28 Apr A Sane and Intelligent Debate on Interrogation Policies and Torture?
28.04.09
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20 Comments
Is that even possible these days? It seems not, but the Federalist Society is sure doing a nice job in lining up Andrew McCarthy, Scott Horton, Douglas Kmiec, David Luban, Bart DePalma and Steve Vladeck to debate the recent release of the CIA interrogation memos and their content. No one has yet denounced the other in ad hominem attacks and there is even some thoughtful debate going on there. What a concept!
I don’t know that it’s all that intelligent. The writers are all repeating the same points on each side, over and over again, and then talking past each other, by and large.
You will note, if you read the posts, that no one concedes anything that they were unwilling to concede before the “debate” began. Everyone has staked out a position on the underlying questions already. The issue is what to do now.
More commentary on the underlying questions isn’t sane and intelligent debate. It’s just more of the same. And because we have sharply divergent views of those underlying questions, we have sharply divergent views of what to do now.
It is, in other words, intractable.
I disagree in some measure with dmv above. I would not expect such a discussion to prompt the interlocutors to abandon strongly held convictions or well-worn arguments, at most we may find them conceding this or that small point, and thus, to that extent, there is indeed an intractable quality to such affairs. Nonetheless, I found the exchange illuminating insofar as there are specific claims and arguments addressed, especially by DePalma and Luban, but not only them. Discussions such as this do serve to clarify presuppositions, assumptions and premises, even if none of the parties (or members of the audience, for that matter) is “converted” at the culmination of the process. That alone should suffice to accord value to this kind of dialogue. It’s important to keep in mind that there are a number of dialogue forms (see the work of the Canadian philosopher Douglas Walton on this) and while persuasion may be the goal of some, it is not essential to all dialogue types: sometimes the provision of information and knowledge suffice to make them meaningful.
This reader looks forward to the continuation of the discussion.
I recognize this might be a little provocative but may I ask why it is that it is fine that only a bunch of white guys get to sit around and talk about this stuff at the Federalist Society meeting? No women, no minorities. No Muslim-Americans. What about adding a little color to these meetings? I mean we have Yoo and Gonzales in this. I wonder if anyone is bringing up the National Security Court pitch again.
Best,
Ben
Patrick:
I don’t think that the measure of sane and intelligent debate is whether someone changes their position or concedes away their argument.
“Discussions such as this do serve to clarify presuppositions, assumptions and premises. . . .”
The problem is that nothing new is being said. I’m beginning to suspect that this “debate” is an avoidance technique. Let’s talk some more about it before we decide what, if anything, we should do. Let’s assemble a conference. Let’s have some law reviews devote a couple of issues to the problem.
Debating is fine. But why don’t we, while this discussion is going on, start investigating what happened, when, involving whom, where, and why? Let’s start looking for all the facts, so that we can lay them out in public and see what to do, then. We know there are more memos, more documents. Let’s see what we can learn.
Ben:
I didn’t think your question was provocative. I think it’s a good question.
dmv, Obviously, something new is being said, which was my point. My response was to your specific comments regarding the discussion at hand, which claimed 1) The writers are all repeating the same points on each side, over and over again, and then talking past each other, by and large. That, simply, is not true. 2) You will note, if you read the posts, that no one concedes anything that they were unwilling to concede before the “debate” began. Everyone has staked out a position on the underlying questions already. My response indicated that this was not a fair or accurate characterization of what is occurring here and that the lack of “concession” is in fact irrelevant. 3) You said: More commentary on the underlying questions isn’t sane and intelligent debate. It’s just more of the same. And I explained in precisesly what manner we might, on the contrary, view it as a sane, intelligent and helpful discussion (which, in any case, has not ended). Now your raise another criticism: the debate as “avoidance technique,” and then proceed to contradict that very claim in what follows. As the parties involved in this debate are not the parties in a position to perform an… Read more »
Patrick:
(1) What new has been said?
(2) Yes, you are right. Politicians act only on principle and from their own internal sense of what ought to be done. They never respond to external pressure. They never gauge what the mood of a particular community might be before deciding to act. They are worlds unto themselves, completely isolated and distant from everyone else.
(3) Some involved in the on-going “debate” begin from the position that we should let bygones be bygones and move on, not investigate, not learn what happened. The discussion has largely centered on whether people ought to be investigated and/or prosecuted. But you’re completely correct. A vocal segment of the commentariat loudly shouting that investigation would be irresponsible and damaging to national security and un-American!!1!111! has no effect on anything the government, run by politicians, does.
It is amusing to me, though, how impotent and irrelevant intellectuals, lawyers, and others engaged in public debate are in your (apparent) view of the world.
It is no longer time for something new to be said. It is time for something new to be done: criminal prosecution of the high-level civilians and military generals who put in place the torture policy.
Best,
Ben
Ben, With all due respect, that sounds more like sloganeering than a thoughtful response. Again, saying something “new” in no way precludes or crowds out the desirability or pursuit of criminal prosecution, nor does it in any way reduce or detract from the possibility of its occurrence. Consider, for example, the comparatively novel argument recently made by John Parry: that the “war on terror” since 9/11 did not fundamentally alter our nation’s approach to or legal understanding of what Luban calls a “torture culture.” Parry’s article suggests that …torture may be compatible with American values in practice and with the legal system we have constructed to serve those values. [….] Put another way, many fear that the revelation of abuses committed in the war on terror put the United States at risk of becoming a torture nation. This article explores the ways in which the United States is already a torture nation and suggests that being a torture nation could be as important a part of the U.S. legal and political system as the ban on torture. [….] Before September 11, ideas of the rule of law, legitimate government conduct, and sovereign power–not to mention notions of decency–had already evolved… Read more »
Erratum: in the second para. above, the following should have been deleted: “[one is reminded here”
Patrick, Thanks for your response. I recognize that actually formally calling for prosecution in U.S. domestic courts of U.S. high-level civilians and military generals for torture and cruel inhuman and degrading treatment might appear to some as sloganeering and not sufficiently thoughtful in this erudite space. Yet, I think it is important to emphasize precisely because the concept of such elites facing a judge seems peculiarly repugnant to those who one day have the ambition possibly to be in such high spaces. I have been watching said elites waffle for nigh on 5 years. I recognize that several articles along the line of “we always did this” are emerging in the article you noted and I believe in the Yale Law Journal recently. That we always did this or do this domestically, did not make it acceptable then and now. That we act like barbarians with our prisoners merely means that we are less civilized then we wish to pose. I am sure you are aware of the adage that you can judge a country by the quality of its prisons. That our prisons are abominable places is a subject about which many persons have been fighting to change for a number… Read more »
Ben, You’ve absolutely misunderstood and thus mischaracterized the position of both myself and Parry. First, his is not at all a normative argument: that we have behaved like this in no way is proffered as an excuse or justification that we should behave like this. I myself have said not a few times around the legal blogosphere that I’m in favor of criminal prosecution for the architects of the torture policy and those who carried out such policy. Parry obviously would like us to overcome our collective self-deception about how our torture practices are somehow aberrant vis-a-vis our history, but it’s fairly clear that he does not believe that history is something we should be proud of or use to rationalize existing practices: quite the contrary. Your inference is tantamount to saying, for instance, that Darius Rejali rationalized torture in his magisterial historical and sociological study of the topic, Torture and Democracy (2007)! As to what goes on in our prisons, I have several times used the legal blogosphere to talk about the fairly neglected fact of widespread prison rape and abuse of those incarcerated and spoke to the subject in general when I posted my bibliography for criminal law,… Read more »
I just made a lengthy reply to Ben’s post above: can someone at OJ locate it and post it for me? It seems to have disappeared. If it can’t be found I’ll write it again, as Ben has absolutely mischaracterized my views, as well as those of Parry.
Ben, First, what I was referring to sloganeering was not the call for criminal prosecution per se, which I’ve long supported and argued for throughout the legal blogosphere, but the remark in toto as a response to what I wrote, and in particular the claim that “It is no longer time for something new to be said,” as if that, as I said above, somehow precludes, or crowds out, or rules out, the call for criminal prosecution of those who were the political and legal architects of torture, as well as those who carried out the practices designed by the powers-that-be. So, you’ve yet to explain to us how the former, namely, saying something “new,” is indissolubly connected in a negative fashion to the latter, namely, the formal call for criminal prosecution. Secondly, I was quite surprised that you failed to make an important distinction, explicitly made by Parry in his paper but also one fundamental to the point at hand, that is, the distinction (which, although not absolute, is no less important) between the descriptive, and the normative (and ‘the prescriptive’ for that matter as well). Parry’s paper, is an enterprise of the former sort, in other words, he endeavors… Read more »
OK, I re-wrote my response, and once more it does not show up.
Please send it to me and I will be happy to try and post it for you.
Best,
Ben
Patrick:
Both of your responses are now up. They just got auto-flagged for moderation because of the links. Sorry about the delay.
Thanks Ben: both the first post I wrote and the second one now appear, hence the repetition, although I prefer the second to supersede the first. [It’s having links in one’s comment, it seems, that delays or prevents their appearance.]
All good wishes,
Patrick
Patrick, I apologize to you if you or anyone else considered my post as an attack on Parry or you personally. The point I am trying to make is that a descriptive work on some of these topics is useful to me particularly when it breaks new ground for me as did Rejail’s work. A descriptive that gives some “American” context worries me because it seems to me there is a tendency in my country to say “oh, since we did this already here, what is the problem?” or “Gosh, I didn’t know.” in situations where it strains credulity to believe that is a legitimate reaction. Yet, such a reaction is seen and my worry is that giving “American” context has a somatizing effect because vast numbers of people here have been willing to put up with/acquiesce in lots of horrendous things in this country. That willingness has been notwithstanding efforts of many – including yourself – to bring attention to some of these uncomfortable dark places in our country. As I read the posts, my impression was that the posts could be interpreted as normalizing bad things – whatever your intention in writing them. That is how they hit me and that… Read more »
Ben, Re: I apologize to you if you or anyone else considered my post as an attack on Parry or you personally. As I said, what disturbed me was the mischaracterization of my (and Parry’s) views, including the drawing of untenable inferences not at all warranted by the posts themselves (adhering to a minimalist construal of the hermeneutic ‘principle of charity’ would have been useful here). I did not see your comments as an abusive ad hominem attack, i.e., an attack on me personally, even if I was taken aback by an inability to understand what I said and referenced. I’m still dumbfounded as to how you could interpret what I wrote as part of a larger endeavor at “normalizing bad things,” as nothing I’ve written here or elsewhere should have led you to draw such an inference: the resort to such a “bad faith” presumption is wholly without warrant (if you think otherwise, I’d be pleased to look at the evidence you’ve garnered). If we want to explore the reasons why people acquiesce to acts of despicable and troubling illegal behavior, why they turn a blind eye to horrendous things in our history, then we need to look at the literature in psychology and… Read more »