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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, July 05, 2006

Legalizing torture - distorting Hamdan

(updated below re: "retraction" by RedState - updated again)

I don't have a great deal of time today to post, so I will note a couple of matters for the moment, and may add to them throughout the day:

(1) Alan Dershowitz has a new and completely misguided article in The Independent in which he argues, in essence, that we ought to scrap all of the existing frameworks for the treatment of prisoners and detainees, including the Geneva Conventions, as well as the laws of war generally, because those laws are obsolete and not meant for this never-before-known evil embodied by the international terrorist. We should replace those now obsolete laws, he argues, with new laws which expressly permit the killing of civilians in order to kill terrorists, and which also permit the use of torture.

This new article is deliberately vague (he seems almost embarrassed by what he is arguing). For instance, while he claims he agrees that waterboarding constitutes "torture," he emphasizes when describing it that it causes "no physical after-effects" -- the same argument used by those who claim that this practice falls outside the bounds of torture. It is also worth noting how, as is so often the case, arguments which begin as an ostensible recommendation for American action morph almost immediately into a defense of Israeli actions.

Dershowitz's new article should be read in the context of his much more explicit prior advocacy of new American policies whereby our Government is expressly permitted to torture people, and whereby courts issue what he calls "torture warrants" to authorize the torture. The idea that we should simply abrogate the Geneva Conventions altogether so that we can act without restraints is something that we are going to hear more of from Bush followers. Beyond Dershowitz's article, it's already beginning.

The pretty justifying rationale Dershowitz uses to decorate his desire for torture is that torture -- along with the killing of innocent civilians -- are inevitable, and it is therefore better not to be hypocrites about it -- i.e., it's better to have the law endorse our conduct rather than act contrary to the law. But having the law expressly allow torture, along with attacks which knowingly result in the death of innocent civilians, is to legitimize and endorse that conduct as part of our value system. It is hard to overstate the consequences on every level of repudiating the values which have long defined who we are as a country. And that is to say nothing of the fact that such "legal authority" to torture and kill civilians -- as Dershowitz must know -- will never be confined to the circumstances in which Dershowitz sees them as justifiable.

This country already debated last year whether we want to be a country that tortures people, and we resoundingly rejected that proposition when the Senate passed the anti-torture McCain amendment by a vote of 90-9. But that is not going to stop the neoconservative prong of Bush followers (which includes Dershowitz) from doing everything possible, particularly in the wake of Hamdan, to not only continue using torture, but also to have American law expressly legalize it. Steven Poole at Crooked Timber has a good analysis of the new Dershowitz article, and Kieran Healy, also at CT, wrote an appropriately impassioned argument back when Dershowitz originally proposed the notion of "torture warrants." It is well worth reading again.

(2) Marty Lederman has a characteristically thorough and important post rebutting the most common myths being perpetrated about the Hamdan decision. There are reasonable grounds on which to disagree with multiple aspects of that decision, but as Marty demonstrates, Bush followers are simply distorting what the Court says in order to dispute it. The editorial by National Review purporting to "explain" why Hamdan was wrongly decided is probably the most egregious written example I've seen, as almost every one of their characterizations of the majority's reasoning is just factually false.

UPDATE:

(3) After I harangued them in an e-mail exchange (which I agreed not to disclose), RedState today finally issued what it apparently considers to be a "correction" to the post by Robert Hahn, published on Saturday (three days ago), which accused The New York Times of "warn(ing) would-be assassins" of security measures at Dick Cheney and Don Rumsfeld's vacation homes and thereby helping those who "have kidnapping on (their) agenda." It took them three days to issue a correction, so the original post already scrolled off the front page and had become a dead post. Rather than write a new post correcting their error, they simply tacked on the "retraction" to that old post where nobody would read it, and it said this:

[editor's note, by Erick] It appears that since this piece was posted, a spokesman for Donald Rumsfeld confirms that he did not object to the New York Times' story and apparently did give permission for his home to appear. There is no word on whether the permission involved pointing out security cameras.

As so many of these false accusers have done, RedState is acknowledging (some of) the subsequent evidence but still clinging to their insinuations that the NYT did something wrong ("There is no word on whether the permission involved pointing out security cameras"). But this "correction" is almost as misleading as the original false accusation itself, since the newly emerged evidence is not merely that Rumsfeld authorized the photograph, but much more importantly, that Rumsfeld's office and the Secret Service both said that there was no security threat as a result of the article (not to mention that multiple other media outlets, including NewsMax and Fox, had already published articles revealing the whereabout of their homes). To pretend that there is still the possibility that the NYT endangered their safety is simply to deny facts -- facts which they continue to conceal from their readers.

Beyond that, a "retraction" which is casually tacked onto a post three days after the fact -- when nobody will see it -- is worse than no retraction at all. That behavior is designed to allow the false accuser to claim that a retraction was issued while ensuring that nobody actually saw it. It is has the distinction of compounding the original reckless error with a deliberate dose of deceit. Unsurprisingly, Jeff Goldstein did the same thing, tacking a non-retraction retraction to the end of some old post that had already scrolled off his first page and which, as intended, only a small fraction of the people (if that) who read his original erroneous post would ever see.

These are the same people who rail on virtually a daily basis about the supposed lack of ethics and integrity among the "MSM," and yet they do not comply with even a fraction of the standards about which they so self-righteously sermonize (speaking of which, that glorified Crusader for Journalistic Ethics, John Hinderaker, has still failed to tell his readers about any of these facts despite hyping Malkin's accusations back on Saturday).

It is truly difficult to describe the lack of integrity and overwhelming propensity to deceive which is reflected by their inability to simply say: "I wrote a post the other day accusing the NYT of (intentionally and/or recklessly) endangering the lives of the Vice President and Secretary of Defense, but facts have now emerged (which I could have and should have obtained myself before making the accusation) which clearly demonstrate that that accusation is false." What does it say about someone who is incapable of doing that? And what does it say about the right-wing blogosphere that so many of their leading lights would rather cling to blatantly false accusations than admit in a forthright and clear way that they were wrong?

UPDATE II:

(4) I've been receiving an increasing number of e-mails telling me that my blog can't be read with the Firefox browser because it translates the color scheme in a way that makes it unreadable (it translates the background as dark brown rather than beige). I used to receive the same complaint from a small number of Mac users, but now it seems it's extended to Firefox as well. If you know anything helpful about this - why it is, how it can be fixed without switching templates, etc. - please e-mail me.

NOTE: Thanks for the responses, but there's no need to let me know if you use Firefox and have no problem. I realize the problem exists only for a small percentage of Mac and/or Firefox users and was hoping to find a solution to the quirk, though the consensus seems to be that it's probably just a slow-loading/congestion/dial-up problem at their end.

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