Well, I was not blogging throughout the winter, when the local news station that I always watch with morbid fascination was setting new lows with its horrendous weather coverage. There was a big blizzard that the station tracked for 800 miles, giving us daily, sometimes hourly progress reports, as though it were an imminent emergency. It's not so much the interruptions of regular programming I object to, as the tone of "panic now!" throughout the coverage. Stock up on provisions, we'll report up to the minute, that, oh wait... no, the storm missed us. We got a fraction of an inch. Sensational stories designed to scare people. Murders, drunk drivers, dirty dining, all the imminent threats that are never quantized because they'd be exposed as trivial.
Well, now it's the swine flu. One night it was, "swine flu is spreading rapidly in Wisconsin" followed by the schitzophrenic allowance that Wisconsin has zero confirmed cases, and its three suspected cases were all people that had recovered. The next night, the line was that "concern about the SWINE FLU IS SPREADING RAPIDLY" -- get that? concern is spreading. They had a demonstration about "how easily the virus could spread" by having the reporter go to the mall and shake hands with strangers and say, "and that's all it could take." Followed by him washing his hands (in a manner that would be a good example of how not to wash hands). They also had a man on the street who said the night before -- without being contradicted -- that he wasn't worried because it's not like you could get it shaking hands. Why do they feature laypeople expressing expert opionions about things they know nothing about? They also declared a pandemic, when the WHO had declared a level three potential epidemic, pandemic being level six. They also show a lot of people earing masks, although experts are dubious about masks. They told people not to go to the hospital, where the professional advise is to call first and then go. (I also think it presumed a lot to tell people to call their doctors -- how many thousands of us in the viewing area have no doctor?)
A list of my general gripes: (1) They use or misuse specialized vocabulary without defining it. (2) They give extremely oversimplified or false information. (3) They use suggestion or innuendo to hype a crisis and create alarm. (4) They solicit or offer unqualified opinions. And (5) they have a lead story that they cover night after night, and spend each night correcting the previous night's mistakes rather than just doing the work to get it right in the first place. Wouldn't it be good to learn the basic facts first, and then worry about clever ways to present them?
Thursday, April 30, 2009
Sunday, April 26, 2009
The Language of Rejecting Torture Prosecution
Recent arguments regarding whether there should be prosecutions of those responsible for officially sanctioned torture during the Bush administration have struck me for their profoundly dishonest use of language.
For example, when David Brooks (whom I like on many things, but I'm going to pick on here, because I just heard him talking like an ass -- the same goes for Obama, who is the other main source of the doublespeak in this comment) talks about "relitigating" the issue, I instantly wonder, when does he think this has been litigated before? Relitigating is not such a profoundly difficult or esoteric concept. It means litigating again. Courts believe in finality, which is why appeals are difficult, and one cannot come back over and over to try the same case. A criminal defendant is protected by the concept of double jeopardy. A civil litigant who won their case is protected by res judicata from having it retried.
Of course there are fine points about where relitigation begins and ends. I have had some legal cases where opposing counsel has argued that a matter was litigated because of some other case where the same party made similar arguments, even though in my view, it fell short of legally precluding the same matter from being argued again. For example, a discharged worker argues that he did nothing worthy of losing his job but was excessively punished because of hostility toward his race. He argues this at an unemployment hearing, in a union grievance hearing, and in an EEOC hearing. In each setting the issues are not legally the same. In the union hearing, the union is the party. In the unemployment hearing, the standards of evidence are completely different. The similarity of the argument makes for a repetitive feel in some cases, but from a legal standpoint, nothing is relitigated.
So in the case of people who tortured, what is to be relitigated? None of these people have ever had to answer for their crimes, or been vindicated of the accusations against them in any legal proceeding. The closest they've had to "litigating" the matter of their having violated the law was that the kinds of actions they engaged in were considered in the abstract in some memos, where no question existed of who actually did what. Those memos were not determinations of a court, of an administrative panel, or an independent arbitrator. They were highly subjective arguments written from the position of one of the parties. It is inane to suggest that presenting them to a court for the first and only time would violate some principle of finality, as though the torture memos, since withdrawn, should be the last word.
Let me note one important point: I am not in the camp that says you must prosecute every single crime that ever occurs. I believe in exercising discretion. So there could be cases where pressing a prosecution would seem like relitigating in some moral sense even though the prosecution was not legally barred. But this is just such a long, long stretch from being remotely close to actual relitigation, that that does not apply.
Brooks also used the word "criminalize", as in, "we should not go back and criminalize this behavior." Again, without saying so explicitly, he is evoking a set of legal principles. Just as we have a principle of finality that says, decide once, we have a principle of non-retroactivity that says, you go by the law of the time. For that reason, you cannot create an ex post facto law, making conduct that was legal at the time a crime.
And just as with the word "relitigate", the word "criminalize" in this case appears to suffer from the phenomenon of the faulty referent -- what is being criminalized? Torture? We have a statute already that makes that a felony. The torture memos addressed the torture statute, as well as other law such as the Geneva Conventions, other international instruments, and applications of Eighth Amendment principles, that also criminalized conduct that, so far as we know from news reports, actually occurred hundreds of times. Of course the memos concluded that some of this conduct was not criminal in the view of the authors, although courts might disagree (as most informed legal commenters have), and although practices straying from those outlined in the memo (reportedly what actually happeed) would likely be criminal.
As above, I don't think it determines the case that from a legal standpoint, this is an extant crime, long on the books, and prosecution does not depend on an ex post facto law. If the law were really unclear, so that a court would be determining for the first time in a U.S. jurisdiction that, yes, torture is illegal, then I could see the point. But I think in this case you have in the torture memos an elaborate effort to take what it clearly the law against torture, and render it unclear such that some further judicial process would be necessary to make the law clear. And I think those memos are a resounding failure. The arguments in the memos are strained as though they were being stretched on the rack. Reading them, one comes away with the impression that they are a sham and that the law is clear as daylight that many of the approved tortures were tortures just the same, and felonies to inflict. Does Brooks or anyone really think that prosecuting these tortures would be the same as going back and changing the law?
So in both these cases, the words used are evocative but completely wrong: prosecutions would not depend on relitigation or criminalization.
"Looking backward" is another lingusitic styling that makes no sense in this context. Our criminal law permits us only to prosecute crimes by looking backward after they have occurred. We don't prosecute future crime. We prosecute conspiracies and attempts, but this we do on the basis of actual conduct that has already occurred, even when there will definitely be no further completed crime in the future. Why would prosecuting these crimes constitute some illicit form of backward-looking while every other criminal prosecution that takes place based on completed offenses somehow would not?
"Good faith" is another usage that strikes me. It's not that I think it makes no sense in this context, but I think that when most pundits talk about interrogators relying on the torture memos in good faith, good faith actually means bad faith.
I don't typically think of torture as being a "good faith" kind of crime. We also don't generally excuse crimes because the perpetrator can present an argument that he acted in good faith. We don't generally ignore crimes because they had a positive motive or even a positive effect. These are issues for sentencing. Ignorance of one's legal responsibilities is no excuse, although I believe there are three very narrow exceptions to this:
One is for crimes of total passivity where notice is lacking. If someone passes a law to make you do something, you actually have to hear about the law before doing nothing becomes a crime. Torture is active.
One is for highly esoteric offenses, like observing certain tax regulations. But torture is a mala in se crime, which is to say that despite its historical prevalence it has always been, when conducted ouside the color of official authority, a crime obvious unto itself. It is not like some kind of economic regulation that requires you to get a license before doing something that presents no obvious harm. It is an activity which one cannot generally commit in good faith. The cries of the victim should tell you that this questionable conduct.
And the last is where the error is one of fact rather than law. If you were to torture someone because you sincerely believed that you were participating in a sociological expermiment, the electrodes were fake, and the victim was an actor, then you would have a defense. If you relied on a legal memo that said torture was really not illegal after all, this would not be a defense. (Since we're in the area of politics, let's just note in passing that when Clinton was disbarred, it was for making statements in a deposition that were not false but misleading, which he felt he could properly make because he relied on bad legal advice.) So "good faith" in terms of relying on these memos, which are so hard for a reasonable person to swallow, that seems like a non sequitur.
Legal defense or not, I could understand exercising discretion not to prosecute persons who did rely on legal advice in good faith. But in my mind this would mean reasonable reliance, not just, "okay, my ass is covered, I don't need to think about this." It already seems like news report suggest a wide range of degrees of culpability. It's hard for me to imagine that the torturer who presses forward with waterboardings every few hours for weeks on end can say he felt any reasonable assurance that the orders he was following were lawful. But I can see people on the fringes, mostly in the dark, being tricked into thinking that someone was looking at this from a legal aspect and doing their diligence.
In this context, "chilling effect" as in threatened prosecution would chill the torturers from proceeding aggressively, seems a perversely misused parlance. The phrase is most famously associated with the right of free speech, which one may exercise without restraint, even when it harms others, because to restrict it would "chill" the exercise of this fundamental right. Now we're speaking of torture as if it were not a debasing crime, but a basic right? Chilling means that people will balk because they are unsure of their justification and decide to err on the side of avoiding liability. This seems like a good thing when instead of speech, we're talking about war crimes. If one is in a situation where immediate action is required and the law is fuzzy, I can see granting a range of discretion as we do when we give officials qualified immunity. But we don't generally offer that immunity when the crime is one of brutality. And in the context here, if you are torturing someone for months, isn't that long enough for someone to get a second opinion on the legality of their orders?
Finally, "Apolitical forum." Brooks gets to the end of his "don't prosecute" argument and says, perhaps he could see prosecutions if there were some kind of apolitical forum. This is an odd expression. What does he mean? I seem to recall the drafters of the Constitution had the foresight to set apart some kind of institution, separate from Congress and the President, where issues could be tested on the basis of the law, rather than on political considerations. One could bring cases at law there, and have them ruled upon by magistrates, protected from influence by life terms. That is where prosecutions would be held. But obviously the courts are not the apolitcal fora Brooks is looking for, because Brooks already knows about those.
So, the common thread in these points is that all six terms are being used in an obfuscatory manner. If they were interpreted according to their regular meanings, they would cause all the arguments against prosecution using them to vanish. Why not just let the legal system sort it out? Which means, where there is a reasonable basis to suspect crime, investigate it. Where one concludes the crime did take place, prosecute it. The legal system already has answers to the questions posed by each of these phrases.
For example, when David Brooks (whom I like on many things, but I'm going to pick on here, because I just heard him talking like an ass -- the same goes for Obama, who is the other main source of the doublespeak in this comment) talks about "relitigating" the issue, I instantly wonder, when does he think this has been litigated before? Relitigating is not such a profoundly difficult or esoteric concept. It means litigating again. Courts believe in finality, which is why appeals are difficult, and one cannot come back over and over to try the same case. A criminal defendant is protected by the concept of double jeopardy. A civil litigant who won their case is protected by res judicata from having it retried.
Of course there are fine points about where relitigation begins and ends. I have had some legal cases where opposing counsel has argued that a matter was litigated because of some other case where the same party made similar arguments, even though in my view, it fell short of legally precluding the same matter from being argued again. For example, a discharged worker argues that he did nothing worthy of losing his job but was excessively punished because of hostility toward his race. He argues this at an unemployment hearing, in a union grievance hearing, and in an EEOC hearing. In each setting the issues are not legally the same. In the union hearing, the union is the party. In the unemployment hearing, the standards of evidence are completely different. The similarity of the argument makes for a repetitive feel in some cases, but from a legal standpoint, nothing is relitigated.
So in the case of people who tortured, what is to be relitigated? None of these people have ever had to answer for their crimes, or been vindicated of the accusations against them in any legal proceeding. The closest they've had to "litigating" the matter of their having violated the law was that the kinds of actions they engaged in were considered in the abstract in some memos, where no question existed of who actually did what. Those memos were not determinations of a court, of an administrative panel, or an independent arbitrator. They were highly subjective arguments written from the position of one of the parties. It is inane to suggest that presenting them to a court for the first and only time would violate some principle of finality, as though the torture memos, since withdrawn, should be the last word.
Let me note one important point: I am not in the camp that says you must prosecute every single crime that ever occurs. I believe in exercising discretion. So there could be cases where pressing a prosecution would seem like relitigating in some moral sense even though the prosecution was not legally barred. But this is just such a long, long stretch from being remotely close to actual relitigation, that that does not apply.
Brooks also used the word "criminalize", as in, "we should not go back and criminalize this behavior." Again, without saying so explicitly, he is evoking a set of legal principles. Just as we have a principle of finality that says, decide once, we have a principle of non-retroactivity that says, you go by the law of the time. For that reason, you cannot create an ex post facto law, making conduct that was legal at the time a crime.
And just as with the word "relitigate", the word "criminalize" in this case appears to suffer from the phenomenon of the faulty referent -- what is being criminalized? Torture? We have a statute already that makes that a felony. The torture memos addressed the torture statute, as well as other law such as the Geneva Conventions, other international instruments, and applications of Eighth Amendment principles, that also criminalized conduct that, so far as we know from news reports, actually occurred hundreds of times. Of course the memos concluded that some of this conduct was not criminal in the view of the authors, although courts might disagree (as most informed legal commenters have), and although practices straying from those outlined in the memo (reportedly what actually happeed) would likely be criminal.
As above, I don't think it determines the case that from a legal standpoint, this is an extant crime, long on the books, and prosecution does not depend on an ex post facto law. If the law were really unclear, so that a court would be determining for the first time in a U.S. jurisdiction that, yes, torture is illegal, then I could see the point. But I think in this case you have in the torture memos an elaborate effort to take what it clearly the law against torture, and render it unclear such that some further judicial process would be necessary to make the law clear. And I think those memos are a resounding failure. The arguments in the memos are strained as though they were being stretched on the rack. Reading them, one comes away with the impression that they are a sham and that the law is clear as daylight that many of the approved tortures were tortures just the same, and felonies to inflict. Does Brooks or anyone really think that prosecuting these tortures would be the same as going back and changing the law?
So in both these cases, the words used are evocative but completely wrong: prosecutions would not depend on relitigation or criminalization.
"Looking backward" is another lingusitic styling that makes no sense in this context. Our criminal law permits us only to prosecute crimes by looking backward after they have occurred. We don't prosecute future crime. We prosecute conspiracies and attempts, but this we do on the basis of actual conduct that has already occurred, even when there will definitely be no further completed crime in the future. Why would prosecuting these crimes constitute some illicit form of backward-looking while every other criminal prosecution that takes place based on completed offenses somehow would not?
"Good faith" is another usage that strikes me. It's not that I think it makes no sense in this context, but I think that when most pundits talk about interrogators relying on the torture memos in good faith, good faith actually means bad faith.
I don't typically think of torture as being a "good faith" kind of crime. We also don't generally excuse crimes because the perpetrator can present an argument that he acted in good faith. We don't generally ignore crimes because they had a positive motive or even a positive effect. These are issues for sentencing. Ignorance of one's legal responsibilities is no excuse, although I believe there are three very narrow exceptions to this:
One is for crimes of total passivity where notice is lacking. If someone passes a law to make you do something, you actually have to hear about the law before doing nothing becomes a crime. Torture is active.
One is for highly esoteric offenses, like observing certain tax regulations. But torture is a mala in se crime, which is to say that despite its historical prevalence it has always been, when conducted ouside the color of official authority, a crime obvious unto itself. It is not like some kind of economic regulation that requires you to get a license before doing something that presents no obvious harm. It is an activity which one cannot generally commit in good faith. The cries of the victim should tell you that this questionable conduct.
And the last is where the error is one of fact rather than law. If you were to torture someone because you sincerely believed that you were participating in a sociological expermiment, the electrodes were fake, and the victim was an actor, then you would have a defense. If you relied on a legal memo that said torture was really not illegal after all, this would not be a defense. (Since we're in the area of politics, let's just note in passing that when Clinton was disbarred, it was for making statements in a deposition that were not false but misleading, which he felt he could properly make because he relied on bad legal advice.) So "good faith" in terms of relying on these memos, which are so hard for a reasonable person to swallow, that seems like a non sequitur.
Legal defense or not, I could understand exercising discretion not to prosecute persons who did rely on legal advice in good faith. But in my mind this would mean reasonable reliance, not just, "okay, my ass is covered, I don't need to think about this." It already seems like news report suggest a wide range of degrees of culpability. It's hard for me to imagine that the torturer who presses forward with waterboardings every few hours for weeks on end can say he felt any reasonable assurance that the orders he was following were lawful. But I can see people on the fringes, mostly in the dark, being tricked into thinking that someone was looking at this from a legal aspect and doing their diligence.
In this context, "chilling effect" as in threatened prosecution would chill the torturers from proceeding aggressively, seems a perversely misused parlance. The phrase is most famously associated with the right of free speech, which one may exercise without restraint, even when it harms others, because to restrict it would "chill" the exercise of this fundamental right. Now we're speaking of torture as if it were not a debasing crime, but a basic right? Chilling means that people will balk because they are unsure of their justification and decide to err on the side of avoiding liability. This seems like a good thing when instead of speech, we're talking about war crimes. If one is in a situation where immediate action is required and the law is fuzzy, I can see granting a range of discretion as we do when we give officials qualified immunity. But we don't generally offer that immunity when the crime is one of brutality. And in the context here, if you are torturing someone for months, isn't that long enough for someone to get a second opinion on the legality of their orders?
Finally, "Apolitical forum." Brooks gets to the end of his "don't prosecute" argument and says, perhaps he could see prosecutions if there were some kind of apolitical forum. This is an odd expression. What does he mean? I seem to recall the drafters of the Constitution had the foresight to set apart some kind of institution, separate from Congress and the President, where issues could be tested on the basis of the law, rather than on political considerations. One could bring cases at law there, and have them ruled upon by magistrates, protected from influence by life terms. That is where prosecutions would be held. But obviously the courts are not the apolitcal fora Brooks is looking for, because Brooks already knows about those.
So, the common thread in these points is that all six terms are being used in an obfuscatory manner. If they were interpreted according to their regular meanings, they would cause all the arguments against prosecution using them to vanish. Why not just let the legal system sort it out? Which means, where there is a reasonable basis to suspect crime, investigate it. Where one concludes the crime did take place, prosecute it. The legal system already has answers to the questions posed by each of these phrases.
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