Update: For some reason, Justice Scalia thought it a good idea again to opine about how torture can be constitutional. I agree with Stevens/Ginsburg/Kennedy in Chavez v. Martinez, but even the controlling majority understood coerced testimony not used for a criminal case or punishment (though de facto, it probably was here too) was actionable at some point.
Someone flagged Eric Posner's discussion regarding (allegedly) "the legal and normative problems with prosecution" as well as a potential additional barrier arising from the Detainee Treatment Act of 2005. He can be used as a sort of example for a trend of thought, which is the usual value of such references on blogs, Twitter and the like. Glenn Greenwald, who is a tool but has some good points, once noted this and it helps answer the "it's just one person" response. We always are making selections here.
[For those who rather read sentiments from those who seem likely to actually support restraint of executive discretion in this context, this blog might be a good place to start.]
Eric Posner's strong executive power beliefs does not lead me to take his comments totally at face value. He does voice some of the realistic reasons why prosecution isn't likely. If prosecuting a single police officer is so hard, you know what you are up against. But, "hopeless cases" are self-fulfilling prophecies when the line is that it is just "not done" to prosecute this sort of thing. Also, as Lederman and Barron wrote etc., there is no total "unwritten norm" that Congress "cannot criminalize certain behavior that the president authorizes on national-security grounds." Our "system works" by putting limits. Political means aren't the only checks.
Finally, it underlines why I can't take Posner totally at face value if he says the "best argument" is that "criminalizing politics" is wrong. TORTURE shouldn't be seen as mere "politics." But, Posner voices the mindset of a lot of people. Torture horrified people for hundreds of years. It is quite firmly "worse than death" -- death even of civilians is allowed in wartime. Torture is not. Posner is helping the segment of the population that wants to degrade torture. This is a key reason why the report is important even if it doesn't bring prosecutions. It helps fight this mindset. That torture is like some tax policy -- its "politics" that one administration might support, another might not.
As to the Detainee Treatment Act of 2005, experts can debate it, but think it wouldn't necessarily serve an out for all involved, especially given what was known by those involved. At some point, I also wonder if a too wide exception here would violate international law restraints. However, I guess perhaps only us peons don't have an "ignorance of the law" excuse. Finally, regarding the "they are just hypocrites" philosophy, various nations actually seriously have upheld such norms, including Great Britain and Canada in recent years. And, we should try to lead, not follow. Maher Arar is a sad example.
Ultimately, things are often wrong for various reasons -- pragmatic, principle and proportionality (extreme arguments) might be one way to think of it. The report is powerful in that it can be used in more than one fashion. If something doesn't work or leads to negative blowback, it often is easier to respect principle. I think ultimately our own souls here are very important, even if we don't care about the bodies and lives of others.
Someone flagged Eric Posner's discussion regarding (allegedly) "the legal and normative problems with prosecution" as well as a potential additional barrier arising from the Detainee Treatment Act of 2005. He can be used as a sort of example for a trend of thought, which is the usual value of such references on blogs, Twitter and the like. Glenn Greenwald, who is a tool but has some good points, once noted this and it helps answer the "it's just one person" response. We always are making selections here.
[For those who rather read sentiments from those who seem likely to actually support restraint of executive discretion in this context, this blog might be a good place to start.]
Eric Posner's strong executive power beliefs does not lead me to take his comments totally at face value. He does voice some of the realistic reasons why prosecution isn't likely. If prosecuting a single police officer is so hard, you know what you are up against. But, "hopeless cases" are self-fulfilling prophecies when the line is that it is just "not done" to prosecute this sort of thing. Also, as Lederman and Barron wrote etc., there is no total "unwritten norm" that Congress "cannot criminalize certain behavior that the president authorizes on national-security grounds." Our "system works" by putting limits. Political means aren't the only checks.
Finally, it underlines why I can't take Posner totally at face value if he says the "best argument" is that "criminalizing politics" is wrong. TORTURE shouldn't be seen as mere "politics." But, Posner voices the mindset of a lot of people. Torture horrified people for hundreds of years. It is quite firmly "worse than death" -- death even of civilians is allowed in wartime. Torture is not. Posner is helping the segment of the population that wants to degrade torture. This is a key reason why the report is important even if it doesn't bring prosecutions. It helps fight this mindset. That torture is like some tax policy -- its "politics" that one administration might support, another might not.
As to the Detainee Treatment Act of 2005, experts can debate it, but think it wouldn't necessarily serve an out for all involved, especially given what was known by those involved. At some point, I also wonder if a too wide exception here would violate international law restraints. However, I guess perhaps only us peons don't have an "ignorance of the law" excuse. Finally, regarding the "they are just hypocrites" philosophy, various nations actually seriously have upheld such norms, including Great Britain and Canada in recent years. And, we should try to lead, not follow. Maher Arar is a sad example.
Ultimately, things are often wrong for various reasons -- pragmatic, principle and proportionality (extreme arguments) might be one way to think of it. The report is powerful in that it can be used in more than one fashion. If something doesn't work or leads to negative blowback, it often is easier to respect principle. I think ultimately our own souls here are very important, even if we don't care about the bodies and lives of others.
2 comments:
Scalia really is an old fashioned Catholic, isn't he? Inquisition must have been constitutional.
Calling Elaine Pagels ...
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Thanks for your .02!