Thursday, July 15, 2004

Brad DeLong on Jack Balkin on Posner and Vermeule, defenders of the torture memo. I liked DeLong's last paragraphs.
It seems to me that Yoo misses a great many points. The hypothetical he describes--Osama bin Laden himself, a ticking nuclear bomb, a city that cannot be evacuated, et cetera--is not a situation in which torture should be legal. It is, however, a situation in which torture is pardonable. If you find yourself interrogating Osama bin Laden in such a situation, you do what you must do--and then you ask the president for a pardon. And the president has the power to give you one.

That's what the procedure is with respect to torture. And I think that's what the procedure should be.
And this by John Yoo, author of the OLC memo: 
It is easy now for critics to claim that the work was poor; they haven't produced their own analyses or confronted any of the hard questions. For example, would they say that no technique beyond shouted questions could be used to interrogate a high-level terrorist leader, such as Osama bin Laden, who knows of planned attacks on the United States?
To Which Balkin responds: 
Here Professor Yoo shows himself to be the master of the false dichotomy. Either the torture memo is right or Osama gets off scot free. How silly of us to think that there might be a third alternative that doesn't give the President carte blanche to torture and maim. Professor Yoo is certainly right about one thing: It is easy for critics of the torture memo to claim that the work was poor. That's because it is poor work. Yoo has done many fine things in his career. This is not one of them.
I want to add something without overstating it.  Brian Leiter, in his impatience with fools and foolishness, doesn't give enough importance to the formal properties of the legal process as described and defended by Balkin. I have no doubt that Leiter would defend this process, contra the arguments of John Yoo, but the full complexity and weight of the issues seems foreign to him. Why continue with the process when we know Bin Laden is guilty? Why follow a procedure when we know the outcome? Why put up with absurd arguments against evolution?
Our democracy gives time to those who are accused of foolishness for the same reason it gives time to those who are accused of crimes. Leiter et al. sound less like legal philosophers than prosecutors, arguing one side of a case.

More on Abu Ghraib:
Seymour Hersh says the US government has videotapes of boys being sodomized at Abu Ghraib prison in Iraq.
"The worst is the soundtrack of the boys shrieking," the reporter told an ACLU convention last week. Hersh says there was "a massive amount of criminal wrongdoing that was covered up at the highest command out there, and higher." ...
"The disaffecion inside the Pentagon is extremeley accute," Hersh says. He tells the story of an officer telling Rumsfeld how bad things are, and Rummy turning to a ranking general yes-man who reassured him that things are just fine. Says Hersh, "The Secretary of Defense is simply incapable of hearing what he doesn’t want to hear."
The Iraqi insurgency, he says,was operating in 1-to-3 man cells a year ago, now in 10-15 man cells, and despite the harsh questioning, "we still know nothing about them...we have no tactical information.”
Link from Atrios.

WSJ,"A 'Torture' Memo And Its Tortuous Critics"

Posner and Verlmeule's op-ed was pulled so quickly that Balkin had to link to a cache file that died within a year. Now the piece has been republished. There's no telling if it's been cut but I'm betting it hasn't. That's how far we've come. 

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