Where is the Conservative Outrage at the Torture Memos?
Taking a brief glance over at Memeorandum I can’t help but notice the radio silence from the Right on the release of the Bush OLC torture memos. Andrew Sullivan made the same point earlier today. The biggest voices on the right – Malkin, Instapundit, Drudge – have said absolutely nothing about the release of these stunning memos.
Why is this worth mentioning?
Because, just yesterday, these same figures on the Right touted a nationwide series of demonstrations against all sorts of supposed government oppression. In hundreds of demonstrations around the country, protesters waved placards proclaiming Obama a fascist, supporting individual liberty, and decrying the Federal government’s abridgment of Constitutional limitations.
And so, the very next day, we get explicit evidence that the Federal government DID, in fact, live out the fears of these protesters by shredding all legal proscriptions against torture. So, where is the outrage on the Right about this? I thought the protesters were angry at Obama AND Bush for “expanding the government.” Surely, there is no greater expansion of the government than the ability to disregard all Constitutional protections of detainees, and then to torture suspects – some of whom have been PROVEN to be completely innocent.
Needless to say, none of this surprises me. I saw through these protests for the partisan joke that they were. When they mean “liberty,” they just mean no taxes for wealthy people or the right to own any firearm they desire. But any definition of “liberty” beyond that boundary is unknown to these folks…unless, of course, they themselves are the target of the DHS.
So here it is: If you can’t express at least some degree of outrage over the OLC torture memos released today, you cannot claim to be a lover or defender of liberty.
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83 Responses to “Where is the Conservative Outrage at the Torture Memos?”
@ChrisWWW: To prosecute you need to show a law that was broken. When the AG appointed by the newly elected Dem president says that there wasn't one, your case gets dismissed.
CStanley,
Eric Holder has admitted water boarding is torture: http://archives.chicagotribune.com/2009/jan/16/…
This is as open and shut as it can get. An investigation should only be interested in how many high level officials were involved with this absolutely clear violation of treaties on torture and war crimes.
The arguments are over, you pick your side now. Are you in favor of holding people accountable for war crimes, or are you for excusing them?
Right, Chris. So now, which anti-torture statute applies?
Geneva Conventions, Article 146
or the Convention Against Torture (ratified by the Senate in 1994)
Conventions aren't statutory law though, and whiile that second excerpt indicates that we agreed to make all instances of torture offenses under our criminal law, isn't it possible that we didn't follow through with that?
Or that the term was insufficiently defined so that people have held other interpretations of it than Holder's interpretation (which means he doesn't have the legal authority to enforce his view of it?)
To me this is like accepting that in our system, we know that some crimes aren't punished because of loopholes and technicalities, and when that happens we go back and fix the law (not say that the crime was sufficiently bad that we're going to prosecute based on our judgment of that even if the law doesn't allow for that.)
CStanley,
U.S. Constitution – Article VI
…
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
*****
We don't need retroactive laws passed to punish people for authorizing torture. It's been part of the law of the land since we adopted the Geneva Conventions and the Convention Against Torture. In fact, the wording of the law requires us to prosecute these people. It's not a matter of if we want to, or if it's politically convenient. It's in the law.
The other part of your argument, which I'd like to know if you endorse, is more hair splitting over the definition of torture. Personally I find the entire “debate” morally repugnant, and its long past the point of being worthy of engagement.
Chris, the Constitution isn't statutory law! Surely you know that?
My opinion on the debate? I'll admit I was late to the game. Why? Because although I'm morally predisposed to carefully consider these things, I was hearing so much over the top partisan BDS that I missed some of the real stuff.
And as for hair splitting- the way I see it now in reading some of these memos (haven't honestly had time to read that much yet- so I reserve the right to adjust my position if something else comes to light, but this is my impression so far) is that the twists and hairsplitting in order to justify some acts is morally repugnant (but that doesn't make their interpretation illegal.)
I think the memos are informative in indicating where the statutory definitions need to be strengthened.
And I do probably judge the participants less harshly than you do because I”m looking at historical context. It's my belief that we've always tortured, and so has most other powerful nation in history, but it was done behind closed doors with a wink and a nod. I hate to give any kind of credit to any of the players involved here, but to the extent that they were trying to set forth some limitations, I see it as a first step toward systemic change.
CStanley,
Constitutional Law and treaty obligations are of greater legal importance than statutory law. That's why statutory law can be struck down by the courts for violating the Constitution or a treaty.
I might be sympathetic to your argument if we lived in some sort of alternate history where national government hadn't put high ranking officials on trial for war crimes. But it's been done regularly since at least 1945 when we tried German officials at Nuremberg.
But now you're talking international law, Chris. Is that what you meant all along? I didn't think so because we were talking about Holder.
CS
Sorry for the delay, that's why they call it work. (I see ChrisWWW beat me to it)
I find that partisanship is alive and well during my absence.
Rep. Jerrold Nadler, D-N.Y., chairman of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties quote”
“Because torture is illegal under American law — as the U.S. is a signatory to the Convention Against Torture — we are legally required to investigate and, when appropriate, to prosecute those responsible for these crimes.”
So, International Law has been broken, and as signatories, we are compelled to prosecute.
Hemm, you may not have had time to read through it all though. I already prebutted your assertion when Chris brought up the same point, several comments up. The quote was a nice touch though.
CStanley,
I could be wrong about this, I'm not exactly a lawyer, but the Constitution requires compliance with treaties we've signed. The torture treaties I've mentioned require prosecution of individuals who authorized torture. I don't see why this couldn't be done through a Federal court, but I believe the treaties are purposefully agnostic about the methods. To comply with the law, we simply must prosecute these people, whether it's in our courts or international courts.
But if we prosecute to the full extent of our current law, Chris, they get off. That's the point- the statute was weakly worded.
At any rate, I'm glad Rick Moran stopped by to answer the question Elrod posed in the title of this post.
CStanley,
How so?
Read the statute, and read the memos. Apparently the legal consensus is that the DOJ authors of those memos were legally correct even if morally repugnant.
CStanley,
The DOJ memos cannot redefine torture. Lawyers can and have been punished for offering opinions in bad faith, and their opinions are not shields from court action.
No, of course not. But if Holder believed that the definition of torture was met with waterboarding, but then came to the conclusion that he couldn't win a case against anyone involved, doesn't that suggest that he read those opinions and realized that technically according to the letter of the law those lawyers were correct?
CStanley,
Holder is not a judge. I believe his opinions are compromised by political considerations.
Well, that is another interpretation, I guess. But I don't think he's the only one who has come to the conclusion that the memos do show exploitation of the loopholes in the definitions of the statute.
For more information about the statute, see my reply in the other thread: http://themoderatevoice.com/29283/airing-the-wh…
Yeah, I've read the statute. I haven't read much of the memos yet but from what I understand, a lot of the rationalization hinges on the fact that we do all this stuff to our own guys in SERE training. Of course that argument turns on the hinge of whether or not the psychological effects of undergoing this during training are the same as they'd be if administered by someone who considers you an enemy. But it's entirely plausible that the current administration saw that that defense might well be legally insurmountable.
And maybe they also felt that they had a much better chance of shaming these individuals in the court of public opinion than they'd have in convicting them in a court of law.
The argument does not hinge on “whether or not the psychological effects of undergoing this during training are the same as they'd be if administered by someone who considers you an enemy.” It hinges on whether or not techniques like waterboarding, walling, sleep deprivation, etc. are the “intentional infliction of severe physical pain or suffering.” You want to agree with Bybee and say they aren't?
As for SERE training… most of the details appear to be classified, but I'm guessing the whole point of waterboarding our soldiers is to harden them against being tortured by their captors and it's not something we think other countries are allowed to do to them. Either way, they submitted willfully to torture, those are special circumstances that don't apply to actual prisoners.
Um, your second paragraph is exactly the point I was making- that the conditions aren't the same for SERE so the argument doesn't work for me. But that doesn't mean that there might not be a sense that legally the argument would hold.
Chris,
I greatly admire everything you've written here about the release of the torture memos. So much so that I clicked on your name and found your blog that way, and added it to my blogroll at Liberty Street.
“intentional infliction of severe physical pain or suffering.”
“Physical pain and suffering” is not equal to “severe physical pain or suffering”. The legal question ultimately hinges on the definition of “severe”, not “pain or suffering”.
kathy,
Thanks! When I get my new site up I'll see about adding a blog roll.
AR,
Ultimately that comes down the judge, but I don't see how many of these techniques wouldn't rise to the level of “severe”. Most of us would be pretty screwed after being awake for 2 days straight, think about being forced to stay awake for 11. Meanwhile, have someone slam you into a wall a few times.
What happened to the “moderate” in Moderate Voice?
The arguments are over, you pick your side now. Are you in favor of holding people accountable for war crimes, or are you for excusing them?
Careful what you wish for the same statute that says torture is a crime also says Murder is a crime. Firing predators into housing complexes to kill a couple of terrorists while killing a dozen women and children doesnt cut it. Thats murder.
Nothing can spin this. I'll see your torture and raise you murder. There is a never ending spiral of cynical retribution from the left over this. They are so full of hate for these few so called tortured souls that they are forgetting that obama is ordering predators fired into villages and killing dozens of women and children.
Obama is a murderer under the same statue that says torture……………but of course now we can all argue over what defines Murder. Who defines that one? Cant ignore part of the statute and fully enact another party.
It clearly says MURDER and TORTURE. Killing women and children is Torture……Lets just go ahead and hang Obama and His VP and Bush and his vp and get it over with now.
CStanley: “Increasingly I'm really worried about conservatives attacking liberals for not being properly outraged about the correct outrageous acts of our government, and liberals attacking conservatives for not being properly outraged about the correct outrageous acts of our government.”
Great point, thanks!
Braindead, “I reject the notion that any of that was torture. I reject your definition of torture.”
You can reject any definition you want. But the US prosecuted war crimes against the Nazis and against some US servicemen in WWII (I think) who used waterboarding…. So I think what counts here is how the US defines torture with respect to its own citizens and those citizens of other countries. I remember being taught about the atrocities of the Nazis…. how they tortured their enemies, the Jews (and others). While I'm not suggesting that Bush's actions rise to the level of genocide, I am suggesting that I was raised to believe that what the Nazis did was horrible. That no civilized country would torture one, two three, ten or 5 million people.
So you are free to define torture how you want but you are living outside reality.
CS
“They should, but they won't. And trying to hold a truth commission when two sides want to claim their own sets of facts is a recipe for disaster- like squeezing a tumor and forcing metastasis of the malignant cells.
For evidence of how hard it is to rise above our biases, look at our longrunning argument in that other thread the last couple of days. I agreed to your definitions but can't agree with how you interpret them- which shows that even when two parties want to get past this stuff, sometimes the fundamental viewpoints just can't be moved closer together.
And that's with two of us who don't have our careers at stake (or aren't concerned with criminal allegations that might affect us or our colleagues) so how much worse would it be for the politicians to be involved with debating what the 'truth' really is?”
I waited to repond to this until now for several reasons.
First, as I mentioned earlier, work always takes priority, and my response to this required more than just a quick blurb.
Secondly, knowing what I had to say, I waited until this thread was “below the fold” so as not to co-mingle this with an ongoing thread.
When I read your above response, I realized you have no sense of self irony. I don't mean that in a critical way even if you insist on that interpretation. The subject of this thread we're in here is about the Outrage over the Torture Memos, and you obviously can't see the very strong parallel between this and our argument.
Where do you think the outrage about these memos comes from? You in this very thread were quick to point out that Dems were being hypocritical in not publically protesting these acts of torture when they learned of them, so you must agree that these acts were torture.
Not so say Bebe and Yoo, because we can show that at least one element of torture is missing from these acts. One reason is that one must have intent to cause intentional pain and even though the practisioners know they they are causing pain they don't have the intent to cause pain so it can't be torture. Their circular argument is all too similar to what we went through. If they could prove that torture was not torture, then Bush could employ it. Their tap dance is also part of the outrage, and the paupacy of their legal arguments has brought forth calls for their disbarment.
As I stated in my last entry about the argument the other night, I'm done with that discussion. I'm not here to rehash this, but by your referral to that argument outside that thread, you require me once again point out that your argument contained interpretations based on no logical structure, no citation to authority, and merely the repeated denial that dictionary words have proscribed meanings. If you can't defend your interpretation anything more than “because I disagree,” just don't bring it up like it just a difference of opinion.
I always enjoy our discussions, but I must say you have a real hard time with always insisting you are right. I too have been known to be stubborn.( a shock i know) The problem is though, I can't just say “let's just do it my way.” That only works on children, and even in that, it doesn't last long.
Good gosh, Hemm. Right back at you on the inability to see irony.
The subject of this thread we're in here is about the Outrage over the Torture Memos, and you obviously can't see the very strong parallel between this and our argument.
How is it possible to assert that I 'obviously don't see the parallel' when I was the one who brought up the fact that there's a parallel?
Anyway, I had started to write a really long explanation/response but I just erased it as I have to go to work this morning and still wasn't done. I'm not sure if I'll get back to it or not, but basically my position on that other argument is that my interpretation of the definition is very narrow and yours is broad and that's about all there was too it- so yes, that's a difference of opinion. I gave my reasoning for taking a narrow definition- which is that I think the word “socialism” is so politically charged that we should avoid it in our domestic political discussions whenevver possible and use terms like collectivism for the features of certain social welfare programs that conservatives tend to criticize. I'm sorry if you can't see how that would help the discussion because as I pointed out, the effect of your insistence on applying the term to SS is that you entrap conservatives into saying they accept socialism in one case but demonize it in other cases. I fully agree they should drop the demonization by not using the term, but then your side in good faith should also stop trying to entrap (whether or not that's intentional, it's still the effect and it stifles discussions.)
On hypocrisy and the Dems- not at all. It's quite common that one doesnt' agree with another's opinion but still sees hypocrisy if that person's actions don't comport with his words. Just like when liberals criticize hypocritical social conservatives, it does not at all imply that they agree with the socially conservative opinions.
As to whether or not I agree with those Dems on torture- I've explained my position as fully as I can elsewhere in this thread and others.
Gotta run now.