Volokh's sensitive spot on torture

Eugene Volokh thinks Michael Paulsen's testimony on the torture memos is that of "a serious and thoughtful scholar, and his views struck me as worth passing along."

His testimony amounts to a blanket endorsement of the Bybee/Yoo memos' legal correctness and validity, with scarcely any argument as to why that's the case -- "trust me," in so many words. (Tamanaha & commenters tore Paulsen down pretty effectively.)

Those of us who commented at Volokh's post that professors risk making themselves look bad when they praise hacks as "serious and thoughtful scholars" ... got our comments deleted as "sniping," even where we engaged Paulsen on the merits.

As I remarked in probably-deleted-by-now later comments, Volokh's sympathy for torture was noted at Crooked Timber a while back, and makes an ironic counterpoint to that Larison post I quoted this morning:

Perhaps the son or grandson of Russian emigres has a more keen appreciation for the rule of law because his family escaped from the grip of a totalitarian state; he does not take for granted what most of us and our ancestors have always known.

Or, hey, perhaps not.

Waterboarding is torture.

John Conroy tells about Bruce Moore-King, who underwent the Rhodesian army's version of SERE in the early 1970s, part of which was playing the roles of captured guerillas:

... an interrogator began asking him questions about the guerillas' operations. Moore-King, who was still hooded, refused to answer. His interrogators then put a hose to the outside of his hood just at his forehead. Water covered his face.

"You can almost breathe," he recalled. "The bag goes into your mouth and nose and you can suck a bit of air through it, but not enough to keep you going. The feeling of asphyxiation, of drowning, builds up slowly, so it hits you quite hard. The main thing is the fear. I was scared, and deep down inside I knew it was an exercise, but for some guy who doesn't even know if he is going to be killed or shot or whatever, the fear must be tremendous."

Moore-King went on to become a counterinsurgency soldier who himself tortured black Rhodesians, including near-drownings. It does not appear that he was in any doubt whether his own treatment would be torture applied to a real victim.

The question arises whether SERE was not always, on some level, about training torturers, not just training potential victims of torture.

... Regarding the 183 times that KSM was waterboarded, this reminiscence from a Uruguayan torturer about learning his trade is interesting:

The torture equipment consisted of a plank of wood, which the prisoner would be strapped to, and a tub, made from an oil drum, which was filled with water. The plank was attached to the tub with hooks so that when the interrogators lifted the board, the prisoner's head would be submerged.

* * * "[the interrogator] signaled two of the other persons and the put the prisoner's head into the water."

The prisoner was pulled out of the water, allowed to recover his breath, and asked the question again, and then, when he produced no information, he was again submerged. Garcia recalls that the first torture session lasted four to five hours with the whole class taking turns as interrogators or manning the plank. No one obtained any information of significance. * * * Sometimes, [the interrogator] said, people like this one have to go through this several times before they talk.

This "submarino" was "the preferred technique" over electrical shocks for instance, not only by Garcia but by another Uruguayan torturer: "There is something more terrifying than pain, he told me, and that is the inability to breathe."

Larison on Sotomayor

As usual, Daniel Larison looks at the "wise Latina" remarks from a conservative position, not a talking-points position ... and wonders what's "conservative" about Sotomayor's critics:

Horror of horrors, she was expressing pride in her particular identity, much as many conservatives claim they wish they could do more freely with respect to theirs without being called racist or racialist or some other derisive label. What is their solution? To call Sotomayor by a name that they usually regard as a bludgeon unfairly used against them all the time. Not only will this gambit fail in the immediate confirmation battle, but it will ensure that the limits of expression become even more constricting and stifling. This is what I don’t understand: why would conservatives want to make it easier to categorize innocuous statements as racist and/or racialist? There is virtually no social policy debate in which matters of race are not involved to some degree, and many, if not most, conservative social policy views already have to meet a rather exacting standard to avoid such charges. Why make that standard even more demanding and impossible to meet? Why water down the definition of racialist such that it seems to include any and all acknowledgment of the significance of these differences?

Then in the next post, the coup de grace:

If being a part of a certain white ethnic group is something that one is “entitled to celebrate” in a similar way, would we consider it racist for an Armenian or a Russian or German-American to express a similar pride in his heritage and express the hope that it would inform his judgments in such a way that he would be a better judge than someone not from that background? Perhaps the son or grandson of Russian emigres has a more keen appreciation for the rule of law because his family escaped from the grip of a totalitarian state; he does not take for granted what most of us and our ancestors have always known. Perhaps the grandson or great-grandson of German immigrants would be more attentive to the predicament of ethnic communities that are tied in the public’s mind with a foreign enemy in wartime. For that matter, perhaps the descendant of old-line English settlers deeply values the American constitutional heritage because he sees it as being inextricably interwoven with the heritage of his own ancestors, and so his support for the fundamental law has added significance for him. One could come up with other examples, but I think these already make clear that the statement in question-–on which so much of the resistance to Sotomayor seems to be based at this point–-may be many things, but racist is not one of them.

No wonder the smarter conservatives are standing aside and murmuring that the GOP had best let this one go through, and keep its powder dry for another time.

Aristotle on torture

Aristotle favored the use of torture in extracting evidence, speaking of its absolute credibility.

-- John Conroy, Unspeakable Acts, Ordinary People: The Dynamics of Torture, at 27.

... I wish I knew what passage Conroy refers to here; his book is very good on modern torture in modern democracies, but he seems to've accepted some secondary source on faith here. Cf. Aristotle, Rhetoric 1.15:

Examination by torture is one form of evidence, to which great weight is often attached because it is in a sense compulsory. Here again it is not hard to point out the available grounds for magnifying its value, if it happens to tell in our favour, and arguing that it is the only form of evidence that is infallible; or, on the other hand, for refuting it if it tells against us and for our opponent, when we may say what is true of torture of every kind alike, that people under its compulsion tell lies quite as often as they tell the truth, sometimes persistently refusing to tell the truth, sometimes recklessly making a false charge in order to be let off sooner. We ought to be able to quote cases, familiar to the judges, in which this sort of thing has actually happened.

The fact that he dwells on the arguments against torture's credibility, suggests to me that the opposite case could be assumed to be familiar to his reader. Then as now.

A passage in the Constitution of Athens does not suggest that torture is terribly reliable:

Aristogeiton was arrested, and perished later after suffering long tortures. While under the torture he accused many persons who belonged by birth to the most distinguished families and were also personal friends of the tyrants. At first the government could find no clue to the conspiracy * * *. According to the story of the popular party, Aristogeiton accused the friends of the tyrants with the deliberate intention that the latter might commit an impious act, and at the same time weaken themselves, by putting to death innocent men who were their own friends; others say that he told no falsehood, but was betraying the actual accomplices. At last, when for all his efforts he could not obtain release by death, he promised to give further information against a number of other persons; and, having induced Hippias to give him his hand to confirm his word, as soon as he had hold of it he reviled him for giving his hand to the murderer of his brother, till Hippias, in a frenzy of rage, lost control of himself and snatched out his dagger and dispatched him.

I google up some references suggesting that slaves and barbarians, lacking reason, are childlike and simply tell the truth under torture, rather than lie. Where this may be found in his works, and what it implies about "reason," I cannot say.

... Conroy cites Edward Peters' book Torture, pp. 13-14, but looking at those pages via Amazon, I don't find that they support his "favoring" torture or giving it "absolute credibility." Conroy is either misremembering his source or is simply mistaken.

In favor of whiteness

The same set of dumbasses who thought it was funny that Obama suggested keeping our tires inflated, now think it's funny that our Energy Secretary suggests painting our roofs white:

British reporters (and Matt Drudge) have been having gentle fun with Energy Secretary Steven Chu's recent remarks that we should paint our roofs white to slow the pace of global warming. But Chu's totally right! The science on this is clear: Replacing black asphalt on roofs, parking lots, and sidewalks with brighter material would reflect more of the sun's rays and do quite a bit to cool the planet. See these two old Vine posts for more.

To give an easy example, just refitting the 30 billion or so square feet of commercial roof space in the United States would be the equivalent of taking roughly 75 million cars off the road for a year. And, as a bonus, buildings with white roofs tend to stay 30 percent cooler than their black-topped counterparts during the summer, which curtails energy use.

Well, duh. I grew up (partway) in Miami, and in my neighborhood, *all* the houses had white roofs.

Biblical diplomacy

This seemed like such a surefire diplomatic maneuver with the French: an appeal to Scripture, as interpreted by Hal Lindsey!

In 2003 while lobbying leaders to put together the Coalition of the Willing, President Bush spoke to France’s President Jacques Chirac. Bush wove a story about how the Biblical creatures Gog and Magog were at work in the Middle East and how they must be defeated.

In Genesis and Ezekiel Gog and Magog are forces of the Apocalypse who are prophesied to come out of the north and destroy Israel unless stopped. The Book of Revelation took up the Old Testament prophecy:

“And when the thousand years are expired, Satan shall be loosed out of his prison, And shall go out to deceive the nations which are in the four quarters of the earth, Gog and Magog, to gather them together to battle … and fire came down from God out of heaven, and devoured them.”

Bush believed the time had now come for that battle, telling Chirac:

“This confrontation is willed by God, who wants to use this conflict to erase his people’s enemies before a New Age begins”.

The story of the conversation emerged only because the Elysée Palace, baffled by Bush’s words, sought advice from Thomas Römer, a professor of theology at the University of Lausanne. Four years later, Römer gave an account in the September 2007 issue of the university’s review, Allez savoir!. The article apparently went unnoticed, although it was referred to in a French newspaper.

The story has now been confirmed by Chirac himself in a new book, published in France in March, by journalist Jean Claude Maurice. Chirac is said to have been stupefied and disturbed by Bush’s invocation of Biblical prophesy to justify the war in Iraq and “wondered how someone could be so superficial and fanatical in their beliefs”.

Wonder what "Gog and Magog" are in French? Perhaps that was the stumbling-block.

... Meanwhile, events of Biblical proportions may unfold in Korea:

The U.S. and South Korea put their military forces on high alert Thursday after North Korea renounced the truce keeping the peace between the two Koreas since 1953.

The North also accused the U.S. of preparing to attack the isolated communist country in the wake of its second nuclear bomb test, and warned it would retaliate to any hostility with "merciless" and dangerous ferocity.

Seoul moved a 3,500-ton destroyer into waters near the Koreas' disputed western maritime border while smaller, high-speed vessels were keeping guard at the front line, South Korean news reports said. The defense ministry said the U.S. and South Korean militaries would increase surveillance activities.

Pyongyang, meanwhile, positioned artillery guns along the west coast on its side of the border, the Yonhap news agency said. The Joint Chiefs of Staffs in Seoul refused to confirm the reports.

Perhaps Bush's translation was in error, and the forces coming up out of the north are going to destroy Seoul? Curse these modern translations!

Bloggone?

No, but I've been lost in the workzone, exploring the paradoxical depths of Miss. Code Ann. 15-1-36. (No link provided, because you really don't want to read it.)

Weird stuff around the internets:

(1) Fill in the blank on the lawyer filing a federal appeal of the California Supreme Court's Prop 8 decision:

“For a long time I’ve personally felt that we are doing a grave injustice for people throughout this country by denying equality to gay and lesbian individuals,” _____ said in an interview with The Advocate. “The individuals that we represent and will be representing in this case feel they’re being denied their rights. And they’re entitled to have a court vindicate those rights.”

Your first guess was Ted Olson, right? Bullshit it was. And yet ... that's the answer.

When pressed about his service with the Bush administration, which in 2004 endorsed an amendment to the U.S. constitution that would prohibit same-sex marriage, Olson said he was personally against the amendment at the time, though he made no public statements on the matter.

As for the timing of the suit, Olson said that recent decisions by the U.S. Supreme Court “make it clear that individuals are entitled to be treated equally under the Constitution. I’m reasonably confident that this is the right time for these [injustices] to be vindicated.”

I look forward to Regnery Press's publishing his vindication of gay marriage.

(2) Who says that Sonia Sotomayor's legal qualifications are dubious? John Yoo. "Undistinguished," he says. I can't wait to see what OPR says about him. But a torturer's opposition to "empathy" is understandable.

(3) The Mississippi Court of Appeals has six judges who cannot understand the difference between "may" and "shall." Only law junkies need click through; the rest of you should just write to the Barksdale Reading Institute, asking them to provide emergency literacy assistance to the court.

(4) Torture in the news: While the OLC memos were pending, to whom did CIA turn for legal authority to torture Zubaydah? Gonzo. Not their own general counsel, Rizzo; not the AG; but the White House Counsel. In a country dedicated to the proposition that all men are created equal, and thus equally bound by the rule of law, that would merit its own paragraph in an indictment. In America, probably not. We can't punish past crimes, because that would be looking backwards, and Obama is all about hope for the future.

Reality-based conservatives

Via Yglesias (really Chait, but Yglesias provides a working link), we see that a Chicago talk-radio host scoffed so much at waterboarding, he decided to undergo it himself.

Whoops.

"I want to find out if it's torture," Mancow told his listeners Friday morning, adding that he hoped his on-air test would help prove that waterboarding did not, in fact, constitute torture. * * *

With a Chicago Fire Department paramedic on hand, Mancow was placed on a 7-foot long table, his legs were elevated, and his feet were tied up.

Turns out the stunt wasn't so funny. Witnesses said Muller thrashed on the table, and even instantly threw the toy cow he was holding as his emergency tool to signify when he wanted the experiment to stop. He only lasted 6 or 7 seconds.

"It is way worse than I thought it would be, and that's no joke," Mancow said, likening it to a time when he nearly drowned as a child. "It is such an odd feeling to have water poured down your nose with your head back...It was instantaneous...and I don't want to say this: absolutely torture."

"I wanted to prove it wasn't torture," Mancow said. "They cut off our heads, we put water on their face...I got voted to do this but I really thought 'I'm going to laugh this off.' "

Of course, the real problem is the number of Americans who think that torturing (suspected) terrorists is okay. But I do love the toy-cow part.

Better luck next time

Yahoo News -- excuse me, Yahoo! News -- advises me:

"Wash. state has first death under new suicide law."

It was not, however, my ex-girlfriend.

I'll just have to enjoy my weekend some other way, it appears.

Einstein on atheism and determinism

What separates me from most so-called atheists is a feeling of utter humility toward the unattainable secrets of the harmony of the cosmos. * * *

The fanatical atheists are like slaves who are still feeling the weight of their chains which they have thrown off after hard struggle. They are creatures who -- in their grudge against traditional religion as the "opium of the masses" -- cannot hear the music of the spheres.

-- Einstein, as quoted by Walter Isaacson. (I've mashed two sources together.)

The allusion to Nietzschean ressentiment is provocative.

But I do wonder about Einstein on determinism:

Einstein, on the other hand, believed--as did Spinoza--that a person's actions were just as determined as that of a billiard ball, planet or star. "Human beings in their thinking, feeling and acting are not free but are as causally bound as the stars in their motions," Einstein declared in a statement to a Spinoza Society in 1932. It was a concept he drew also from his reading of Schopenhauer. "Everybody acts not only under external compulsion but also in accordance with inner necessity," he wrote in his famous credo. "Schopenhauer's saying, 'A man can do as he wills, but not will as he wills,' has been a real inspiration to me since my youth; it has been a continual consolation in the face of life's hardships, my own and others', and an unfailing wellspring of tolerance."

Considering some of the rather harsh behavior he showed regarding his first wife and child, one can see where determinism would be a consolation to Einstein. Which doesn't make determinism wrong, of course; one would have to be a deep cynic to find that everything which consoles is therefore false.

More fact-checking on "Nixonland"

I've been plowing through Rick Perlstein's Nixonland, a chronicle of the liberal collapse in the 1960s and the triumph and downfall of Nixon. I use the word "chronicle" advisedly; the structure of the book is "one damn thing after another," and while some of the author's theses are evident -- liberals too cloistered to know what was coming, the fundamental racism behind the "Middle American" backlash -- it's a bit short on analysis, at least by page 462 of 748. But the sheer detail and weirdness of the coverage makes the book worth reading, especially for those of us who weren't around at the time (or were more interested in when the next bottle of formula was coming).

George Will's review got some attention, and flak, for pointing out some careless errors of fact in a book teeming with facts. I think that's an inevitable result in publishing a history book today -- finding anyone to proofread, let alone fact-check, such a book, is apparently out of the question in today's budget-conscious publishing world. And no author is perfect.

That said, I seem to've found a couple more errors, where my own interests intersect areas outside Perlstein's expertise. Dien Bien Phu was "the first military loss for a European colonial power in three hundred years" (p. 100). This would have surprised the ghosts of the Italian dead at Adowa, March 1, 1896.

More amusingly, at p. 462, Perlstein describes Nixon's "favorite young dirty trickster," Tom Charles Huston, whom "Mark Felt of the FBI described ... as the White House gauletier -- a French word for the chief official of a district under Nazi control." This is sourced to a Bob Woodward article on "How Mark Felt Became Deep Throat," where we find:

Felt, a much more learned man than most realized, later wrote that he considered Huston "a kind of White House gauleiter over the intelligence community." The word "gauleiter" is not in most dictionaries, but in the four-inch-thick Webster's Encyclopedic Unabridged Dictionary of the English Language it is defined as "the leader or chief official of a political district under Nazi control."

The word is not obscure to anyone who reads about Nazi Germany; the gauleiters were the chiefs of the Nazi Party in their appointed "districts" or gau. But it's certainly not a "French word," and while the French may perhaps have come up with "gauletier" as their pronunciation of gauleiter, the Woodward quote has nothing about any Frenchification of the German word; that seems to've been invented by Perlstein, perhaps to explain a misspelling of the German. The Felt quote is stronger than Perlstein suggests, since a gauleiter wasn't just a German official, but a high Nazi functionary -- and indeed, Woodward goes on to say, "There is little doubt Felt thought the Nixon team were Nazis." Perlstein slightly deflects Felt's jab at Huston.

Trivial errors, but as always, when one sees mistakes in areas one knows about, one becomes mistrustful of alleged facts regarding the areas one doesn't know about.

UPDATE: Elevated from comments, NMissCommentor points out other conspicuous colonial failures:

Does he mean only loss in a battle or an entire war? The British lost their entire army (and the war) in the First Afghanistan War in the 1840s. Famously, only one British soldier returned from the massacre of thousands. The opening battle of the Zulu War (Isandlwana) was a pretty serious debacle won triumphantly by the Zulus (although they didn't win thereafter).

"Military loss" seems to include losing a battle. I'm annoyed I didn't think about the First Afghan War, since I just read Flashman a few weeks back; the description of the bungling in Kabul sounds eerily like our early occupation of Baghdad, except our military superiority was too great for us to suffer our own retreat from Kabul. (Though I do recall that for a while, some military types were very nervous about the fragility of our supply lines.)

... Anyway, that's three glaring exceptions for Perlstein. I've actually taken a break from his book, tho not because of the fact-checking; America in the early 1970s is just a very depressing place to be.

Bush smarter than previously suspected

It turns out that Bush's reaction to the TV coverage of Katrina's aftermath in NOLA was a lot like yours and mine:

After the president had returned to the White House, he eventually convened a meeting in the Situation Room to discuss the government's response. Bush barked, "Rumsfeld, what the hell is going on there? Are you watching what's on television? Is that the United States of America or some Third World nation I'm watching? What the hell are you doing?"

That was the time to fire Rummy, if not earlier.

(From a Wash Monthly post on what appears to be a bitchin' GQ article by Robert Draper on just how bad a SecDef Rumsfeld was.)

We did not torture a confession out of them.

The allegations that Cheney directed torture be used to obtain "proof" of Iraq-Qaeda ties, while hardly proven themselves yet, have generated a little anonymous pushback:

Senior intelligence officials yesterday acknowledged that two al-Qaeda operatives, Abu Zubaida and Khalid Sheik Mohammed, had been questioned about alleged links between al-Qaeda and Iraq when the two men underwent CIA interrogation in 2002 and 2003. But the officials denied that the questioning on Iraq had included waterboarding.

"The two top priorities driving so-called enhanced interrogation techniques were information on the locations of al-Qaeda leadership and plots against the United States," one intelligence official said yesterday, speaking on the condition of anonymity because he was not authorized to discuss the subject publicly. "Questions were asked about Iraq, but the notion that waterboarding was used to extract from either an admission that Iraq and al-Qaeda had a relationship is false, period," he added.

Emptywheel parses this and finds it omits a good bit:

Note, these two senior intelligence officials did not deny that Ibn Sheikh al-Libi was waterboarded to elicit a claim of an Iraqi-al Qaeda tie. They do not deny that Dick Cheney's office pitched waterboarding an Iraqi to get such a claim. They do not deny that the non-briefing of Congress on torture was part of a plan to hide the torture which might undermine the accuracy of Abu Zubaydah's claim of such a tie (note, KSM apparently never claimed there was a tie). And they do not deny that harsh methods were used by DOD to elicit such claims. In fact, they don't even deny that torture (but not waterboarding) was used in interrogations when KSM and AZ were asked about Al Qaeda ties with Iraq.

So the denial here falls short of even denying that the Administration used--and threatened to use--torture to trump up ties between al Qaeda and Iraq.

But can't we go even farther than that? Look at my two bolded portions in the first blockquote. The reporter denies that waterboarding was used in such questioning. But that's not what the source's quoted words say. The source says that "waterboarding was [not] used to extract ... an admission."

If neither KSM nor Zubaydah admitted any such thing under waterboarding, despite being asked to do so, then isn't the source's statement still literally true?

I tend to think these "anonymous" quotes are carefully worded in advance, so we may not be pushing too hard here. And of course, there's the issue how these sources even have a basis for their statement. Were they present? How do they know?

... And, as this article (via Yglesias) points out, Cheney at the time certainly acted like someone receiving reports of Iraq-Qaeda links from our torture centers:

Then-Vice President Dick Cheney, defending the invasion of Iraq, asserted in 2004 that detainees interrogated at the Guantanamo Bay prison camp had revealed that Iraq had trained al Qaida operatives in chemical and biological warfare, an assertion that wasn't true.

Cheney's 2004 comments to the now-defunct Rocky Mountain News were largely overlooked at the time. However, they appear to substantiate recent reports that interrogators at Guantanamo and other prison camps were ordered to find evidence of alleged cooperation between al Qaida and the late Iraqi dictator Saddam Hussein — despite CIA reports that there were only sporadic, insignificant contacts between the militant Islamic group and the secular Iraqi dictatorship.

The head of the Criminal Investigation Task Force at Guantanamo from 2002-2005 confirmed to McClatchy that in late 2002 and early 2003, intelligence officials were tasked to find, among other things, Iraq-al Qaida ties, which were a central pillar of the Bush administration's case for its March 2003 invasion of Iraq.

"I'm aware of the fact that in late 2002, early 2003, that (the alleged al Qaida-Iraq link) was an interest on the intelligence side," said retired Army Lt. Col. Brittain Mallow, a former military criminal investigator. "That was something they were tasked to look at."

He said he was unaware of the origins of the directive, but a former senior U.S. intelligence official has told McClatchy that Cheney's and former Defense Secretary Donald H. Rumsfeld's offices were demanding that information in 2002 and 2003. The official, who wasn't authorized to speak publicly on the matter, requested anonymity.

During the same period, two alleged senior al Qaida operatives in CIA custody were waterboarded repeatedly — Abu Zubaydah at least 83 times and Khalid Sheik Mohammed at least 183 times.

A 2004 Senate Intelligence Committee report said that the two were questioned about the relationship between al Qaida and Iraq, and that both denied knowing of one. * * *

The Rocky Mountain News asked Cheney in a Jan. 9, 2004, interview if he stood by his claims that Saddam's regime had maintained a "relationship" with al Qaida, raising the danger that Iraq might give the group chemical, biological or nuclear weapons to attack the U.S.

"Absolutely. Absolutely," Cheney replied. * * *

"The (al Qaida-Iraq) links go back," he said. "We know for example from interrogating detainees in Guantanamo that al Qaida sent individuals to Baghdad to be trained in C.W. and B.W. technology, chemical and biological weapons technology. These are all matters that are there for anybody who wants to look at it."

No evidence of such training or of any operational links between Iraq and al Qaida has ever been found, according to several official inquiries.

As the article goes on to note, al-Libi provided similar "testimony" under torture, but of course he wasn't at Gitmo. IIRC, the black sites were not being admitted yet; maybe Cheney said "Guantanamo" deliberately.

And as a commenter at the Emptywheel post above noted: are we supposed to believe that, on this supremely interesting issue, KSM was gently asked over a cup of tea whether Qaeda had links to Saddam, responded with a categorical denial, and the CIA said, "well, that answers my question -- thanks"? And then went back to torturing KSM to extract god knows what other TOTALLY UNRELATED information?

Too close to home

Andrew Sullivan has been all over our new commander in Afghanistan, Gen. McChrystal, and his unit's past complicity in torture in Iraq. Pretty creepy.

Which adds a new rationale to Obama's reluctance to investigate American torture: an inquiry may rebound on people he considers useful or necessary.

Our tortured justification for war

Not only does it seem that Cheney directed torture to "prove" an Iraq-Qaeda link as justification for the 2003 war ... it now seems that he was still eager to use torture after the occupation, in order to retroactively justify the war.

At the end of April 2003, not long after the fall of Baghdad, U.S. forces captured an Iraqi who Bush White House officials suspected might provide information of a relationship between al Qaeda and Saddam Hussein’s regime. Muhammed Khudayr al-Dulaymi was the head of the M-14 section of Mukhabarat, one of Saddam’s secret police organizations. His responsibilities included chemical weapons and contacts with terrorist groups. * * *

[WMD inspector Charles] Duelfer says he heard from “some in Washington at very senior levels (not in the CIA),” who thought Khudayr’s interrogation had been “too gentle” and suggested another route, one that they believed has proven effective elsewhere. “They asked if enhanced measures, such as waterboarding, should be used,” Duelfer writes. “The executive authorities addressing those measures made clear that such techniques could legally be applied only to terrorism cases, and our debriefings were not as yet terrorism-related. The debriefings were just debriefings, even for this creature.”

Duelfer will not disclose who in Washington had proposed the use of waterboarding, saying only: “The language I can use is what has been cleared.” In fact, two senior U.S. intelligence officials at the time tell The Daily Beast that the suggestion to waterboard came from the Office of Vice President Cheney. Cheney, of course, has vehemently defended waterboarding and other harsh techniques, insisting they elicited valuable intelligence and saved lives. He has also asked that several memoranda be declassified to prove his case. * * *

Without admitting where the suggestion came from, Duelfer revealed that he considered it reprehensible and understood the rationale as political--and ultimately counterproductive to the overall mission of the Iraq Survey Group, which was assigned the mission of finding Saddam Hussein’s WMD after the invasion.

Emptywheel notes the story and cautions against uncritical reading of another portion, implying that the 9/11 Commission relied heavily on torture-obtained intel from KSM. But she passes over the foregoing part.

Meanwhile, Colin Powell's ex-aide Col. Wilkerson claims that

what I have learned is that as the administration authorized harsh interrogation in April and May of 2002--well before the Justice Department had rendered any legal opinion--its principal priority for intelligence was not aimed at pre-empting another terrorist attack on the U.S. but discovering a smoking gun linking Iraq and al-Qa'ida.

So furious was this effort that on one particular detainee, even when the interrogation team had reported to Cheney's office that their detainee "was compliant" (meaning the team recommended no more torture), the VP's office ordered them to continue the enhanced methods. The detainee had not revealed any al-Qa'ida-Baghdad contacts yet. This ceased only after Ibn al-Shaykh al-Libi, under waterboarding in Egypt, "revealed" such contacts. Of course later we learned that al-Libi revealed these contacts only to get the torture to stop.

If any of this is true, it seems astonishing that Cheney would not shut his mouth, rather than provoke such revelations and investigations. But perhaps he thinks that playing the partisanship card is the only way to keep an investigation from happening.

Increasingly, Cheney reminds me of this:

This officer in Intelligence, who had open access to Hitler, is reported to have given the Führer once again an urgent account of the atrocities and consequences of such methods, whereupon the Führer is said to have replied, "You're getting soft, sir! I have to do it, because after me no one else will!"

(Quoted in Gerald Fleming, Hitler and the Final Solution, at 85.)

Obama: worse than the criminals?

Too damn busy yesterday and today -- sure am glad there's so much internet out there for y'all to look at.

I will however pause for this from Andrew Sullivan:

Those of us who held out hope that the Obama administration would not be actively covering up the brutal torture of a Gitmo prisoner who was subject to abuse in several countries must now concede the obvious.

Yes, I'm afraid we must.

If the cover-up is always worse than the crime, where does that leave Obama?

A scrap of paper, no doubt

Andrew Sullivan catches a lovely slip on the ever-vociferous Cheney's part. Cheney in interview, May 10, 2009:

Now, if you'd look at it from the perspective of a senior government official, somebody like myself, who stood up and took the oath of office on January 20th of ‘01 and raised their right hand and said we're going to protect and defend the United States against all enemies foreign and domestic, this was exactly, exactly what was needed to do it.

Actual oath:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

And in that distinction, really, lies the root of all evil over the past 8 years.

On turning 40

When one is young, one venerates and despises without that art of nuances which constitutes the best gain in life, and it is only fair that one has to pay dearly for having assaulted men and things in this manner with Yes and No. Everything is arranged so that the worst of tastes, the taste for the unconditional, should be cruelly fooled and abused until a man learns to put a little art into his feelings and rather to risk trying even what is artificial ... as the real artists of life do.

The wrathful and reverent attitudes characteristic of youth do not seem to permit themselves any rest until they have forged men and things in such a way that these attitudes may be vented on them ... after all, youth in itself has something of forgery and deception. Later, when the young soul, tortured by all kinds of disappointments, finally turns suspiciously against itself, still hot and wild, even in its suspicion and pangs of conscience ... how wroth it is with itself now! how it tears itself to pieces, impatiently! how it takes revenge for its long self-delusion, just as if it had been a deliberate blindness! In this transition one punishes one's own enthusiasm with doubts; indeed, one experiences even a good conscience as a danger, as if it were a way of wrapping oneself in veils and the exhaustion of subtler honesty ... and above all one takes sides, takes sides on principle, against "youth."

... Ten years later one comprehends that all this, too ... was still youth.

-- Nietzsche, Beyond Good and Evil, section 31

(Kaufmann tr., w/ his substitution of dashes for N's ellipsis marks corrected).

In a hole near Java there lived a hobbit.

But I fear it may well have been a nasty, dirty, wet hole.

Study of Homo floriensis's foot indicates that it is indeed a distinct species which split off well before Homo erectus. Comparison with the brains of dwarf hippos also suggests that the "hobbit" brain's being 1/3 that of a modern brain is consistent with "insular dwarfism" and need not be attributed to some genetic disorder.

No explananation why that's true of brain size, but I would guess that with an isolated environment and, presumably, no serious enemies, floriensis didn't need much brain. Gray matter is metabolically expensive, and if it didn't have much selection value, then there was little need for it.

... Speaking of hobbits, Jim alerts us to the latest effort to publish everything Tolkien ever wrote, this time a verse reconstruction of the missing core of the Völsung saga. The TLS review is horribly pedantic, written by Tom Shippey, a Tolkien scholar who bends over backwards to remind us what a really smart, literary guy JRRT was. Strangely, Shippey omits to mention that Tolkien's later reworking of the tale formed a part of The Silmarillion.

Some torture with your coffee this morning?

Real life looks pretty pressing today, but here's some torture-lawyer news:

(1) Murray Waas has some inside chatter about the OPR memo on Yoo and Bybee.

Central to the OPR investigation, according to two attorneys involved, has been whether the three administration lawyers engaged in only crafting deficient legal opinions, or whether the they purposely and improperly skewed their advisory opinions to provide a legal rationale for Bush administration policies.

"Intent is everything," said a Justice Department official who was involved in overseeing the probe. "What their mindset was, whether they were writing legal opinions tailored to meet the desires of their client -- that is key to whether this was just shoddy legal work or them not meeting their professional obligations." * * *

In attempting to discern the attorneys' motives, investigators have reviewed emails traded between the three men as they drafted the legal controversial legal opinions, as well as emails between the three OLC attorneys and other Bush administration attorneys, according to sources close to the case.

Additionally, the investigators closely tracked drafts of the four legal opinions until they reached final form.

In some instances, the drafts changed progressively over time to afford those who wanted to engage in aggressive interrogation techniques additional legal cover, according to people who have read the draft OPR report.

One source indicated that at least two of the earlier drafts were "equivocal" and "nuanced" -- but noted over time they became "more advocative" of the views of then-Vice President Dick Cheney and others in the Bush administration that aggressive interrogation techniques were necessary to prevent new terror attacks.

That sounds like grist for a criminal investigation to me, but what do I know?

(2) Via Adler @ VC, a report that Yoo may be off the hook for any bar discipline, because the PA Bar has a 4-year statute of limitations on complaints. Even if they have a discovery rule, that would seem to hinder a complaint based on the memo leaked in May 2004; but what about last month's memo? (Also, I recall that someone *did* file a complaint vs. Yoo on the earlier memo, and the Bar's response was "wait and see what OPR does" -- would that toll the matter?)

(3) The leader of the Southern Baptist Convention's "ethics and public policy office" (who knew?) has gotten around to deciding that torture is just plain wrong. Unfortunately, he does this in typical Baptist fashion:

[Richard] Land, president of the SBC's Ethics & Religious Liberty Commission, said there is no circumstance in which torture should be permissible in interrogations by U.S. officials, even if the authorities believe a prisoner has information that might involve national security.

"I don't agree with the belief that we should use any means necessary to extract information," said Land. "I believe there are absolutes. There are things we must never do under any circumstances.

"For me the ultimate test is: Could I, in good conscience, do whatever I am authorizing or condoning others to do? If not, then I must oppose the action. If I could not waterboard someone--and I couldn't--then I must oppose its practice."

IOW, look inside your heart and decide what's right. Great. I expect Mr. Land will hear from a great many of his codenominationalists, who will explain that they too have searched their hearts, and would like to sign up for the next CIA waterboarding team at the Torture Olympics.

Dawn Johnsen, is that really Yoo?

Eric Rasmusen finds a 1997 memo by Dawn Johnsen, then at OLC, which could be mistaken for an early work by John Yoo. He gleefully quotes comparable passages; click his name if you want to see that.

The topic, admittedly, is not torture or war powers, but whether the President is subject to credit-reporting laws that would ordinarily require a potential employer to advise rejected applicants if their credit reports played a role in nixing them. Does this statute apply to the President's executive-branch nominees and employees?

Nay, writes Johnsen. We are told,

the constitutional principle of separation of powers assures a division of power among the federal government's three coordinate branches. The clear statement rule "exists in order to protect 'th[is] usual constitutional balance' of power." Id. (citing Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991)).

The "id." cite is to a previous memo by Walter Dellinger, so apparently that memo cited Gregory. If you look at the Gregory cite, however, you get a discussion of the separation b/t federal and state powers, not a discussion of the separation of the federal powers themselves. It's not immediately clear to me that these are interchangeable doctrines, and the distinction certainly should at least have been noted in a parenthetical.

Not much better is this part:

It is a well settled principle of law, applied frequently by both the Supreme Court and the executive branch, that statutes that do not expressly apply to the President must be construed as not applying to him if such application would involve a possible conflict with his constitutional prerogatives. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992).

Going to Franklin, we do find this:

We would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed for abuse of discretion.

However, the Court's next-but-one sentence is this:

Although the President's actions may still be reviewed for constitutionality, see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952); Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935), we hold that they are not reviewable for abuse of discretion under the APA, see Armstrong v. Bush, 288 U.S.App.D.C. 38, 45, 924 F.2d 282, 289 (1991).

That is a pretty big "although" to completely omit mentioning.

Note that the Armstrong case merely held that, where Congress applied the Administrative Procedures Act to "each authority of the federal government," it meant to encompass agencies; "the President is not an 'agency.' " Hard to argue there.

Of course, the fact that Ms. Johnsen wrote a lousy memo does not exculpate anyone else, though it is something I would ask her about, were I a member of the appropriate Senate committee. And having found this memo, I would set some staffers to pulling up a great many more of her memos, checking cites.

(I wonder if Yoo and Bybee could plead as a defense that OLC *routinely* rubber-stamped whatever the White House wanted done?)

... The Dellinger memo plays a bit fast and loose as well, I think. Here's the passage citing Gregory that Johnsen quotes:

Thus, the Constitution divides power between the federal and the state governments as well as among the federal government's three coordinate and independent branches. See Gregory, 501 U.S. at 458. The clear statement rule exists in order to protect "th[is] 'usual constitutional balance'" of power. See id. at 460 ....

The cite to page 458 is valid, but the quotation about "this 'usual constitutional balance' of power" is suspect. Here's Gregory:

Congressional interference with this decision of the people of Missouri, defining their constitutional officers, would upset the usual constitutional balance of federal and state powers.

Uh-huh. And the court goes on to say:

This plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.

It seems here as if the "plain statement rule" applies to federalism questions, not to issues arising out of the separation of powers.

Dellinger goes on to cite Franklin, which at least *is* a separation-of-powers case. But he too omits any acknowledgement of the reviewability for constitutional violations under Youngstown. And again, Franklin like Armstrong considered whether the President is an "agency" under the APA -- Congressional intent can be inferred as much from the framework of a statutory scheme as from the letter of a particular definition in that framework. Dellinger plucks out an unnecessary holding by Justice O'Connor and runs with it.

Dellinger's memo cites other cases too, and the "clear statement" rule may indeed be good law w/r/t separation of powers. But some of the citations seem dodgy, and Youngstown still holds good. As Justice Scalia notes in his separate op in Franklin (citing Youngstown), unlawful executive acts can still be enjoined.

Torture lawyers update

Via commenter Mourad @ Balkin's blog, latest word on the Spanish torture-lawyers case: the judge has asked the U.S. to indicate whether it's investigating the lawyers "with a view to their prosecution." If so, he'll stay the case, but retain jurisdiction pending a ruling.

Cytokine storms, and other worries you never had before

A little old, but Jim at Making Light explains how flu kills you, or how it tries to, anyway. Too long to quote without stealing the whole post, but take a look.

Jughead's hat

One of the childhood mysteries -- solved. (Via DB.)

Paging Robert Jay Lifton

We've heard from "former SERE psychologist" Bryce Lefever before, but NPR's Alix Spiegel has a genuinely chilling item online:

In early 1990, around 15 military psychologists met in a small conference room at the Air Force Academy in Colorado Springs, Colo. Though the psychologists worked in different communities across the country, their job was basically the same. They helped torture people.

More specifically, they helped members of the U.S. military inoculate themselves against torture by subjecting them to torture techniques. They spent their days hitting and insulting, isolating and waterboarding, all with the hope that by exposing soldiers to these terrible experiences they might prepare them — physically and psychologically — for capture. The work was a part of a larger training program for military members called Survival, Evasion, Resistance and Escape, or SERE.

Two of the men who were in that room, James Mitchell and Bruce Jessen, are the psychologists who originally proposed applying the harsh tactics used in SERE training to detainees held by the United States government. Because of this they are almost universally vilified. Many think of them as people whose work has greatly tarnished the image of America.

But Bryce Lefever, a former SERE psychologist who first met Mitchell and Jessen at the 1990 meeting, does not see them this way. Lefever went on to serve as a military psychologist at the detention center at Bagram Air Base in Afghanistan, and he is one of the few psychologists involved in this community who have come forward in the wake of the revelations about harsh interrogation tactics to defend the work of the mental health professionals.

Lefever's message is clear: Mitchell and Jessen and the other psychologists involved in this work should be not reviled but lauded. To Lefever, they are patriots who deserve praise.

"I think the media ought to give us a big ol' thank you for our efforts on behalf of America," Lefever says. "There should be some recognition of the effort — the really extreme effort — that we've gone through to help."

From Lefever's perspective, the notion that psychologists behaved in an unethical manner is absurd; a product, he believes, of a fundamental misunderstanding of the psychologists' true ethical obligations. Because psychologists are supposed to be do-gooders, Lefever says, "the idea that they would be involved in producing some pain just seems at first blush to be something that would be wrong, because we 'do no harm.' "

But in fact, says Lefever, "the ethical consideration is always to do the most good for the most people."

Kant, 1; Bentham, 0.

Under this logic, after the horrors of Sept. 11 it was only natural for the psychologists involved in the SERE training to come forward and propose the application of those techniques to people detained by the U.S. government. The American people, after all, were under threat.

"America's house was broken into on 9/11 and someone had to raise their hand to stop it," says Lefever. "And early on there was a sense of desperation in intelligence-gathering."

Maybe because we assigned interrogation to CIA, an agency with no professional interrogators?

In the face of that desperation, says Lefever, psychologists felt a need to act. Though today there is intense controversy around the idea that harsh interrogation tactics produce accurate information, at the time, says Lefever, it was "absolutely clear" to the psychologists in the SERE programs that the harsh interrogation tactics worked.

"You know, the tough nut to crack, if you keep him awake for a week, you torture him, you tie his arms behind him, you have him on the ground — anyone can be brought beyond their ability to resist," says Lefever.

And from Lefever's perspective, it would actually have been unethical for them not to suggest the use of these tactics on the few individuals who might be in a position to provide information that could potentially save thousands of American lives.

"America is my client; Americans are who I care about," says Lefever. "I have no fondness for the enemy, and I don't feel like I need to take care of their mental health needs."

Lefever says all of the military psychologists he knew felt this way. Their client was America, and "do no harm" meant that psychologists should work in every way to save the lives of the Americans they had pledged themselves to serve. Civilian psychologists usually interpret "do no harm" in a more narrow way, as an exhortation to protect the life of the individual sitting in front of them.

Lefever says he was not involved in any way in organizing or implementing the application of harsh tactics to detainees. He also says that he personally wasn't in favor of using the harsher methods because he thought that the techniques, if known, might damage America's image. Still, he feels strongly that the psychologists involved should not be unjustly criticized.

"Anyone who wants to throw stones in this situation really needs to step back and figure out what they themselves would do in these situations and not just be 'ivory tower' critics," says Lefever. "Most of the time they have no idea what they're talking about."

No idea what they're talking about. As compared to Lefever's obviously encyclopedic knowledge of interrogation and torture.

Two? Who two? Yoo two?

"Former Bush Officials Work to Soften Ethics Report on Interrogations":

Former Bush administration officials are launching a behind-the-scenes lobbying campaign to urge Justice Department leaders to soften an ethics report criticizing lawyers who blessed harsh detainee interrogation tactics, according to two sources familiar with the efforts.

In recent days, attorneys for the subjects of the ethics probe have encouraged senior Bush administration appointees to write and phone Justice Department officials, said the sources, who spoke on condition of anonymity because the process is not complete.

A draft report of more than 200 pages, prepared in January before Bush's departure, recommends disciplinary action by state bar associations against two former department attorneys in the Office of Legal Counsel who might have committed misconduct in preparing and signing the so-called torture memos. State bar associations have the power to suspend a lawyer's license to practice or impose other penalties.

Hm. John Yoo and who else? Was Bybee a "department attorney"? Was Bradbury?

Before seeing this story, my money would've gone on Yoo and Bradbury. Bradbury's memos in 2005 didn't have even the dubious advantage of emergency, and were astonishingly weak. Plus, I am skeptical that even OPR wants to slag on a sitting 9th Circuit judge.

But Bybee, it seems, is not taking any chances ... and rightly so:

Two of the authors, Jay S. Bybee, now a federal appeals court judge in Nevada, and John C. Yoo, now a law professor in Southern California, faced a deadline of yesterday to respond to investigators.

Attorneys for both men did not immediately return phone calls or e-mail messages seeking comment on the reports. An e-mail to Yoo and to a court representative for Bybee also received no response. The attorneys for the men, Maureen Mahoney and Miguel Estrada, had been trying to garner support for their clients by contacting former senior Justice Department officials to prevail upon their successors in the Obama administration, sources said.

The legal analysis on interrogation prepared by a third former chief of the Office of Legal Counsel, Steven G. Bradbury, also was a subject of the ethics probe. But in an early draft, investigators did not make disciplinary recommendations about Bradbury.

About this draft report: has the reporter seen it? If not, she should be quoting "sources" about what's in the report.

Working back channels to tilt the scales on an ethics report sounds like a whole independent ethics violation itself, thinks TBA.

And if OPR does call out Bybee, it will be interesting what that does for the impeachment debate.

Anyway, we continue to eagerly await the report itself, perhaps even moreso than the Star Trek prequel (out on May 9, should you happen to be asked).

... The NYT story leads with the news that criminal prosecutions are *not* recommended. I didn't notice this omission b/c I didn't realize that was even within OPR's scope.

This was interesting:

The draft report is described as very detailed, tracing e-mail messages between Justice Department lawyers and officials at the White House and the Central Intelligence Agency. Among the questions it is expected to consider is whether the memos reflected the lawyers’ independent judgments of the limits of the federal anti-torture statute or were skewed deliberately to justify what the C.I.A. proposed.

Such messages would be the hunting grounds for evidence of conspiracy, so perhaps these e-mails don't amount to much. But I'm very curious to see them. "Skewed deliberately" sure sounds like "conspiracy to commit torture" to me.

Nothing in NYT about pressure behind the scenes. Ha! Scooped!

Unprosecuted war crimes beget more war crimes

Daniel Larison has a post up on the silly "scandal" of Jon Stewart's stating (and then retracting) the obvious, namely that killing tens of thousands of civilians in cold blood at Hiroshima and Nagasaki, for the express purposes of terrorizing the Japanese into surrender, was a "war crime" by any meaningful definition of the word.

What Truman’s posthumous rehabilitation should tell us is that half-truths and falsehoods, if repeated often enough, can become widely accepted, and that virtually no American political leader, no matter how many blunders he made and no matter what criminal acts he ordered, is beyond redemption at the hands of later sympathetic people who find that leader’s decisions to be useful precedents for their own preferred course of action. The “judgment of history” has, for the time being, ruled in favor of Truman, and therefore challenging this judgment is something to be mocked.

Larison goes on to note the contradiction in defending today's torturers by going, "well, what about Hiroshima?"

... the recourse to past crimes to evade accountability for new crimes is a good argument in favor of enforcing strict accountability for crimes recently committed. If such crimes are permitted to go unpunished, their apologists will continue to work overtime to shape the debate in later years and decades in favor of the decisions leading up to those crimes, and the more time goes by the apologist will be able to fall back on one unassailable retort: “If this was a crime, why didn’t anyone in the government investigate and prosecute it as such?” Having warned against witch hunts and “criminalizing policy differences” in the beginning to intimidate the responsible institutions into inaction, the apologists will then remind the public that no charges were ever filed and no convictions were secured.

So, ironically, some of the defenders of the torture regime are making the best argument for the prosecution of past administration officials by their own invocations of past government illegalities. They are unwittingly reminding us that crimes unpunished today can easily become tomorrow’s conventionally accepted “correct” decisions. Every usurpation or instance of lawbreaking that is not challenged and reversed creates a precedent for the next round of usurpation and lawbreaking, and the fact that there is a non-trivial number of people in America who think that the illegal acts of Lincoln, FDR, Truman or others should have some mitigating effect on how we treat illegal acts under a more recent administration is one of the best reasons why crimes committed during the last administration must be investigated and lawbreakers must be prosecuted.

Wishful thinking, unfortunately.

... Re: Hiroshima, as proof that TBA is nothing if not dialectical (ancient Greek for "confused"), cf. this comment @ Larison's blog:

the atomic bombings were, at the least, not materially worse than the starvation imposed by naval blockade. Recall the deaths caused by the Allied blockade in World War One. Richard Frank’s Downfall makes the case that blockade was as bad if not worse in the case of Japan.

I’m not aware of any treaty or precedent that would’ve required the U.S. to allow food supplies past a blockade of Japan. (There may well be such authority; I have no expertise here.) Of course, what the Japanese gov’t did with the food would’ve been beyond our control — they could have reserved it for soldiers.

Nonetheless, one can argue, the Hague Conventions said what they said, and the decision that atomic bombing was less unjust, ultimately, than blockade was not a choice the U.S. should have been free to make. That may be the right answer.

I tend to think that absolute blockade should be a war crime; there is no material difference between starving civilians to death and burning them to death. But this just goes to show that "war crimes" were not particularly well thought out in 1945. Has that changed?

Note to self:

Never set a deposition on a Monday if you can help it.

Otherwise, you run the risk of walking into the office, firing up Outlook, and finding that, oh! you have a deposition today!

(At 1:30, thank god.)

Sunday morning Hegel

A couple of posts back, Buhallin commented:

For a while I've had a somewhat negative view of philosophy, and especially ethics philosophers, because I believe more and more that they don't examine the world to find answers, but try and create justifications for what they already believe. That is, Kant didn't start analyzing morality and eventually come to the conclusion of universalism - he started out believing in universalism, and began crafting arguments to support it. That seems horribly backwards to me.

I think we've all had this feeling in reading various philosophers -- Nietzsche certainly did -- and to the extent it's justified, it's a valid critique, tho not dispositive. A universalist sensitive to Nietzsche's criticisms might concede that philosophers "find" the conclusions to which they are predisposed, but add that, in the case of universalist philosophers, they happen to be correct as well. (To which N's response would be, "My dear fellow, it is improbable that you are not mistaken; but why insist on 'the truth'"?)

Philosophy generally has the problem of making sense of what we (think we) already know. We all think we have a good grasp of morality; it's the problem cases, where our rough principles suffer head-on collisions, that leave us turning to philosophers, who thus have a dual task: "saving the appearances" as regards everyday morality, while either solving the hard cases, or conceding that morality doesn't have all the answers.

Hegel of course ain't concedin' nothin. See his preface to Outlines of the Philosophy of Right:

However we look at it, the truth about right, ethical life, and the state is as old as its recognition and formulation in public laws and in public morality and religion. What more does this truth require, insofar as the thinking mind is not content to possess it in this manner that is closest to us? It requires to be grasped in thought as well; the content which is already rational in itself must win the form of rationality, so that it may appear justified to free thinking.

That's what we want -- a rational formulation (as opposed to a rationalization) of what we think we already know, on the theory that rational formulation will eliminate contradictions. We today can't be as optimistic about this project as Hegel was -- if arithmetic can't be proved internally consistent, what hope does morality have? But that's his project.

Hegel observes that most people (post-Newton) concede that "nature is inherently rational," but that the same can't be said of ethics. Skeptics then sound like skeptics now:

The spiritual universe is supposed rather to be left to the mercy of contingency and caprice, to be God-forsaken, and the result is that, according to this atheistic view of the ethical world, truth lies outside such a world, and at the same time, since even so reason is supposed to be in it as well, truth becomes nothing but a problem ...

To which every philosopher offers "his own solution," in what Hegel seems to regard as the philosophical equivalent of the plethora of diet books. Whereas those of us who shrug off philosophy, with the equivalent (to keep our metaphor) of "diet and exercise!", feel that "we know all about philosophy in general" and despise it at the same time.

Analyzing this position, it seems, will form part of Hegel's task in his book (I've not made it beyond the preface yet). Abbreviating his argument, those who claim that "truth cannot be known" make the individual and his "heart" the judge of what is ethical, a "superficiality" which leads to "hatred of law," for the individual "does not recognize [himself] in the law and so does not recognize [himself] as free there," law being an external and seemingly arbitrary imposition.

What's interesting here -- and I am noticing that any relation to Buhallin's original question may have been left far behind by now, or at best will take another post to elucidate -- is that Hegel insists his position is eminently practical:

since philosophy is the exploration of the rational, it is for that very reason the comprehension of the present and the actual, not the setting up of a beyond, supposed to exist, God knows where -- or rather a beyond, of which we can indeed say where it exists, namely in the error of a one-sided, empty ratiocination.

Since the latter is what philosophy's critics claim that philosophy amounts to, Hegel's aim cannot be faulted.

He goes on to note that "even Plato's Republic, which passes proverbially as an empty ideal, is in essence nothing but the grasping of the nature of Greek ethical life." This is important for Hegel, who expressly renounces "any attempt to construct a state as it ought to be" -- no utopia here. Rather, Hegel's goal is to reconcile the individual with the state, and presumably with ethics as well.

I am not expecting to finish the Philosophy of Right concluding that Hegel has succeeded, but it does seem his work is modern enough that it identifies the issue in terms that still hold good today.

But the judge has no need to be nervous

Via Emptywheel, a remarkable glimpse into Judge Bybee's confused chambers:

On Thursday, law clerks for the judge said variously that Bybee would respond to an appeal by Chairman Patrick J. Leahy (D-Vt.) to appear before the Senate Judiciary Committee; that he would explain his reasoning in a statement to the San Francisco-based appeals court; and that he would have nothing more to say to anyone on the subject.

"My impression is that there won't be any further statements," law clerk Keith Woffinden said, apologizing for the contradictory messages being sent by staffers.

Based on my own limited experience, I cannot believe that any law clerk of Bybee's said *anything* to the media that the clerk had not heard from Bybee himself. Law clerks simply do not take it on themselves to say "well,I'm pretty sure he'll appear," or whatever.

If Leahy would get a few senators to set aside grandstanding and let some legal experts quiz Bybee, the results would be devastating. Get this guy, for instance:

In the view of John Parry, a professor at Lewis & Clark Law School in Portland, Ore., who has written extensively on torture, Bybee's legal reasoning was suspect and the memos "unbalanced."

"They do not consider any arguments that might detract from their conclusions, and they cite irrelevant or misleading authority," Parry said. "Perhaps worse, they fail to provide sound legal advice. Instead, they read as if they were meant to provide cover for decisions that had already been taken."

There is no way that Bybee can defend the "good faith" of these things, not to a questioner who knows what to ask.

Wikipedia, I love you ...

... because you're so gloriously nerdy sometimes:

The subject of the song is the arrival of the mighty Quinn (an eskimo), who changes despair into joy and chaos into rest, and attracts attention from the animals. The metaphorical lyrics have prompted suggestions that Quinn is a god, a drug dealer, or simply a village elder.

I wish the same writer would give us an entire book of The Summarized Bob Dylan.

Now if there were only a "Controversy" paragraph on the use of the word "eskimo."

Bland bourbon ... ?

Destined to sit through a "May Day" festivity at my niece & nephew's school, I went looking for "airplane bottles" of spirits last night. Jim Beam would've been fine to pour into a Coke, but I found some Bulleit's Bourbon, which I hadn't tried. So, two bottles, one for May Day, one to sip neat on April 30 for a test flight.

FIRST SIP - Hey, this is awfully smooth, moreso than Basil Hayden's. I could really drink this whole thing neat, like single malt scotch!

SECOND SIP - But why would I want to do that? It doesn't taste like bourbon. Doesn't taste like anything, really.

So, there you have it: Bulleit's. Bourbon for people who don't like bourbon.

... Though in all fairness, when you sip a bottle after it's been warmed inside your car all day, it does have more bite to it. Further experimentation is called for!

The bookshelf

Currently reading 3 or 4 books, plus noting some I've finished:

Herring, From Colony to Superpower - long sidelined but now I've been at it in earnest; just got through his review of the Cuban Missile Crisis. Generally good at demonstrating that America's strengths and weaknesses in foreign policy stretch all the way back, or at least a good ways beyond, say, Teddy Roosevelt or Woodrow Wilson. Herring does not have heroes, and can generally find something to criticize. For instance, however prudent JFK may've been in the missile crisis, it was his obsession with Cuba, coupled with his vacillation as to acting on same, that made Cuba a sore spot and inspired Khrushchev to try installing missiles there.

Axworthy, A History of Iran - apparently the only popular survey of Iran's history that gives due weight to how long that history is. Axworthy's is not a deep treatment, though he does veer off for a chapter into discussing a number of Persian poets, but his light, sure touch keeps the book enjoyable.

Hegel, Outline of the Philosophy of Right - I'd never picked this up, and Oxford's excellent decision to release a revision of Knox's edition in its World's Classics line brought it unexpectedly to a bookshelf near me. The introduction is good on disabusing the reader of Popper's nonsense. Thus far I'm still on Hegel's preface, which is remarkably snarky about contemporary contempt for philosophy and about Hegel's contemporary philosophers. Looking forward to this, especially when I get a chance to really sit down with it.

Perlstein, Nixonland - the shoddy, overpriced hardcover is now a shoddy, overpriced paperback, but I felt less cheated at the lower price. The content thus far seems about as good as advertised, though perhaps Perlstein worries too much about the reader's being bored and makes his style a little more catchy and clever than need be. (Or perhaps Perlstein is much smarter about his general audience than I am.) The tragedy of the liberal collapse is coming through vividly.

Rhodes, Masters of Death - his book about the Einsatzgruppen, who carried out the first steps of the Holocaust in the wake of the German invasion of Russia, is a disappointing contrast to The Making of the Atomic Bomb. Rhodes is fuzzy on some of his facts (like how America came to be at war with Germany), and displays an amateur's arrogance on such vexed questions as when Hitler took the decision to outright exterminate the Jews. But even those flaws, plus an unnecessarily pronounced contempt for such contemptible people as Himmler (yes, even that can be overdone), don't outweigh the value of the book for its documentation of the Nazi horror. Einsatzgruppen members said that they tossed small children in the air to shoot them, not out of cruelty, but because bullets passed through their bodies too easily, raising the risk of ricochet if they shot them on the ground. One detail like that, reminding one of how much practice underlay that judgment ... and it's hard to feel that one shouldn't have read the book.