Certainty About the Law

Avatar

Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

Related Post Roulette

31 Responses

  1. Avatar John Schwenkler
    Ignored
    says:

    Another key point that Sonny’s analysis glosses over is that these things weren’t done on their own: there was a torture program that was approved by those memos, and even if certain of the techniques didn’t amount to torture on their own, taking them in combination – which is exactly what the memos approved – there’s simply no dispute. Hence Philip Zelikow:

    The focus on water-boarding misses the main point of the program.

    Which is that it was a program. Unlike the image of using intense physical coercion as a quick, desperate expedient, the program developed “interrogation plans” to disorient, abuse, dehumanize, and torment individuals over time.

    The plan employed the combined, cumulative use of many techniques of medically-monitored physical coercion. Before getting to water-boarding, the captive had already been stripped naked, shackled to ceiling chains keeping him standing so he cannot fall asleep for extended periods, hosed periodically with cold water, slapped around, jammed into boxes, etc. etc. Sleep deprivation is most important.

    And similarly Gene Healy:

    … Bush administration defenders prefer to describe each technique in isolation, glossing over the fact that it was the relentless combination of such tactics for extended periods that made them rise to the level of torture.

    Does a facial slap amount to torture? Does slamming a guy against a wall? Pouring water over his face? Interrupting his sleep? Even if such things are justifiable on their own, done repeatedly and in combination with one another they can be immensely damaging and indeed downright deadly. That Sonny – whom I, too, respect even as we very often disagree – keeps dancing around this recognition disturbs the shit out of me.Report

  2. Avatar Mark Thompson
    Ignored
    says:

    Indeed, John, indeed. The thing about the waterboarding in particular, though, is that the Bybee memo makes pretty clear waterboarding someone just a handful of times, with nothing else, is a “predicate act” for a finding of torture. On the whole, and as absolutely terrible a piece of legal analysis as it is, the Bybee memo at the very least makes clear that much of what it is authorizing is not an easy question. For supporters of what the memo authorizes to claim with certainty that their opponents are engaging in an unprecedented redefinition of “torture” thus goes far beyond what the very document upon which they rely actually says. And that is regardless of the fact that said document would get a first year associate fired from many a law firm because of how flatly and obvioulsy shoddy it was.Report

  3. Avatar Sonny Bunch
    Ignored
    says:

    Appreciate the kind words, Mark. I wanted to clarify one point on my own thinking about waterboarding. I think that waterboarding falls into a very gray moral/legal category where intent makes all the difference in labeling it “torture” or “not torture.” Waterboarding for hours and hours on end to elicit false confessions and force someone to star in a video where they admit to war crimes and denounce their country? Torture. Waterboarding the guy who planned the murder of 3,000 people (and is trained in counter-interrogation techniques) under very controlled circumstances to elicit actionable intelligence that will aid in the capture of his confederates and disrupt similar plans from coming to fruition? I have a very hard time labeling that torture. I just do. It’s the difference between the Einsatzgruppen putting bullets in Jewish Poles and the United States dropping atomic bombs to cut short a nasty, brutal war. One is genocide and a war crime, plain and simple, while the other is a morally questionable act that is probably justified under the circumstances at the time.Report

  4. Avatar Mark Thompson
    Ignored
    says:

    But the thing is, Sonny – regardless of the moral/utilitarian calculus, the law doesn’t make such distinctions. I’d also add that under the Bybee memo, waterboarding is authorized with the understanding that its “effectiveness” (to the extent it is effective at all) diminishes with every use and with the understanding that it would only be used a handful of times. So even if you accept the Bybee memo as ironclad (and I can’t emphasize enough how weak it is), the program that was instituted went beyond that authorization and to a point where the CIA had even represented that it was unlikely to be effective at all.Report

  5. Avatar Cascadian
    Ignored
    says:

    Haven’t people died in detention in the black sites? Are we really quibling over one technique for one prisoner? There is little reason to believe that apropriate care was taken in who was detained. How many have died from “natural causes” or “suicide”?

    “Probably justified”? That’s pretty slim.Report

  6. Avatar E.D. Kain
    Ignored
    says:

    Then there’s the whole “due process” thing; the whole “innocent until proven guilty” aspect of all of this. Maybe there are different circumstances in war-time. But then we’ve created what amounts to perpetual war. Do the rules change perpetually as well? What are the larger implications of this? Where does this lead?Report

  7. Avatar ChrisWWW
    Ignored
    says:

    E.D. Kain + Sonny Bunch,
    The UN Convention Against Torture, which the US signed onto in 1994, says:
    No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.Report

  8. Avatar Roque Nuevo
    Ignored
    says:

    Thanks for mentioning me here, Mark. In fact, you showed me how difficult it is to speculate about the law for a non-lawyer and therefore made me admit my ignorance.

    Given my ignorance, I’m willing to accept the judgement of the courts on these things and since waterboarding as been ruled as torture (I think), to me, then, it’s torture, no question about it.

    However, I still haven’t seen you address the question of the efficacy of the waterboarding (for example). Former Bush admin officials have said that waterboarding KSM allowed us to thwart further attacks on America. The torture memos were redacted so as to keep the information obtained by using torture a secret. Why?

    I think most people would agree that it’s correct to authorize the selective and safe torture to get critical information, even if it repulses them to think about it.

    You showed me that I can’t argue coherently about the legality of torture but I can accept your argument and still support our use of torture. I say that the president must violate the human rights of enemy combatants when he thinks that we need to so as to keep Americans safe. It’s when he has to do the wrong thing to get the right results. I can’t say he did the right thing, but I can still support him for being there and getting the right results and accepting responsibility for it, good or bad. It’s not a moral choice I’d be capable of making, but I’m not president. This kind of thing is part of the president’s job and I will support him as long as he produces results.Report

  9. Avatar Roque Nuevo
    Ignored
    says:

    ED Kain:

    “The whole due process thing” and the “innocent until proven guilty thing” are about the fourteenth amendment. This applies to US citizens. Obviously. We’re under no obligation to give enemy combatants the rights we have as US citizens and to suggest that we do is just pandering to the grandstand.

    I object to the idea that “we’ve created what amounts to perpetual war.” Perhaps war is perpetual. It certainly seems like it, if we simply glance at history. But we haven’t created the human race and its unquenchable desire for power and resources. As long as we’re a world power, there will be enemies who want what we have and are willing to fight for it. We have to fight back, don’t we?

    The jihadists declared war on us, not the other way around. So how, exactly, have we created this situation? If it were up to us, we’d simply be doing business with whoever wanted to buy and sell–who the Hell cares if they’re Muslim or whatever? Or is doing business with Muslims somehow a provocation? Are we really to blame because they declared war on us? How do you figure that?Report

  10. Avatar Cascadian
    Ignored
    says:

    There may be a time morally where one must sacrifice the queen. However, for the move to be completed the queen must exit the board. Even if torture could be justified in a particular moment, that doesn’t release the participants to their further duty of honor.Report

  11. Avatar Mark Thompson
    Ignored
    says:

    Roque – credit where it’s due. I did appreciate your humility on that issue. My response to that specific question is in the comments to E.D.’s post. Additionally, I’m expecting to have one final post in this general subject area tomorrow morning that I hope will take a vastly different approach from the one everyone (on both sides of the issue) has been taking.Report

  12. Avatar Roque Nuevo
    Ignored
    says:

    Mark: I just hope that your post doesn’t mention anything about losing our souls or honor. These are arguments suitable for political campaigns. One has to appreciate that the president is faced with moral choices that most people are not capable of making. In other words, he might have to lose his “honor” or his “soul” to do his job as he sees it.

    I think any parent should be able to imagine this situation somehow. How many times are we forced to eat sh%t (not “fulfill our duty to honor”) to support our children? Am I alone in thinking that a souless corporation had me by the balls for years only because I couldn’t afford to be unemployed because of my children?Report

  13. Avatar Mark Thompson
    Ignored
    says:

    Roque – I’m not going to give anything away just yet, but I wouldn’t be too worried about that.Report

  14. Avatar E.D. Kain
    Ignored
    says:

    Mark: I just hope that your post doesn’t mention anything about losing our souls or honor.

    These are totally irrelevant and unimportant considerations when discussing the moral problems with torture, of course. Efficacy is the only consideration…right?Report

  15. Avatar ChrisWWW
    Ignored
    says:

    Efficacy is the only consideration…right?

    And even the effectiveness of torture is highly in doubt.

    I’m sure you can get some reliable information from torture. However, I thought as species we decided that morally it wasn’t worth it, and that we actually obtained more consistently reliable information from means that didn’t require destroying a fellow human’s mind and body.Report

  16. Avatar jshubbub
    Ignored
    says:

    However, I thought as species we decided that morally it wasn’t worth it…

    Well, see, the problem is evident right there in your statement. You thought. Remember, Ignorance is Strength.Report

  17. Avatar Pete
    Ignored
    says:

    Here’s where this is going to get dicey, kids. Many on the right are crowing about the Obama Administration official possibly saying that some useful information was collected from waterboarding (although they pointedly leave out the major cavet the same official added at the end), they have exposed themselves to a pretty major vulnerability. Follow me here:

    What exactly would be their response if it is determined that an innocent person was tortured at the direction of the White House? There have been any number of people who have been released from Gitmo who were never even charged with a crime. The same freed prisoners have been telling the Red Cross that they were tortured. So, if there is documentation that someone ordered Prisoner A to be waterboarded, slapped, shackled upside down, etc, if Prisoner A was later released without being charged, then lo and behold we tortured an innocent person. No weaseling around that by saying “but these prisoners are super-villains” or “the information they gave us saved lives”. Nope. No charges filed on people who were tortured = war crime.

    The fact that people are simultaneously arguing that no one should be prosecuted for breaking laws against torture while also saying that we SHOULD torture people is easily the most depressing thing I’ve ever personally witnessed as an American citizen in my lifetime.

    This is the sort of crap that we were always told that the Soviet Union did to people…Report

  18. Avatar ChrisWWW
    Ignored
    says:

    jshubbub,
    My sincerest apologies.Report

  19. Avatar Miles Stuart
    Ignored
    says:

    To Sonny Bunch:

    Waterboarding the guy who planned the murder of 3,000 people (and is trained in counter-interrogation techniques) under very controlled circumstances to elicit actionable intelligence that will aid in the capture of his confederates and disrupt similar plans from coming to fruition? I have a very hard time labeling that torture.

    Torture is not defined by its context. The context may provide a justification for the act but it does not change its nature. If waterboarding John McCain was torture so is waterboarding KSM or anyone else, innocent or guilty.

    To Roque Nuevo:

    I think most people would agree that it’s correct to authorize the selective and safe torture to get critical information, …

    Those who signed the UN Convention Against Torture (quoted by ChrisWWW above) on behalf of the American people clearly did not share your opinion.

    The people who waterboarded JM also believed they were doing to right thing for the greater good. That is why the prohibition is absolute and unconditional.Report

  20. Avatar jshubbub
    Ignored
    says:

    ChrisWWW,

    Your dutiful return to happy ignorance is duly noted.Report

  21. Avatar NDP405
    Ignored
    says:

    Roque Nuevo

    “Mark: I just hope that your post doesn’t mention anything about losing our souls or honor. These are arguments suitable for political campaigns.”

    I just love how you are allowed to dictate the rules of the argument. First of all, you don’t have to leave that out of the argument. And the fact of the matter is, the President is elected to uphold and enforce the laws of the land (enacted by Congress), not recreate them to fit his agenda. Its clear from the way that these memos were written that they were compiled in order to justify a previous or future acts of torture, i.e. not in good faith. Like Mark says, any decent law student can recognize that and most prominent lawyers have distanced themselves from these arguments as patently false in legal terms. So you can argue until you are blue in the face about justifications and the like, but the law doesn’t recongnize Rogue’s justifications or even Bush’s.Report

  22. Avatar Roque Nuevo
    Ignored
    says:

    NDP405:
    I just love how you are allowed to dictate the rules of the argument.
    How can you get from “I hope your post doesn’t mention…” to “dictating rules?” Only by relying on straw men to win arguments. I said the above because it’s getting tedious reading so much moral righteousness. I enjoy Mark’s posts, but if he’s going to be writing the umpteenth “soul and honor” post, then I just won’t be reading it. Which is why I said, “I hope…”

    the fact of the matter is, the President is elected to uphold and enforce the laws of the land (enacted by Congress)

    True, but he’s also elected to be CIC, which means keeping Americans safe. That’s exactly what he did.

    ED Kain:

    I think that the idea that we’re losing our soul by condoning torture is just another wedge issue used by politicians to get votes. For one thing, there is no such thing as a soul, so we can’t ever lose it. But if you mean something like “we’re losing our moral compass,” then it’s just wrong because it’s ahistorical. Do you think we’ll now be judged by god when we die and sent to Hell if we condoned torture? If so, then your opinion is irrelevant to me. Do you think that we’re losing our moral compass? Then, how do you explain the fact that we have condoned less and less of this kind of conduct by our government as time goes by? You yourself mentioned the internment of Japanese Americans. Earlier, Wilson had authorized mass deportations of the Wobblies, jailed people for pacifism, and jailed even more during the Red Scare. Today, he’s known as Meester Idealist, which is probably making a lot of people alive at the time turn over in their graves. I could go on, but the point is that our moral compass is narrowing its bead on the magnetic north of ethical behavior, not the opposite, which would be true if we were “losing our souls.” The very fact that we’re even having this discussion proves my point.

    The larger point is that our moral compass will never run a true bead because we have so many morals. We can’t possibly ever live up to them all since in the real world they come into direct conflict so much. In the case of authorizing torture, the president is torn between his duties of upholding the law and keeping the people safe. That’s the essence of the “ticking bomb” scenario. In Bush’s case, although I know everyone here disagrees, he was not even breaking the law. He was trying to stretch the limits of the law. A legitimate case can be made for his side of the argument, even if you disagree with it.

    Bush’s case might be enhanced if we really knew what information we got by torturing KSM. But we don’t because Obama blacked it out.Report

  23. Avatar jshubbub
    Ignored
    says:

    “For one thing, there is no such thing as a soul, so we can’t ever lose it.”

    Your opinion. You’re entitled to it, but I think you’re committing a fallacy here. This looks like a classic false dilemma to me although you could wedge it into a straw man framework if you wanted to do so. You define the term “soul” within its religious context when you know (or at least you should know) that it has a colloquial context that operates outside of religious thought. In that colloquial context, “soul” means something along the lines of “the essence of what makes us human”. Or, if you prefer, “the essence of what makes us more than mere animals”. In that sense, torture does quite clearly endanger our souls, your protestations notwithstanding.

    “The larger point is that our moral compass will never run a true bead because we have so many morals. We can’t possibly ever live up to them all since in the real world they come into direct conflict so much. In the case of authorizing torture, the president is torn between his duties of upholding the law and keeping the people safe.”

    “Duty” means something like “what is owed” while “moral” means something more along the lines of “a sense of difference between right and wrong”, but you seem to use these terms interchangeably. You state clearly that you believe both upholding the law and protecting the people are duties of the president, and you could mount a substantial argument on that claim. What you seem to be missing, however, is that duties must be performed within a moral context in order for them to be properly executed. Within that framework, subsequent desirable consequences do not legitimize the commission of a wrongful act. The ends, in a more familiar turn, do not justify the means. If it is the position of those within the Bush administration that they openly flouted the law (a wrongful act) in order to potentially save the lives of Americans (a desirable consequence) then it is their subsequent duty to make themselves accountable for the wrongs they have committed. They can answer for their decision to operate outside the law by submitting to the law and accepting whatever consequences may come. To do otherwise is to further violate any sense of morality and to continue compounding wrongful acts with subsequent wrongful acts.

    Your claim that we can never live up to our morals because we have so many of them is an equivocation. Nobody I’ve come across so far in this debate is suggesting that morality is easy, but its difficulty of implementation does not excuse us from working toward perfecting its implementation. Again, my suspicion here is that you are confusing morals with duties.

    “A legitimate case can be made for his side of the argument, even if you disagree with it.”

    A case can be, and has been, made for his side of the argument, and the emerging consensus among independent legal professionals is that it is most certainly not legitimate. Bradbury’s own successor within the Bush administration repudiated that argument and warned those who had been acting according to its conclusions that they could no longer consider themselves indemnified by it. That is damning evidence from a person who was ostensibly on Bush’s side.

    “Bush’s case might be enhanced if we really knew what information we got by torturing KSM. But we don’t because Obama blacked it out.”

    Bush’s case regarding justification for what you admit is torture is irrelevant. U.S. law, as well as at least three treaties ratified by the Senate (I would refer you to Article VI, Section 1 of the U.S. constitution on this point), unequivocally and unconditionally condemn torture in all cases and in all circumstances. It is a crime.Report

  24. Avatar Roque Nuevo
    Ignored
    says:

    jshubbub: Thanks for reading my stuff and for giving me such a thoughtful response. You’re a mensch.

    You’re right that I was being sarcastic in talking about the “soul.” But I thought it meant something like “moral compass,” not “the essence of what makes us human.” Maybe it’s more or less the same thing. My point is that—whether it means what you say or not—Bush’s authorization of torture does not imply that we’re doing anything like that. The reason I say so is that presidents have done worse before Bush and the result is a narrower moral compass or more fidelity to our human essence.

    What I see is that Bush was attempting to stay within the law, while still using what people here are calling torture. Whether these practices are torture or not is a judgment for the courts to make and they have made it in some cases. But Bush’s actions were what brought on that ruling. They hadn’t been ruled as torture before. He didn’t authorize breaking people’s kneecaps. He authorized waterboarding. By now this has been ruled as torture, so that’s why I admit he authorized torture. But at the time, he had a case that it wasn’t.

    Thanks for catching my inconsistencies. I guess I was confusing “duties” with “morals.” However, my above point still stands: the practices authorized by Bush had not been ruled as torture when he authorized them, so he has a legitimate case that he was not openly flouting the law, like you say.

    You say, “subsequent desirable consequences do not legitimize the commission of a wrongful act. The ends, in a more familiar turn, do not justify the means.” Maybe and maybe not. Did the acquisition of California justify a bogus causus belli against the Mexicans? Polk plainly lied to Congress to get his declaration of war and the war caused untold damage to Mexico, not to mention the Americans who died. Would you have voted against the war in 1847? I would have. But then, I would have been wrong since California today would resemble Baja California and San Diego would be just another little shit Mexican town with dead dogs and garbage strewn all over the streets and the people living in ignorance and fear.Report

  25. Avatar jshubbub
    Ignored
    says:

    Roque Nuevo: You are most welcome, and thank you for your kind reply. I’m always eager to have reasonable discussions with anyone who is willing.

    “The reason I say so is that presidents have done worse before Bush and the result is a narrower moral compass or more fidelity to our human essence.”

    You are correct to point out that prior U.S. presidents have done worse things than what Bush is accused of presently. The flaw in your reasoning, however, is to assume that previous extralegal acts–that is, acts outside contemporaneous law and not to be confused with illegal acts which violate contemporaneous law–by those presidents have taken the form of single acts which were later determined to be morally dubious and hence have not been repeated. (Dropping atomic bombs on Japan comes to mind.) In such instances, you can rightly argue that we made errors, learned from them, and subsequently righted our moral compass. Roosevelt’s decision to detain Japanese-Americans is a bit for fuzzy because it was an ongoing event, but detainment is not a moral equivalent to torture no matter how unjust the reasons.

    Which brings me to our most recent former president. Where the Bush administration has deviated from those prior presidential wrongful acts is that it constructed a bureaucratized, centrally-controlled program to carry out actions that had previously been ruled as torture (more on that in a moment) thereby violating the law. Additionally, and more insidiously, the torture which Bush is accused of authorizing arose not simply because of the specific actions interrogators were taking (which can be parsed out individually, without regard to context, as either “torture” or “not torture”) but because of the fact that they were codified into a coherent program that, taken as a whole, constituted torture. That ruling was the result of an ICRC investigation of the treatment of detainees in U.S. custody, and whether we like it or not that ruling carries the force of law in the eyes of the Geneva Conventions. One particularly telling clue of the Bush administration’s consciousness of guilt in these matters is that the OLC memos in question specified that all of the techniques they described should take place in facilities into which the ICRC would not be allowed.

    “But Bush’s actions were what brought on that ruling. They hadn’t been ruled as torture before.”

    Unfortunately, this statement is demonstrably untrue although I make no claim that you are currently aware of that fact. Waterboarding in and of itself was ruled to be torture and a war crime by the U.S. courts, and Japanese officers were hanged for doing it to U.S. military personnel after WWII. That is ample legal precedent to automatically exclude waterboarding as an interrogation technique, and there is no credible means by which to claim ignorance of such a precedent when reviewing applicable case law for the purposes of determining the legality of it. The OLC memos conspicuously omitted that precedent. Having done so, the authors of those memos are likely guilty of professional misconduct as well as criminal negligence or criminal conspiracy.

    One last note, if we take the appropriate steps in response to this situation then we will right the moral compass, as you so aptly put it. That is a testament to American resiliency, but it does not lessen the moral outrage that these wrongful acts represent.

    “Did the acquisition of California justify a bogus causus belli against the Mexicans?”

    No, it did not. Again, the principle is the same regardless of the justification for the wrongful act. The fact that you admit that the public motives of the president were bogus in this case undercuts any moral argument made in support of the cause. The fact that the U.S. has benefited in this case in no way mitigates the wrong.

    Your claim that, had Polk not lied to Congress, started an illegal war, and subsequently brought California into the Union, California would now “resemble Baja California and San Diego would be just another little shit Mexican town with dead dogs and garbage strewn all over the streets and the people living in ignorance and fear”, while rhetorically compelling, is unsupportable speculation. We have no means by which to divine how Mexico would have developed had California remained a part of it. Just as the U.S. benefited greatly for having California in its possession so Mexico may have likewise benefited. If Mexico had won the war it might have become a stronger player on the continent, and the balance of power might have been significantly altered. Those scenarios are also unsupportable speculation. We simply have no way of knowing how history might have unfolded if things had come out differently.Report

  26. Avatar Roque Nuevo
    Ignored
    says:

    jshubbub: Thanks for writing. I learned something. And thanks for saying that my rant about Mexico was “rhetorically compelling.” You’re correct that it’s all speculation but I think it’s well-informed. For example, California was part of Mexico since the beginning and they did absolutely nothing to develop it. In fact, they did nothing to even defend it once the US Army started its march over there. The Mexicans just left their countrymen to hang in there alone. And remember that probably the main reason Polk wanted the Western territories was for the port of San Diego. This had been in Mexican possession and before that a Spanish possession only to remain a backwater. The reason is that Mexico, for the Mexicans, consists of the altiplano. That’s where all the action is and has ever been. If San Diego was treated this way, with its evident importance as one of the world’s greatest natural harbors, then what would the Mexicans have done with Santa Fe and so on? What about Denver, Salt Lake City, Phoenix? Tucson was just a hole in the wall and it undoubtedly would have stayed that way instead of becoming what it is today: a thriving metropolis and a hub of our own drug trade! Just compare Hermosillo. There’s practically no difference in geography or even in population today. But Hermosillo continues to be a hell-hole to live in. The difference is that Tucson is the USA.

    Aside from that, Mexico lost the war because it’s Mexico. They had the stronger army and the stronger military tradition but they lost because of how they acted. For example, Taylor’s army in the north, at the beginning of the war, was utterly defeated by the Mexicans and his soldiers were just waiting to die the following day—since they knew that the Mexicans took no prisoners. Dawn broke to find the Mexicans gone to Mexico City to declare victory and give the general (Santa Ana) a political boost. Again, Scott should never have even gotten close to Mexico City, let alone occupied it, if it weren’t for Mexican idiocy. Generals refused to man their posts so as not to let the other guy get the best position for heroics and in the process let us outflank them. In sum, they would have had to have been a stronger player on the continent way before the war to have made any difference. Instead, they assumed that God and the Virgin had granted them some kind of supremacy and to this day can’t understand how the gringos have bested them, which is why third world dependency theories and even Nazism has such appeal for them. It offers them an excuse.Report

  27. Avatar jshubbub
    Ignored
    says:

    Roque Nuevo: I wouldn’t have characterized your statements as a rant, but I’m pretty selective in my use of that term.

    As to this last post, let me see if I can sum it up: 1) The Mexicans were idiots because they, like the Spanish before them, had not exploited California’s resources advantageously (and don’t get excited about the word “exploited” because I use it neutrally); 2) The Mexicans were idiots because they didn’t properly defend California once the U.S. had declared war; 3) The Mexicans were idiots because, despite the fact that they had superior forces, they failed to crush the American army when they had the chance to do so; 4) All former Mexican possessions now part of the U.S. are substantially better off now than they were at the time we seized them; and, 5) Current Mexican possessions are inferior to current U.S. possessions. Therefore, we were justified to declare war on Mexico in 1847 based on subsequent positive outcomes.

    I’m going to proceed based on the assumption that that is a fair representation of your thesis. Please do tell me if I’ve erred in my analysis.

    That said, you already know the ethical and moral standard by which to judge that argument. Your case is rhetorically strong (you seem to have a natural talent for that), but rhetoric and morality are not the same thing. Rhetoric without a grounding in morality is a dangerous thing. It can lead you to bad places like, for instance, an argument in favor of empire of which your post is a pretty fine example.

    You seem to be a student of history. What does history tell us about empires? They accomplish some good things. (For a superb example of that I would refer you to the excellent scene in “Life of Brian” in which Jewish rebels try to answer the rhetorical question, “What have the Romans ever done for us?”) They also perpetrate some truly horrible things like oppression, persecution, limitation (sometimes elimination) of rights of conquered subjects, extermination of native cultures (sometimes accomplished by exterminating the natives), and the list goes on. One common characteristic of empires is that they view their conquest of new territories as their right–sometimes even as their obligation (see Manifest Destiny). Ultimately, however, the thing that history teaches us about empires is that they all fall. Sometimes they take whole civilizations with them.

    So empire is a messy business. If we wish to avoid the fate of empires then we must not become one, but that assessment misses the point. It’s a rhetorical rebuttal to your case, and your case constitutes the classic logical fallacy known as the red herring. The moral argument remains unaltered. The fact that we gained an advantage due to our decision to go to war with Mexico does not excuse the wrongful act by Polk. By any objective moral measure, he should have been held to account for what he had done, and such a reckoning very likely would have altered the behavior of future presidents. Which leads directly to my point about holding Bush to account for his decision to torture. Doing so will act as a deterrent to future illegal presidential behavior.

    Now, here is my rhetorical case as based in my moral claim. If we truly wish to regain our moral stature in the world–that is, if we wish to become truly morally superior to the enemies we fight–then we must hold accountable those who broke the law. As I said previously, if members of the Bush administration believe that they were justified in breaking the law then let them stand up and say so. Then let them do their rightful duty and suffer the consequences for what they have done.Report

  28. Avatar Roque Nuevo
    Ignored
    says:

    jshubbub:
    1. I can’t believe you’re actually reading my stuff. You must have a lot of better things to do, so… Thanks again!

    2. Your summary of my opinion is only wrong in emphasis at some points and in others you characterize me incorrectly, while in general you are correct. All in all, it was a pretty fair summary—except for your conclusion: “Therefore, we were justified to declare war on Mexico in 1847 based on subsequent positive outcomes.” I’m fully aware that the rest of what you say is true. There was a strong anti-war faction in the Congress at the time and for me it’s significant that JQ Adams (he ended his life as a Representative) voted “no.” I believe that this was his last public act and that he died soon afterward. Adams was the architect of the Monroe Doctrine and so many other of our “empire-building” and national security policies that I imagine that if I had been alive at the time I would have followed his lead. He knew what he was doing. So no, I don’t think our actions then were justified. However, in contrast to European powers at the time, our conduct was still more moral: we never annexed the rest of the country, even though we had conquered it, much like Cortés had before and we paid them for the land—$25 million in gold. It wasn’t so much stealing as it was extortion. I do not justify extortion, although I can understand Polk’s urgency to get the territory because of the geopolitics of the age. I wouldn’t put him on a “truth commission” trial for it because, well… he did what he had to do.

    As for the Mexicans, I’m sorry my rhetoric (thanks again for the compliment!) went way overboard. I do not believe that they were “idiots.” I just believe that they were Mexicans and they were caught up in something a lot bigger than they were (the USA!) and had no way to understand it based on their own history and culture.

    Part of this history and culture explains why the never exploited California: they already had a great port on the Pacific (Acapulco) and a centuries-old trade route to Asia. But like everything else at the time—and even today to a great extent—this port and trade route was someone’s property and that “someone” (in reality groups of people) had paid good money to the government for the ownership rights. Therefore, nobody had any reason to exploit other ports since what we call competition they called treason. Also, I see some validity in Weber’s thesis about the capitalist mentality in Mexico: they were just happy to stay where they were. They lacked the entrepreneurial spirit of Americans. This is part of what I mean when I say they were caught up in something bigger than they were: the industrial revolution/capitalism.

    I don’t really know why they failed to defend California. They had a sea route there. We marched across the worst desert on the continent from Saint Louis without even having any good maps and found San Diego practically undefended. The reasons must have to do with the internal politics of Mexico, where at the same time the war was going on factions were fighting for power in Mexico City.

    As for the military, the Mexicans had a huge army of Indian conscripts and we had a volunteer army of American hicks. American hicks know how to use their heads in a fight and that’s what they did. Indian conscripts didn’t stand a chance, really, especially if you consider the leadership (or lack of it) that they had. Everyone wanted to be the hero and nobody wanted to do the dirty work. A classic case of “too many chiefs…”. That’s just Mexican culture.

    As a side note, the war was the definitive defeat of this social class in Mexico—called the criollos—and the beginning of today’s Mestizo Mexico. Therefore, our conquest of their country had unintended benefits even for them because they got rid of a parasitical social class that had maintained its grip on power through the ages. Plus, they got the $25 million, which they used, of course, to fight their civil wars instead of investing it in something useful.

    I have to make this clear: I don’t think the Mexicans were or are idiots. They did the best they could with what they had but it wasn’t good enough. The smart thing for them to do would have been to bow to destiny like the Japanese did a few years later and adapt their country to superior power and wealth. But that would be too much to expect them because their history is completely different.

    3. Your numbers 4 & 5 are correct. I can’t see how anyone could argue with them, least of all the Mexicans! They’re the ones flooding our borders. If you get a group of ten Mexicans together, a cross section of social classes and regional identities, at least half will say they’d go to the US if they could. That goes double for students, who are mainly well-off. All ten will want to go. Maybe we don’t realize it fully, but America is still the land of opportunity for most of the world, in spite of our torturing a few fanatic Muslims who want to kill us for no reason except their own impotent rage at being left behind by history.

    4. One last point about Mexico: As bad as the Mexican war was, and as bad as our other interventions in their country were (and there have been many), none equals the wanton death and destruction we have unleashed on them in the war on drugs. Beginning with the criminalization of drugs and the idea that they are bad for you, which is an American idea from the beginning, and ending with the police/military power being used to enforce this Puritan morality, Mexico has been bulldozed and extorted by us. Mexico is full of drugs and has been since ancient times. The Aztecs were big drug users, like everyone else. Even today, some Indians out there in the desert will use peyote routinely just to get through the day, which consists of carrying water up the hill and taking their clothes down to the creek to wash them and so forth. They would ask you that if they can find a plant that allows them to enjoy carrying water and beating their clothes against a rock, then what the Hell is wrong with that? They still don’t know that drugs are wrong and that God wants us to be sober 24/7.

    I don’t know if you remember when the drug war began, back in the early ’70s—another of Nixon’s great ideas designed by Gordon Liddy. We wanted Mexico’s cooperation to stem the flow of drugs across the border and they told us to take a walk. Then Liddy came up with “Operation Intercept” which created impossible bottlenecks at the border crossings and with this an unacceptable loss of revenue for the Mexicans. They lasted only a few days under this kind of pressure. The rest is history, as they say. I’m still waiting for the Mexicans to tell us to get off their backs about it, but fat chance!

    5. I really object to your calling the US an “empire.” The only way to justify that is to define the word in a way that it has never been used before. In other words, you’d have to define the word in an ad hoc way so as to fit US foreign policy. That’s not fair! It’s even unconstitutional—the Constitution prohibits bills of attainder and calling the US an empire is a rhetorical bill of attainder!

    6. You say, “If we truly wish to regain our moral stature in the world–that is, if we wish to become truly morally superior to the enemies we fight–then we must hold accountable those who broke the law.” I disagree. For one, our use of torture does not make us equivalent to our enemies, who are much worse. In fact, our enemies hold our moral standards up to ridicule in themselves. They are not Islamic. For another, we do and are holding those who broke the law to account. Even if their punishment is not what you’d demand, it’s an utterly different world from that of our enemies. Even this debate is enough to prove my point: can you seriously imagine this debate happening in any Arab/Islamic country?

    7. I believe that members of the Bush administration have already stood up and defended their practices and justified them. That’s one reason why Cheney is suing to get the blacked-out portions of the torture memos published.

    As for the consequences, I’ll leave that to the lawyers to debate. From what I’ve read so far, this is far from an obvious conclusion. Most people can’t even say with any precision what law was broken, let alone what punishment they deserve. Also, it will be opening a Pandora’s box to prosecute the former administration for their political decisions, let alone the Pandora’s box that would be opened up by a “truth commission.” But for politicians, having their names dragged through the mud like this is punishment in itself (I’m not saying it’s enough punishment). This relatively minor punishment is just light-years more than anything that could ever happen to torturers in the Arab/Islamic world—one reason why the spectacle of the Palestinian doctor challenging Libya at the UN anti “racism” conference had so much impact. If someone had stood up at a UN conference and accused the US of torture, the reaction would have been… ho…hum… so what else is new? You don’t need to be brave, like the Palestinian doctor, to do that! It’s the world’s best parlor game at the moment.

    PS: “The Life of Brian” is probably the funniest movie ever made. I missed three fourths of it because I was laughing so hard. So I had to see it again. And again.Report

  29. Avatar jshubbub
    Ignored
    says:

    Roque Nuevo: Indeed, I do have better things to do, but I find it hard to resist a good conversation. I have so few of them in life.

    “I really object to your calling the US an “empire.””

    Actually, I was quite careful to avoid calling the U.S., as it currently exists, an empire despite the fact that we occasionally act like one. That’s why I said we must not allow ourselves to become an empire. Perhaps I was insufficiently clear on that point. With that in mind, I would point out that a fair and comprehensive accounting of our westward expansion, inasmuch as it treated native peoples as conquered, makes it clear that it was imperial in nature (hence the reference to Manifest Destiny). The fact that we didn’t explicitly call it empire doesn’t change the nature of what we were up to at the time. We were invading and conquering territory and the nations that occupied it, and we attempted to assimilate or exterminate native populations.

    As to the whole discussion of the drug war, you’ll have no disagreement from me on anything you wrote, and I am well aware of Mr. Liddy’s role in the whole thing. It’s a pointless and destructive endeavor that threatens Mexico as a functioning state, and it is quickly becoming unsustainable on a number of levels for us. Prohibition never works. Some people are always going to get high, and there is no compelling case that I’m aware of that refutes that fact. If you can’t beat the thing then you don’t necessarily have to join it, but criminalization clearly does nothing to resolve the issue.

    In regard to America’s moral status in relation to our enemies, it’s likely the case that we are not going to agree on the finer point I’m making when I draw the comparison. I’m not suggesting that the U.S. in its totality is identical to our enemies. What I am saying is that when we willingly and knowingly cross the bright line between right and wrong, and that’s what we did when we chose to torture detainees, we lower ourselves to their level. We sacrifice our standing in the world. The fact that we refined our torture so meticulously and that we were so innovative in our employment of it does not improve our position it worsens it. It indicates close consideration of what we were doing, and, as I’ve pointed out in a previous post, our consciousness of guilt during that consideration was abundantly clear. In that sense, limited though it may be, we are no better than our enemies. The differences are methodical not qualitative.

    You say that most people can’t say which law we broke, but the OLC memos (especially Bradbury’s) discuss repeatedly which part of U.S. law is in question. The punishment for violating that law is clearly laid out in the statute. The fact that most people are ignorant of those details only suggests that they have not read the memos, or, at the very least, have not read them closely enough.

    Additionally, I disagree with the notion that prosecuting former administration officials is an inherently political act, and I certainly disagree that prosecutions (or a truth commission) would open a Pandora’s box of undesirable consequences. Prosecutions in this case are a matter of law. The political game at play here is the notion that we have a choice in whether or not to prosecute. The law is clear, and the Pandora’s box we are in danger of opening in this case is the precedent we set if we allow persons in high political office to violate the law with impunity. If we set such a precedent then we effectively create a separate legal class for those in power, and in a nation of laws, which Obama has increasingly taken to calling us of late, separate legal classes are untenable.

    The fact is that we can salvage our moral standing. That is why I greatly desire to see this matter addressed within the institutions (i.e., the courts) that have served us so well during our history. I don’t expect a perfect resolution here, but I do not believe turning the page and moving on is an option for us without some sort of reckoning.

    This will be my final post on this topic, but I would be happy to read any response you may have. As you point out, other duties call. I’ve enjoyed our exchange and hope we can have another in the future.Report

  30. Avatar Roque Nuevo
    Ignored
    says:

    I’ve enjoyed our exchange and hope we can have another in the future. Same here.Report

Leave a Reply

Your email address will not be published. Required fields are marked *