Croggled and appalled
Jun. 20th, 2007 02:49 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
pecuniumScalia (that, purported, paragon of, "originalism" who never saw a constitutional precept that didn't, conveniently, support his worldview) was at a panel on tortue and terrorism.
A Canadian justice said, “Thankfully, security agencies in all our countries do not subscribe to the mantra ‘What would Jack Bauer do?’”
To which Scalia replied, The conservative jurist stuck up for Agent Bauer, arguing that fictional or not, federal agents require latitude in times of great crisis. "Jack Bauer saved Los Angeles. ... He saved hundreds of thousands of lives," Judge Scalia said. Then, recalling Season 2, where the agent's rough interrogation tactics saved California from a terrorist nuke, the Supreme Court judge etched a line in the sand.
"Are you going to convict Jack Bauer?" Judge Scalia challenged his fellow judges. "Say that criminal law is against him? 'You have the right to a jury trial?' Is any jury going to convict Jack Bauer? I don't think so.
"So the question is really whether we believe in these absolutes. And ought we believe in these absolutes."
What. The. Fuck?
First, Bauer has something going for him which people in the real world don't... the scriptwriters are on his side.
Even with that, there are some nuggets of truth which ooze out of the ridiculous plots in that paean to abuse, "You are going to tell me what I want to know, it's just a matter of how much you want it to hurt is one of the things Bauer says.
Which is true, what the torturer wants to hear will come out of the mouth of the tortured; it's just a question of how much pain has to be inflicted to teach the poor sod what the mystical phrases are.
Now, one can argue Scalia was trying to make a broader point; that the ends justify the means, and the ends of stopping someone from nuking a city justify a lot of evil in the name of good.
It's nonsense, of course, (though the apologists will trot out the reports of the self-interested, who have tortured, to justify the positions they take. But just as Dr. Behe isn't a refutation of the evidence of evolution, neither is Tenet's claim that torture works enough to outweigh the rest of the evidence; esp. as he doesn't provide any more evidence than, "We stopped plots I can't tell you about." Right).
But to make the argument that some movie plot was stopped in a movie, and that applies to the real world? Well... I guess there are ejection seats in C-130s, and all one has to do to fire blanks at full-auto is load them in the MP-5 (two of the things which bothered me in Die Hard II).
It's stupid. It's fatuous. It insults anyone who stops to think about it.
I can think of lots of ways to attack a city (when I was taking "Intelligence in Combatting Terrorism" one of the assigments was to design just such a plot). Almost all of the plots hatched by us were the sort which torture couldn't stop.
Why?
For all the reasons the ticking bomb is bullshit. Once they are underway, you have to assume I don't know how long I have to hold out. That I won't lie. That once I tell a false story, it won't take awhile to disprove, and that I can't steel myself in the reprieve, to hold out a little longer, or spin another story, or, or, or.
Sooner or later my honest report (assuming I break) will be lost in all the crap (all the more so if there is more than one person being tortured, the interrogators will start to manufacture corroboration; and when the story changes, so too will the false corroboration change to match it, because the answers are expected, and the source will be guided to them).
Back in the day (when torture was less unacceptable than it is now) this was known.
Often I have thought that the only reason why we are not all wizards is due to the fact that we have not all been tortured. And there is truth in what an inquisitor dared to boast lately, that if he could reach the Pope, he would make him confess that he was a wizard.
- Friedrich von Spee, SJ (1591-1635), Cautio Criminalis ("Precautions for Prosecutors")
But one of the Justices of the Supreme Court thinks we need to acquit those who would torture.
For support he doesn't point to any real world applications; times and places where such a course of action was effective.
Rather he points to a television show.
Angels and ministers of Grace.
A Canadian justice said, “Thankfully, security agencies in all our countries do not subscribe to the mantra ‘What would Jack Bauer do?’”
To which Scalia replied, The conservative jurist stuck up for Agent Bauer, arguing that fictional or not, federal agents require latitude in times of great crisis. "Jack Bauer saved Los Angeles. ... He saved hundreds of thousands of lives," Judge Scalia said. Then, recalling Season 2, where the agent's rough interrogation tactics saved California from a terrorist nuke, the Supreme Court judge etched a line in the sand.
"Are you going to convict Jack Bauer?" Judge Scalia challenged his fellow judges. "Say that criminal law is against him? 'You have the right to a jury trial?' Is any jury going to convict Jack Bauer? I don't think so.
"So the question is really whether we believe in these absolutes. And ought we believe in these absolutes."
What. The. Fuck?
First, Bauer has something going for him which people in the real world don't... the scriptwriters are on his side.
Even with that, there are some nuggets of truth which ooze out of the ridiculous plots in that paean to abuse, "You are going to tell me what I want to know, it's just a matter of how much you want it to hurt is one of the things Bauer says.
Which is true, what the torturer wants to hear will come out of the mouth of the tortured; it's just a question of how much pain has to be inflicted to teach the poor sod what the mystical phrases are.
Now, one can argue Scalia was trying to make a broader point; that the ends justify the means, and the ends of stopping someone from nuking a city justify a lot of evil in the name of good.
It's nonsense, of course, (though the apologists will trot out the reports of the self-interested, who have tortured, to justify the positions they take. But just as Dr. Behe isn't a refutation of the evidence of evolution, neither is Tenet's claim that torture works enough to outweigh the rest of the evidence; esp. as he doesn't provide any more evidence than, "We stopped plots I can't tell you about." Right).
But to make the argument that some movie plot was stopped in a movie, and that applies to the real world? Well... I guess there are ejection seats in C-130s, and all one has to do to fire blanks at full-auto is load them in the MP-5 (two of the things which bothered me in Die Hard II).
It's stupid. It's fatuous. It insults anyone who stops to think about it.
I can think of lots of ways to attack a city (when I was taking "Intelligence in Combatting Terrorism" one of the assigments was to design just such a plot). Almost all of the plots hatched by us were the sort which torture couldn't stop.
Why?
For all the reasons the ticking bomb is bullshit. Once they are underway, you have to assume I don't know how long I have to hold out. That I won't lie. That once I tell a false story, it won't take awhile to disprove, and that I can't steel myself in the reprieve, to hold out a little longer, or spin another story, or, or, or.
Sooner or later my honest report (assuming I break) will be lost in all the crap (all the more so if there is more than one person being tortured, the interrogators will start to manufacture corroboration; and when the story changes, so too will the false corroboration change to match it, because the answers are expected, and the source will be guided to them).
Back in the day (when torture was less unacceptable than it is now) this was known.
Often I have thought that the only reason why we are not all wizards is due to the fact that we have not all been tortured. And there is truth in what an inquisitor dared to boast lately, that if he could reach the Pope, he would make him confess that he was a wizard.
- Friedrich von Spee, SJ (1591-1635), Cautio Criminalis ("Precautions for Prosecutors")
But one of the Justices of the Supreme Court thinks we need to acquit those who would torture.
For support he doesn't point to any real world applications; times and places where such a course of action was effective.
Rather he points to a television show.
Angels and ministers of Grace.
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no subject
Date: 2007-06-21 12:48 am (UTC)no subject
Date: 2007-06-21 01:05 am (UTC)no subject
Date: 2007-06-21 02:15 am (UTC)By the way, I saw that you responded to the commenter at Slacktivist who implied that soldiers were responsible for the Iraq War. I wanted to, but I had to run out and take a kid to the doctor. You did your usual nice job, there, with someone who was simply appalling.
no subject
Date: 2007-06-21 05:41 am (UTC)I am still an autonomous individual. I may have contracted to some limits on my freedom of choice, but I am not the primary actor.
And holier than thou, for something which has corporate blame enough to share out with everyone, well that's too obnoxious to put up with in saintly silence.
Esp. when I've said so, and more.
What shocks me about Scalia isn't the conclusion, it's the argument. Usually he makes the attempt to fabricate a constitutional framework for his position.
I think this was a case of his being caught out in a reactive moment; not having weeks to find some clever rhetorical device to paper over his pre-conceived ideas.
TK
no subject
Date: 2007-06-21 03:51 am (UTC)In a just world, this would be ample reason to force him into psychological evaluation, as he is clearly a danger to others in his position.
no subject
Date: 2007-06-21 04:03 am (UTC)Wait, so Scalia's FOR jury nullification now?
Also shocking...
Date: 2007-06-21 05:36 am (UTC)As near as I can tell from the news report (so far, I've only found one report in the Toronto Globe and Mail), the rest of the panelists actually debated the merits of extreme methods, and whether they would be justified if the result was saving a city from nuclear attack.
Do they not know the received doctrine? Do they not know that torture doesn't work, no matter how effective it may have been in news reports? They must not have gotten the memo.
(Fortunately, the terrorists who spilled the details of the plot to blow up the Library building, and the terrorists who told troops where IED factories could be found, also didn't get the memo. In their ignorance, they told what they knew.)
Seriously, though, it looks like the panel was discussing a hypothetical case that happened to be depicted in a popular TV show. Gods forbid that any serious legal scholar should ever discuss a hypothetical case, especially one pulled from the popular media.
And since the whole panel discussed this hypothetical case as if it were a worthy topic of discussion, I suspect we should regard any conclusion on the part of any panelist as completely illegitimate.
And in particular:
Re: Also shocking...
Date: 2007-06-21 05:56 am (UTC)The hypothetical was introduced by Scalia, who averred that a plot, scripted to be foiled, was foiled, and therefore the use of torture is justified.
There aren't, despite the special pleadings of those who are at risk of being tried for war crimes (not in this administration, but like murder, there is no limit to the time at which charges can be brought) any cases which point to derailed plots.
We hear of them, but we hear of them as, "We prevented it." Well, absent real details (which are.... gee whillikers, not provided) it's all smoke and mirrors.
If you are willing to have it done to yourself, or your loved ones, if they are suspected/accused, then, just maybe, you have a morally defensible (though disgusting) position.
But unless you think that, you are talking out your hat.
You say I insult your intelligence, and that you don't take such lightly.
Well your posistions, bad faith arguing, appeals to authority, demands to prove negatives, and the like, inult mine.
Your calling me a fool and a liar insult me personally.
I take those more graciously than I, perahaps should. You don't like my hobby horses, fine... come up with real evidence. Something more credible than the testimony of people with their ass on the line; and a reason to actually lie.
Show me cases where we have more evidence of the plot than a confession gained from torture (who was arrested for the various things which were foiled? What, no one? They managed to prevent them just from getting a confession, from a guy in prison; who wasn't in contact with the other conspirators? Maybe it wasn't a real plot at all... just saying).
But you haven't. You've made appeals to emotion. Said it must work because someone said so. Discounted all the people who say, from experience, that it doesn't.
Hundreds of years of people (no small number of whom had reasons to want it to work) saying it doesn't.
But you say.... "this small handful of people agree with me, so you must be wrong".
Well, no. That some people (even with degrees in disciplines that relate) say evolution is bunk, doesn't mean it is. It means they think so.
They are wrong.
And on this, no matter how insulted you are to hear it... you too are wrong.
TK
Re: Also shocking...
Date: 2007-06-21 06:54 am (UTC)Nevertheless, I cite Brian Ross, who interviewed contacts in the CIA – contacts opposed to torture, who called the information "actionable" (that is, more than just "smoke and mirrors"). Was Brian Ross lying or deluded? Were the CIA contacts lying or deluded?
I've linked elsewhere to a piece in the New York Times, in which torture yielded actionable, indeed life-saving, information. Was the reporter lying or deluded?
These are two cases which I've basically tripped over in the news. I've not been hunting for them, they just turned up. I submit they are the tip of the iceberg.
Now remember, your "utilitarian argument" is based on the premise that torture never works. You never qualify that statement.
I would be quite at peace with "torture doesn't work all the time", or "torture doesn't work most of the time". I'd even accept "torture doesn't work nearly as well as what we're trained to do." But that's not your argument. Your argument is an absolute argument, brooking no exceptions. Therefore, it becomes your task to explain away any apparent counter-examples. You are claiming a negative. Prove it. A good start is not ignoring apparent positives, but at least trying to explain why they are, in fact, false.
I'll take your word that the only plot uncovered was one to blow up the Liberty Tower, and that no other interrogation, using coercive techniques, ever addressed anything else. Perhaps in a few more months, you'll address the New York Times piece.
You say that I argue in bad faith. How so? Because I don't accept revealed doctrine, shut up, and go away? I deny the charge of bad faith, and return it to you, sir. I have seen any number of comments, some by people who have been in the armed forces, explaining in no little detail exactly how torture can yield good information. I haven't gotten my copy of Intelligence Quarterly in quite a while, so I can't check their credentials, but what they say sounds sensible.
As for the appeal to authority, that's not a fallacy if the person appealed to actually is an authority. Sometimes, believe it or not, news reports are authoritative. Sometimes senior news analysts are capable of conducting enough research into a story to become authorities, at least with respect to that story. If, on the other hand, you can show that Brian Ross and the New York Times are either deluded or lying, then I'll quit citing them as authorities.
"Show me cases" I've cited two cases, you've made noises about one of them. Show me the documentation. Mindful of appeals to authority, I'm not inclined to take your word on it.
The criterion under which you will grant that I'm not "talking through my hat" is a fascinating one. You seem to be saying that unless I'm willing to undergo any procedure our soldiers and/or interrogators use, I am being hypocritical if I allow its use.
That's a foolish statement, and it's statements like that which cause me to call you a fool.
I'm not willing to be subjected to coercive methods of interrogation, therefore I should never consent to its use on anyone else, no matter what the circumstances.
I'm not willing to be killed in battle, therefore, I should never consent to anyone being killed in battle, no matter what the circumstances.
I'm not willing to be placed under arrest, therefore I should never consent to anyone being arrested, no matter what the circumstances.
I'm not willing to be punished, therefore I should never consent to anyone being punished, no matter what the circumstances.
We should therefore, under your theory, dismantle the armed forces, the criminal justice system, and any social structure in which any person is in a position to punish any other person at any time.
Yours is a silly argument, completely devoid of nuance. The only possible reasons you could possibly have for making it are:
1) You want to make the issue completely black and white so that you can declare any opposing point of view unprincipled by definition;
2) You really are that foolish.
Sometimes insults are true.
Re: Also shocking...
Date: 2007-06-21 12:41 pm (UTC)I am not willing to be placed under arrest when I have committed no crime and there is no plausible evidence that I have, therefore I do not consent to other people being arrested under those circumstances. Is that too absolute for you?
Re: Also shocking...
Date: 2007-06-21 07:16 pm (UTC)He held out for six hours. In the same situation, I would hope to hold for longer – at least long enough for my lawyer to get there.
By Terry's standards, this is torture. His complete lack of reaction to this incident speaks volumes to me. He's perfectly willing to scream about theoretical torture in a legal conference, but he has no time for real torture in his back yard.
As long as we're throwing hypotheticals around, if an Al Qaeda team grabbed you off a street, blindfolded you, transported you somewhere random, and tortured you in order to get you to tape statements denouncing your country (or just for the hell of it, because you're an infidel), how long do you think you could hold out?
If the CIA were holding the member of the kidnap team who failed to make his escape, what measures would you tolerate being taken in your behalf?
There are two major problems I have with this particular one of Terry's "hobby horses". First, his "utilitarian argument" depends on a flat denial that torture is ever effective. There are enough counter-examples to convince me that it is, sometimes, effective. The second is his definition of torture to include anything that's not nice. His definition is sufficiently broad as to make it impossible for everyone in the criminal justice system to do their jobs. Indeed, under his definition of "torture", a parent putting his child on a "time-out" is engaging in torture. (Indeed, his definition is so silly that when I quoted it in another forum – cut and pasted directly from his journal – one of the people who was taking his side in the debate accused me of making it up to discredit him.)
Ultimately, the point is that we need a reasonable definition of "torture", one suitable for use by grown-ups in real-world situations. That means drawing lines and saying "this not-nice thing is within bounds, that one is out of bounds".
What I see instead is lots of argumentum ad hominem. Scalia supports torture for evil motives, as part of his program to shred the Constitution. Scalia is so stupid he thinks a TV series is real life. Anyone who is willing to look at the possibility that torture might be needed in an extreme circumstance is similarly stupid and evil, and that person's views need not be given any consideration.
I also see an attempt to achieve an easy answer by discarding all sense of nuance. Anything not nice is torture, and torture is always wrong. This makes it easy to pass judgment on others, and easy to defend your own moral purity. You don't even need to think. Just emote at that nasty conservative and bask in your moral superiority.
no subject
Date: 2007-06-21 05:52 am (UTC)I noticed with appreciation the neat skewering of (retired? Judge) Bork on Making Light recently -- he's an Original Intent Strict Constructionist ... except when it comes to things like Tort Reform to limit the amount of damages for which people can sue. And he's suing a group for a million dollars after falling when ascending a dias.
no subject
Date: 2007-06-21 01:02 pm (UTC)No idea why that thought popped into my head.
Wait, that wasn't something dreamed up by Sadly, No--?
Date: 2007-06-21 05:52 pm (UTC)(And did nobody in H'wood not realize that Hercules don't have ejectors, or did they just call it poetic [sic] license?)
Re: Wait, that wasn't something dreamed up by Sadly, No--?
Date: 2007-06-21 06:53 pm (UTC)And the C-130 is a military plane, so of course it has a zero-zero ejection system.
Hand grenades also cause huge fireballs, which the hero can outrun, or something.
TK