09 June 2004

This Is the Ends

Professor Froomkin has penned a thoughtful analysis of the context from which the notorious DOD "Walker torture memo" arises.

[I]n the exercise of the commander-in-chief function, and in particular in the conduct of operations against hostile forces, the President enjoys "complete discretion". That the President's powers are at their greatest in these circumstances cannot be disputed. But while the discretion is indeed very great, I do not see how it could possibly be read to include the authority to commit war crimes, even pre-Nuremburg. And today it clearly cannot include that authority, at least without explicit Congressional authorization. Thus, the entire discussion of Presidential power is based on a premise so false that any student who has taken introductory International Law should be able to recognize its error. And as any logician will tell you, when you begin with an erroneous premise, you are in trouble.

"Apologia Pro Tormento: Analyzing the First 56 Pages of the Walker Working Group Report (aka the Torture Memo)" (09 Jun 2004). But this is just reasoning; and therefore not attractive to those who don't like to do their own thinking. More to the point, Professor Froomkin notes a critical factual error.

The final section of the 56 pages in the version posted online (there's obviously lots of the memo left to be found), discusses the very reasonable rules in fact used heretofore by the US armed forces. Unlike the authors of this memo, the folks on the sharp end eschew physical torture, preferring interrogation techniques that sound a lot like what the cops do down at the station.

Id. "We've got both kinds here: False logical and false factual predicates!" And perhaps—just perhaps, mind you—the image of standing behind a barbedchickenwire barrier while people throw rocks bottles at those playing a different tune bears more than a rhetorical relationship to reality.

I only wish that Professor Froomkin's "initial comments" subject to "amendments and corrections" represented the memo, and not a criticism of it. <BrokenRecord> Once upon a time, I signed up to "protect the Constitution against all enemies, foreign and domestic"—not against "heathen commie bastards standing between the American Way and the resources necessary for it." </BrokenRecord> If I had not already resigned my commission, this memo would force me to seriously consider doing so.

The real problem appears most clearly in the second quotation above. The Walker Memo resembles an argument over the number of devils who can dance on the head of a pin, because the factual circumstances described in the memo have no relationship to the way that "real people," or at least "real interrogators," do their jobs. In other words, one reaches the question of whether torture can be justified only by ignoring the purported purpose of the torture: Obtaining information critical to counterterrorism efforts. That means one thing, and one thing only: That the "real" purpose of torture is not to obtain information; it is to inflict pain, to punish, to incapacitate… to torture. It is self-justifying. There is no apparent justification for this position in the Constitution, or de Groot, or the laws of war (whether inchoate or in treaties). The only possible "justification" is some sense of vengeance. But vengeance is not for man, but for Yahweh. He said so Himself. It follows, therefore, that a fundamentalist Christian who actually believes what is in that book relied upon as inerrant cannot properly establish national policy on the basis of vengeance.

<SARCASM> Damn. I did it again. I just expected logical consistency from people who demonstrated that logic does not matter to them. I guess that just shows that I don't understand politics, despite all that time in the military and inside the Beltway and in law school and… </SARCASM>

Do they say that my methods have become… unsound?

I don't see any method. Ma'am.