law meant. I think his opinion is wrong, and I think that the policy behind his opinion is flawed and I think the approach he endorsed is counterproductive and evil.

I think that the implementation of the policy was probably criminal. I just do not think that arguing the policy should be criminalized. Not that you do not see things like that done. There were places you could be prosecuted for promoting gay rights.

That may still come back. But should the lawyers for gays all be disbarred and sent to jail if sodomy is criminalized again? My position is that it should not be the policy of the United States to criminalize advocacy. Behavior, yes. But otherwise, we bring back McCarthy.

Stephen said...

It is easy to miss that there are people on the right, at this very time, advocating that we start trying people for treason over advocacy. Can they argue that, sure.

But the most direct way from where we are to where we actually have treason trials for people who oppose the war in Iraq (which may be the end of America's prosperity as we knew it and the worst thing that happened for our security in the history of the company), is to start attempting to criminalize advocacy.

It is a very short step from the one approach to the other. Tools go both ways, as Congress is starting to notice.

And, the attempt distracts people from the deeper issues.

djinn said...

Stephen, what exact treaties did the US citizens opposing the war on Iraq break?

Any US citizen can say pretty much anything they please (without inciting a riot) that doesn't mean their words have the rule of law.

Yoo's and Bybee's did have the rule of law, and that law explicitly violated treaties that the US government had signed. This is why your entire argument is specious at best and dishonest at worst.

Why are you arguing this inarguable point?

djinn said...

You and Bybee weren't advocating advocacy, they were giving specific, followed by the government, in which people could be physically hurt. People died. This is not advocacy. This is official United States Policy which created dead prisoners, former allies who now hate our guts and want to blow us up, and the worse imanginable press in the middle east.

They were govermnemt officials acting in their official capacity; and what they said became official US policy, to the detriment of us all, but Bybee got that appelate judgeship he wanted.

I can't believe you're as dense as you pretend to be. Some random person spouting off on a street corner has nothing to do with an official position of the US government.

djinn said...

Trying again with a bit more proofreading:

You and Bybee weren't advocating a position on a soap box on some random corner, they were actual US officials giving specific rules that were then followed by the government, in which people could be physically hurt. People died. This violated at least one treaty that the US is signatory to.

Yoo and Bybee's actions are not 'advocacy.' Their policies is (for the memos that haven't been repudiated) official United States Policy which created dead prisoners, former allies who now hate our guts and want to blow us up, and the worse imanginable press in the middle east.

They were govermnemt officials acting in their official capacity; and what they said became official US policy, to the detriment of us run of the mill US citizen, but Bybee got that appelate judgeship he wanted.

I can't believe you're as dense as you pretend to be. Some random person spouting off on a street corner has nothing to do with official policy. Ann Coulter is a random person spouting on the street. Her opinion holds no offical weight. None.

This is completely different that Yoo and Bybee. What they write becomes the actual law of the land. Thier poorly reasoned briefs have led to actual torture and death of prisoners in US custody. See the difference? Sigh.

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Anonymous said...

Quite an interesting argument you are having.

The one who should be prosecuted is the one who decided to authorize torture, along with those who actually did/do it. Who authorized it? Yoo/Bybee gave a legal opinion that was obviously a very twisted view of the law at best.

No, advocacy should not be criminalized; thought crimes should not be legislated.

But yes, torture is obviously not only wrong, it is counterproductive. There was a time when Americans were the good guys, then came the GWOT and it was "either you accept everything we say or you're against us." It's a no-brainer that most thinking people took a step back from that.

But torturing some feckless bedouin satisfies some kind of feeling of getting vengeance on "those who hate and hurt us."

djinn said...

The 1949 Geneva Convention on war crimes reads (in very small part)

the penal sanctions to be provided will be applicable to persons who have committed or ordered to be committed a grave breach of the Convention, thus establishing the joint responsibility of the author of an act and the man who orders it to be done. It will be possible to prosecute them both as accomplices.

Bybee and Yoo both "ordered to be committed a grave breach of the Convention." They wrote the memos authorizing torture, explicitly labeled a war crime all the way back in 1947. Apparently neither their law library nor their internet access went back that far.

This seems inarguable. But please, argue.

djinn said...

uh, 1949.

Stephen said...

Djinn, you are conflating a legal opinion that argues that practices "x, y and z" are not torture with ""ordered to be committed" -- there is a difference.

For what that is worth. Sorry that I have not been able to explain the difference to you.

djinn said...

Yoo and Bybee OK'd -- allowed --facilitatied the procedures being committed, Whether that counts as an order, looking at record in Nuremberg, is certainly an open question,

Stephen said...

I need to do another post on this subject to clear some things up.