Signing Statements Subvert the Constitution

the womble

Tue Jul 25 06:37:19 -0700 2006

manage

Comparing Bush to George III implies that similar measures are justified to get rid of him.

I wonder if the head of the American Bar Association is going to be accused of advocating violence/terrorism.

Would that be a criminal offence over there (as it would in Britain)?

Signing Statements Subvert the Constitution

hal9000_sn3

Tue Jul 25 07:28:00 -0700 2006

manage

I suspect there will plenty of accusations that the ABA is liberal, or has an axe to grind because they are not consulted about judiciary apointments by the current administration.

As far as the comparison to George III, I don't think that back then many were advocating much more then petioning for redress of grievances at the beginning stages of the original George III being George III. Only later, failing to get satisfaction within the system, was civil disobedience used as a tactic. Then, when that had results that were unsatisfactory, a declaration of independence was written and presented. Violence then as now is usually seen as a last resort by civilized people.

Only fear mongers, partisan wonks, and people trying to sell news(papers/websites) would have any reason to make the leap from the comparison to the question you asked. Hopefully you were only making the same point I do, that it would be a huge leap in logic to think that pointing out a legalistic analysis is somehow equivalent to advocating extreme measures.

Signing Statements Subvert the Constitution

the womble

Thu Jul 27 22:52:55 -0700 2006

manage

I do need to clarify my point - I did not think before writing.

To quote Greco from the article.

We fought the Revolutionary War to get away from King George -- and we have another one who's acting like a king

No one is going to imagine that that statement, made by the president of the ABA, is advocating violence.

Now imagine the same statement had been made by a Islamist or an anti-capitalist. How would it be interpreted then?

I am not sure about the situation in the US (which does have a constitutional guarantee of free speech). However I would think before making a similar statement in Britain given the uncertainty about how the laws on advocating terrorism could be interpreted.

Need the Line Item Veto

bill_mcgonigle

Tue Jul 25 09:03:33 -0700 2006

manage

Bush is attempting to use signing statements as a line-item veto that only apply to his administration. That's crazy but illustrative of the need for a line-item veto. I see Specter is leading the charge to sue Bush about his signing statements but he'd be better off leading the charge for the line item veto constitutional amendment and solve the issue once and for all.

I don't see that.

Need the Line Item Veto

Martin Blank

Tue Jul 25 09:26:26 -0700 2006

manage

The line-item veto is, to my recollection, intended for use exclusively within budgetary bills.  The version that Bill Clinton briefly wielded before it was removed by the Supreme Court was written as such, and most (if not all) state governors who have the power may utilize it solely for spending measures.

Need the Line Item Veto

bill_mcgonigle

Tue Jul 25 18:01:57 -0700 2006

manage

I'm not sure - at the time some critics said Clinton should have reserved its use for national security measures which would have saved it from the Supreme Court's disapproval. So I'm not sure it was legislatively restricted to budgetary items.

Signing Statements Subvert the Constitution

Thomas Lord

Tue Jul 25 10:33:06 -0700 2006

manage

How many commentors have read (a) the amendment, (b) the US Declarations and Reservations regarding the Convention against Torture [....], (c) anything at all about how the Constitution relates to torture?

It is pure hysteria to claim that Bush has reserved the right to violate the law.

The amendment quite specificially limits the protection it affords those in custody to those protections they would receive under the Constitution.   The amendement further limits itself to speaking only about a specific definition of torture made in a declaration to the UN, although it affirms the judiciary's power to find further protection for those in custody within the Constitution.

The Constitution, as Dershowitz reminded us, does not provide an absolute protection against torture.   The McCain amendment, on its face, does not even attempt to provide an absolute protection against torture.

As things stand, where the Constitution and the laws leave off in prohibiting torture, the powers of the Executive come into play.   Under the McCain amendment, it is quite reasonable for the Executive to order torture so long as that torture is consistent with the Constitution and the law.   All that the signing statement says is that Bush wishes to point out that that authority still exists.   It's interesting to contemplate to whom that message was really aimed, and why.

Dershowitz casually glosses the "ticking bomb" scenario.   Let's make that more vivid.  Consider a scenario straight out of "24" or "Alias" (the TV shows), but frankly not all that fantastic.  The Executive knows that an atomic bomb has been smuggled into a major city, placed on a timer, and is set to go off on two hours unless certain equally or more abhorent conditions (say, a demand that the US heavily bombs Haifa).   We have in custody a conspirator who we have good reason to believe can help us locate the bomb and disarm it.   We have the suspect's spouse and children as well.   Our best shrinks have concluded the suspect is lucid and that while he is prepared to sacrifice himself his primary loyalties are to his family and there is a better than 50% chance he will respond to torture in the form of threats to -- or even torture of -- his family, provided the clear and credible alternative is protection for same.   The clock's ticking.  You got any better ideas?

Now, to be sure, there are slippery slopes in all directions.   The ticking bomb scenario hasn't, as far as we know, been observed anytime recently.   What about the guy we think can lead us to Osamma if he pipes up within the next few days?   What about the guy we think knows the location of 10 stashes of explosives in Bagdad?   And there is absolutely no doubt that we have seen gross abuses, quite arguably not sufficiently answered by subsequent prosecutions.   There absolutely have been abuses and those may very well go right to the top (or not).    And Dershowitz, dark though his position may be, may have the right idea -- to ramp up the checks and balances so that torture is available, but more sharply controlled.

But the signing statement?   A declaration of intent to break the law?   No, not even close.

-t

Signing Statements Subvert the Constitution

Cassius Rosenthal

Tue Jul 25 11:04:18 -0700 2006

manage

Thomas Lord says:

Consider a scenario straight out of "24" or "Alias" (the TV shows), but frankly not all that fantastic. The Executive knows that an atomic bomb has been smuggled into a major city, placed on a timer, and is set to go off on two hours unless . . . .

That's a great hypothetical. Fortunately for the few lawmakers with a conscience to wrestle with, information obtained through torture is not reliable. Even the CIA doesn't use torture to extract information. Torture's purpose is to repress and deter. So you'd be better off with a hypothetical like: "Consider a scenario where you have a limited budget, and have to subdue a large population, straight out of 'Burma,' and frankly not all that fantastic . . . ." Try that one out -- how does it sound? Torture is illegal, plain and simple. I'm astounded that this is still news to literate people.

Why bother with hypotheticals, when we have real cases to examine? U.S. troops are still torturing Iraqis as we type. Does Iraq look safer to you? Do you see that your rationale doesn't jive with reality?

Thomas Lord says:

But the signing statement? A declaration of intent to break the law?

Yes, exactly that. Because even if you think (wrongly -- I'll take the ABA chief's opinion over yours) that Bush has the authority to carry out torture, his 750+ signing statements clearly delineate a pattern of behavior intended to sidestep the checks and balances set up by the Constitution. That is breaking the law.

Signing Statements Subvert the Constitution

Thomas Lord

Tue Jul 25 11:50:25 -0700 2006

manage

It is absurd on the face of it to presume that a law-breaker on such a scale would begin by announcing his intentions in the form of non-binding signing statements.   If you want to attack the actions of the Executive -- look elsewhere.    If you find a particular signing statement objectionable, and the actions of the Executive reflective of that, then the Executive has done you the favor of explaining the top-line of the legal theory they operate under and that you will have to refute.

As for my rationale jiving with my reality:  it jives just fine.   The signing statements are just fine.   Gitmo is not fine.   AbGrb is not fine.   Neither jive with the signing statement in question, imo.    What you are looking at is bogosity of exercise, not bogosity of theory.   Pick on Bush all you like over those issues -- just don't pick the wrong issue (e.g., signing statements).

-t

Signing Statements Subvert the Constitution

Beryllium Sphere(r)

Tue Jul 25 17:11:40 -0700 2006

manage

It is absurd on the face of it to presume that a law-breaker on such a scale would begin by announcing his intentions in the form of non-binding signing statements.

Looking beyond the face of it, it depends on the personality of the lawbreaker. For example, we could imagine someone who's never really grown up, who still thinks like a child that if he crosses his fingers behind his back then it's OK to lie. Or who thinks that rules don't apply if he says "You can't make me!"

We might also imagine someone who doesn't grasp the idea of objective reality, who believes he can change the maening of legislation by writing down what he wants it to mean.

We could also imagine the Presidency one day being occupied by a psychopath so arrogant that he doesn't mind advertising his plans.

We could also imagine one who is cunning, or who is advised by cunning advisors who reason that a signing statement could throw enough doubt into a court challenge to tilt the scales of justice.

Vetos are legitimate because they're in the Constitution. Signing statements are not. A clause that limits government to its enumerated written powers is. Presidents are not allowed to invent new powers such as signing statements. In fact, the President takes an oath to take care that the laws be faithfully executed.

Reagan's FBI director, Reagan's deputy attorney general, and the former chairman of the American Conservative Union disagree with you.

Signing Statements Subvert the Constitution

Thomas Lord

Tue Jul 25 17:25:59 -0700 2006

manage

In what way is a signing statement a "new power"?

-t

Signing Statements Subvert the Constitution

phred14

Wed Jul 26 05:27:32 -0700 2006

manage

The current focus of signing statements has been the whole torture thing. I recently read other articles on signing statements, complete with examples. Many times there were exceptions "impair the operations of the executive branch." In other words, "if it's inconvient for us, the law doesn't apply." To put it more simply, the executive branch has placed itself outside of the law with signing statements. I think THAT is where it crosses the Constitutional line.

Another disturbing signing statement... On one bill, Congress wanted a scientific report delivered directly to them, unfiltered. In the signing statement, the executive branch reserved the right to filter and edit any such reports. They reserved the right to insert themselves into Congress' information flow. I have a serious problem with that one, too.

Signing Statements Subvert the Constitution

Jim Hill

Tue Jul 25 23:29:09 -0700 2006

manage

Responding to objections to his wiretapping orders, if he had had any shred of a leg to stand on, any "colorable" argument that he's following civil law, he'd have said "it's perfectly legal", and more or less stopped there. But he doesn't, and didn't. He cited, right off the bat, his military "Constitutional authority as Commander in Chief". No attempt to even pretend he feels his orders are subject to civil law.

Read the oral arguments in Hamdan. At various points, several of the Justices — including Scalia — felt obliged to remind General Clement that there is no insurrection or invasion in progress. That the civil courts are still open.

The spectacle of the regular army objecting to how their civilian masters order them to treat their prisoners is not new. If you object to the example that springs to mind, as I do, find another. Find them all. Add the name George W. Bush, United States of America, to that list.

[T]hat a law-breaker on such a scale would begin by announcing his intentions in the form of non-binding signing statements

isn't "absurd".

It's "brazen".

Signing Statements Subvert the Constitution

Thomas Lord

Wed Jul 26 00:03:41 -0700 2006

manage

Read the oral arguments in Hamdan. At various points, several of the Justices — including Scalia — felt obliged to remind General Clement that there is no insurrection or invasion in progress. [....]

The pages and even the lines of that document are carefully numbered in the customary way.   So, please cite specific pages and line numbers to that careful readers may assess the truth of your claim.

-t

 

Signing Statements Subvert the Constitution

Jim Hill

Wed Jul 26 09:13:28 -0700 2006

manage

My apologies, I took you for another Thomas Lord, who's been around a long time. Typing "insurrection" and "invasion" and "civil courts" into a search box would actually be faster for readers as competent as he, and far faster all around than having other people construct lists of page and line numbers for him.

This is "Technocrat", so I hope can understand and forgive my presumption of more competence than you've yet achieved. I do suggest you try the search-box thingy, and compare the time it takes the computer to find "insurrection" with the time it takes you to manually scroll to page 59 and start reading at line 23, where Justice Scalia's remark containing that first hit begins. It's a small difference, less than ten seconds when I clocked it just now, but those add up fast when you use computers a lot. It becomes a pet peeve, just as bad spelling and bad grammar quickly become pet peeves among those who have to read carefully and in large quantity. The ones who don't do much have absolutely no reason to care about a quarter second here, two seconds there. The experienced quickly come to hate the wasted time.

Ok, end of digression. I really suggest you read the oral arguments whole, not just bits and pieces. I think that time would most emphatically not be wasted. That's why I said "read the oral arguments". Page 59, line 23 is a reasonable place to join the discussion I was highlighting, but careful readers really will read the whole argument, neatly obviating the need to come back begging for help finding famous key words, and avoiding the chance of, however inadvertently, gratuitously calling into question others' truthfulness.

Signing Statements Subvert the Constitution

Thomas Lord

Wed Jul 26 10:55:17 -0700 2006

manage

You began by saying:

Read the oral arguments in Hamdan. At various points, several of the Justices — including Scalia — felt obliged to remind General Clement that there is no insurrection or invasion in progress. That the civil courts are still open.


When push came to shove you cited only two statements, one by Scalia, one by Breyer.  That is hardly "several".  What's more, your cites don't support your reading.

Scalia's comments on insurrection or invasion make no claim at all about whether or not one is or is not in progress.   Rather, he points out that that question is one the court should perhaps inquire about if Clement's reading of Congressional intent is accepted.  The court's opinion takes pains to be operative whether or not it is the case that an invasion was signalled on 9/11.

Breyer's comments are in the context of a complaint about the scattered nature of the discussion.  He wanted to summarize Hamdan's arguments which, in part, cite precedent (see section V of the court's opinion).  By precedent, a forced closure of the civil courts as a consequence of invasion is one possible source of legitimacy for military commissions but it was not the source claimed by Clement and Breyer was not reminding Clement of anything in that statement.
Your summary of the arguments and subsequent insults distort the discussion that actually took place.

gratuitously calling into question others' truthfulness.

I don't particularly care about your honesty.  Honest mistakes do happen.   You are, however, quite inaccurate.

-t

Signing Statements Subvert the Constitution

Jim Hill

Wed Jul 26 14:43:04 -0700 2006

manage

Maybe it's a language problem. Maybe it's here:

Breyer was not reminding Clement of anything in that statement

— but if so, then you and I have very different understandings of the word "remind".

If a Supreme Court Justice ever

• says to me "don't ignore my question",
• gives a neat one-paragraph summary of the relevant bits of the argument so far,
• closes with "Now, I've tried to summarize a whole bunch of points for you to get at, as you wish",
• in a manner which provokes laughter sustained enough to draw a wry remark from another Justice,

I'll count myself at the very least "reminded" of each and every point he repeated for my benefit, and start wondering whether I've just been admonished, perhaps even rebuked.

So that's why I used "remind": as I use it, it means to draw attention to relevant bits for the benefit of another, who I suspect may be forgetting them. You used "not reminding" to describe exactly that act. What definition of "remind" are you using, please?

—

two statements

Seven lines after the Scalia remark I pointed you at by keyword, page and line number, Justice Souter rather acerbically repeats the same words. Seven lines of context, or hitting the "Next" button in the find-box thingy. Apparently a bridge too far, Mr. Lord. And I gather my repeated ~read the whole thing~ got rejected as completely out of the question, and just dropped into a black hole somewhere and died.

your cites don't support your reading.

Perhaps there's hope. Maybe you'd like start fairly small, say by scrolling lots more than seven lines back to the three simple sentences I actually wrote on the subject, to see if you can accurately render my reading in your own words.

Signing Statements Subvert the Constitution

Thomas Lord

Wed Jul 26 23:03:16 -0700 2006

manage

Maybe it's a language problem.

Maybe.

Maybe it's here:

Breyer was not reminding Clement of anything in that statement

— but if so, then you and I have very different understandings of the word "remind".

 

You asserted that the justices were reminding Clement that no inssurection or invasion was taking place and that the civil courts are still open.    That is not what they were doing.   They were pressing Clement to clarify his theory that Congress had exercised its powers within the Habeas clause of Article 1 ("... Rebellion or Invastion ...") and that the Hamdan's commission was constitutional in light of common law precedent ("The civil courts are still open.")  

The comment about the civil courts being open refers to a classic list of three disjunctive tests, any one of which can justify military commissions, at least by precedent.    One of those three tests is that the civil courts have been forced to close but courts are needed to suppress the rebellion or repel the invasion.   Since everyone in the room is presumed to agree that that test isn't the basis of Clement's theory, Breyer is asking "so, then, what other test are you asking us to apply and how?"    This is glossed in section V of the court's opinion where Clement's response to Breyer on this point is described as "appropriate and unsurprising".   It is allegedly a commision ``"incident to the conduct of war" when there is a need "to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war,"'''
The court then settles down to the question of how well that characterization actually applies.

Finally, while Souter does go out of his way to state that the question of whether a rebellion or invasion exists is, perhaps, something the court should look into -- in fact, they left the question open and reached a decision without needing that answer (beyond the simple observation that no party in the case is claiming a rebellion or insurrection prior to 9/11).

If all you had said is that, in the oral arguments for Hamdan, several of the justices were so frustrated with the presentation of the argument for the government that at times they resorted to broad sarcasm in their questioning -- then we'd have no disagreement (about that).

Instead, though, you treated those sarcastic statements as literal, ignored their significance in the discussion the court was having with Clement, and offered this warped interpretation to support your political agenda.

As is your right.

Which I think brings us back to my original point -- one that you seem to agree with and help with.  The documents are there, in open source form, for anyone to read.   They are not hard to find.  They are difficult to parse and read but not at all impossible.   Nobody needs to take either your or my or the SF Chronicle's word about what they say or what they mean.   People should not draw important conclusions from third party arguments without looking at the source material -- that's what it's there for.   People should not parrot popular accounts about these materials -- whether it's the oral arguments in Hamdan or a particular signing statement or McCain's torture amendment:  they should do what you and I have been doing.   They should go to the source materials, figure out what they mean (even though (or especially because) that means wading through legal language and theory), and they should explain their view in terms of those source materials.

-t

Signing Statements Subvert the Constitution

Jim Hill

Thu Jul 27 08:48:37 -0700 2006

manage

They were pressing Clement

Oh. OK then. They're merely pointing out that there is no insurrection or invasion in progress, and that the civil courts are open, as part of pressing him to explain his theory. Note To Self: Repeating Schoolchild Learning And Obvious Facts Not Reminding. Check.

to clarify his theory that Congress had exercised its powers within the Habeas clause

You mean his theory where Congress had had language in that could be construed, if you squinted at it just right, as suspending habeas, and they took it out, and Clement's arguing that they suspended it anyway, only without saying so, without meaning to, and despite clearly taking pains to avoid it?

The part of the argument that led directly to the sarcastic reminders I pointed you at, that you couldn't find without help using the search box, and then couldn't be bothered to read seven lines of before accusing me of misrepresenting and distorting it, and now presume to lecture on?

That part?

OK! Tell us More, please! We're all ears, your authorityness.

Signing Statements Subvert the Constitution

Keith

Tue Jul 25 11:24:35 -0700 2006

manage

The McCain amendment says that "No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment."

Then it goes on to define what cruel, inhuman, or degrading punishment means, as follows:
(d) CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT DEFINED.--In this section, the term ''cruel, inhuman, or degrading treatment or punishment'' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.



If we are defining torture as Cruel, Inhuman, or degrading treatment or punishment, then it is pretty specific in saying that no individual will be subject to such treatment, and it makes no exceptions.

Signing Statements Subvert the Constitution

Thomas Lord

Tue Jul 25 12:00:13 -0700 2006

manage

If we are defining torture as Cruel, Inhuman, or degrading treatment or punishment, then it is pretty specific in saying that no individual will be subject to such treatment, and it makes no exceptions.

That's the subtlety you're missing in the construction of the amendment.

The amendment defines torture thusly by including-by-reference the US declarations and reservations on the UN issue.   First point:  that's an exceedingly narrow definition of torture.  There are more subtle and otherwise unanticipated forms of torture which, guess what, McCain decided not to address with his amendment.    So, really, the amendment only addresses certain very specific forms of torture.

The amendment limits its prohibitions by including-by-reference US jurisprudence regarding the Constitution.  Second point: none of the already narrowly defined conditions of torture are prohibitted by the amendment unless the Judiciary agrees that such prohibition is intrinsic in the Constitution -- that falls very far short of a complete prohibition (you may notice, for example, that we have the death penalty).

Bush's signing statement didn't add squat to the amendment.   The signing statement doesn't bind anyone to anything, of course but, more importantly -- it doesn't say anything the bill itself didn't already say.

Your beef, I gather, is properly with McCain.

-t

Signing Statements Subvert the Constitution

Keith

Tue Jul 25 12:11:57 -0700 2006

manage

It doesn't sound like we are too far apart. If you are arguing that some of the techniques we use are actually torture, but are not prohibited by the amendment, then I agree. The definition of torture is narrow, but those acts are prohibited.

In regards to your second paragraph, unless I didn't read the amendment and signing statement correctly, the signing statement references US jurisprudence, but the amendement does not. So, those limitations are really a result of the signing statement.

Signing Statements Subvert the Constitution

Thomas Lord

Tue Jul 25 12:27:58 -0700 2006

manage

It doesn't sound like we are too far apart.

We probably are, actually.   I'm not personally more than a little bit scandalized by AbGrb, for example though I armchair that the existing prosecutions are about right.   However, my gosh, these are the most difficult slippery slopes we face and astute analysis of the failures are ever so much welcome.  (By astute I'm hoping for something deeper than Bush is a Bad Man.  (Now, Bush is a Bad Manager -- hmm.  We may find some agreement there.)

If you are arguing that some of the techniques we use are actually torture, but are not prohibited by the amendment, then I agree. The definition of torture is narrow, but those acts are prohibited.

I find it very hard to get a clear read from open sources, especially re gitmo, some of the renditions, and some of the domestic custody cases.   I have essentially no doubt that gross failures have occured and I agree it is abhorant and scary and demands public attention and action.   I'm quite disappointed in an administration I would like to respect in these areas.

In regards to your second paragraph, unless I didn't read the amendment and signing statement correctly, the signing statement references US jurisprudence, but the amendement does not. So, those limitations are really a result of the signing statement.

I think if you read more closely the amendment most certainly does bow to the Judiciary.  Both directly and via the UN statement inclusion it places Constitutional interpretation as the ultimate arbiter.   Well, who gets to say what that means?

-t

Signing Statements Subvert the Constitution

Keith

Tue Jul 25 12:46:44 -0700 2006

manage

We probably are, actually

Okay--maybe we are. I was not discussing right and wrong, just what the amendment and signing statement said.

I think if you read more closely the amendment most certainly does bow to the Judiciary.  Both directly and via the UN statement inclusion it places Constitutional interpretation as the ultimate arbiter. Well, who gets to say what that means?

If you are arguing that there is an implicit bowing to the Judiciary because they interpret the constitution--well, the Judiciary aribitrates all laws.

Part (a) of section 1003 defines exactly who it applies to: any person in the physical control of the United States, and what is prohibited, (cruel, inhuman, or degrading treatment or punishment.).

Part (d) only defines what cruel, inhuman, or degrading treatment or punishment is. It is a definition--according to the amendment, anything outside of part (d) is not cruel, inhuman, or degrading treatment or punishment, and is therefore not prohibited. Anything in part (d) is prohibited--and there are no exceptions.

The implicit references you find to the Judiciary are in the definition of torture, but not in the prohibition.

Signing Statements Subvert the Constitution

Thomas Lord

Tue Jul 25 14:24:41 -0700 2006

manage

Part (d) only defines what cruel, inhuman, or degrading treatment or punishment is. It is a definition--according to the amendment, anything outside of part (d) is not cruel, inhuman, or degrading treatment or punishment, and is therefore not prohibited. Anything in part (d) is prohibited--and there are no exceptions.

That is a misleading reading.

Does the act prohibit torture?  No, not at all.   The act says that, regarding forms of torture enumerated in the UN declaration, the Executive has the same rights to employ those forms of torture against anyone in the world that it has to torture a US Citizen.

The act says, "With regard to these forms of torture, the Executive must treat all people equally and the limit of what the Executive may do is given by the US Constitution."

The signing statement and bill signing say, in effect, "The administration agrees and, by the way, that means that in some circumstances we can use these forms of torture against anyone in the world -- just as in some circumstances we can use these forms of torture against a US Citizen."

The signing statement is redundant.   It is the application of a highlighting marker, not the red pen of an editor.

The implicit references you find to the Judiciary are in the definition of torture, but not in the prohibition.

On the contrary.   Among those acts which conform to the enumeration in the UN declaration, which are prohibited and which permitted?   Well, those that are permitted are those which are consistent with Constitutional protections.   What are those?  Well, whatever does not shock the conscience of a majority of the Supreme Court justices, or violate protection against self-incrimination (in a US court) etc.

Under this law, someone with standing can take a torture case before the court.  The act directs the court to treat all such cases as if they were about a US Citizen in domestic custody, at least insofar as judging the legality of the act of torture.

For reasonable definitions of torture, even within the limited enumeration stated to the UN, torture is sometimes legal in the US.   That may well be morally wrong but it is fact.  The signing statement, even if it had the force of law, says nothing that in any way alters or weakens the act.

Again:  your beef, if you find all of this abhorant, is with McCain.

-t

Signing Statements Subvert the Constitution

Keith

Tue Jul 25 14:54:42 -0700 2006

manage

The act says, "With regard to these forms of torture, the Executive must treat all people equally and the limit of what the Executive may do is given by the US Constitution."

Where do you get that from the text of the amendment? This is what part D says:

CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT DEFINED.--In this section, the term ''cruel, inhuman, or degrading treatment or punishment'' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

This is what part A says:

IN GENERAL.--No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

How do you read part (a) as saying the executive can subject people to cruel, inhuman, or degrading treatment or punishment? How do you read part (d) as anything but a definition of what cruel, inhuman, or degrading treatment or punishment is?

In regards to standing before the court, the signing statement specifically says Title X (the title in which section 1003 appears)  does not create a private right of action--that is to say, they can't sue as if they were a citizen of the US.



On the contrary.   Among those acts which conform to the enumeration in the UN declaration, which are prohibited and which permitted?   Well, those that are permitted are those which are consistent with Constitutional protections.   What are those?  Well, whatever does not shock the conscience of a majority of the Supreme Court justices, or violate protection against self-incrimination (in a US court) etc.

We agree here--those that are permitted by the constitution are not torture, and therefore the president can order their use, those that are not permitted by the constitution are torture and the president can not order their use.


I am not arguing morality, nor am I trying to define torture. I don't have a beef with McCain (in the context of this discussion). All I am talking about is the amendment and the signing statement. The amendment defines cruel, inhuman, or degrading treatment or punishment, and says that no individual in the custody or under the physical control of the US government will be subject to it. According to the amendment the Executive can not order cruel, inhuman, or degrading treatment or punishment. If you can get a reading other than that from the actual text of the amendment, please explain it using the text of the amendment.

Signing Statements Subvert the Constitution

Thomas Lord

Tue Jul 25 17:17:03 -0700 2006

manage

How do you read part (a) as saying the executive can subject people to cruel, inhuman, or degrading treatment or punishment? How do you read part (d) as anything but a definition of what cruel, inhuman, or degrading treatment or punishment is?

Part (a) prohibits "something".  That "something" is defined in part (d).   The definition in part (d) is circumscribed by the 5th, 8th, and 14th amendments.

It is just (legally) fine for the executive to torture a prisoner so long as the Judiciary would not find the act in question to violate those amendments.

I think you basically agree (you say as much).   We are quibbling, I think, over the technical definition of "cruel, inhuman, or degrading" in the amendment vs. what that phrase reasonably means.    No specific form of torture is prohibited by the McCain Amendment .

-t

Signing Statements Subvert the Constitution

Thomas Lord

Tue Jul 25 17:21:50 -0700 2006

manage

How do you read part (a) as saying the executive can subject people to cruel, inhuman, or degrading treatment or punishment? How do you read part (d) as anything but a definition of what cruel, inhuman, or degrading treatment or punishment is?

Part (a) prohibits "something".  That "something" is defined in part (d).   The definition in part (d) is circumscribed by the 5th, 8th, and 14th amendments.

It is just (legally) fine for the executive to torture a prisoner so long as the Judiciary would not find the act in question to violate those amendments.

I think you basically agree (you say as much).   We are quibbling, I think, over the technical definition of "cruel, inhuman, or degrading" in the amendment vs. what that phrase reasonably means.    No specific form of torture is prohibited by the McCain Amendment .

-t

Signing Statements Subvert the Constitution

Keith

Tue Jul 25 17:48:12 -0700 2006

manage

Great! It sounds like we do agree; it was just a difference of language.

All I was saying is that the Executive is specifically prohibited from ordering cruel, inhuman, and degrading treatment of anyone as defined by the amendment. It sounds like that is what you are saying as well, so we do agree. The amendement does limit the President's ability to order cruel, inhuman, and degrading treatment. I apologize for giving you the impression that I was trying to define what that is--I wasn't clear. All I was arguing was that the amendment limited his power, and on that we agree.

His signing statement saying concerning Title X does create issues, but as you pointed out , it does not have the force of law.

Signing Statements Subvert the Constitution

Matt Fulkerson

Tue Jul 25 21:28:07 -0700 2006

manage

You really need to read the Constitution.  The President's powers are clearly stated there.  Other than those, the President is free to play golf like any other American, but certainly not torture people.

Signing Statements Subvert the Constitution

Matt Fulkerson

Tue Jul 25 21:29:12 -0700 2006

manage

By the way, I was trying to reply to Thomas Lord.

Signing Statements Subvert the Constitution

Thomas Lord

Tue Jul 25 22:05:20 -0700 2006

manage

The president holds all executive power and is Commander in Chief (among other things).   That's pretty broad.  Congress certainly assigns duties and responsibilities regarding executive authority.  The powers of Commander in Chief are a little bit tougher to figure out.   Congress certainly has the power of the purse and, for what it's worth anymore, some say in formally declaring war (an increasingly quaint conception).   It is certainly up to Congress to raise a military (or not).

As for the "unitary executive" stuff, at least insofar as the Commander in Chief role is concerned -- that's arguably straight out of Federalist Paper #74 (Hamilton).

-t

Signing Statements Subvert the Constitution

Matt Fulkerson

Sun Jul 30 18:58:12 -0700 2006

manage

No, being the Commander in Chief plus holding the executive power is pretty narrow.  Those are the only powers of the President. If it is not lawful for the military to torture, then it is not lawful for the President to torture.  Executive power simply means enforcing laws written by Congress, nothing more.

Signing Statements Subvert the Constitution

Thomas Lord

Sun Jul 30 19:38:18 -0700 2006

manage

I don't think there is now (and hopefully there never will be) anyone in the world who can say exactly where Congress' power leaves off and where Article II Section 2 (and Hamilton's "single hand") kicks in.

But, nevermind that, you are discussing a hypothetical since Congress has not, in fact, prohibited torture -- only limited its application.

-t

Signing Statements Subvert the Constitution

pyro9

Tue Jul 25 12:17:54 -0700 2006

manage

Dershowitz casually glosses the "ticking bomb" scenario.   Let's make that more vivid.  Consider a scenario straight out of "24" or "Alias" (the TV shows), but frankly not all that fantastic.  The Executive knows that an atomic bomb has been smuggled into a major city, placed on a timer, and is set to go off on two hours unless certain equally or more abhorent conditions (say, a demand that the US heavily bombs Haifa).   We have in custody a conspirator who we have good reason to believe can help us locate the bomb and disarm it.   We have the suspect's spouse and children as well.   Our best shrinks have concluded the suspect is lucid and that while he is prepared to sacrifice himself his primary loyalties are to his family and there is a better than 50% chance he will respond to torture in the form of threats to -- or even torture of -- his family, provided the clear and credible alternative is protection for same.   The clock's ticking.  You got any better ideas?

That is a terrible time to use torture. Firstly, if he had even the slightest doubt that he was destroying a great evil, torturing the innocent to get at the guilty should remove his doubts.

Secondly, he may correctly conclude that no matter what he says or does, the torture will continue exactly until the bomb is either disarmed or goes off (2 hours). If that was not the case, all he needs to do is 'hold out' long enough for his 'cave in' to look genuine, then lie. He knows it and the torturer knows it.

He has no reason to believe he or his family will not be killed either way. Anyone who would knowingly torture the innocent will just as freely kill them to keep the matter quiet.

One of the more convincing reasons for involuntary confinement is to give us all some assurance that we will not find ourselves living next to the sort of depraved individual who would torture anyone, particularly an innocent someone. More still, an innocent  child. I would sure hate for my government to actually encourage and cultivate such individuals.

Torture requires that we assume guilty until proven innocent. The problem is compounded by the high probability that with sufficient torture, the innocent will confess to nearly anything and might even come to believe the false confession for a while. Not enough and the guilty will hold out. Most probably those two amounts have considerable overlap. In any event, unless preceeded by a proper trial, the innocent will inevitably be tortured. Those innocents now have a very good reason to hate their torturer and will likely go on to do exactly the sort of thing they were once suspected of.

Consider, same scenerio. You have nothing to do with it but they THINK you do. Things look pretty bad for your family now. Two hours later, the bomb has gone off and your child is mentally scarred for life. How likely are they to let you go tell your story to the press?

In the Constitution, only the right to vote and hold office is restricted to citizens. The rest applies to everyone.

Signing Statements Subvert the Constitution

Keith

Tue Jul 25 12:26:49 -0700 2006

manage

In the Constitution, only the right to vote and hold office is restricted to citizens. The rest applies to everyone.

Minor Point. I think there are other rights restricted to citizens:

Article XIV.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

There are two levels of protection here. One concerning privledges and immunities, where the protection is reserved for citizens, and the other concerning life, liberty, and property, which applies to all people.

Signing Statements Subvert the Constitution

Thomas Lord

Tue Jul 25 12:44:01 -0700 2006

manage

That is a terrible time to use torture. Firstly, if he had even the slightest doubt that he was destroying a great evil, torturing the innocent to get at the guilty should remove his doubts.

It is the point of emergency torture to briefly overcome, not to invoke, a long-term moral calculation.

Secondly, he may correctly conclude that no matter what he says or does, the torture will continue exactly until the bomb is either disarmed or goes off (2 hours).

The hypothetical was that he was oriented to sacrifice himself but not his spouse and children, also in custody.   And that there is a credible promise of safety for his family if he cooperates.   He may wake up the next day thinking that, really, he should have sacrificed his family but, well, tough luck for him -- he saved them instead.


Torture requires that we assume guilty until proven innocent. The problem is compounded by the high probability that with sufficient torture, the innocent will confess to nearly anything and might even come to believe the false confession for a while.

It's just not that simple.   Yes, you have outlined a typical failure mode of torture techniques but no, that is not the whole story.   Brains are what they are and they don't always conform to our moral aspirations or to our conceptions of the self.

Not enough and the guilty will hold out. Most probably those two amounts have considerable overlap. In any event, unless preceeded by a proper trial, the innocent will inevitably be tortured. Those innocents now have a very good reason to hate their torturer and will likely go on to do exactly the sort of thing they were once suspected of.

Which is exactly why it must only be employed in extraordinary circumstances and, even then, only with skill.   Sadism is the enemy of the emergency use of torture.

Consider, same scenerio. You have nothing to do with it but they THINK you do. Things look pretty bad for your family now. Two hours later, the bomb has gone off and your child is mentally scarred for life. How likely are they to let you go tell your story to the press?

It really rather depends on the event.    It should be done in such a way that, by all means, go to the press.   Yes, we guessed wrong.   We made a reasonable guess.  We owe reparations, assuming we are in any condition to give them.   Yes, the victem is a victem.   

In the Constitution, only the right to vote and hold office is restricted to citizens. The rest applies to everyone.

It's not that simple.

-t

Signing Statements Subvert the Constitution

pyro9

Tue Jul 25 14:56:43 -0700 2006

manage

The hypothetical was that he was oriented to sacrifice himself but not his spouse and children, also in custody.   And that there is a credible promise of safety for his family if he cooperates.   He may wake up the next day thinking that, really, he should have sacrificed his family but, well, tough luck for him -- he saved them instead.

Theren lies the problem.  There is no way to know for certain before the bomb detonetes that he has told the truth. As long as it hasn't yet detonated, the extreme circumstance that permits torture exists. So, he has no reason to believe the torture will end in less than two hours since they will likely keep it up 'to make sure' even if he tells them everything he knows. He would have nothing but the 'good word' of someone depraved enough to knowingly torture an innocent to convince him otherwise.

In other words, it is entirely possible he might decide they're all dead anyway. It is even more likely that he knows only enough to arm the bomb and how to make it go boom while 'disarming' it. He might even believe the 'disarm' code will actually disarm the bomb.

A person who could be responsable for such an act of torture would likely have little problem rationalizing killing the family to keep them from going to the press where "the bleeding hearts would weaken our country by prohibiting more torture". He'd see it as one family against the whole country. He might even make himself believe that rationalization. The fact that it keeps the "bleeding hearts" from calling for his head on a platter would be an added bonus.

Given the press in the U.S. it seems highly unlikely that anyone would be happy to have the knowing torture of a bystander become public knowledge.

Signing Statements Subvert the Constitution

Thomas Lord

Tue Jul 25 17:08:38 -0700 2006

manage

You don't understand torture.   Or, rather, you understand it in the same way that most of the world, especially despots, understand it.    You think it is about doing nasty things to someone, along with threats of more nasty things, until they comply in some way.   That is a naive conception; a superficial impression of a subset of techniques.   If that's all you've got, that is sadism, not torture.   The reputation of sadistic abuse of prisoners as an utterly pointless and ultimately boring exercise is well deserved.   The homo sapien brain bug that helps it get rapidly out of control (e.g., the Stanford prison experiment) is fairly well documented.   The trauma-induced re-enactment behaviors that perpetuate such sadism are fairly well understood.   Sadism's consequent reputation as morally repugnant is spot on -- just ask Senator McCain.

On the other hand, it is well known that under real stress people have less control over themselves.  A prisoner can lie until they're blue in the face so long as as, with each lie, they betray a little bit more of the truth to an objective interregator.   It's still a slippery fish.  It's still just barely better than random -- but it's better than random.   It's still morally repugnant because of the damage it does to everyone involved, especially (but not exclusively) the prisoner.  Any loving adult who has ever "interrogated" a small child to get to the bottom of some incident of misbehavior is familiar with the general outline -- one can get to the truth, with a little stress, long before one gets the subject of the interrogation to fess up.   The difference with adults confronting an emergency is that one can place no non-biological upper limit on the stress one is willing to employ and that one is wise to place no upper limit on the amount of trickery.

In the near future, of course, the degree of stress needed to find the answer to emergency questions will be greatly reduced by real-time brain activity imaging coupled to teams of psychologists, philosophers, and mathematicians who are skilled at playing 20 questions against an involuntary opponent.

In my opinion, of course.

-t

Signing Statements Subvert the Constitution

pyro9

Tue Jul 25 18:02:44 -0700 2006

manage

Actually, I do understand that there is a lot more to torture than inflicting pain. Well enough to know it won't work quickly enough to avert an imminant disaster. When you have 2 hours, there's just not time ti piece things together, particularly if the subject already has a well rehersed and plausible lie.

Terrorist organizations and undergrounds (what we call the same thing when the good guys do it) have long understood that as well. That's why they compartmentalize information. The person who places and arms the bomb doesn't know how to disarm it. The person who can disarm it doesn't know where it is. Neither person knows who the other person is.

Then, there's the natural consequence of actually telling. The torturer might let them live just so those they ratted out can give them an even worse death.

All of that aside, while torture isn't simple sadism, it does perminantly damage the subject to a greater or lesser extent and it damages the torturer as well. A torturer who would willingly do that to an innocent person is depraved. A torturer who later learns that a subject probably was innocent may have a breakdown of his own. Either way, that is not a person I would want living in my neighborhood.

I find it disturbing how easily some in the U.S. have gone from regarding torture as a sure sign of an oppressive regime that must be destroyed to considering it 'sometimes necessary'.

In the near future, of course, the degree of stress needed to find the answer to emergency questions will be greatly reduced by real-time brain activity imaging coupled to teams of psychologists, philosophers, and mathematicians who are skilled at playing 20 questions against an involuntary opponent.

That's what they said about MKULTRA as well. One day such tools may actually work and there may or may not be adequate countermeasures (other than making sure information is well compartmentalized). At that point it will be more important than ever to make sure such methods are taboo beyond any possability of use. Otherwise they would also be the perfect tools for a police state.

Signing Statements Subvert the Constitution

Beryllium Sphere(r)

Tue Jul 25 16:54:35 -0700 2006

manage

Which is exactly why it must only be employed in extraordinary circumstances and, even then, only with skill

Skill comes from practice.

Signing Statements Subvert the Constitution

Thomas Lord

Tue Jul 25 17:11:12 -0700 2006

manage

Skill comes from practice.

The 50s and 60s were an interesting time for the CIA.   I've only open sources to go on but, as far as I can tell, they've had plenty of practice.

-t

Signing Statements Subvert the Constitution

phred14

Wed Jul 26 05:36:42 -0700 2006

manage

Recently on his weblog, Bruce Schneier had a "TV movie-of-the-week Terrorist Scenario" contest.

I seriously doubt we will many times, if ever, come into the single-point-of-information scenario that *might* justify torture. I do not doubt that we will frequently come into scenarios that will appear to justify it. The slope is terribly, terribly slippery, with no guarantees that there are any traction points that will have made it worthwhile, or that we will find those traction points. In the meantime, what if some misimpression leads them to think that YOU have significant terrorist information, and thus YOUR family is placed in jeapordy? Have you NEVER gotten the extra search at an airport? Beyond that, if torture is justified for us, then it *must* be justified for others to torture our citizens whom they think might have significant information. Slippery, slippery.

Signing Statements Subvert the Constitution

Nick Lawrence

Fri Jul 28 15:34:57 -0700 2006

manage

Dershowitz casually glosses the "ticking bomb" scenario.   Let's make that more vivid.  Consider a scenario straight out of "24" or "Alias" (the TV shows), but frankly not all that fantastic.  The Executive knows that an atomic bomb has been smuggled into a major city, placed on a timer, and is set to go off on two hours unless certain equally or more abhorent conditions (say, a demand that the US heavily bombs Haifa).   We have in custody a conspirator who we have good reason to believe can help us locate the bomb and disarm it.   We have the suspect's spouse and children as well.   Our best shrinks have concluded the suspect is lucid and that while he is prepared to sacrifice himself his primary loyalties are to his family and there is a better than 50% chance he will respond to torture in the form of threats to -- or even torture of -- his family, provided the clear and credible alternative is protection for same.   The clock's ticking.  You got any better ideas?

Let the bomb go off.

You are then in the position of being the suffering victim, which
reduces support for the conspirator's cause, and gives you
leniency in your retaliatory actions.

People who were previously neutral would tend to move
to your side. Other conspirators would re-question their
beliefs, etc...

Signing Statements Subvert the Constitution

Thomas Lord

Fri Jul 28 15:57:20 -0700 2006

manage

In some cases, that may be the right thing.  In others not.   It would depend on externalities, no?   Habits (and rigid policies over such complex matters) are for herd animals.

-t