Friday, March 5, 2010

RedState's incoherent take on the torture memo lawyers

Leon H. Wolf of RedState is a very confused man.

Recently, he criticized liberals for criticizing the Justice Department's treatment of Bush II lawyers who wrote legal memos authorizing the torture of suspected terrorists. The men, John Yoo, Jay Bybee and Steven Bradbury, were accused of exercising poor judgment. This ruling superseded the original judgment of the investigation, which was that the lawyers were guilty of professional misconduct. That judgment could have led to their disbarment or even criminal prosecution. Read more from my sources here and here.

On my view, this ruling is troubling. There is no doubt that the Bush II administration used torture, and torture is illegal. Those responsible for the torture are guilty of war crimes. David Margolis, the man at Justice responsible for this latest judgment, has exonerated the men responsible for the torture memo and thus saw to it that they will not be punished for war crimes. The memos themselves justified the Bush II administration's use of torture, and therefore those in charge of the torture can avoid responsbility for their criminal acts. In the end, everyone involved in these war crimes will not be prosecuted and are therefore in effect above the law. As Scott Horton argues, this is a very serious matter:
Open criminality is a cancer on democracy. It implicates all who know of the conduct and fail to act. Such compliance presents a practical crisis, in that a government that is allowed to torture will inevitably transgress other legal limits. But it also presents an existential political crisis. Many democracies have simply collapsed as the people permitted their leaders to abandon the rule of law in the face of alleged external threats. The turn to torture was rapid, for instance, in Argentina at the time of the Dirty War and in Chile after the American-directed coup against Salvador Allende. In both cases, that turn had little to do with a perceived benefit from the use of torture in interrogation. To the contrary, the very criminality of the act had a talismanic significance. It asserted the primacy of the will of the torturer. It made the claim, for all to accept or reject, that the ruler was the law. Such a claim is, of course, intolerable to democracy, which presupposes, as Thomas Paine wrote, that “the law ought to be King; and there ought to be no other.”
So, what is Wolf's take on this? I'll quote his post at length:
Like a spoiled and petulant child who has tattled on a sibling to Daddy to no effect, angry liberals who are mad that Bush Administration lawyers suggested it was legal to put a terrorist in a box with a caterpillar have decided to try the other parent to see if they get a more satisfactory response. . . . Ever content to parody themselves, outraged liberals offended at our very uncouth treatment of people who plot our national destruction have been busy demanding the heads of current law professor John Yoo and current federal appeals judge Jay Bybee ever since. . . .

Of course, as everyone (most especially the Obama Administration) realizes, this course of action is preposterous and dangerous for the future of our country.
In the first place, . . . it’s preposterous to go on a witch hunt against lawyers for the crime of rendering a legal opinion, simply because that legal opinion proves to be politically unpopular with certain sets of the population. . . .

More to the point, the ridiculous hyperventilation directed at Messrs. Yoo and Bybee by people who haven’t the foggiest clue of these basic principles - and the politically-motivated witch hunt that has followed, will lead inexorably to the practice of defensive (read: bad) law. . . . In a rare exercise of foresight, it appears that someone in the Administration has posed the question, “Say, what’s to prevent people from going after our license if we, say, opine that it’s legal for the EPA to enact cap-and-trade without legislative authorization?”
This, however, is a point that is lost on the bungling left, who seemingly have no guiding star or principle other than being nice to people who want to kill Americans and destroy this country.
One can immediately see that Wolf is going to use whatever fallacious, non-rational means of persuasion are required to convince his readers, who are all too ready to believe what he says anyway and whose intelligence Wolf obviously does not respect. For who is the opposition here? The "bungling left," composed of "spoiled and petulant" children who want only to "[be] nice to people who want to kill Americans." If Wolf's actual arguments are so good, what purpose does the abuse serve? But think about it: how plausible is it that liberals, who are actual Americans, really want to be nice to actual terrorists? Last I heard, they want to convict them in civilian courts and execute them. So the portrayal is not only false; it is ludicrous.

Second, notice that, according to Wolf, the reason why liberals want to go after the torture memo lawyers is that their "legal opinion proves to be politically unpopular with certain sets of the population." This is, of course, false, as Horton makes clear. And, of course, it is also ludicrous.

Third, Wolf argues for the claim that punishing the lawyers will produce bad law. But his argument for this claim is that, if the torture memo lawyers are punished, then other lawyers might also be held responsible for their own actions. But what is wrong with that, exactly? The Bush administration wanted a specific legal opinion for political reasons, and it was the job of the torture memo lawyers to provide it. Holding lawyers accountable for their actions would not only give them additional incentive to do their jobs competently, it would also protect them from politicians would would prey on them. This might not have occurred to Wolf: as I have said before, those on the right have spent so long avoiding responsibility for their actions that by now it is probably second nature for them.

Finally, Wolf mischaracterizes the nature of the torture. He writes that the lawyers said only that "it was legal to put a terrorist in a box with a caterpillar." And this is where Wolf's post is not only false and misleading, it's just freaking incoherent. The justification of torture on the right is that it works, i.e., that it rapidly produces actionable intelligence better than alternative methods—a claim that is almost certainly false, by the way. (Just ask John Kiriakou.) Now, how could torture be so effective if it involves merely putting people in boxes with insects? It couldn't be, of course, so it must involve techniques that actually traumatize its victims. But then the liberal concern about the use of torture seems justified. I would be willing to waterboard Wolf it would help him see the point. But I doubt that he would sign up for it.

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It is wrong always, everywhere, and for anyone, to believe anything upon insufficient evidence. ---W.K. Clifford

Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blind-folded fear. ---Thomas Jefferson