Executive Power

Richard Epstein on America's "Legal Blunders" After 9/11


As part of the Hoover Institution's "Defining Ideas" series, New York University law professor Richard Epstein lays out some of the legal blunders made by the U.S. government in the wake of the 9/11 attacks:

The United States should have extended the protections of the Geneva Conventions to enemy combatants whether the U.S. was strictly required to or not. That approach would have led to a different attitude toward the question of rendition and torture. It would have led government officials to reject categorically the idea that we could farm out the right to torture to our allies overseas while retaining the right to reclaim custody of prisoners once the torture was over. And it would have led the administration to reject the untenable, narrow definitions of torture that were advanced in John Yoo's famous torture memos.

Try as I might, I cannot bring myself to believe that a statutory prohibition against the infliction of "severe physical or mental pain or suffering" should be read so narrowly that it covers only "death, organ failure, or the permanent, impairment of a significant body function." In particular, a sensible definition of torture seems to cover water boarding, where one pours water over the face of an immobilized and blindfolded individual to induce the immediate gag reflex of drowning. There is of course a separate question of whether any set of dire circumstances might justify water boarding. But that question is quite different from the broader assertion that the narrow definition of torture dispenses with the need for any justification at all. The Bush administration eventually stopped this practice. It should have done so much sooner, without putting up a public defense that lacked the power to persuade.

For more on the erosion of liberty after 9/11, see Reason.tv's interview with ACLU policy counsel and former FBI agent Mike German:

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  1. Invite post-2003 Andrew Sullivan over to call me a barbarian, but every anti-torture argument to me always starts at square 3 while assuming a couple of points no one deals with:

    1) Is waterboarding torture? It’s bloody miserable, I’m sure– as are life imprisonment, prison punishment loaf, and knowing that you have only you to blame cuz Mama tried. But if it induces fear and desperation without inflicting permanent physical damage, what makes it torture and other things that you could say the same about NOT torture?

    2) You have an enemy that, if it must be captured, desperately wants to be captured by us rather than the governments of the middle east, say, because we will treat him more gently. How do you prevent that from becoming part of the enemy’s strategic considerations, to your disadvantage? I’m not in favor of taking guys captured in the US and flying them to Tormentistan to be roughed up, but if we capture you out there somewhere, why do we own you like you were one of our own citizens? Why shouldn’t you fear that we might drop you off somewhere less hospitable in the neighborhood? Really, why are we that obliged to you for picking you up in the middle of your own part of the world trying to kill us?

    Whether or not you agree with either of the above (and I’m not 100% sold), have you ever seen anyone really engage such points by doing any more than repeating tautologies like “We don’t torture because we don’t torture,” which have nothing to do with whether or not something is torture?

    1. 1) the US successfully prosecuted japanese officers for waterboarding.

      2A) unknowable assertion since our enemies know about rendition.

    2. As to your first point: I guess I thought it was intuitive to most people that you can torture somebody without inflicting permanent physical damage. Let’s say I lock you up and tell you every day a member of your family will be tortured and killed, and when we get done with them we’ll torture and kill you. Then every day, using state-of-the-art technology, I show you a video of what appears to be a member of your family being tortured and killed. That sure as shit sounds like torture to me even if it doesn’t leave permanent physical damage.

      As to your second point, even if it’s valid (and it might be; I have no idea) I think that other concerns regarding torture–false confessions/misinformation, foreign policy impact, humanitarian concerns, etc.–simply outweigh the impact of enemies being insufficiently afraid to be captured.

      Finally, while I think many can argue that torture is inherently immoral without reducing their argument to the tautology you offer, I’ve seen many folks round these parts and in other civil liberties circles thoughtfully argue the folly of using torture, regardless of whether you find such arguments convincing.

      1. I find it difficult to believe that we wouldn’t call it torture if a Taliban interrogator kicked and beat an American prisoner (making sure not to inflict physical damage), or claimed that they were killing his family (see above), or making him think he was about to be killed (eg, by waterboarding).

        I certainly don’t think that American officials would brush off such behavior by saying, “well, at least they didn’t feed him prison food, lol!”

        1. And Congress could always amend the torture statute to provide that it’s not torture if our Middle Eastern allies do worse things.

        2. Eduard: but see, you immediately have to jump to things besides waterboarding to make your point. In my scenario, there is no kicking, no punching, and we tell you waterboarding won’t kill you– it’ll just feel like it will. So what makes this torture, exactly, and (this is the real issue) other miserable things NOT? (Ultimately, my point is that we’ve never thought about waterboarding in and of itself, we jumped to declaring it torture because we didn’t like Bush. That’s not good enough for philosophers.)

          ClubMedSux: but in fact we have a version of that scenario all the time, and no one calls it torture. You can roll over on your mob or gang and be protected in the witness protection program– or we’ll leave your family out there and if they get killed by your gang while you’re in here, too bad. Tough, but no one calls that torture per se.

        3. In the late 40’s the U.S. army executed a couple of captured Japanese army officers for war crimes.

          Their crime? They waterboarded american P.O.W’s.

          1. That would be the segregated US Army of WWII. I guess that was an irreproachable precedent, too?

            1. Wow, talk about ad hominem; “the U.S. army was segregated” ergo “the U.S. army’s definition of torture in 1945 was flawed”?

              1. Yes, actually, a 60+-year-old precedent, in and of itself, is not definitive without some argument as to why it should be.

                1. Actually, I was under the impression that, in a Common Law-based society, a precedent of any age was definitive until some argument arose why it should not be.

              2. The US Army also used to shoot American Indians, so that’s cool too.

            2. No, but it corrects your previous statement that, ” (Ultimately, my point is that we’ve never thought about waterboarding in and of itself, we jumped to declaring it torture because we didn’t like Bush…”

              We have thought of waterboarding as torture, decades ago, before Bush was ever born. We didn’t jump to declaring it torture because we didn’t like Bush…we declared it torture in the 1940s, then resurrected that long-held belief when it surfaced that we were then engaged in that activity. I’m sure there was a heavy dose of Bushhitlerism involved, natch, but you can’t say that we never considered it torture before Bush, because that simply isn’t true.

              1. whats-his-face’s memo is one spastic rain dance…in a desert of torture precedent

              2. Fair enough, but let’s face it, 98% of America never heard of waterboarding until they heard someone denouncing it as Bush-Rumsfeld-Cheney torture.

                1. Mike G, your entire point necessarily presumes that an armed mob has the right to detain a suspected terrorist, forcibly restrain him, blndfold him and assault him.

                  Of course, slavers, sheople, Caesar’s favored and the like do not consider such presumptions becasue to do so requires intellectual curiousity and would force them to ask questions the answers to which they would not want to know.

                2. So Mike, under what circumstances can someone learn about waterboarding so that their arguments against it will be valid?

                3. Fair enough, but let’s face it, 98% of America never heard of waterboarding until they heard someone denouncing it as Bush-Rumsfeld-Cheney torture.

                  Many of the torture techniques used by the U.S. on terrorism suspects came out of the SERE school; the SERE school tortures students under controlled conditions to prepare them for what can happen should they be captured, and the procedures they developed were copied and pasted into the manuals used by CIA interrogators.

                  The SERE school in turn used the experiences of U.S. POW’s from WW II, Korea and Vietnam and captured communist torture manuals as the starting point in developing their procedures.

                  The point here is that the CIA didn’t develop these things in a vacuum. They contacted the SERE school and asked for specific procedures.

                  These procedures were considered by the SERE school administration to be torture, and thus worthy of inclusion in the school’s curriculum to teach resistance to torture.

                  That’s what so damning. It was butchery, not botchery.

                  1. Did someone above say the showing you fake pictures of your family members being tortured, and telling you that you’re next, is torture? Really? Kidding, right?

                    1. I had the same reaction when I read same.

                    2. Speaking of torture, I recently watched Sly Stallone and Co. in “The Expendables”. Can someone call Geneva for me?

                  2. Libertymike: I don’t even get what you’re saying. What armed mob? Using “sheople” didn’t help.

                    Hugh: I’m not being snarky, I’m saying, our only public debate about it started with a conclusion. Do you seriously disagree?

                    Tarran: Again, though, you’re not articulating why it’s torture, you’re saying experts say it was. Not good enough.

                    Here’s my best argument for why waterboarding is a bad idea. If we say it’s because physical agony is worse than mental agony, we have to justify that belief. I think under many circumstances, many would find solitary a worse torture than waterboarding. Maybe not as intense, but more soul destroying over time. The issue, again, is less that we’ve defined waterboarding as torture as that we’ve defined plenty of other awful things as NOT torture. Why? No one seems to be able to articulate that very well.

                    The convincing argument, it seems to me, is not that there’s a bright line between not torture (solitary, threats to leave loved ones to the mercy of the mafia, whatever) and torture (waterboarding) but that physical forms of pain-infliction are on a slippery slope that brutalizes the inflictor, not the recipient. Government’s legitimacy requires a certain coolness of temperament in how the person of those under government’s thumb are treated, to discourage the all-too-human agents of government from getting out of hand and doing successively worse things. Pursue a man in court for years, it may be awful but it’s cool, cerebral, at least discourages making it personal. Get into a fight with him and hot blood takes over. So we choose to draw a line somewhere for our sakes more than his.

                    That’s the “we don’t torture because we don’t torture” argument articulated, I believe.

                    That said, I still question whether it invalidates rendition. The world is not as good as we hope to be. You’re a bad man in a bad part of the world. I don’t see how that entitles you to the protections of the best part of the world. If you try to kill people and wind up in an Arab shithole prison instead of in a US country club prison, well, them’s the breaks. Plenty of people who did far less than you wound up there too, and unlike you, some of them were fighting to make it better, not worse.

                    1. The world is not as good as we hope to be.

                      Other people doing bad things does not justify you doing bad things.

                      I don’t see how that entitles you to the protections of the best part of the world.

                      The US Constitution is a document that limits and defines how the government treats people, not a list of entitlements that is limited by citizenship.

                    2. Well-articulated, but you’re also jumping to a conclusion at the bottom that only bad, evil actual terrorists are the ones being…would “renditioned”, be the word?

                      Seems strange that as an ostensible distruster of big government, we automatically assign some sort of infallibility to the military. Maybe Ahmed was just rounded up and told that he had to fight or his family would be killed. Maybe he doesn’t know or care about the greater politics of the area (making it a “better place”), and is fighting because it’s a steady paycheck. Maybe he thinks the Taliban is better (in the more corrupt provinces, it is quite common for the locals to prefer the swift, sure (if not always accurate) justice of the Taliban to the graft and bribe-riddled officials from Kabul).

                      Maybe they don’t even know anything about any plots. So given all this, do we really want to say that it’s OK to rendition people out for what would unambiguously be called torture (in Egypt, waterboarding is probably the least of the punishments)? It’s the same argument as against the death-penalty: the almost undoubted fact that innocent people have been murdered by the state with the shrug and excuse of “you can’t make an omlette without breaking some eggs” is inexcusable, except from some kind of fucked-up utilitarian point of view. It’s never OK to harm or kill innocent people, no matter your justification, period. To believe otherwise is just mainstream Team Red, IMO.

                    3. Mike G.

                      I strongly encourage you to get the book “Eight O’Clock Ferry to the Windward Side” out of the library and spend a quiet weekend reading it.

                      It wasn’t bad guys being sent to third world hell-holes. It included a chef who happened to be at the wrong place at the wrong time. It included a man who could prove he was in England at the time he supposedly was fighting on behalf of Al Queda in Afghanistan according to the U.S. government.

                      As far as my definition of torture goes, it’s essentially when a person inflicts pain on purpose for a reason other than self defense.

                      I don’t think my view is particularly relevant, it’s not as if the U.S. government has ever altered its course one iota because of my views.

                      The argument I am making is that many officers of the U.S. government were viewing a constellation of things one can due to captives, of which waterboarding was just one element, as torture, that they had punished people for using those techniques on the grounds that it was torture, that in essence they are guilty of a violation of the Doctrine of Preclusion of Inconsistent Positions.

                      You call it arguing from authority. It is not. It is merely arguing that the guys who now claim something isn’t torture have, without articulating a reason why, changed their position from the past.

                      Moreover, there is kind of an Orwellian memory hole vibe in that just as Oceania went from being allied with EastAsia to having always been at war with East Asia, there is no acnowledgement that the people who are supposed to be experts on torture in the military were asked to teach people how to do these things that they (the experts) consider to be torture, but their bosses now are claiming is not torture.

                      Again, it would be one thing if the CIA and the Pentagon interrogators had independently come up with the tortures in ignorance of what was going on at SERE school.

                      No, they went to SERE school and asked for their procedures. Why? The SERE school teaches people to resist capture and torture. It’s not like the CIA didn’t know how to interrogate people. The only thing SERE had to teach them was how to torture people.

                    4. Tarran and Gojira: all of that is a good practical argument for why we should be careful. That said, war is war and unlucky people run into bad trouble in battle. I’m sure there were French and Belgians and Italians who ran into serious injustice in World War II, but I wouldn’t have slowed down the American Army’s advance into Berlin to carefully hear every one of their cases before stopping Hitler. In any case, I’m trying to isolate, however heartless it may sound, the philosophical arguments (we shouldn’t do this because of X moral position) and not the practical ones (we shouldn’t do this because we’ll inevitably fuck it up). Which brings us back to:

                      “As far as my definition of torture goes, it’s essentially when a person inflicts pain on purpose for a reason other than self defense.”

                      Fine. Define pain.

                      Hugh: “Other people doing bad things does not justify you doing bad things.” Nonsense, it justifies all kinds of bad things– killing them, imprisoning them for lifem depriving them of funding (you think Bin Laden’s wives and kids had a good life once we cut off Saudi donations?). The issue is, which bad things does it justify, which good things does it obligate you to? Maybe not flying them to far-off Tormentistan to be tortured, but if we and police from Whackistan raid an apartment house in Kerchooi and capture a terrorist, are we obligated to giving him the full protection of the US, or do we let the Whackistanis have a couple of days with him first? Why, of all the bloggers and poets and homosexuals that Whackistan will incarcerate and torment this year, is a bomb-plotter uniquely entitled to be protected by the US simply because he was trying to kill large numbers of us?

                      “The US Constitution is a document that limits and defines how the government treats people, not a list of entitlements that is limited by citizenship.”

                      Explain how that logic was applied in World War II, then.

                    5. Weren’t you the one just upthread talking about how examples from WWII can be tossed out because they’re outdated?

                      And just because you personally would have had no problem inflicting injustice on innocent people in a war against Hitler, does not ipso facto make that the correct, default position. Essentially you’re making the same argument you refuted up-thread…”it’s this way because that’s how we did it before”.

                      You really sound like you’re just making utilitarian arguments. It’s OK to torture or kill (possibly) innocent people if it saves some number of other innocent people. I reject such arguments entirely, from a moral perspective. There is no logical way to lay out morality…if there was, it wouldn’t be morality, it would be utilitarian.

                      For example, say you had to torture 10 guys to get the info to prevent an attack which has the potential to kill 200 people. I still would not support that torture, for the reasons I’ve already outlined.

                    6. The practical argument is thus:

                      One’s allegiance to liberty supercedes whatever childish / fetishistic allegiance one has to a an artificial construct like the state.

                      This is a libertarian blog / hang-out. As such, one should expect that some posters here, taking their committment to liberty seriously, do not conflate freedom with the united states of socialist amerika. One should expect to be ridiculed if one comes here with love for lincoln and other mass murdering empire builders.

                      To break it down for you, one who is a principled libertarian necessarily objects to war as war itself is incompatible with liberty and it never has served to protect liberty, never mind enhance it.

                      Part of the war racket is ramping up the propaganda fed to the sheople like yourself. “They attacked us because they hate our freedoms” or “we have to embark upon a never ending war in order to keep us safe” or “we have to be able to spy on people and track them adn tap their phones in order to keep us safe and protect our freedoms” or “we have to fight them over there so that we don’t have to fight them here” and “Iran wants to wipe Israel off the map so we have to prevent Iran from developing a nuclear bomb” and “weapons of masss destruction” and “homeland security” and all the other mindless drivel one hears from the parasite class.

                      If you think for one minute that al-queda or the mujahadeen are a greater threat to your liberty than the united states of socialist amerika, you are, by definition, one well trained dupe. If you love the stars and stripes, fly-overs at NFL games, men habadashered in hilarious costumes emblazoned with little pins and ribbons testament to the wearer’s obsequiousness to Osiris or Obama or Octavius, you are solid with the solons, satraps and scrotum sniffers of the state.

                      Turning to the issue of torture, where in the founding documents is there support for the proposition that the executive branch has the power to construct secret prisons in foreign lands without the express permission of the congress pursuant to public debate and vote?

                      WHERE? Keep in mind, the founders who favored the constitution (those being either holders of war debt or those who represented others who held war debts) repeatedly assured those who were rightly skeptical of the document that no powers were to be implied; if the federal government were to act, such action had to be specifically permitted in the constitution.

                      Guess what? There is no power to make war in other lands. The framers were smart enough to recognize that those who were attracted to power and their rank intellectual supporters would conjure up all sorts of “doomsday scenarios” to justify the use of state power.

                      Guess what? There is no green light given to the feds to waterboard. If the founders had intended to give the state the power to waterboard or inflict pain upon others in foreign lands, they would have so said.

                      Finally, you have zero factual support for your asseveration that torture probably worked. NOne. It is just rank speculation kunsupported by any empirical date or common sense.

                    7. Libertymike: But in essence that’s not a moral argument against torture. That’s just an argument that government is bad. But if we assume that we will have a government and it will, on occasion, be at war in a serious, existential-threat kind of way, then we need to have a serious conversation about how to conduct that war. I respect being a refusenik on the whole, despite your use of “sheople” which is intellectual laziness of the crudest sort (“I don’t have to wrestle with your argument because you’re deluded by Rethuglikan mind rays”), but some of us believe in thinking about these things and NOT just letting them do whatever they want.

                      And that’s where something like this from Gojira comes in:

                      “And just because you personally would have had no problem inflicting injustice on innocent people in a war against Hitler”

                      I wouldn’t. If I were in FDR or George Marshall’s position, yes, I would bomb innocent people, shoot innocent people, drop the big one, whatever it took– when the alternative is leaving Hitler in power and the machinery of the Holocaust running until, what, 1950? 1960? Until the job of exterminating Jewry, turning Eastern Europe into slave labor for Germany, and eliminating non-Nazi culture was finished? Are you willing to call that the greater good than letting Patton fight ruthlessly straight to Berlin?

                      So, ultimately, the answer “I wouldn’t torture– because I wouldn’t fight on any level” is evading the question.

                    8. It isn’t evading the question. You asked for a moral position, and we’re giving you one. I don’t know what you fail to understand here.

                      We did not enter WWII in order to end the Holocaust. We bombed German cities, and killed innocent men, women, and children, long before we knew what was happening in those camps. So your example is moot. If your only justification involves knowing 100% that there is a black-and-white, good-versus-evil, existential threat situation…well, you’re going to be hard-pressed to find many examples of that to hang your hat on. And we’re talking about needing absolute knowledge of this before hostilities start…you can’t use post-facto knowledge like the Holocaust to justify events which preceeded it.

                      And how very noble of you to take it upon your shoulders to decide what the “Greater Good” is for the world, and be willing to volunteer my tax money, and the moral standing of our nation, in order to achieve your vision. Might I humbly suggest that if you want to effect some “Greater Good”, that you volunteer your own time and money, and go over there and fight what you think is right. Leave me the fuck out of it.

                    9. Oh, and just in case you were thinking of saying, “No, we got into WWII because they bombed Pearl Harbor”…well, they didn’t just wake up one day and decide to do that.

                      The US gov’t imposed an oil embargo on Japan for what they were doing in China. It’s none of our concern what brutal tyrants do overseas. If you’re really that concerned about it, please, head over to redstate, where you will find all kinds of great people who believe we should be the world-police.

                    10. “We did not enter WWII in order to end the Holocaust… So your example is moot.”

                      It was just a lucky break that it happened to be happening in the same country as the world-conquest-minded crazy man we wanted to stop and not, say, Canada or Iceland?

                      It’s a very blinkered view that can parse Nazism so finely and wind up finding us at fault.

                    11. It’s a very blinkered view that can parse Nazism so finely and wind up finding us at fault.

                      Rothbardians always leap to defend and rationalize acts of statist brutality when they are committed by totalitarians against a vastly more free Western nation. Even if one believes the U.S. was wrong to go through with the embargo (which was of course a response to imperial Japanese aggression), that hardly justifies bombing Pearl Harbor.

    3. Mike G,

      According to a Navy Seal chief petty officer who was an instructor at SERE school who wrote an editorial on the subject, waterboarding is torture.

      When a SEAL is characterizing something as torture rather than character building unpleasantness, it’s safe to assume it crosses the line.

      1. Appeal to authority isn’t argument.

        1. Actually, it can be.

          Here is the essay in question. Read his arguments for yourself.


          1. Mike has a point, though.

            Let’s say that you know what you know about waterboarding and solitary confinement. Which would you pick as your punishment? I would ask to be boarded every day for six months (or maybe even more) before taking an LWOP sentence at Florence ADX.

            1. Just because we would chose one torture over another doesn’t mean that one isn’t torture. That I’d rather have my nipples electrocuted than have my balls chopped of doesn’t make the electrocution not torture.

              Also, if we’re defining terms, say waterboarding as torture, we almost have to appeal to authority. Prove to me that a car is a motorized vehicle without an appeal to authority. But, if we can agree that Webster’s is a valid authority then your task would be easy.

              1. You miss the point, Capitol L. It’s not that two things are torture. It’s that we’ve decided, between two things that seem awful to me, that one definitely is torture, and one definitely isn’t. Why? No one seems to be able to explain why.

                1. You’ll have a hard time arguing from the point of view of the masses on this one. I’d hazard a guess that most of us here do consider extended stretches in solitary a form of torture; I certainly would not say that it “definitely isn’t”.

                  Unless of course the prisoner requests it for his own protection from the general population.

    4. 1) Waterboarding is torture because it is the deliberate infliction of physical and psychological trauma on a prone prisoner in custody.

      2) “We don’t torture because we don’t torture” can be stated as “we don’t torture because we subscribe to the ideal that human beings have rights that a government is bound to respect.” The burden of proof is on people like you who think that the US governments duty to respect people’s rights depends on where their passport was issued.

      3) If you think nobody has ever thoughtfully engaged these issues before, then this must be your first visit to Hit & Run.

      1. “1) Waterboarding is torture because it is the deliberate infliction of physical and psychological trauma on a prone prisoner in custody.”

        Now explain why solitary confinement is not torture.

        1. There are actually many legitimate uses for solitary confinement. Waterboarding has no use except as torture.

          1. Couldn’t I just as easily say the opposite? There are many legitimate uses for waterboarding (and no one denies it has an intended purpose, even if ineffective), but solitary confinement has no use except as torture. How does either assertion prove the other wrong?

            1. Solitary confinement can be used to keep a prisoner safe from attacks by other prisoners. That is one valid use. There is no intent to inflict mental or physical harm on the prisoner.

              Name a valid use for waterboarding.

              1. Or to protect people from the prisoner in question. I remember some serial killer who sincerely believed that he was a vampire, and that he was going to die if he didn’t drink human blood every few days. Would you make someone else share a cell with him? 😉

                1. The protection from another prisoner objective didn’t work out so well for father Geoghan.

                2. A Twilight fan, per se haps?

                  1. Not at all, per se.

                    I’m not into vampires at all, per se.

                    I do, however, have a secret love of true crime books when traveling.

                    I read Douglas’ Mindunter, per se, and he talks about the vampire guy in that.

                    Now, pass me the clamato.

                    1. I didn’t think so poorly of you, tarran. I was suggesting someone who might possibly deserve to be put in with the guy you mentioned.

              2. “Name a valid use for waterboarding.”

                To protect innocent people from attacks by the prisoner’s compatriots. As likely did happen, like it or not.

                That’s part of the problem with this debate– the answer was so often, “It’s torture and besides it didn’t work.” Yet in fact it probably did, and the honest argument needs to be, “It did work but we still shouldn’t do it because.”

                1. And how many non-ideological Taliban soldiers, who knew nothing of any plots, were subjected to this? Does anyone know? What equation are you using to determine the ratio of how many people can be tortured (lets say through rendition to avoid the whole “is waterboarding torture” argument) in order to save x number of lives?

                  It’s utilitarianism, nothing but, and it’s immoral.

                  1. I’m sorry, is it now a moral imperative that we sort the enemy into ideological and non-ideological, too? I miss the days when we simply sorted them into the dead and the surrendered.

                    1. By “non-ideological”, I meant the types of folks who I spoke of up-thread – those pressed into service against their will, or who do not realize that we’re not coming to blow up their villages and change their religion, which is what I’m sure they’ve been told (and to be fair, we do blow up a lot of their villages).

                      “I miss the days when we simply sorted them into the dead and the surrendered.”

                      Then I hope you don’t take offense to my saying you sound like any other random, average, blood-thirsty warmongering Team Red shill, with no moral compass or basis. If all you want to do is kill everyone who doesn’t surrender to us regardless of circumstances, then what the fuck are you but a tyrant, in your own petty way?

                    2. The point of fighting a war ruthlessly is to end it quickly. If you really want to prolong the agony for everyone, fight it halfheartedly, without clear objectives, and litigating it every step of the way.

                    3. This is wrong.

                      Ruthlessness actually prolongs conflicts by strengthening the enemy’s will to fight.

                      As Sun Tzu observed, who holds the moral high-ground is on a par with the size of one’s forces in determining who is likely to win a fight.

                      Treat prisoners harshly, and the enemy will treat every fight as if they are on death ground. Treat prisoners kindly, and you provide enemy soldiers with a safe exit from the fighting, dramatically reducing their willingness to fight.

                      In the end, ruthlessness typically only awards a short term gain at the expense of significant long term costs.

                2. Who said it worked?

          1. So where are the lefty groups calling for every governor in the state of the union to be tried for “crimes against humanity”? Certainly, if we cannot torture captured foreign nationals, and solitary is torture, then the standard must be at least equal to or higher for an American citizen.

            1. Since most lefties love the government, and most American lefties love the idea of enemies of the state, particularly rich ones, being punished, I doubt that there will ever be such a movement of any significance.

      2. Well, to be charitable, back in ’05, the commentary at Hit and Run tended to be more high-brow. Then DaveW showed up with his high-fructose corn syrup obsession and started cyberstalking Thoreau, and everything went to pot.

        Now it’s mainly rhetorical poo flinging.

        1. I came in after the great grylliade exodus, and I have engaged with many an internet tuff gai torture apologist.

          1. Yes, but did you use highbrow arguments?

            … or did you fling poo?

            1. I would never stoop to anything less than direct, engaged, rational arguments, you tuberous rectal corpuscle.

        2. I remember it being much better here back in those years when I was a lurker. I’ll avoid examining that thought too closely.

          1. You ought to examine it.

            You should contemplate it on the tree of woe.

            1. When URKOBOLD? became barely distinguishable as satire, we realized things had gotten bad.

              1. That happened when Palin was named McCain’s VP candidate after the Urkobold predicted it. Things went from weird to freaky after that.

              2. URKOBOLD …. is … meant … as satire?

                I don’t want to live in this world anymore, man.

          2. Nobody is saying it’s your fault, Warty, mostly because that would require talking to you.

            1. By the way, I remembered that I have a grylliade account. That is a threat.

              1. What have I done? “Now, I am become Death, the destroyer of worlds.”

                1. Funny, I just found out that a number (or all, for all I know) of The Destroyer novels are available for $0.99 each for Kindle. I’d read the first one some time ago, but now I’m up to #4. Bought the first seven already.

                  1. 23 years ago, in college, I turned an old high school chum onto the Destroyer novels as brain candy for quick 1-2 hour reads on lazy days. Two years later, the summer we did our post-graduation European tour, we both went with custom airbrushed Remo shirts — black t-shirt (though his was a sleeveless tank top-type) with the concentric Remo circles on it. For years after, I wore mine to geek gatherings in the University of Florida ‘student ghetto’. When asked to explain, I’d hand out a cheap used Destroyer paperback from the series. I made many converts to the glory of Sinanju.

                    All of which is a verbose way of saying, “Dayum, I gotta get me a Kindle now.” 🙂 Thanks, P.L., for the tip-off … You’ve made my week.

                    1. Chiun would run screaming from Warty.

              2. Come on down, dude.

      1. So if you’re really really upset by being imprisoned at a minimum security facility, or by being put on trial at all, are you being tortured? A literal reading of your answer, especially nrs. 4 and 5, would seem to make the answer yes unavoidable.

        1. 4 and 5 are more like ‘torment’.

  2. my idiocy is breathtaking

    1. but my junk is HUGE !

  3. Mike G’s arguement seems much like Basil Seal from this post. Just sayin.


    1. All internet tuff gai torture apologists sound kinda the same. John Yoo has a hard time changing his style when he trolls civil libertarians.

    2. It does, but it isn’t me. I think I have made similar arguments once or twice here as Mike G, the only name I’ve ever used here.

  4. Well, I guess you could agree with Epstein if you see it as a moral imperative for the stronger force, no matter how righteous, to kneecap its own efforts to protect its citizens against a weaker antagonistic force. I don’t share that delusion. Fuck, why not force our soldiers to fight with rubber bullets? Makes as much sense as banning torture.

    1. Dude, you are so fucking deranged it’s not funny.

      Remember when you were arguing that it was Ok for U.S. forces to kill non-combatants because they were either enemies or friends, and enemies derve to die, and friends should wlecome martyrdom for the good cause of our victory?

      I hate you collectivist anti-life motherfuckers with a passion. Your Lenin-like bloodthirsty willingness to murder anyone who gets in the way of your utopian fantasies sickens me.

      1. Let it all out little guy.

  5. What you all are missing is that an illegal combatant is entitled, by the Geneva convetions, to a summary execution. Anything less than that is a gift.

    1. Wow, thanks for the clueless comment mr Anga. I take it you never served in the military, since they covered the Geneva conventions pretty thoroughly when I joined up in 1993

      There’s this treaty signed by the U.S. government called the Geneva Convention for Protection of Civilian Persons in Time of War. Illegal combatants are actually covered by this treaty as they are people who are not legal combatants but have been detained by the occupying power.

      And, guess what the U.S. government agreed to do when the Senate ratified that treaty and made it the law of the land in the U.S. and the territories its forces control?

      Art. 27. Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

      Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.

      Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion.

      However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.

      Art. 28. The presence of a protected person may not be used to render certain points or areas immune from military operations.

      Art. 29. The Party to the conflict in whose hands protected persons may be, is responsible for the treatment accorded to them by its agents, irrespective of any individual responsibility which may be incurred.

      Art. 30. Protected persons shall have every facility for making application to the Protecting Powers, the International Committee of the Red Cross, the National Red Cross (Red Crescent, Red Lion and Sun) Society of the country where they may be, as well as to any organization that might assist them.

      These several organizations shall be granted all facilities for that purpose by the authorities, within the bounds set by military or security considerations.

      Apart from the visits of the delegates of the Protecting Powers and of the International Committee of the Red Cross, provided for by Article 143, the Detaining or Occupying Powers shall facilitate, as much as possible, visits to protected persons by the representatives of other organizations whose object is to give spiritual aid or material relief to such persons.

      Art. 31. No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.

      Art. 32. The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents.

      Art. 33. No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.

      Pillage is prohibited.

      Reprisals against protected persons and their property are prohibited.

      Art. 34. The taking of hostages is prohibited.

      The U.S. government is quite plainly breaking the law by violating the treaties the Senate ratified.

      1. ‘Combatants’ are not ‘civilians’ and are therefore not ‘protected persons.’ Next.

        1. Actually, they are. The treaty was amended after WWII in order to protect partisans of the sort who fight the Nazi’s


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