This excerpt from Matt Lauer’s interview of Former President Bush pretty much sums up the current legal regime under which we live. When asked why he thinks waterboardng is legal, Bush responds ”because the lawyer said it was legal…”
United States Army Major General Antonio Taguba, who was placed in charge of investigating the crimes Abu Ghraib prison in Iraq was forced to resign after publicly stating “there is no longer any doubt as to whether the [Bush] administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”
As we have all seen, no one was ever held accountable … save, perhaps, for those like Maj. Gen. Taguba who spoke out.
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If Abu Ghraib is the worst atrocity committed during this war, in some ways we might consider ourselves lucky to have such a well disciplined military, all things considered.
Also, I wonder what you are implying in your rhetoric. You seem to be saying that non-lawyers should not consult with lawyers, and even if they do, they should make up their own minds about what the law means.
Have you read the legal brief that this water boarding controversy is all about? I was impressed. You may argue that they were wrong, but it’s another thing to argue the President was wrong to accept them, and as a result is a war criminal. That is irresponsible.
http://en.wikipedia.org/wiki/Bybee_memo
I’m not too bright, but I am willing to wager significant numbers of chocolate chip cookies that Briggs’s point has less to do with whether or not there is sound legal theory in support of waterboarding, and more to do with the existence of the complex web of laws, legal briefs, lawyers, smoke, and mirrors that are employed to offer legitimacy for the powerful to do whatever they damn well please.
I think you just won some cookies
matskralc,
” and more to do with the existence of the complex web of laws, legal briefs, lawyers, smoke, and mirrors that are employed to offer legitimacy for the powerful to do whatever they damn well please.”
That’s a pretty big leap from the facts presented here. One could also argue that the “web of laws, legal briefs, lawyers, (let’s skip the rhetorical smoke and mirrors and park that with the darkened, smoke filled rooms) exist specifically to prevent the “powerful [from doing] whatever they damn well please”.
If Bush was going to do whatever he pleased, why bother with the lawyers in the first place? Your argument throws out the baby with the bath water.
The fact that laws exist have some utility. The fact that the system that provides this utility also has some undesirable outcomes is a problem. Problems always exist. Problems can be solved. Your simple solution of abolishing the system because it has problems is no solution. Enjoy your cookies.
I am willing to accept, for the sake of argument, that Bush truly believed (perhaps still does) that waterboarding was/is legal. As Stephan Kinsella pointed out last night in his lecture at Mises Academy, there is an absurd legal doctrine in the U.S. that “ignorance of the law is never a defense.” For citizens and businesses in violation of some law, using the defense that they got bad info from their attorney wouldn’t hold up in the government’s court. The judge would still order some type of punishment, and likely recommend that the defendant employ a better lawyer.
Why then when does Bush and his gang get a free pass by using what is, in essence, the ignorance of the law defense. Using this excuse even got him out of being tried for his crimes! At the very least, they could have made him use that defense in court.
Briggs,I am struggling with Walt’s point below as well. That is one reason why I respond to these kinds of posts.
Since you have brought up Stephan in this context, let me try to draw the connection you attempt to make from my perspective.Stephan, in his first lecture, showed examples of ridiculous patents for toe puppets, etc, as an illustration of why patent law is absurd at its fringes. This does not (yet?) address the fundamental question of why patent laws might have some utility, and be libertarian at the same time. But because he is an anarchist, he has taken his argument to the logical conclusion, it seems, that all IP law should be abolished. If we lived in an anarchist state, there would be no IP laws, and that is a good thing. So far, I disagree.
In the absence of that possibility in the short term, he seems willing to accept that revisions might be helpful. But it is my impression that he spends far more time justifying his ultimate conclusion than he does advancing the discussion of those revisions. That would be of far more interest to me because it has a utility for helping greater numbers of people visualize real change for the better. In addition, it serves to alienate those who might be willing to contribute to those changes because they have not (yet?) bought the Ancap story, hook, line, and sinker. Many times, dissenting opinions are often met with personal insults and other forms of ad hominem attack.
So, while in some contexts, the doctrine that “ignorance is no defense” is applied, it is not applied universally. In any case it could not be applied here since Bush informed himself of the state of the law by concluting his lawyers.
In addition, there is an appeals process, and there are remedies that attempt to arrive at justice in the face of a good-faith act. This is not sufficient justification to simply advocate the elimination of IP laws entirely. It is also not an “absurd legal doctrine.”
It has some utility, but is inconsistent with the anarchist view that there should be no State structure to impose such laws. That issue, in my thinking, is not entirely settled. You make the same point here.
The issue of whether water boarding is in fact torture, as understood by the relevant U.S. law and international conventions of war, is a legal question that is not entirely settled. There are strong arguments on both sides.
However, in the real world, time does not stop to enable this issue to be settled once and for all before the President can make a decision, especially within the context under which this decision was required. Under the totality of the circumstances, the best he could was to ask his lawyers to interpret the law as best they could and to make a decision based on the best information he had, and let the chips fall where they may. That in itself may be considered by some to be an act of courage, if only because a decision was required, and it may be wrong, and there are consequences, big ones, either way. That is, it is not so black or white.
However, you seem to be suggesting that the very existence of a system that allows a President to behave in this way should be abolished primarily, it appears to me, because the existence of such a system is inconsistent with the anarchist’s view of the State.
To Walt’s point, I am here because I believe the Austrian economic thinking has valuable application to the real world, as I understand it. But I am dismayed by the fact that many of this site’s most learned spokesperson’s appear hell bent on promoting the “true logical conclusion” to the libertarian tradition of classical liberalism; i.e. anarchocapitalism. As a result, nearly every post here ends in a debate as to whether a certain position is consistent with that conclusion. Rothbard and Hoppe are most often cited as the LVMI fathers of that thought, despite the fact that based on the body of other literature available here, and in the postings of this site, that is far from a settled issue.
In my view, it is not necessary to the primary value and offering of this site to resolve this issue. Furthermore I believe it does much to marginalize and discredit the good work here in relation to the desirability to popularize the key concepts of Austrian liberalism. It is not necessary or appropriate to transform the focus of this site to a constant justification of Ancap thinking, especially when Ancap was not embraced by some of the primary founders and thinkers upon whose work this site is founded. Therefore your premise may have some academic interest to some, but I find it wrong-headed and alienating. If I feel that way, I’m sure other do as well.
Because I oppose the imperial Presidency and advocated that those governing be, at the least, held to the same standard as the governed I’m an anarchist?
I will concede that this may not have been the best venue for the discussion of the powers of the presidency.
Briggs,
Perhaps I’m wrong about that. Am I?
What is clear is that you are asserting that the President is an “imperial” structure, and that structure is not held to the same standard as the “governed” subjects.
I am not discussing the powers of the Presidency. I am discussing how your thinking is revealed in your treatment of the subject, and how it is all too familiar here on this site. I object.
No not an anarchist but your point is duly noted.
“I am here because I believe the Austrian economic thinking has valuable application to the real world, as I understand it. But I am dismayed by the fact that many of this site’s most learned spokesperson’s appear hell bent on promoting the “true logical conclusion” to the libertarian tradition of classical liberalism; i.e. anarchocapitalism.”
Hear! Hear! Stick to the economics, please.
Certainly there must be other sites where frustrated Libertarians can indulge their passion for political debate. Economics has become over-politicized as it is. Don’t add to it here.
Much as we may deplore what happened, does this really belong on an Austrian Economics website?
Just because something is made legal doesn’t make it right to do.
This Conversation Belongs on This Web Site
In The Road to Serfdom, von Hayek discusses the classical definition of the Rule of Law. According to A.V. Dicey, the Rule of Law “means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government.” The Rule of Law therefore requires that all state actors conform to the dictates of law, and forbids them from claiming any prerogative to violate the law.
Why is this so important? Because only then are individuals certain that they hold certain rights against all actors in the political economy, including those actors who are agents of the government. Only then can individuals bargain with each other, speak freely, or otherwise move through society confident that their behavior falls within their rights. If the government could claim the authority to punish someone for saying anything “contrary to the public welfare,” people would speak less freely. If the government could claim the authority to torture someone “engaged in terrorist acts,” people would organize less freely.
When George Bush authorized certain “harsh interrogation techniques,” he almost certainly violated the law. He took specific actions (i.e., issued orders) that he were foreseeably likely to create a violation of another person’s right to be free from bodily intrusions. He took these actions without judicial oversight, and thereby performed a judicial function vested by the Constitution in Article III judges. All of our rights became less secure when President Bush broke the law in these ways.
My point? This discussion most certainly belongs on a web site devoted to Austrian economics. Just as the Austrians insisted that civil liberty is impossible without economic liberty, the converse is also true: Economic liberty cannot persist without civil liberty, including the freedom to discuss controversial points of view and the freedom to associate with characters whom the government considers to be unsavory.
David,
I agree with your basic premise: Economics is applicable to all aspects of social organization, and therefore is relevant to a discussion of law, government, and war. The particular theories applied to economics has implications to how we judge things around us as being “good” or “bad”. No problem.
What I object to is histrionics. Your post is a good example. You assert things, big, important things, for which you offer no facts, rationale or justification, much less a relationship to some particular aspect of Austrian economic theory, other than, as I pointed out above, a rather loose assumed conclusion that because all of the things you assert are “obviously true”, therefore government is by definition, bad. Solution: Ancap.
This is not a discussion of economics, law, government or war or Presidential powers. No issues or questions on those topics have been raised. If you propose to tie it in somehow, be my guest.
For example, what is your justification for your statement, “he almost certainly violated the law”? You have offered nothing to support that assertion. How do unsupported statements advance any purpose you ascribe to LVMI?
So what about all the training officers that waterboard navy seal trainees? Are they to be sent up on criminal charges?
The trainees agreed to it when they signed up.
BioTube,
They couldn’t know in advance what they wer signing up for, unless they signed up to find out?
The consented, unlike captured terrorists in the heat of battle, and that is the distinction betwen legal and illegal? Not sure I get your point.
The question and your answer are both meaningless. It is not black or white, so it cannot be settled by offhanded comments. That is the first premise.
SEAL and other special forces training is advertised as brutal and difficult. They knew what they were getting into. The harsh training that SEALS got, including waterboarding, was public knowledge long before 9/11.
While this site isn’t necessarily the appropriate venue for such a debate, the debate is happening, so we may as well run with it.If one can step aside from the reflexive Bush-bashing and discuss the concepts of torture, laws of war, and war crimes in a reasoned and logical manner, then it might be possible to make progress toward an answer.Breaking the idea of war crimes down to the simplest elements, it takes two to tango. For one party to commit a war crime, the opposite party must behave according to the elements of the law that protect him from that crime. For a common example, a uniformed combatant captured on the field of battle by his enemy is protected by the Geneva Convention; an enemy combatant not in uniform captured on the field of battle has no such protection. If you don’t like that, amend the law to redefine uniform, or more narrowly define the field of battle.Conflating the desire to operate within and adhere to black letter law into a “war crime,” simply because the actions at issue were authorized by a political opponent (that one has been instructed to hate), does nothing to advance the debate. Prosecution of war on an international basis is not the same as prosecution of criminal justice internal to a nation’s borders.If, absent of partisan political spin, one is genuinely concerned about “torture” down to its weakest definition, where is all of the outcry and angst over the thousands of American citizens who have been wrongly convicted and imprisoned after police used extreme coercive tactics to extract a confession. Don’t these thousands of innocent citizens deserve at least as much consideration as the few individuals who have ever been waterboarded?Torture is in the eye of the beholder. What is more traumatic, taking an admitted terrorist who has spent decades being shot at while sleeping on cold rocks and throwing him in the water, or confining an illiterate 18-year-old citizen in a windowless room for 2-3 days while depriving him of sleep and repeatedly interrogating him?Unless the laws have changed recently, captured enemy combatants not protected by the Geneva Convention are subject to summary execution. Call me old-fashioned, but I’d suggest that any treatment less invasive/injurious than execution to be in the enemy combatant’s favor.Like them or not, lawyers are who we rely on to interpret the law, not journalists, activists or partisan political operatives. In spite of four years of a single-party Congress, and two years of a single-party government, no opposition party lawyers have even made a serious attempt (threats designed to move unfavorable news off the front page, yes; legal action, no) to prove that the interpretation of Bush’s lawyers was wrong. This tells me that his lawyers got it right.Just because one wishes to declare the actions of one’s political opponents to be crimes, doesn’t make it so. In more than six years of reading “Bush = Evil = War Crimes” posts, I’ve yet to see one citation of an applicable law that was broken, along with how, when and where the elements of said crime occurred.To be certain, the very nature of war has changed since the Geneva Convention was adopted. If one thinks that currently legal conduct of war should be made illegal, then fine, let’s have a logical discussion of why the laws currently in place are no longer appropriate, and how the new laws should be defined and enforced. In the meantime, how about leaving the Bush bashing to the Kos Kidz?
Sorry for the duplicate post, but the editing option stripped every paragraph return from the original post, and the edit clock ran out before I finished replacing them. Moderator, please delete the previous duplicate post.
While this site isn’t necessarily the appropriate venue for such a debate, the debate is happening, so we may as well run with it.
If one can step aside from the reflexive Bush-bashing and discuss the concepts of torture, laws of war, and war crimes in a reasoned and logical manner, then it might be possible to make progress toward an answer.
Breaking the idea of war crimes down to the simplest elements, it takes two to tango. For one party to commit a war crime, the opposite party must behave according to the elements of the law that protect him from that crime. For a common example, a uniformed combatant captured on the field of battle by his enemy is protected by the Geneva Convention; an enemy combatant not in uniform captured on the field of battle has no such protection. If you don’t like that, amend the law to redefine uniform, or more narrowly define the field of battle.
Conflating the desire to operate within and adhere to black letter law into a “war crime,” simply because the actions at issue were authorized by a political opponent (that one has been instructed to hate), does nothing to advance the debate. Prosecution of war on an international basis is not the same as prosecution of criminal justice internal to a nation’s borders.
If, absent of partisan political spin, one is genuinely concerned about “torture” down to its weakest definition, where is all of the outcry and angst over the thousands of American citizens who have been wrongly convicted and imprisoned after police used extreme coercive tactics to extract a confession. Don’t these thousands of innocent citizens deserve at least as much consideration as the few individuals who have ever been waterboarded?
Torture is in the eye of the beholder. What is more traumatic, taking an admitted terrorist who has spent decades being shot at while sleeping on cold rocks and throwing him in the water, or confining an illiterate 18-year-old citizen in a windowless room for 2-3 days while depriving him of sleep and repeatedly interrogating him?
Unless the laws have changed recently, captured enemy combatants not protected by the Geneva Convention are subject to summary execution. Call me old-fashioned, but I’d suggest that any treatment less invasive/injurious than execution to be in the enemy combatant’s favor.
Like them or not, lawyers are who we rely on to interpret the law, not journalists, activists or partisan political operatives. In spite of four years of a single-party Congress, and two years of a single-party government, no opposition party lawyers have even made a serious attempt (threats designed to move unfavorable news off the front page, yes; legal action, no) to prove that the interpretation of Bush’s lawyers was wrong. This tells me that his lawyers got it right.
Just because one wishes to declare the actions of one’s political opponents to be crimes, doesn’t make it so. In more than six years of reading “Bush = Evil = War Crimes” posts, I’ve yet to see one citation of an applicable law that was broken, along with how, when and where the elements of said crime occurred.
To be certain, the very nature of war has changed since the Geneva Convention was adopted. If one thinks that currently legal conduct of war should be made illegal, then fine, let’s have a logical discussion of why the laws currently in place are no longer appropriate, and how the new laws should be defined and enforced. In the meantime, how about leaving the Bush bashing to the Kos Kidz?
As far as i understood, people from al-quaida think they are free to kill, maim and harm as many US citizens as they are able to. So for them in dealing with US citizens (and people from some other nations too) murder and torture is ok, they consented to murder and torture being ok. They even claim its nice for themselves to get killed by US forces.
Therefore i cannot see in what way torturing al quiada members would be contrary to libertarian approach, they decided, that these things are ok.
torture was used extensively in the nuremburg trials. plus ça change…
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