I don't like Daily Kos, but I visit because there's information there and a perspective on a certain kind of Democrat, so it's a finger on the pulse of "Blue" America.
Lately, I've noticed a trend that deserves a quick comment. After the last debate, there was a post lauding Democratic presidential candidate Julian Castro, and buried amid the mild plaudits was the satisfaction that he was "not afraid to call [Venezuelan President Nicolas Maduro] a dictator." Well, calling Maduro a dictator should be embarrassing because it is so wrong. He was fairly elected, does not enjoy many of the perks of autocratic rule, and faces circumstances in Venezuela created by a hostile foreign power and a (mostly unmolested) fifth column in Caracas that would have led Barack Obama to suspend the constitution completely if they happened here.But that's beside the point for now. The point is, what courage! Castro has only about 100% of the foreign policy establishment, 99.99% of the mainstream media and 95% of the Democratic Party behind him on that bullshit. What is he afraid of? A Venezuelan hit squad putting him down as number 768 on its kill list?
Today, I got an email from "Amy." It looked more like some kind of political garbage than a virus, and sure enough, I was being asked to stand with Amy Klobushar, who "isn't afraid" to call out Trump on his unpopular trade policies. Again, I wonder, "afraid?" Of what?
I realized after this came up how familiar this was all getting, and I'm sure I would be able to find (or will soon receive) more examples of this particular strain of American political "courage" of standing up and saying something extremely popular. Was Castro the first to misidentify Maduro as a dictator? Was Klobuchar the first to notice Trump is an idiot on trade? Here you have two Democratic hopefuls (right word? 1-percent-pollers have little cause to be hopeful) being lauded for the courage and integrity it must have taken to stand up after having a finger in the wind for a year or two and waiting for a consensus to form with at least a hundred million backers before finally committing.
Someone start polishing the medals. If this is the standard for courage, we are going to have a lot of them to pass out.
Thursday, September 19, 2019
Wednesday, August 07, 2019
A tiny bit of physics
Back in high school physics, I remember, I had been part of a classroom discussion regarding friction. A scenario had been proposed that without friction, someone who started walking down the street would have nothing to oppose their forward inertia and would just slide forward uncontrollably. What if the person grabbed a tree to stop himself? Without friction, he would keep going. One of my classmates, Nick, opposed this view, saying there was something else that would keep the person bound to the tree and the tree stuck into the ground. The teacher semi-mockingly called this new fifth force "grab." I knew what Nick was talking about, and he was right.
I couldn't quite explain it at the time, but I can now. I don't know exactly why, but this is something I find important and interesting.
If friction is the force that resists the motion of one surface sliding against another, a fairly accurate and common definition, then we can imagine a frictionless world by imagining every object in it as having been greased with a perfectly effective lubricant. The person slides down the street with nothing to slow his inertia. Ordinarily, millions of tiny impacts with the air and between the bumps and grooves of your shoes (knees? face?) and those in the ground, absorb some of that momentum. You slow, shoe rubber streaks the ground, which is likewise worn smooth, and heat is generated. Not so here. But there are still the larger impacts: slamming into the tree. It's the same kind of force at work, only on a macro scale, so we don't normally think of it as "friction." It's just an impact.
To keep going, either you or the tree would have to break, or you'd have to go right through the tree, or it would have to pop out of the ground, its entire root system and a ton of earth either bending, breaking, or interpenetrating.
None of these options are possible, because there are forces that hold the tree together, hold you together, and hold the ground together, and also keep solid objects from passing through one another. In high school physics, you spend a lot of time ignoring these forces because you take it for granted in so much of mechanics that you are dealing with solid objects. Solid here means they hold together and don't occupy the same space as other solid objects. But those forces are necessary. They are the reason gravity doesn't pull you through the solid ground, or that the ground itself doesn't fall, shrinking the earth until the nuclei of atoms are pressed together.
Electromagnetic forces. Good to have. Time is cool because it keeps everything from happening at once. Space is cool because it keeps everything from happening in the same place. But that space would be a lot smaller without good old EM.
Don't know why, just wanted to post that.
I couldn't quite explain it at the time, but I can now. I don't know exactly why, but this is something I find important and interesting.
If friction is the force that resists the motion of one surface sliding against another, a fairly accurate and common definition, then we can imagine a frictionless world by imagining every object in it as having been greased with a perfectly effective lubricant. The person slides down the street with nothing to slow his inertia. Ordinarily, millions of tiny impacts with the air and between the bumps and grooves of your shoes (knees? face?) and those in the ground, absorb some of that momentum. You slow, shoe rubber streaks the ground, which is likewise worn smooth, and heat is generated. Not so here. But there are still the larger impacts: slamming into the tree. It's the same kind of force at work, only on a macro scale, so we don't normally think of it as "friction." It's just an impact.
To keep going, either you or the tree would have to break, or you'd have to go right through the tree, or it would have to pop out of the ground, its entire root system and a ton of earth either bending, breaking, or interpenetrating.
None of these options are possible, because there are forces that hold the tree together, hold you together, and hold the ground together, and also keep solid objects from passing through one another. In high school physics, you spend a lot of time ignoring these forces because you take it for granted in so much of mechanics that you are dealing with solid objects. Solid here means they hold together and don't occupy the same space as other solid objects. But those forces are necessary. They are the reason gravity doesn't pull you through the solid ground, or that the ground itself doesn't fall, shrinking the earth until the nuclei of atoms are pressed together.
Electromagnetic forces. Good to have. Time is cool because it keeps everything from happening at once. Space is cool because it keeps everything from happening in the same place. But that space would be a lot smaller without good old EM.
Don't know why, just wanted to post that.
Tuesday, August 06, 2019
Fix the Pardon Polcy
I was looking into the governor's pardon policy recently. I had not realized how strict the policy is. For one thing, the governor will not commute a life sentence no matter how unjust. At best, he will issue a posthumous pardon for a wrongly convicted person five years after they die. This is because, even though the state constitution gives the governor almost plenary pardon power, the governor has decided that he will not exercise his power until five years after a sentence concludes.
It may be justified to issue pardons to persons who have had their civil rights restored for half a decade, and may even be justified to prioritize some of these cases, but to make it a "no exceptions" iron-clad rule is just boneheaded. There are lots of good things that could be done with pardons and commutations that such a rule prevents.
First, many sentences are just excessive. This is especially true of very long sentences. If a twenty-year-old commits a very serious crime, the benefit of keeping him locked up to age 80 can't be much better than the benefits of keeping him locked up to age 60. When I was taking public defender cases, one common pattern was a murder in which the killer would get out in six years and someone who helped him would get 50 or 70. Sentences like this were theoretically based on all sorts of factors but in reality they were based mostly on nonsense, and often racist nonsense.
Second, some offenses are barely worth punishing. Mere possession of marijuana of the tiniest amount is illegal. More than that, a second offense of this type is a felony. The penalties for smoking weed in your house accelerate much faster than the penalties for drunk driving. You really have to wait five years to have one of these charges erased?
Third, our system of crimeless revocations means that some prisoners have their sentences extended long past the time they should have been free and clear. A person is sentenced to five years prison plus five years supervision. They do a few years on supervision then get revoked for a rule violation. They go back for a year and lose all their credit for the three, so they come out and have four years left. This happens again in a year and a half and they get another year in. Just before 18 months have passed, they get revoked for the remainder of their time. Voila! A ten-year sentence has taken more than 15 to complete, and the guy gets out the last time from prison to the street with no supervision left. Lots of these people deserved to be out long ago. Here's another twist. Suppose the guy does go out and reoffend. There can be an enhancer for a second offense within so many years. They guy's time may be doubled for the new offense because nearly five years that he was on the street without committing any crimes do not get counted in the passage of those years.
Fourth, there are life-ruining collateral effects to many convictions. There are literally thousands of restrictions out there saying you can't do this particular job or get that particular license if you are convicted of a certain offense. Occasionally people with a decent defense will plead guilty not knowing the consequences it will have. A plea offer that includes lengthy probation and no prison may sound pretty attractive, But then an innocent person winds up with no possibility of working in their field, and has to wait till five years after the end of the probation to ask for these collateral consequences to be dropped.
Fifth, there are plenty of cases out there where convictions are quite dubious. Our system favors finality which means that if you lost a badly conducted, error-ridden trial, or lost because of an overworked underprepared public defender, and let your appeal rights expire, or blew them because you relied on your own instincts or the advice of a jailhouse lawyer, then you can seldom get the case reopened without the unlikely emergence of genuinely new, previously unavailable evidence, or actual proof that you are innocent. After the trial, the presumption of innocence is gone and you have to prove by clear and convincing evidence that you didn't do it (even if the original trial didn't prove that you did). This is the most infuriating case. An innocent person who falls between the cracks of the procedural rules has nothing left but a possible pardon to consider his claim of innocence. Then the governor says, "sure, I'll consider the pardon request, but only after you've served your 15-year sentence, and then gone an extra five years just for giggles." That strikes me as reprehensible. The governor is effectively saying, "I don't care if you're probably innocent; I don;t care if your trial was a farce. Go tell it to the judge."
There are good government reasons not to overuse pardons. We assign the writing of the laws to the legislature and the trial of cases to the judiciary. Pardons are traditionally few. Politically, issuing large numbers of pardons seems like overstepping. What if the next guv abuses the pardon power? But on the other hand, a dramatic use of pardons could save on excessive prison spending, put more able workers into the economy, reduce the gross racial disparities in prison population that are hard to account for without some contribution from institutional (or individual) racism; and likewise cut the disparities for mentally ill and otherwise disabled folks who need treatment, not confinement. The pardonees are likely to be politically loyal, which in the case of Wisconsin today under a democratic governor would counter the effects of undemocratic gerrymandering that should be illegal.
I think Evers should get out his pardon pen and go to town.
It may be justified to issue pardons to persons who have had their civil rights restored for half a decade, and may even be justified to prioritize some of these cases, but to make it a "no exceptions" iron-clad rule is just boneheaded. There are lots of good things that could be done with pardons and commutations that such a rule prevents.
First, many sentences are just excessive. This is especially true of very long sentences. If a twenty-year-old commits a very serious crime, the benefit of keeping him locked up to age 80 can't be much better than the benefits of keeping him locked up to age 60. When I was taking public defender cases, one common pattern was a murder in which the killer would get out in six years and someone who helped him would get 50 or 70. Sentences like this were theoretically based on all sorts of factors but in reality they were based mostly on nonsense, and often racist nonsense.
Second, some offenses are barely worth punishing. Mere possession of marijuana of the tiniest amount is illegal. More than that, a second offense of this type is a felony. The penalties for smoking weed in your house accelerate much faster than the penalties for drunk driving. You really have to wait five years to have one of these charges erased?
Third, our system of crimeless revocations means that some prisoners have their sentences extended long past the time they should have been free and clear. A person is sentenced to five years prison plus five years supervision. They do a few years on supervision then get revoked for a rule violation. They go back for a year and lose all their credit for the three, so they come out and have four years left. This happens again in a year and a half and they get another year in. Just before 18 months have passed, they get revoked for the remainder of their time. Voila! A ten-year sentence has taken more than 15 to complete, and the guy gets out the last time from prison to the street with no supervision left. Lots of these people deserved to be out long ago. Here's another twist. Suppose the guy does go out and reoffend. There can be an enhancer for a second offense within so many years. They guy's time may be doubled for the new offense because nearly five years that he was on the street without committing any crimes do not get counted in the passage of those years.
Fourth, there are life-ruining collateral effects to many convictions. There are literally thousands of restrictions out there saying you can't do this particular job or get that particular license if you are convicted of a certain offense. Occasionally people with a decent defense will plead guilty not knowing the consequences it will have. A plea offer that includes lengthy probation and no prison may sound pretty attractive, But then an innocent person winds up with no possibility of working in their field, and has to wait till five years after the end of the probation to ask for these collateral consequences to be dropped.
Fifth, there are plenty of cases out there where convictions are quite dubious. Our system favors finality which means that if you lost a badly conducted, error-ridden trial, or lost because of an overworked underprepared public defender, and let your appeal rights expire, or blew them because you relied on your own instincts or the advice of a jailhouse lawyer, then you can seldom get the case reopened without the unlikely emergence of genuinely new, previously unavailable evidence, or actual proof that you are innocent. After the trial, the presumption of innocence is gone and you have to prove by clear and convincing evidence that you didn't do it (even if the original trial didn't prove that you did). This is the most infuriating case. An innocent person who falls between the cracks of the procedural rules has nothing left but a possible pardon to consider his claim of innocence. Then the governor says, "sure, I'll consider the pardon request, but only after you've served your 15-year sentence, and then gone an extra five years just for giggles." That strikes me as reprehensible. The governor is effectively saying, "I don't care if you're probably innocent; I don;t care if your trial was a farce. Go tell it to the judge."
There are good government reasons not to overuse pardons. We assign the writing of the laws to the legislature and the trial of cases to the judiciary. Pardons are traditionally few. Politically, issuing large numbers of pardons seems like overstepping. What if the next guv abuses the pardon power? But on the other hand, a dramatic use of pardons could save on excessive prison spending, put more able workers into the economy, reduce the gross racial disparities in prison population that are hard to account for without some contribution from institutional (or individual) racism; and likewise cut the disparities for mentally ill and otherwise disabled folks who need treatment, not confinement. The pardonees are likely to be politically loyal, which in the case of Wisconsin today under a democratic governor would counter the effects of undemocratic gerrymandering that should be illegal.
I think Evers should get out his pardon pen and go to town.
Save the Airplanes!
The conservatives have been having a blast ripping apart the green new deal. As far as I can see, the actual bill doesn't really do anything but set out goals, which is a baby step. It has one defect, which is a failure to define some of its absolutist-sounding language. If you want to do something to the maximum extent technologically possible, it doesn't leave much room for other considerations. I guess one could argue that the abandonment of buildings to nature is in some way more efficient than occupying them, heating them, lighting them, and spending energy to keep them upright. This could be corrected by adding one sentence toward the beginning. Technically that should not be needed because there are rules of construction intended to avoid reading legislation in absurd and counterproductive ways.
(This does not go for participants in the Democratic debates who say they want to reduce fossil fuel use to zero. Which of these has a plan for converting our military vehicles to biodiesel?)
My view of the Deal, if it were followed up with specific requirements to reach its goals, is that it would do the exact opposite of what the right slams it for. Rather than legislating that no one could have a car or use a plane, or heat a home in winter, the idea of the Deal is to save these things. Because the sooner we start democratically deciding on a fair plan for saving the world, the less likely it will be that the plan arrives in the form of an emergency decree some years down the road. We should be all getting together to decide what climate-destabilizing activities are the most important to us, and how to preserve and regulate them, rather than waking up one morning with our socks full of saltwater and martial law having been declared.
(This does not go for participants in the Democratic debates who say they want to reduce fossil fuel use to zero. Which of these has a plan for converting our military vehicles to biodiesel?)
My view of the Deal, if it were followed up with specific requirements to reach its goals, is that it would do the exact opposite of what the right slams it for. Rather than legislating that no one could have a car or use a plane, or heat a home in winter, the idea of the Deal is to save these things. Because the sooner we start democratically deciding on a fair plan for saving the world, the less likely it will be that the plan arrives in the form of an emergency decree some years down the road. We should be all getting together to decide what climate-destabilizing activities are the most important to us, and how to preserve and regulate them, rather than waking up one morning with our socks full of saltwater and martial law having been declared.
Monday, August 05, 2019
Those New Milks
I've been interested for a while in trying one of those newfangled "milk" products that aren't really milk, like soy milk, almond milk, oat milk, and so on. So today I finally tried one. It was called "chocolate milk" and I have to say that I was very impressed with the spot-on imitation of a dairy product. You could almost believe that the stuff came from a cow except that you could really taste a very strong residue of the cacao from which t was extracted. They tried to mask it with sugar, you can tell, but it was still very strong. Too strong to say, use the milk on a bowl of cereal. While I might enjoy drinking it alone from time to time, I can't imagine using it as a general milk substitute for cooking. Moreover, the chocolate taste was so strong that it really put me off ever trying something like soy milk. If soy milk tastes as much like soy sauce as chocolate milk tastes like chocolate, I really see no use for it.
Monday, July 29, 2019
Coming Back
It has been a long, long time. I will start doing this again. I just don't have anything to say right exactly now.
Thursday, April 30, 2009
Local News Says: You are Going to Die
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?
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?
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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