It's also a common misconception that lynch mobs in the American South were spontaneous and made up of out-of-control trashy people whose emotions had taken over. Lynch mobs were standing informal organizations with a loose leadership structure, often with the county sherrif at the top, and lynchings took place whenever there was a (white) consensus that someone needed to be "taught a lesson".
I friend of mine moved into Northern Florida at about age 10 in about 1960, and gradually found out that his neighbor down the road, a very prominent local figure, had served as the area's lynch mob leader for a number of years.
The basic gist is accurate: this is organized. As were outbreaks of violence in the Rift Valley in the 1990s. This is why the narrative of "atavistic ethnic sentiment welling up spontaneously" is wrong. But this is not to say that organized violence can't very quickly move beyond any hope of control by the people who instigated it in the first place.
haven't read this yet but HRW is usually good.
Burn This House, a collection of essays about the Balkan wars of the '90s, makes a forceful argument against applying the "spontaneous combustion of centuries-old ethinic hatreds" narrative there, too. I read it years ago, but I found the authors' argument quite convincing: that politicians in various Yugoslav republics found radical nationalism a useful vehicle for their own self interest as Communism collapsed, and that a sizable minority of the populations of those republics also thought they could get ahead by participating in the ethnic cleansing.
Our fondness in the West for the irrational-ethnic/tribal-hatreds narrative bears a similarity to the demagogic cant on the right about why Islam is out to get us. Both kinds of rhetoric depend on intellectual laziness and promote self-satisfaction.
As Emerson notes, to say something is "not spontaneous" is not the same as to say it is "not motivated by ethnic antagonism."
I suspect Wanyeki's purpose here isn't to accurately describe the violence, but to mitigate it. When politicians are whupping up ethnic hatred, the peacemakers are inevitably going to try to downplay those antagonisms. In essence, they want to occupy a PR place similar to the one that LB proposed in the previous post.
For example, Wanyeki's word choice seems to be concealing something when he refers to the need for "the beginning of real processes of addressing historical grievances and inequalities and so on."
Speaking purely from personal experience (which I admit may be peculiar to me), people in this country face strong taboos about discussing race, and particularly in expressing racist sentiment, but they do it all the time. In my experience (which, to be clear, is both limited and dated), you can't talk to a Kenyan about politics for any length of time without having them invoke tribe. The more cosmopolitan Kenyans understand the perjorative nature of the term "tribe" in American English, but they still talk about ethnicity.
The Chambers of Commerce in Birmingham or Baltimore or Boston will never give an honest appraisal of race relations, and it isn't really because they are dishonest, per se. They just don't see that as part of their job.
this seems somethiing like a political thread, so i hope it won't be too bad if I highjack it just a little bit for a current events question:
The Senate has passed retroactive immunity. Liberal blogs, the ones I've seen speak up about it, seem to be against this. Especially TPM. But, why? I'm sure there's a good explanation; I'm not super-informed on this. But from my uninformed perspective, it seems that if the companies were misled by the gov't, i.e. told that what they're were doing was legal, then they should be off the hook.
I know that companies have teams of lawyers who could give their opinion on this stuff, but this issue seems quite complicated. What's legal or not in the age of Bush?
The Senate has passed retroactive immunity
for telecoms on the warrantless wiretapping issue.
At least one of Gettleman's articles did talk about the violence as being top-down. I found that while looking for another article, which I'm now thinking I must've read somewhere other than the NYTimes, which was he-said/she-said between a human rights group saying it was top down and government and opposition officials saying it was only top down from the other side.
But from my uninformed perspective, it seems that if the companies were misled by the gov't, i.e. told that what they're were doing was legal, then they should be off the hook.
The problem is that the executive doesn't get to make law. The legislature gets to make it, and the judiciary gets to interpret it. The executive only gets to carry it out. The telecom companies aren't innocents, they have lawyers who know this stuff, and particularly know that there's no basis for relying blindly on the executive's interpretation of a law intended to restrain the executive's powers.
The Senate has passed retroactive immunity. Liberal blogs, the ones I've seen speak up about it, seem to be against this. Especially TPM. But, why? ... from my uninformed perspective, it seems that if the companies were misled by the gov't, i.e. told that what they're were doing was legal, then they should be off the hook.
Why do we prosecute torturers? After all, torturers working for the United States were told that waterboarding prisoners, freezing them in cold rooms, beating them to death while chained to the floor, etc., was all perfectly legal. There was no way they could have guessed otherwise! They were just following orders!
The problem is that the executive doesn't get to make law.
This is pre-9/11 thinking!
More seriously, thanks for answering, LB. So the issue is that the law was actually quite clear.
On another note: TPM seems to be another terrific blog where the commenters are about as useful as a bucket of mismatched doorknobs.
Right. It's exactly the same argument, and it's pernicious in both cases.
Michael, too much has been written on this for me to remember much of it, but I don't recall ever hearing that that the DOJ ever gave them much of an assurance that it was legal in the first place. If they did give them such assurances, those would be the kinds of things which they'd have to introduce as part of their defense in a law suit, which is what would've happened without retroactive immunity.
Yes, this sounds like a very bad precedent to me.
So the issue is that the law was actually quite clear.
Doesn't have to be. The law could have been ambiguous as anything. The point is that the telecom's lawyers knew that the executive isn't entitled to authoritatively resolve ambiguities in a law intended to restrain the executive.
The telecoms might have been in real doubt about what was legal, but as sophisticated entities with lawyers, they had no excuse for relying on the executive's representations to resolve that doubt.
If memory serves, at least one telecom refused to comply with the spying program. It was a fairly small company that didn't serve too many customers, but still, clearly they made some kind of calculation that valuing their customers' rights over the Bush administration's fiat was the right and legal thing to do.
After all, torturers working for the United States were told that waterboarding prisoners, freezing them in cold rooms, beating them to death while chained to the floor, etc., was all perfectly legal. There was no way they could have guessed otherwise! They were just following orders!
I could see this being a reasonable argument. Who's doing the torturing? Is it army privates with a high school education, typical of the guys I knew who went straight to the military? Tell them that, "yes, there are special legal exceptions here" and of course they'll believe it. It's their job to follow orders. Prosecute up the chain of command and the pernecious legal departments. That's where the rot is, and the only way to stop it.
For those interested, here's the list of Dems who voted against the Dodd amendment, and here's the full roll call vote.
at least one telecom
Working Assets, now doing business as Credo did, and I looked into changing my service to them and only didn't because I'd have to buy a new phone I didn't want. And I'm fairly sure Qwest did to.
OK, Webb doesn't surprise me. I was glad to vote for him as he is a Democrat. But he's much more a Scoop Jackson Dem than a Wellstone Dem.
I looked at the roll call and I see that Obama was there and voted Yea. I also see that Clinton was Not Present. Yes, it was a foregone conclusion. Yes, she was paired with Graham. But, I want the people who claim to be leaders to lead. I want her to have voted.
I am going to cast my vote in the Virginia primary later today. I had been thinking of voting for Huckabee just for the fun of it. But no, I'll vote in the Democratic primary. Thank you Senators Clinton & Obama, you have made up my mind.
the only way to stop it.
No, another way to stop it is to make it exceedingly clear that "I was only following orders" isn't a good defense. The problem is that there's a tension, particularly in the military, between need to defer to authority and need to disregard unlawful authority. Or so I take it, though my military experience is negative.
I could see this being a reasonable argument.
Awesome. I've got these Germans you should really meet.
The point is that the telecom's lawyers knew that the executive isn't entitled to authoritatively resolve ambiguities in a law intended to restrain the executive.
So what they should have done is say "you need congressional approval for this."?
Negative as in less than none, not bad feelings.
17: Tell them that, "yes, there are special legal exceptions here" and of course they'll believe it.
Tough. The law doesn't work like that for anyone else; "Someone authoritative told me it was legal" isn't a defense. You're right that the real evil is the people giving orders, not the people carrying them out, but that doesn't mean the people carrying them out should be let off the hook.
23: No. They should have said: "This is stuff that we've always understood in the past to be illegal. Come back with a court order, or show us the statute that unambiguously permits it."
I also see that Clinton was Not Present. Yes, it was a foregone conclusion. Yes, she was paired with Graham. But, I want the people who claim to be leaders to lead. I want her to have voted.
Obama's missed some important votes, too. The vote of No Confidence in Gonzales (which failed narrowly) and the second vote for SCHIP come to mind.
"I've got no prior idea who this guy is"
...FYI, Muthoni Wanyeki is a woman.
28: As I said, no idea at all. Thanks for straightening me out.
The Senate version of the bill still has to be reconciled with the House version, which doesn't include immunity. I haven't been following closely enough to know if there's any hope left for keeping immunity off the table.
Isn't there also another point where Dodd can filibuster, or are we passed all those points too?
No, another way to stop it is to make it exceedingly clear that "I was only following orders" isn't a good defense.
I'd agree with you in certain situations, but in a controlled situation where you have leaders up and down the chain of command signing off on it, as well as legal teams making excuses, and hell, even a decent percentage of the civilian population supporting this...it doesn't make sense to me to say, "sure, all those people are for it and pushing it, but the responsibility is really with the army private." I don't understand the position that says "some young kid should be confident that he has a better legal understanding that all his seniors who are telling him that it's OK." Or that says "Soldiers should listen to their colonels, except when they think they know better."
26. thanks again! Now I hope this will come up in conversation this week where I'll pass off your knowledge as my own and appear smart.
It's hard on him. But if you don't punish the torturers, there's no chance anyone's going to ever punish the people who gave the orders to torture. And the legal principle that 'ignorance of the law is no excuse' is that way for a reason -- once you start making this sort of exception when it seems compelling, there's no way to control it. Anything becomes legal, or at least unpunishable, so long as a government official says it is.
Really, if you don't punish the torturer, who do you punish? John Yoo? He didn't torture anyone, or order anyone tortured. He just wrote a memo of law; if he was wrong, he was wrong, but he didn't do anything. The military leaders who relied on Yoo and gave the orders? They had a legal opinion saying they could -- how were they supposed to know it was crap? And so on.
No; ignorance of the law can't be a defense.
16: Stras, it was Qwest Communications and CEO Joseph P. Nacchio who turned down the NSA's illegal wiretapping request. In one of those odd coincidences that just shows you how funny life can be sometimes, Nacchio was sentenced last year on insider trading charges. fraud and insider trading charges.
25
"Tough. The law doesn't work like that for anyone else; "Someone authoritative told me it was legal" isn't a defense. ..."
Actually I believe it often is a defense.
The no confidence vote on Gonzales I saw as mostly window dressing. SCHIP was important and disappointed me greatly (it goes to why I favored Edwards). But this immunity for previous crimes/torts is fundamental.
(I wonder, can't the president pardon a legal person? Or does that only excuse them from criminal cases?)
I realize that views differ on this.
No, not generally. There are some few tightly defined statutes where the necessary mens rea includes a knowledge of the law. But outside of those specific crimes, the state of mind necessary for your actions to be considered criminal is that you intend to do the thing you did, not that you know either way if was legal or not.
Going to law school at night, Shearer?
Anything becomes legal, or at least unpunishable, so long as a government official says it is.
Certainly this is the explicit goal of the Bush administration, which continues to use the Attorney General's office to write law.
re my 31, fuck:
Dodd's efforts against this bill have been quite commendable, and the UC Agreement isn't completely worthless. It means that Democrats do not need 60 votes, or even 50 votes, to stop this bill. Rather, they only need 41 Senators willing to oppose cloture (which everyone knows they're not going to get).
Still, Dodd is not, after all, going to lead an actual filibuster on the floor of the Senate to stop the bill. Worse, the Republicans are going to be permitted to impose 60-vote requirements on key Democratic amendments without actually having to filibuster at all -- exactly the situation which Harry Reid vowed just two weeks ago he would not permit.
37
"No; ignorance of the law can't be a defense."
Maybe it shoudln't be a defense but it often is. Just ask Wesley Snipes.
Tell me that was reference to an actual case Wesley Snipes was/is involved in.
Ah. Are you rehashing arguments you don't understand from Obsidian Wings?
For Snipes, the crime in question was tax fraud. An element of fraud is making an intentional misrepresentation. At that point, your beliefs come into it. But it's not a matter of your beliefs about whether your conduct is legal, it's a matter of whether you believe the representations you're making are true.
41: Snipes was not convicted of the most serious offenses an element of which is knowledge that what one was doing was unlawful, but he still had to pay his taxes and a number of fines.
Defer to 43, that was half-assed on my part.
re: the post, I heard a woman on npr a few weeks ago making basically these same points and I took her underlying premise to be that the recourse to tribalism as a primary explanation is pure racism.
I don't have a problem with a court of law determining (hypothetically) that the evidence the telecom companies had led them to think this gray area was legal, and that they weren't guilty of much. But I want a court to figure that out, not a retroactive immunity to make it pointless.
As for soldiers, my recollection is that they're not criminally liable for obeying an illegal order, unless they know the order's illegal or a reasonable person would know it's illegal.
Really, if you don't punish the torturer, who do you punish? John Yoo? He didn't torture anyone, or order anyone tortured. He just wrote a memo of law; if he was wrong, he was wrong, but he didn't do anything. The military leaders who relied on Yoo and gave the orders? They had a legal opinion saying they could -- how were they supposed to know it was crap? And so on.
I was going to say I am 180 degrees opposed to you on this, but that's not emphatic enough. YES John Yoo should be punished. That's just obvious to me. His actions were what caused the consequences. Just because he's all white collar he's going to get off while you want the lower class people who are essentially doing his bidding to take the punishment. And YES the people who gave the orders should face trial.
What I just don't understand is that if "hey, they had a legal opinion" is an excuse for Generals, why is it not an excuse for privates? This just seems so upside down to me. "Sure, the well-educated, privledged people who huge support staffs..they just gave orders on bad advice, what could they do? But the young kids far down the chain of command, they're should've known better! Lock them in jail!"
49: Military law I'm a little out of my depth. But I'd expect, to the extent that what you say is true, that it doesn't apply to knowledge of the law but to knowledge of the facts. Say, e.g., that a pilot is told to drop a bomb on a target, and does so. If the person who picks the target knows it's an elementary school and there's no military purpose for it, the order is illegal. But if the pilot just has coordinates and doesn't know what the bomb is going to hit, he's got no reasonable way of knowing it's an illegal order, and shouldn't be liable for carrying it out.
But here I'm speculating -- I don't actually know what you're talking about.
That's just obvious to me. His actions were what caused the consequences.
So writing words on paper that express an incorrect opinion about the state of the law is a crime now? Would it have been a crime if no one had relied on it? Yoo's a very bad man, but to call him guilty of torture in a legal sense, you've got to entirely redesign our legal system.
And I wasn't suggesting that the generals/colonels/majors/captains whoever gave orders to torture but didn't carry them out themselves should be entitled to rely on Yoo's memo as a defense. I meant that if the specialist doing the waterboarding can rely on his orders, then you have to let the general giving him the orders rely on Yoo's opinion -- if one defense is valid, the other is. I want both the private and the general in jail, and I want the general punished more harshly.
So writing words on paper that express an incorrect opinion about the state of the law is a crime now?
This is something that certainly deserves more thought and debate. My thinking right now is that if legal opinions lead to real-world consequences, therefore aren't they at least partially responsible? And if responsible, then accountable? Moreover, if legal advisors know they can advice anything without fear of accountability, is that a good system?
want both the private and the general in jail, and I want the general punished more harshly.
Great, so we're at least in agreement that there's a difference b/w private a gernal. Namely, the general has support staff, age, education, experience, etc.. And, further, a greater position means greater responsibility.
Sure. But the point is that if "Someone I relied on told me it was okay" is a good enough excuse for the private, it's a good enough excuse for the general. We can't let the private off the hook completely without letting the general off as well.
Military law I'm a little out of my depth.
Oh, so am I, I just vaguely remember my Crim Law professor talking about it for twenty minutes six years ago.
Googling brings up:
"A determination that an order is illegal does not, of itself, assign criminal responsibility to the person following the order for acts done in compliance with it. Soldiers are taught to follow orders, and special attention is given to obedience to orders on the battlefield. Military effectiveness depends upon obedience to orders. On the other hand, the obedience of a soldier is not the obedience of an automaton. A soldier, is a reasoning agent, obliged to respond, not as a machine, but as a person. The law takes these factors into account in assessing criminal responsibility for acts done in compliance with illegal orders.
The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior's order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful."
United States v. Calley, 46 C.M.R. 1131, 1183 (A.C.M.R. 1973).
(via http://www.law.umkc.edu/faculty/projects/ftrials/mylai/ecktragedy.html#_ftn74)
My impression is that this is about knowledge of the law, not the facts -- that you're exempt from liability for obeying an illegal order if it's something borderline where you might genuinely not be sure, but "obeying orders" is no defense if the order was to, e.g., massacre a Vietnamese village, because you had it drilled into your head in basic training that you weren't allowed to do that.
But of course soldiers are a special case, and in no way analogous to telecoms.
Look, Michael: an illegal system of warrantless spying was put into place, and it was put into place by a bunch of people. Those people should be punished from the top, where the policy was formed and the orders were given, on down to the telecoms who did the government's dirty work. The same is true of torture: you punish Bush and Rumsfeld and Cheney for setting up the system of torture, and you punish everyone who acted on their (illegal, immoral) orders, from the generals on down to the privates and contractors. This isn't all that difficult. We rejected the Nuremberg defense sixty years ago.
But of course soldiers are a special case, and in no way analogous to telecoms.
That's a joke, right?
That's a joke, right?
No. Why?
The law -- IIRC -- treats soldiers differently from regular people when it comes to obeying orders.
I'm not saying it should, just that IIRC it does.
The arguments for allowing soldiers a certain amount of protection from criminal liability when following orders don't apply at all to multi-billion dollar companies with large in-house legal staffs.
Michael seems sympathetic to the grunt who obeys orders. I'm just pointing out the obvious: that there's no reason to extend that sympathy to AT&T.
I think felix is right: there is some "ordinary sense and understanding" presumed. And this would apply to torturers, plausibly, too.
Whether it applies to warrantless datamining when (as I understand it) the letter of the law isn't clear (thanks to the administration) and the government is assuring you it's legal? I don't know if that would come under 'ordinary sense and understanding.' At least one telecom company thought it was wrong and told the government to go pound salt. But I really don't like retroactive immunity. Make them get up there and argue that it was a gray area and that the government lied to them when they told them it was okay.
We rejected the Nuremberg defense sixty years ago.
Bad analogy. I don't like waterboarding, but waterboarding a few guys is so far from a system of concentration camps that I can't even comprehend confusing the two.
Make them get up there and argue that it was a gray area and that the government lied to them when they told them it was okay.
And that's really a sentencing argument. Gray area schmay area -- the court decides what the law says, and determines what's legal based on its own understanding of the statutes as guided by higher courts. "I meant well, and relied on the lying government" is an argument that you should be sentenced mercifully (and might be a strong argument), not an argument that your conduct wasn't against the law.
We can't let the private off the hook completely without letting the general off as well.
I think we're just going to have to accept that we disagree here. I see the difference b/w a general and a grunt as significant enough that we can treat them completely differently.
I think, however, the situation might be even more complicated. Some of the people directly carrying out the torture were higher-ups or CIA, I think. I admit that makes my position more complicated.
43 44 46
Actually 44 was correct. Here is the NYT story. Some quotes.
"Robert E. O'Neill, the United States attorney here, said current law "is entirely subjective" on criminal intent because juries must decide whether a defendant "sincerely believes" he was not required to pay taxes."
and
"The Supreme Court has ruled that tax deniers can demonstrate the absence of criminal intent by asserting that they "sincerely believe" that they are not required to pay taxes, although they cannot escape the levies."
In general when a federal law states violations must be "willful" this means the accused must know his actions are illegal.
Bad analogy.
No, it's not a bad analogy. An atrocity is an atrocity, and "following orders" doesn't give you an excuse for committing an atrocity. The only real distinction here is that at Nuremberg the criminals were German, and here and in Vietnam the criminals were American, and the American government loves loves loves the Nuremberg defense when it can be employed to the benefit of its own institutions.
Michael, I'm with stras here. Whether a defense is the Nuremberg defense doesn't have to do with what's being charged.
43 and 44 are both correct -- an element of the tax fraud charges was, Snipes' representations as to his tax liability, and his actual belief in those representations rendered them non-fraudulent. Didn't change the amount of taxes he owed, but meant that his failure to pay was mistake rather than fraud.
And the word you're looking for is "specific intent" -- a "specific intent" crime is one where the accused must know the illegality of their actions. "Willful" in a statute doesn't always make the crime a specific intent crime. But these are a narrow range of technically defined crimes, like tax fraud -- this discussion hasn't got a thing to do with torture.
And I'm with stras and w/d. "I was only following orders" is the same defense whether you're half-drowning a detainee or running a gas chamber. The latter is worse, in that it affects more people, but the defense is the same.
59: Just to be clear, what I'm saying is that normal people, for 99% of crimes, cannot rely on an "obeying orders" defense -- like LB says. In particular, the telecoms can't rely on that defense. (or couldn't, before the law was rewritten for them).
But the law (I think) makes specific provision for soldiers, who are given a qualified "obeying orders" defense, though not one that I think applies to torturers, who should know damn well that what they're doing is illegal.
I think we're just going to have to accept that we disagree here. I see the difference b/w a general and a grunt as significant enough that we can treat them completely differently.
But the illegal act is torturing, and the person who did it is a grunt. If grunts really do have a defense of "I was just obeying orders" they'll be told that and worry much less than they presently do about any legal consequences of their ordered acts, even if right now grunts don't worry that much about the legal consequences of their ordered acts.
68: I read your link, and I'm still thinking the slack soldiers are given is in relying on their superiors' express or implicit representations as to the facts ("We can shell that hospital because people have been shooting at us from the windows,") not as to the law ("Shelling hospitals is generally okay.") But someone who knows more about military law than I do (not hard) should opine.
What happened to Idealist? Isn't he a military lawyer, or an ex-military lawyer, or something?
I'm having trouble imagining a hypothetical order that's illegal but not so illegal that a reasonable person would know it, but then I don't know shit about military life generally.
Whether a defense is the Nuremberg defense doesn't have to do with what's being charged.
Come on. It's an emotionally-loaded term. It's not argument be reason, it's argument by "you sympathize with NAZIs". I reject it.
He's a retired military officer who went to law school after retiring, so he should have a non-lawyer military perspective on what the rules are with a retrospective lawyer's understanding of what it means. And he lurks a fair amount, just doesn't comment much, so he might weigh in.
"I was only following orders" is the same defense whether you're half-drowning a detainee or running a gas chamber.
I disagree with this so strongly I'm having trouble finding words.
73, 75: I get that you're finding this upsetting, but I don't understand why. It is the same defense regardless of what bad acts the Nazis justified with it.
There's no question that waterboarding causes mental and physical suffering, and I don't believe we should be engaged in it. But's IT'S NOT THE SAME AS A CONCENTRATION CAMP. Not morally, not legally.
Elected officials of all levels as well as pundits and demogogues have defended waterboarding as not-torture. No one defends concentration camps.
People aren't perfect reasoning and judging machines. At some point you have to have sympathy for grunts and say, "there's been a HUGE machine put in place to mess with your mind and confuse you. Everything and everyone you though you could believe in has misled you. Since we have a heart, we understand how you became confused. You're off the hook."
They're competent adults. Being a low-ranking soldier isn't a diminished-capacity defense. There's a lot to your argument for sympathy, but that comes in at sentencing, again, not at the stage where you're identifying conduct as criminal or not criminal.
It's my understanding that has been extensive literature and training regarding exactly what people in the U.S. military are supposed to do when confronted with a potentially unlawful order. It's not easy, clear, or fun -- just ask Joseph Darby.
In a wealth of law and documentation, from the UCMJ to training manuals and precedent-setting court decisions, this issue has been hashed out for at least 50 years, and probably closer to 200.
A military historian could explain this much more clearly; apologies for my vagueness.
Doesn't Michelle Malkin defend concentration camps?
75: You do understand that Americans are not the first country on earth to use waterboarding, right? The Khmer Rouge used it for years. If a member of the Khmer Rouge, having waterboarded dozens of prisoners, was on trial for torture, and said he wasn't guilty because hey, he was just following orders, would you honestly find this a compelling argument?
It's an emotionally-loaded term. It's not argument be reason, it's argument by "you sympathize with NAZIs".
If you don't want to be compared to the Nazis, you should stop using Nazi arguments.
And stras demonstrates why I'm right to reject the "nuremberg" line as stupid. Thanks, stras.
Nope. Stras being abrasive about it doesn't make him wrong. "I did this wrong thing because my superiors told me to" is the same defense regardless of what the wrong thing was. It wasn't a bad defense because the death camps were so uniquely terribly that we applied harsher law in relation to them, it's a bad defense generally.
Michael, "I was following orders" means "I was following orders," whether you say it in English or German. Shouting "Godwin's law!" doesn't change that.
Stras being abrasive about it doesn't make him wrong.
What it means is that he's no longer engaging in arguments using logic and reason, which are the only kind I'm interested in.
Michael, the term "Nuremberg defense" is emotionally-loaded because it should be, the defense itself being so depraved. Torture, incidentally, also happened in concentration camps (guess who invented the term "enhanced interrogation"?), there's a vocal faction of the modern right that defends the idea of interning Muslims, and there has been at least one undeniable war of aggression against a Muslim nation in recent years. You really don't live in an age where you get to rule comparisons to the Nazis out of bounds.
Of course, people higher up the food chain deserve to pay the highest price for these atrocities.
If I'm being abrasive, it could be because Michael sounds like every faux-outraged GOP chump that got up and spluttered at Dick Durbin for daring to compare torture in an American prison camp to torture in a German or Russian or Khmer Rouge prison camp. When Americans adopt the tactics of the most vile dictatorships of the twentieth century, are we not supposed to call them on that? At some point, you have to actually call a spade a spade. Torture is torture, mass murder is mass murder, and war crimes are war crimes.
61: Right, exactly, which is why this retroactive immunity thing is bullshit.
87: No, at a certain point the comparison is logical and reasonable, and denying it is not.
87: That's a reason to stop engaging with him, if you feel that way, but it doesn't make him wrong.
If I'm being abrasive, it could be because Michael sounds like every faux-outraged GOP chump
More stellar reasoning. I'm on record in this thread saying that we're engaged in torture and people need to be prosecutred for it, but I don't agree with you 100% so you'll just go ahead and call me a torture-denying Republican. Good stuff. You should be proud of that.
Stras, Michael? While I fully support and embrace your right to be irritated with each other, both of you should note that the other's rhetoric has nothing to do with the merits of their positions.
66
Regarding the meaning of willful in a federal statue, the Supreme Court stated in Dixon v. United States (pdf):
"The crimes for which petitioner was convicted require
that she have acted "knowingly," §922(a)(6), or "willfully,"
§924(a)(1)(D).3 As we have explained, "unless the text of
the statute dictates a different result, the term 'knowingly'
merely requires proof of knowledge of the facts that constitute
the offense." Bryan v. United States, 524 U. S. 184,
193 (1998) (footnote omitted). And the term "willfully" in
§924(a)(1)(D) requires a defendant to have "acted with
knowledge that his conduct was unlawful." Ibid. In this
case, then, the Government bore the burden of proving
beyond a reasonable doubt that petitioner knew she was
making false statements in connection with the acquisition
of firearms and that she knew she was breaking the
law when she acquired a firearm while under indictment. ..."
I've been trying to think of where the disconnect here is, and I think this is it:
While I reject waterboarding etc.., I still draw a distinction between what you might call "torture light" and "torture heavy". With "torture light" I can see how grunts would be confused b/c of everyone is telling them it was OK; after all, it's not pleasant, but a lot of things aren't pleasant, and when it's over the guy will be physically OK. "Torture heavy" I don't see as allowing for such excuses.
Now, there have been some instances it seems where we've crossed over into heavier torture. In that case, no one should be protected from the law. But in the case of waterboarding, what I'd rather see happen is that the top people get prosecuted, and everyone else has to live with their conscience.
And yet we live in a system in which not all statutes are federal, Shearer.
94: "Don't agree with me 100%"? If I'm following you correctly, you think it's reasonable to immunize torturers, on the basis that subordinates have no independent intellectual or moral authority to question their higher-ups. Once again: this is the exact same defense used at Nuremberg, and used again by Eichmann when he was put on trial in Jerusalem. I'm certainly not the first person to describe Michael Mukasey's (and George Bush's, and Dick Cheney's) logic as "the Nuremberg defense." And the reason why those people call it "the Nurember defense" is because that was the defense used at Nuremberg.
You seem to think that I can't point this out, because, OH NOES!, I've made a reference to THE NAZIS. Well, if Americans don't want to look like Nazis, they should stop doing things that make them look like Nazis. If George Bush invaded Poland while wearing a swastika and a toothbrush mustache, would I be overly shrill to make some sort of Nazi comparison then? How many Nazi policies is a given government allowed to emulate before one can point out that it's emulating a Nazi policy?
97: I think that thinking of waterboarding: covering someone's mouth so they can't breathe through it, and then pouring water on their faces so that it fills their nostrils, sinuses, throats and lungs, as 'torture light' is unimaginative of you. It's pretty fucking awful.
with that, I think i'm going to have to check out of this argument for a bit, but i'll check back in later.
97: There is no sensible distinction that I can think of that makes waterboarding `light'. It's one of the nastier things you can do to people (with the expectation they will survive it), which doesn't happen to leave lasting damage. But the former part is as important as the latter.
I still draw a distinction between what you might call "torture light" and "torture heavy".
That sure would be a disconnect, and a form of naivete that designers of "torture that doesn't leave marks" went out of their way to exploit in various contexts (the Soviet Union, apartheid South Africa... Nazi Germeny, which we're apparently not allowed to mention...).
While I reject waterboarding etc.., I still draw a distinction between what you might call "torture light" and "torture heavy"... after all, it's not pleasant, but a lot of things aren't pleasant, and when it's over the guy will be physically OK.
Fucking Christ. When was the last time you suffocated someone for an extended period of time while figuring it was all right, because while nearly-fatally depriving them of air certainly wasn't "pleasant," your victim would basically be okay?
This is no time to bring up Labs' sex life, stras.
96: Follow the cite in the case you post back to Bryan v. United States. It contains what looks like a good discussion (524 U.S. 184, 191-196) of what willful means and in particular that it means different things in different contexts and only means knowledge that what you did was in violation of the law in the context of very complex statutory schemes (taxes, mostly). The section ends in an odd fashion, saying "Thus, the willfulness requirement of §924(a)(1)(D) does not carve out an exception to the traditional rule that ignorance of the law is no excuse; knowledge that the conduct is unlawful is all that is required."
This confusion is resolved if you understand that what the court means by "knowledge that the conduct is unlawful" is not knowledge of any particular law that the conduct is in violation of, but rather that it's the kind of thing which laws prohibit. It's approaching a borderline of confusing unlawful and wrongful, but not quite there.
106
The jury instruction upheld in Bryan was:
" "A person acts willfully if he acts intentionally and purposely and with the intent to do something the law forbids, that is, with the bad purpose to disobey or to disregard the law. Now, the person need not be aware of the specific law or rule that his conduct may be violating. But he must act with the intent to do something that the law forbids."11"
which I think is a bit more than "the kind of thing which laws prohibit". In any case relying in good faith on a legal opinion that your conduct was lawful would seem to prevent conviction when willful violation is required.
107: None of what we're actually talking about here, that is, torture, is a specific intent crime. The vast majority of crimes aren't. If you're just fascinated by the intricacies of the law, great, but this point isn't relevant at all to the larger discussion.
When was the last time you...
I don't understand this question. How is it relevant if I've waterboarded someone or not, and when I did it last?
It's one of the nastier things you can do to people (with the expectation they will survive it),
my imagination is much scarier than yours
It's one of the nastier things you can do to people (with the expectation they will survive it),
my imagination is much scarier than yours
No, Michael, your imagination and your information are both deficient. This isn't an insult, it's an observation. For starters, it's not just about waterboarding a few people, as though that weren't bad enough. I suggest you review the torture and detention archive at Obsidian Wings before posting much more. It's about torturing and murdering a hero of the Afghan resistance to the Soviets because nobody investigated the charges adequately. It's about the isolation and brutalization of many people for years on end without the slightest evidence of their guilt. It's about taking children hostage and using them to threaten their parents with. It's about letting people who shoot up unarmed crowds because the shooters were nervous get away scot-free. It's about a whole lot of stuff, and the only real difference with any of the atrocity regimes of the 20th century right now is just numbers.
As for what soldiers should do...
The way my friends in the military have explained it is that this is what courts martial are for. A soldier who feels an order is immoral should refuse it, be arrested, and present a defense at trial. They can expect to be dismissed from service, of course, and may face other penalties, sometimes harsh ones. But the point of a court martial is to establish the facts on which judgments were made, at least in a military anywhere near honesty.
I get the feeling Michael is one of those people who will only understand how awful waterboarding is when it happens to them, but here goes: This guy tried waterboarding himself, while this article talks about the experiences US special forces have with undergoing waterboarding. Maybe that will explain why waterboarding is torture, proper torture.
But I doubt it will, as the combination of asking leading but dumb questions, willfull misunderstanding, proud boasting of only being interested in logical arguments and quick dismissal of opponent arguments as being unfair leads me to only one conclusion: troll, troll, troll!