The Devil You Don't Know

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Harvey Silverglate and Dan Poulson on the man Bush tapped to succeed John Ashcroft:

Sure, we're getting rid of the worst attorney general in recent memory (and, yes, that includes the Nixon administration's infamous John Mitchell, who wasn't as bold as John Ashcroft, and who talked a better game than he played). However, we may be getting a smarter, more sophisticated, better-spoken, more devious and considerably more dangerous replacement in former White House counsel Alberto Gonzales.

To many who would adopt the "anybody but Ashcroft" position, Gonzales would seem, in the words of New York senator Charles Schumer, to be a "better candidate" for AG. But if Gonzales's legal resume demonstrates anything, it's that the government can commit even the vilest atrocities—executing a person without due process, torturing prisoners in total secrecy—so long as they're authorized by a legal analysis bearing only the faintest patina of plausibility.

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  1. Gonzales will be a disaster for civil liberties everywhere.

  2. Proof that replacing white guys with cheaper Mexican labor doesn’t always yield better results ;->

  3. Dammit Thoreau–now my keyboard is covered in snot! 🙂

  4. I’m sure we all appreciated that image, WLC.

  5. I have heard say that Gonzales will lead the GOP out of power. Of course living in Seattle you hear all kinds of things.

  6. Ashcroft worse than Reno? Debatable, based on pure body-count alone. After all, she incinerated 80 people at Waco. Ashcroft hasn’t even arrested a single librarian, much less burned an entire mosque of Wahhabis to the ground (or seized a kid at gunpoint to ship off to a lefty icon’s prison island).

    I really think that the bitter Ashcroft-hatred out there is mostly a combination of overflowing Bush-hatred and emotional reaction to Ashcroft’s prudish squint-eyed Puritan persona. He’s done and said some stupid things about pronography, but none of the predictions of widespread trampling of civil liberties have come true.

  7. “Faintest patina of plausibility?” Not just anything is a metaphor.

    Royal soul surrendered in one forgetful instant to the crab of debauch, the octopus of weakness of character, the shark of individual abasement, the boa of absent morals, and the monstrous snail of idiocy! – Lautreamont

  8. R C,
    ??? In what world? Not that Reno was a civil liberty bunny. But I find the trampling of civil liberties since 2k to be patently more egregious.

    I remember when we were warned about asshat’s fascist tendencies, I blew them off as pinko rhetoric, I’m taking the dire predictions over Gonzales more seriously.

    Fuck this is depressing, I need a drink.

  9. Pour me one too, Warren.

  10. I really think that the bitter Ashcroft-hatred out there is mostly a combination of overflowing Bush-hatred and emotional reaction to Ashcroft’s prudish squint-eyed Puritan persona.

    Plus a generous helping of “Reno was a Democrat, and therefore by definition must have been better on rights issues”.

  11. For Thoreau,
    “cheaper Mexican labor ”

    Methinks you are a racist using liberalism as a disquise. And the same goes for the rest of you if you think that staement is funny…

  12. Perhaps the biggest difference between Reno, who I despised, and Ashcroft is that where Reno offered her resignation in the aftermath of Waco and, many years later, recounted the incident as the darkest point of her tenure, Ashcroft doesn’t regret a thing. In fact, Ashcroft seems to wear his civil rights abuses as a badge of honor.

    P.S. There is nothing Gonzales could do that would make me think of him as anything other than the guy who tried to justify torturing people with a legal argument. For instance, if Gonzales saved the President from drowning, I would still refer to him as the man who both saved the President from drowning and tried to justify torture with a legal argument.

  13. It’s an inside joke Gene. If you want in, take a look at this thread and see my comment.

    https://www.reason.com/hitandrun/2004/11/the_luxury_of_l.shtml

    P.S. Thoreau is no racist.

  14. Ken

    I don’t recall Reno offering her resignation, I do remember her “taking full responsibility”.

    Someone wrote at the time what an empty gesture this was.

    When Cabinet Ministers in Parliamentary systems “take full responsibility” they DO resign, and often it is the end of their political careers. It is certainly the end of their political influence.

  15. Ken,
    The comment pushed one of my buttons. I’ll take your word on it.

  16. Ken,

    She might have taken “full responsibility” shortly afterward, but the capitol hill coverup was totally epic.

  17. And the same goes for the rest of you if you think that staement is funny…

    What if I found it painfully funny?

    Although it pushed the envelope, I think anyone here familiar with thoreau’s postings understood that he was going for cheap laughs and didn’t mean it to be mean.

    Nevertheless, I now pronounce thoreau’s political career dead. And mine too!

  18. “Reno took full responsibility and offered to resign.”

    http://www.law.harvard.edu/alumni/bulletin/2001/spring/feature_1-1.html

    Clinton refused Reno’s offer. Why? I suspect it’s because Bill Clinton was a slime bag who thought personal integrity was for losers, but, that’s pure speculation on my part. For all I know, Reno may have been entirely disingenuous as well.

  19. Sorry Gene, didn’t see your recanting when I posted.

  20. Gene-

    I got the line from the Onion. I thought it was funny because, if anything, it mocks the notion that immigrants are cheap labor. Here’s a high-profile professional nominated for one of the most powerful jobs in DC, and the Onion decides to use the occasion to mock a bad stereotype.

    To put it in perspective, this week the Onion is lampooning the administration’s policies on terrorism (including, by implication, some memos written by Gonzales) by reporting that the White House Thanksgiving Turkey, originally scheduled for a pardon, is now being held as an enemy combatant without access to a lawyer. That’s just what they do.

    Oh, and it’s a shame that my political career is already over. There’s already 2 physicists in the US House right now (one from each party). Adding a third might cause the capitol to reach a critical mass of geekdom. We could tie up the procedures with motions to roll 1d20 against our charisma and proclamations in honor of Richard Feynman, making it impossible to pass a 3200 page (and growing) omnibus spending bill.

  21. Perhaps the biggest difference between Reno, who I despised, and Ashcroft is that where Reno offered her resignation in the aftermath of Waco and, many years later, recounted the incident as the darkest point of her tenure, Ashcroft doesn’t regret a thing.

    We can’t know if Ashcroft would, like Reno, offer to resign after getting a bunch of people killed during an egregious abuse of his power.

    Because, unlike Ashcroft, unlike Reno, hasn’t gotten a bunch of people killed during an egregious abuse of his power.

    Oh, and by the way — congrats on falling for that publicity stunt. Reno discussed her resignation with Clinton before offering it, and knew he’d ask her to stay on. Politicians don’t publically offer to resign unless they know they won’t have to — they either resign because they have to, resign because they want to, or pretend to be willing to resign in order to deflect criticism away from themselves.

    In fact, Ashcroft seems to wear his civil rights abuses as a badge of honor

    Oh please. Were you asleep during the 90s? Waco wasn’t the only thing Reno did. Most of Ashcroft’s abuses of people’s rights were accomplished not under the Patriot Act, but under acts and policies put into effect by Reno and the people who came before her.

    There is nothing Gonzales could do that would make me think of him as anything other than the guy who tried to justify torturing people with a legal argument

    Occasionally a scientist will publish research indicating that, for example, second-hand smoke doesn’t cause cancer. People will then scream and rant that that scientist wants people to get cancer. You’re kind of like those people.

    Gonzales did not justify torture, or attempt to. He explicitly stated that we could not legally torture people. What he did do was inform Bush of the objective fact that inflicting mild or moderate discomfort on prisoners was not torture under either U.S. law or under any treaty we had signed.

    So basically you’re pissing and moaning that he told Bush the truth instead of lying to him. Boo fuckity hoo.

  22. thoreau,

    Considering the benefits of physicists in the White House, I’m sure you could someday attribute your non-PC humor to the irresponsibility of your youth!!

  23. “You have asked for our office’s views regarding the standards of conduct under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as implemented by Sections 2340-2340A of title 18 of the United States code. As we understand it, this question has arisen in the context of the conduct of interrogations outside of the United States. We conclude below that Section 2340A proscribes acts inflicting, and that are specifically intended to inflict, severe pain or suffering, whether mental or physical. Those acts must be of an extreme nature to rise to the level of torture within the meaning of Section 2340A and the Convention. We further conclude that certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A’s proscription against torture. We conclude by examining possible defenses that would negate any claim that certain interrogation methods violate the statute.”

    —-Alberto Gonzales August 1, 2002

    http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf

    Gonzales did not justify torture, or attempt to. He explicitly stated that we could not legally torture people. What he did do was inform Bush of the objective fact that inflicting mild or moderate discomfort on prisoners was not torture under either U.S. law or under any treaty we had signed.”

    —-Dan November 23, 2004

  24. “Oh, and by the way — congrats on falling for that publicity stunt. Reno discussed her resignation with Clinton before offering it, and knew he’d ask her to stay on. Politicians don’t publically offer to resign unless they know they won’t have to — they either resign because they have to, resign because they want to, or pretend to be willing to resign in order to deflect criticism away from themselves.”

    —-Dan at November 23, 2004 06:52 PM

    “Clinton refused Reno’s offer. Why? I suspect it’s because Bill Clinton was a slime bag who thought personal integrity was for losers, but that’s pure speculation on my part. For all I know, Reno may have been entirely disingenuous as well.”

    —-Ken Shultz at November 23, 2004 06:22 PM

  25. “Most of Ashcroft’s abuses of people’s rights were accomplished not under the Patriot Act, but under acts and policies put into effect by Reno and the people who came before her.”

    Care to elaborate?

  26. Ken, how does “We further conclude that certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A’s proscription against torture” justify torture? Do you know what lawyers are and how they work?

  27. Josh,

    Have you read the memo? Do you understand the purpose of the memo? Look at the link I gave and read the memo yourself.

    Why was the memo written Josh? If it wasn’t written to legally justify torture, am I to conclude that Messrs. Bush and Gonzales are perverts?

    “Do you know what lawyers are and how they work?

    There is no legal justification for torture. Whether or not people can be tortured isn’t a legal question; much like the question of slavery, it’s a moral question. Even if slavery is legal, it’s morally pathetic.

    Got it?

  28. The administration asked him to research the legal ramifications of different methods of physical coercion, and he did it. He gave them the legal facts they were asking him for, he didn’t try to ‘justify torture.’

    By your logic, anyone who writes a legal memo about the difference between sexual assault and rape is ‘justifying rape’ and ineligible for political office.

  29. But Gonzales did try to legally justify torture. In the statement you quoted, he said that, legally, torture is a function of intensity. So, using your analogy, even if “inhuman” behavior doesn’t constitute torture, Gonzales is telling the President that it’s okay to sexually assault people.

  30. We further conclude that certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A’s proscription against torture.

    Is there some reason you quoted this section, other than to prove that I was right?

  31. Clinton refused Reno’s offer. Why? I suspect it’s because Bill Clinton was a slime bag who thought personal integrity was for losers, but that’s pure speculation on my part. For all I know, Reno may have been entirely disingenuous as well

    If you believe that Reno’s offer to resign was disingenuous, why did you attempt to offer it up as an example of her being better than Ashcroft? Are you stupid or merely dishonest?

  32. Ken, it doesn’t matter how many times you say that explaining the legal issues around torture is the same as justifying torture, it’s not going to come true.

  33. Ken Shultz,

    Oh you fisked Dan good this time.

    Dan,

    Congratulations, you and Bill Clinton have something in common.

    We further conclude that certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A’s proscription against torture.

    What is the definition of “is” again?

  34. Josh,

    All Gonzalez did was interpret the law so as to ignore its clear meaning; he justified by torture by calling to something else and ignoring the clear legal sanctions against it.

  35. Dan, Josh, etc.,

    Amongst “judges” we call that by the dreaded term “judicial activism.” In this case you have not only a non-elected official, but one who serves at the pleasure of the President, fomenting his own variety of “activism” for his boss so as to garner an outcome the administration desired; a perferred outcome built on sophistry.

  36. Josh,

    Your insistence that cruel and inhuman acts somehow aren’t torture strikes me as remarkably similar to President Clinton’s insistence that what he did with Monica Lewinsky somehow wasn’t sex.

  37. Re Waco:

    I can’t help but get the notion that all the Reno-haters here would have been happier if Koresh had gone on porking 10-year old girls. Or is pedophilia one of those sacred family values?

    Blaming the Branch Davidians’ mass suicide on Reno puts you right up there with the Vince Foster wingnuts.

  38. “What he did do was inform Bush of the objective fact that inflicting mild or moderate discomfort on prisoners was not torture under either U.S. law or under any treaty we had signed.”

    Oh right, and is this “inflicting mild or moderate discomfort” some how different than inflicting pain? Which is the definition of “torture”. Are we given to understand that federal prisoners may be treated this way with out a violation of the law occurring? No way. And in fact, those who “inflict discomfort” become criminals themselves, which is how it should be in a society that recognizes the sanctity of the individual.

  39. WLC at 05:21 PM,

    Gag me with a spoon!

  40. “Reno-haters here would have been happier if Koresh had gone on porking 10-year old girls.”

    Yeah, Reno stopped that really well. She killed the kids.

  41. Yeah, Reno stopped that really well. She killed the kids.

    Which makes Elian’s survival all the more amazing.

  42. I said:

    “Which is the definition of “torture”.”

    More precisely; “inflicting pain on the restrained”

  43. Gonzales did not justify torture, or attempt to. He explicitly stated that we could not legally torture people.

    from the memo:

    For a specific act legally to be considered torture, the interrogator must clearly state beforehand, while clicking his heels and turning around three times, in Sanskrit: “What I am about to do to you is torture”.

    love, Gonzales

    So you’re right once again.

    And if mocking racism/xenophobia is now racism, oy vay.

  44. Oh right, and is this “inflicting mild or moderate discomfort” some how different than inflicting pain?

    So your claim is that it is impossible to make someone uncomfortable without making them feel pain? Think about what you’re saying for a minute. I can make you uncomfortable just by giving you a lumpy cushion to sit on. Does that involve pain, or torture? Of course not.

    Which is the definition of “torture”.

    The definition of “torture” is not “inflicting pain”. It is, according to both the dictionary definition and our ratification of the UN torture treaty, the infliction of *severe* pain.

    If you walk up to someone and pinch them on the arm are you guilty of torturing them? Why not, you’re causing them pain aren’t you? It’s obvious to anyone who actually spends time thinking about the issue that the amount of pain matters. Making someone sleep on an uncomfortable cot in a hot and stuffy jail cell and not letting them get enough sleep is not torture. Attaching electrodes to their sex organs and repeatedly shocking them into unconsciousness *is* torture. Somewhere between those two extremes, “not torture” crosses the line into “torture”. Gonzales was merely trying to describe where that line is.

  45. How on earth, on a libertarian site, is the leap made from, “X acts are not legally torture,” to, “X acts are ok and recieving my endorsment.”

    Somethings are illegal, some things are amoral these two have only a partial overlap in a perfect world. In the real world does anyone here think they are even close together?

  46. it is quite amusing how easily one can idedntify a poster before scrolling far enough to see the name…two lines in to Dan’s 6:52 post, i blurted out eff you, Dan and thus was compelled to quit reading the comment and check if i was correct…imaginge that…nobody hear defends nearly as vigoursly as he

  47. A lot of you make the mistake that just about anything that makes one uncomfortable is torture. You can’t just make up your own definition to suit your argument. For example, and this takes it about as far as it can go, I don’t see how anyone could equate humiliation (e.g., forcing Muslims to look at gay porn) with actual torture. It’s bad. It might even be immoral (well, to the extent the State can choose between morality and immorality). But it ain’t the same as the rack, genital-electrodes, or Chinese water dripping (is that pc?).

  48. Not a Reno fan by any stretch, but why was she the only cabinet official to offer resignation?

    I was only 11 when this happened, but if I remember correctly, the ATF initiated the raid and they were under the Treasury Dept. Shouldn’t the Sec ‘o Treas have assumed some responsiblity? He may not have brought the FBI and tanks into it, but it was his agency that started the fiasco.

    If you’re standing with a group of protestors and throw a rock through a window, which leads to a riot, you are held prosecuted for more then just petty vandalism. You may not have burned those cars, but you did start the riot (or at least that’s how any DA/AG would portray it in the media.)

    Is there any AG in the last 30 years who hasn’t pursued some policy in complete oppposition to freedom? Edward Meese and his various porn crusades immediately come to mind.

    As I said before, I’m no fan of Janet Reno. I believe Waco was an absolute travesty on so many levels and her various counsels to Clinton about how to narrowly tailor juvenile curfews to pass constitutional muster certainly didn’t help while I was in middle/high school.

    Anyhow, I can’t help but think that the evil that was Janet Reno wouldn’t have been so heavily criticized had she been a man and/or serving in an administration less hated by conservatives.

  49. Dan,

    Are you now suggesting acts which are “cruel, inhuman, or degrading” are not “severe?” After a while, all you are about is sophistic wordplay.

    The full defintion from the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:

    1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

    Webster’s definition:

    n 1: extreme mental distress [syn: anguish, torment] 2: unbearable physical pain [syn: torment] 3: intense feelings of suffering; acute mental or physical pain; “an agony of doubt”; “the torments of the damned” [syn: agony, torment] 4: the act of distorting something so it seems to mean something it was not intended to mean [syn: distortion, overrefinement, straining, twisting] 5: the act of torturing someone; “it required unnatural torturing to extract a confession” [syn: torturing] v 1: torment emotionally or mentally [syn: torment, excruciate, rack] 2: subject to torture; “The sinners will be tormented in Hell, according to the Bible” [syn: excruciate, torment]

    Inhuman:

    In*hu”man, a. [L. inhumanus: cf. F. inhumain. See In- not, and Human.] 1. Destitute of the kindness and tenderness that belong to a human being; cruel; barbarous; savage; unfeeling; as, an inhuman person or people.

    2. Characterized by, or attended with, cruelty; as, an inhuman act or punishment.

    Syn: Cruel; unfeeling; pitiless; merciless; savage; barbarous; brutal; ferocious; ruthless; fiendish.

    Savage:

    adj 1: (of persons or their actions) able or disposed to inflict pain or suffering; “a barbarous crime”; “brutal beatings”; “cruel tortures”; “Stalin’s roughshod treatment of the kulaks”; “a savage slap”; “vicious kicks” [syn: barbarous, brutal, cruel, fell, roughshod, vicious] 2: wild and menacing; “a ferocious dog” [syn: feral, ferine] 3: without civilizing influences; “barbarian invaders”; “barbaric practices”; “a savage people”; “fighting is crude and uncivilized especially if the weapons are efficient”-Margaret Meade; “wild tribes” [syn: barbarian, barbaric, uncivilized, uncivilised, wild] 4: marked by extreme and violent energy; “a ferocious beating”; “fierce fighting”; “a furious battle” [syn: ferocious, fierce, furious] n 1: a member of an uncivilized people [syn: barbarian] 2: a cruelly rapacious person [syn: beast, wolf, brute, wildcat] v 1: attack brutally and fiercely 2: criticize harshly or violently; “The press savaged the new President”; “The critics crucified the author for plagiarizing a famous passage” [syn: pillory, crucify]

  50. Jimbeaux,

    Well, just read terms used in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:

    1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

    I am not “making up” this definition.

  51. Jason – you’ve got the right definition there. Note that it defines torture as severe pain and suffering. Nowhere in the rest of the convoluted sentence does it say that anything that falls short of severe pain and suffering constitutes torture.

    Gonzales was doing what any competent lawyer does – parsing the meaning of key terms. As far as this lawyer can tell, he was correct in saying that there are some things that can fairly be called inhumane, cruel, or degrading that do not inflict severe pain and suffering, and thus do not constitute torture under that definition.

  52. R.C. Dean,

    Nowhere in the rest of the convoluted sentence does it say that anything that falls short of severe pain and suffering constitutes torture.

    And of course nowhere does it state that “cruel, inhuman, or degrading” fall short of “severe” pain, etc.

    Gonzales was doing what any competent lawyer does – parsing the meaning of key terms.

    Actually, he was doing a Clinton, as you are.

    As far as this lawyer can tell, he was correct in saying that there are some things that can fairly be called inhumane, cruel, or degrading that do not inflict severe pain and suffering, and thus do not constitute torture under that definition.

    Sorry, but the terms that I illustrated (and that Gonzalez used) definately fall within the scope of “severe.” You can defend this scumbag all you want to (this is not surprising I suppose), but I won’t. Now – with a straight face – please explain to me how an “inhuman” act is not a “severe” one.

  53. R.C. Dean,

    Also, Gonzalez was not simply acting as a “lawyer” (if he were a private defense counsel, or the counsel for a plaintiff in a civil trial I would view this differently), he was acting as counsel to the President, with a role that rises above merely a lawyer, one which requires him to take into account not only the desires of the President (to worm around legal constraints) but also honor the law – constitutional or otherwise – in word and spirit. He’s just like a prosecutor who has to take into account his client (the state and the “victim”) but also the rights, etc., of the defendant.

  54. R.C. Dean,

    It almost goes without saying that Gonzalez miserably failed in this dual role when he wrote the “torture memo.”

  55. I hope Gonzales doesn’t play this kind of word game with “cruel and unusual”, etc.

  56. “If you walk up to someone and pinch them on the arm are you guilty of torturing them? Why not, you’re causing them pain aren’t you? “

    Which is exactly why I said, “inflicting pain on the restrained”.

    Also, inflicting pain on a prisoner which only produces mild pain at first can become excruciating with the passage of time. It’s so sad that we’re debating to what degree the nominee for AG of this nation gives sanction to inflicting pain on prisoners. We should be condemning the activity in wholesale fashion.

    The abuse of prisoners runs counter to the very ideals of our republic that uphold the sanctity of individuals and their inalienable rights which led to the prohibition against cruel, and unusual punishment. People who condone the abuse of prisoners are being so unpatriotic that they might as well be spitting on the flag.

    When are the rest of the Abu Ghraib photos going to be released? Senators who have viewed them characterized them as “sickeningly cruel”, “much worse” and “barbaric”. American justice demands that the government criminals who abused those prisoners be punished. We need to see all of the evidence of this shameful conduct by our government.

    Remember that concerning Abu Ghraib : “General Janis Karpinski said she did not know what was going on in the 1A torture cellblock in the prison she ran because it was off limits to her troops.”

    http://www.antiwar.com/orig/rothschild.php?articleid=2463

    “Torture cellblock”! We need to know just how high up the authorization for such a monstrosity went.

    In view of the abuse at Abu Ghraib and Gitmo, it’s certainly understandable that some would be concerned about Gonzales’ pronouncements.

  57. Rick, Jason, you guys are completely misunderstanding the lawyer’s role.

    When a lawyer says something is legal, he is not saying that it is smart or moral or advisable. This isn’t a case of “what is not forbidden is required,” as you seem to think.

    All good lawyers everywhere have the obligation to “not only take into account the desires of their client (to worm around legal constraints) but also honor the law – constitutional or otherwise – in word and spirit.” What you take as “worming around” legal constraints is generally no more than reading legal language strictly and narrowly – something that libertarians should in principle favor. In other words, Gonzales was acting exactly like a lawyer, no more, no less, in writing that memo.

    He was saying, in effect, “here is the legal landscape, here is the zone within which the existing legal structure leaves you free to act.” That is the lawyer’s role. Nowhere in his memo does he ever go beyond that role and say “and therefore we should go right up to the line and inflict sub-severe pain on these people.”

    And of course nowhere does it state that “cruel, inhuman, or degrading” fall short of “severe” pain, etc.

    I can think of all kinds of cruel and degrading activities that fall short of inflicting severe pain. Making someone wear panties on their head comes to mind.

  58. Ya know, just yelling “Clinton” everytime someone tries to parse a legal definition (which, after all, is what it’s there for) is not exactly a great way to argue.

    As far as “inhuman acts” are concerned, that seems irrelevant to me. The point is the subjective effect of the act on the victim, not whether the act is objectively inhumane. If I whipped someone with a cat-‘o-nine-tails AND HE LIKED IT I don’t think you could call it torture (even though the act of whipping someone would be widely regarded as objectively cruel).

    For that matter, I’ll go back to my earlier point: I don’t see how simple humiliation of an inmate (forced to watch a sexual act, for example) could ever be regarded an infliction of “severe pain or suffering.” I guess if someone wants to prove that in court, fine. But it doesn’t make Gonzalez a fascist because he believes there’s a line somewhere between mild sleep deprivation and cutting off fingers one by one.

  59. Yeah, I missed the panties on the head comment. That’s a perfect example of what I’m trying to say. Treating that as torture does a disservice to real torture victims.

  60. R.C. Dean,

    And you are completely misunderstanding the role of a government attorney (as I described above). A government attorney is more than simply a “lawyer.” And in the future, leave out the selective quotations my statements.

    All good lawyers everywhere have the obligation to “not only take into account the desires of their client (to worm around legal constraints) but also honor the law – constitutional or otherwise – in word and spirit.”

    Quoting me in full would have been helpful here of course. Here, I’ll finish my statement so as to illustrate your typical lack of honesty:

    He’s just like a prosecutor who has to take into account his client (the state and the “victim”) but also the rights, etc., of the defendant.

    Gonzalez did not fulfill this dual role.

    Jimbeaux,

    Of course, I didn’t “just yell Clinton.” *rolls eyes*

    As far as “inhuman acts” are concerned, that seems irrelevant to me. The point is the subjective effect of the act on the victim, not whether the act is objectively inhumane.

    Sorry, but the language of the Convention doesn’t speak to “subjective effect.” You’re a bit like a leftist who will throw up any argument to defend Communism.

    If I whipped someone with a cat-‘o-nine-tails AND HE LIKED IT I don’t think you could call it torture (even though the act of whipping someone would be widely regarded as objectively cruel).

    No one is talking about BDSM here and your attempt to compare acts voluntarily allowed with those which are non-voluntary further illustrates my analogy above.

    I don’t see how simple humiliation of an inmate (forced to watch a sexual act, for example) could ever be regarded an infliction of “severe pain or suffering.”

    That merely means that you don’t like the law as it stands; if you want to change it, well, that’s fine, but be honest and don’t try to change it by acts of mere sophistry.

  61. I don’t think it’s sophistry to point out that a rather vague and subjective term (“severe pain or suffering”) is subject to different interpretations. Panties on the head, for example. That’s what lawyerin’ is all about.

  62. I wonder do some of you who think that piling terrorists into naked pyramids is a bad thing. Also object to the fact that US citizens are routinely raped in our own prisons here at home?

    I am not saying that what went on was right. I am just saying that I am personally apalled by what goes on routinely in our prisons at home. And not enough people seem outraged by that.

    I watched an episode of ‘Law & Order’ when I was back home. And in the episode the cops but a young guy in prison, because they thought the threat of going to prison where he would surely be raped, would be enough to make him crack. He didn’t crack and they sent him to prison, where he was raped and murdered. He turned out to be innocent, and they charged the guilty girl who knew the man was innocent with murder (for allowing an innocent man to go to jail and get murdered). I would think that if you could charge her with murder, you could also charge the cops with murder

  63. As far as this lawyer can tell, he was correct in saying that there are some things that can fairly be called inhumane, cruel, or degrading that do not inflict severe pain and suffering, and thus do not constitute torture under that definition.

    Would you say that some of the photos in abu Ghraib show torture, while others show “degrading treatment”?

    That’s my opinion. The person with the electrodes is being tortured (severe psychological pain), while the person on the leash is receiving cruel, inhuman, and degrading treatment.

    imo, Gonzales’ memo is more like… Well, imagine a defense lawyer telling his client: Killing your wife this way will be considered murder in the first, Mr. President, whereas if you kill her this way, you’ll get off with involuntary manslaughter.

    What Gonzales is doing in his memo is being an accomplice to a crime. An accessory before the fact. A facilitator.

    Q : What is complicity or accomplice liability?

    A : Complicity is the act of being an accomplice. An accomplice is someone who helps in, or in some states merely encourages, the commission of a crime. Courts sometimes refer to such a person as an aider or abettor. This person did not commit the crime, but his or her actions helped enable someone else to do so. Examples of complicity include supplying weapons or supplies, acting as a “lookout,” or driving the getaway car. Other examples are bringing the victim to the scene of the crime or signaling the victim’s approach. There are many other ways a person can serve as an accomplice–for example, conspirators are accomplices to all crimes committed during the life of a conspiracy to accomplish its purposes.

    Accomplice liability means that anyone who helps in the commission of a crime is as guilty as the person who committed the crime and could be punished as severely if convicted.

    I don’t see how simple humiliation of an inmate (forced to watch a sexual act, for example) could ever be regarded an infliction of “severe pain or suffering.”

    That would depend. A Muslim man’s being forced to watch his sister having sex with a guard certainly would be.

    Note, however:
    Article 5

    No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

    (UDHR)

    Note, too, that we are discussing the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”.

    Nowhere in the rest of the convoluted sentence does it say that anything that falls short of severe pain and suffering constitutes torture.

    “Whether physical or mental.”

  64. Anybody who would accuse the next AG of supporting torture is giving aid and comfort to the enemy. Those people should be stacked naked in pyramids while somebody sodomizes them with a glow stick. It isn’t torture, it’s completely legal, and it would teach them to appreciate the freedom our country offers!

  65. I wonder do some of you who think that piling terrorists into naked pyramids is a bad thing. Also object to the fact that US citizens are routinely raped in our own prisons here at home?

    Yes.

    Reason had a little article on this subject a while back, btw. (I wanted to reproduce it on my site, but I got permission only to link to it. Yoopee.)

    “I am just saying that I am personally apalled by what goes on routinely in our prisons at home. And not enough people seem outraged by that.”

    I agree wholeheartedly with you. In my opinion, capital punishment and incarceration are the two most important domestic problems in the US today.

    “I would think that if you could charge her with murder, you could also charge the cops with murder”

    I didn’t see that. (I don’t like that program. Too pro-death penalty for me.) I wouldn’t charge the cops (from your description) but the District Attorney, who had to agree to it.

  66. I am not so much against the death penalty, as I am against raping and dehumanizing specially on taxpayer expence.

    You would think that more people who are outside of prison and don’t want to become a victim of someone that once was inside a prison (I think there are statistics that show that 95% or so of crime is committed by someone that has been in prison at one time in their life). Would realise that what we got now isn’t working.

    You would think that more people would think that instead of using the threat of rape to prevent someone from turning to crime, that we could come up with a better way. I am not a bleeding heart liberal by any means (as you may have already gathered from my other posts), but there has to be a way to balance punishment, with kicking our own selves in the face by further dehumanizing people.

    I also think that we should stop calling prisons ‘correctional facilities’ until they can show some improvement in their recividism levels.

  67. kwais,

    I wonder do some of you who think that piling terrorists into naked pyramids is a bad thing.

    Assumes that (a) they are “terrorists,” and (b) that the only thing going on is human pyramids.

    Also object to the fact that US citizens are routinely raped in our own prisons here at home?

    How do two wrongs make a right?

    And not enough people seem outraged by that.

    I am outraged by it.

  68. I suppose I do assume those two. As far as those two are what the outrage is about.

    I don’t think two wrongs make a right at all. I just think that a more logical reaction would be; “hey look we are treating terrorists as bad as we treat people over here convicted of a DUI, or convicted of owning some mostly harmless THC stuff. What a surprise”. To the current scandal.

    Actually I wasn’t so much trying to justify a behaviour as I was adding a new topic. I didn’t really think your argument on what a lawyers duties were was getting anywhere. Or at least I don’t think I could add anything new to two sides that were arguing past eachother.

  69. Seymour Hersh says the US government has videotapes of boys being sodomized at Abu Ghraib prison in Iraq.
    “The worst is the soundtrack of the boys shrieking,” the reporter told an ACLU convention last week. Hersh says there was “a massive amount of criminal wrongdoing that was covered up at the highest command out there, and higher.”

    Some people justify our actions in Iraq as ?Humiliation?. To me child rape and the murder of prisoners is more than mere Humiliation.
    (http://www.gazette.com/war/1005warx.html and http://www.libertypost.org/cgi-bin/readart.cgi?ArtNum=50265)

  70. And because I know someone will immediately leap forward to denounce Hersh as untrustworthy (even though none of those people have ever produced a single verifiable instance where Hersh has lied or misrepresented facts), I will remind the assembly that on multiple occasions on this blog it has been demonstrated that the US military’s own investigation produced testimony about teenage boys being raped in Abu Ghraib.

  71. Dan-

    I’ll revert to my habit of pre-emptive posting and just tell you right now what your detractors will say:

    1) Those allegations of rape and murder at Abu Ghraib are simply false and unfounded.
    2) Even if they aren’t unfounded, Hersh is part of the liberal media, so he can’t be trusted.
    3) Even if there are other sources, they were terrorists who deserved it.
    4) Even if innocent people were subjected to that treatment, only a handful of the victims were innocent.
    5) OK, even if a lot of them were innocent, the troops who did it couldn’t have known it at the time. You have to forgive some leaping to assumptions during war.
    6) And even if that isn’t a good excuse for this conduct, it was just a few bad apples acting without the knowledge of their superiors.
    7) Even if their commanding officers knew, it was still confined to the lower levels in the chain of command.
    8) And when people higher in the chain of command found out they stopped it.
    9) Well, OK, they didn’t stop it right away, but they did eventually.
    10) The foot-dragging was done by a handful of officers, none of the civilian higher-ups in the Pentagon were involved.
    11) OK, maybe some civilians with political appointments (as opposed to career civil servants) were involved in the foot-dragging. But none of the blame can be placed on Rumsfeld. Never mind that we all learned from Donald Trump that the Project Manager is ultimately responsible for what goes wrong.
    12) OK, maybe Rumsfeld has some indirect responsibility, but Bush certainly doesn’t.
    13) Look, you’re just criticizing the President over this because you’re upset that we went to war in the first place.
    14) OK, even some people who supported the decision to invade Iraq are upset over this, but they really need to look at the big picture.
    15) OK, the big picture isn’t going so smoothly either. Can we just talk about the good intentions that we had when this whole thing started?

  72. 16) And let’s talk about the third set of good intentions, since the first few sets of good intentions that we offered up turned out not to be supported by any evidence.

  73. Umm. . .’kay. But really, ASSUMING that rapes at Abu Ghraib were not part of US defense policy, it isn’t really relevant to the Gonzales memos. No one (I don’t think) would argue that raping boys in order to extract something (info, whatever) couldn’t be considered torture. But a naked pyramid? that’s a closer call.

  74. Jimbeaux,

    You keep on going back to the naked pyramid as if that were the only thing done there; as if that is the only thing the Gonzalez memo could justify.

  75. “I just think that a more logical reaction would be; “hey look we are treating terrorists as bad as we treat people over here convicted of a DUI, or convicted of owning some mostly harmless THC stuff.”

    The things that happen to people held on DUIs and marijuana charges are dreadful, not doubt. However, there’s a big difference between what prisoners do to each other and what policy the White House sets in regards to torture. Even when prison guards abuse people held on DUI and marijuana charges, the abuse isn’t blessed by policy; that is, abusing such prisoners by way of brutality and rape is not the expressed policy of the United States.

    According to Gonzales’ memo, which I linked to above, the White House sought information on the policy of the United States as it regards torture, and Alberto Gonzales provided the White House with a nominal legal theory to allow cruel and inhuman acts. If you read the Schlesinger Report (E-mail me and I’ll send you a copy.), Donald Rumsfeld changed policy by way of a memo so that interrogators could use techniques previously considered tortuous.

    So the difference is that one instance is a matter of policy and law while the other is not. When prisoners and guards abuse people held on DUI and marijuana charges, it is not policy and it is not legal. The Bush Administration, on the other hand, tried to make cruel and inhuman acts, AKA torture, policy, and our future Attorney General, according to his memo, appears to have tried to make such behavior legal.

  76. I thought it was clear from my comment that, hey, I’m willing to buy into the idea that rapes were happening. But I’m not going to jump to the conclusion that Gonzales was specifically talking about child rape when he spoke of permissible acts that were “cruel, inhuman, and degrading” as opposed to impermissible acts which constitute torture. Not without evidence, anyway.

  77. Obviously, I was responding to Kwais’ post.

    If you’re insinuating that child rape is evidence that the horrors of Abu Gharib occurred beyond the scope of policy, and, hence, that the Defense Department and Donald Rumsfeld are blameless, I will refer, once again, to the Schlesinger Report. E-mail me and I’ll send you a copy.

  78. Thoreau,

    I don’t mean to gush, but you’re becoming one of my favorite physicists, right up there with Szilard, I tells ya!

    I wonder if it’s your scientific training that makes you pre-emptively look for problems before they actually arise. Whatever the cause, it’s damned entertaining. And distressingly accurate to boot.

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