Just Arrived from Amazon:
John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11. Lots of folks say that the Article II argument is based heavily on Yoo's scholarship, so I figured I should read his new book.
Just Arrived from Amazon:
John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11. Lots of folks say that the Article II argument is based heavily on Yoo's scholarship, so I figured I should read his new book.
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http://rwor.org/johnyoo/
I hope you'll let us know what you learn, though. Should be interesting, if dangerous and repugnant.
Dave
By the way, I have it on good authority that David Kopel did indeed follow through on his threat to ban Greedy Clerk from further commenting . . . apparently his IP address will not register comments. Given that, this will be my last post here at the Conspiracy -- as cowards like Kopel pull stuff like that just doesn't impress me. Of course, it's his right I do not argue otherwise, but it is my right to say later to the Conspiracy.
You should check out Yoo's debate on www.legalaffairs.org with Neil Kinkopf(?). Kinkopf gets nasty and Yoo delivers surprisingly substantive responses that go beyond what is in his book. It's a must read.
He also gave a few appearances on C-span. One on Washington Journal where he took questions. Another was a debate hosted by a DC bookstore (it was on BookNotes, I think), where he faced off against two law professors, both very notable, but I cannot recall their names, though they both have major books out. It is worthwhile to look at these debates because Yoo augments his book's arguments and defends them extemporaneously from criticism in person. You can see what he really thinks.
It's up to you, of course, but I hope you won't stop commenting. For that matter, I hope Greedy Clerk's IP address wasn't blocked.
In terms of Yoo's book, I'm not quite sure why reading it should be troubling. Carefully considering an unpersuasive argument is the only way to know for sure that it's unpersuasive; you can't reject an argument without evaluating it first. That's my take, anyway.
More from Publius on this subject here —- although I do not agree with the implications that there is something sinister about being a member of the Fed. Society.
But no. As we are often told, there are lots and lots of bad things that are not illegal.
In fact, however, crushing someone's child's testicles is not one of them. It would clearly be illegal for the President to order anyone's testicle crushed, not only under international law but under good old-fashioned statute law of the United States. An argument to the contrary can rest only on the notion that the President has authority to disregard laws passed by Congress when they seem to him important to the national defense (or some similar criterion).
That's scary. Yoo shouldn't be stripped of his job or put in the stocks or whatever the current call is for; but his theory of the Constitution, which the Bush administration seems to have adopted, at least on Mondays, Thursdays, and Fridays, tends dangerously close to the fascistic; and that's just the word for it, despite the massive overuse of that word by partisans on both sides.
Let's get the theory clear: my understanding is that it holds that one man, elected for a four-year term, can do (apparently) anything he wants, without having to justify or even admit it to anyone, if he thinks it will save the country from being overrun.
I haven't read Yoo's book yet, and I hope that someone will correct me if I'm exaggerating Yoo's understanding of the President's powers under Article II.
CrazyTrain,
Nothing sinister about being in FedSoc? Dang it, I'd hoped to add that to left-handedness among my sinister credentials ;-)
It's the attitude that Yoo is somehow "beyond the pale" that made it quite difficult to find people to sit on a panel with him -- really more difficult to find conservatives, perhaps because they were afraid they'd be heard agreeing with him? Like it or not (count me among the "nots"), Yoo has had a significant impact on how our government rationalizes its actions, just as FedSoc has had a significant impact on the judiciary, academia and even practitioners, so to ignore either means you won't understand the gears inside the machine.
CrazyTrain, I must say that I had the same thought. There is just so much time in life, and reading the writings of an amoral monster may not be the best use of it. Why bother? In making statements like the one about the President having the right, under certain circumstances, to crush the testicles of an innocent child, Yoo removes himself from the arena of serious discourse, no matter what one's political or judcial views. If his views reflect those of anyone in this administration, we are in serious trouble. I prefer to think of them as the views of a ruthless madman from a different culture who was not raised with the same notions of decency and humanity as we Americans have been raised. Sort of like an Al Quaeda kingpin.
I have deleted your comment. If you want to know why, e-mail me.
I'm acutely reminded of what Justice O'Connor wrote in Hamdi:
One can make the argument that Sealed Case and Hamdi will carry more weight in argument, as post 9/11 cases, then their predecessors. Who knows, maybe this court will engage in divining 'emanations and penumbras' to issue their decision. (tongue in cheek)
As far as the 'child's testicles' demonization tactic, it was not Yoo who put forth that 'entrapment' scenario, it was the interviewer. Should I guess on the political leanings of that interviewer ? While one may have hoped he would not have stepped into the trap, but I fault the interviewer for using such an inappropriate shock tactic.
It's a flawed debate tactic to demonize instead of address their ideas, it does nothing to further the discussion of ideas and their merits.
Well, let's turn the tables. Do Minni and "CrazyTrain" believe the President does not have the authority to smash the testicles of the innocent child, even if millions of lives depend on that action, even if the preservation of the Republic is at stake? While Yoo has endorsed the atrocious torture of one innocent child, his detractors have condemned (hypothetically of course) millions in order to protect that one child. I'll let the reader decide which one is more worthy of condemnation and ridicule.
Is your idealogical purity and quest for a "fuller expression of human dignity" worth the destruction of civilization itself?
Challenge: I'm not a lawyer, but the Schmidt/Furlow report in Gitmo (which was highly deferential in terms of what was considered authorized interrogation techniques) said that threatening a detainee's family members was illegal, which fits well with my understanding of the Geneva Conventions, the UCMJ, the convention against torture, the McCain Amendment, etc. I should also point out that most of the abuses our government has authorized or committed with regards to detainees have not involved such risks.
With that said, I hope my post didn't take us too far off topic. I really am interested in what people have to say about Yoo's book.
I'm sure you're aware that the Geneva convention does not apply to terrorists, so why bring it up?
How precisely is it within the power of Osama bin Ladin and friends to bring about "destruction of civilization itself" - something which plagues, earthquakes, world wars and a few thousand tyrants and génocidaires from the Bronze Age to Darfur have failed to do? Is anything aside from wholesale global nuclear war, total environmental collapse, or a massive meteor strike likely to bring about "the destruction of civilization itself"?
Many people think if a nuke went off in New York City, many tens of thousands of lives are lost, but America goes on. I'm not so sure the American economy would go on in better than a late nineteenth century fashion. If anybody knows of material on this -- what would a nuke in NYC do to America as a whole -- please post of email me at plurality@hotmail.com. Thank you (and have a nice day, naturally).
As well as socialstatistic's that:
I think all the "Yoo is totally out of bounds and a monster" people need to address these points.
So, the meaning of the Constitution changes over time, in your estimation? Small-government conservatives have invested a lot of effort in scholarship from an opposite view. (Not that there are many of those left anymore...)
Challenge: Do Minni and "CrazyTrain" believe the President does not have the authority to smash the testicles of the innocent child, even if millions of lives depend on that action, even if the preservation of the Republic is at stake?
The issue is, if we have signed a treaty and there is a statute banning this behavior, can the president do it lawfully? The answer, unless you believe that Article II trumps all that other stuff in the Constitution, is no. Yoo says the answer is yes. Will the president do it if he believes the survival of the Republic is at stake? Probably he will, and deal with the legal consequences later.
That said, it's not the best to use Hollywood scenarios as the beginning, middle, and end of the discussion of torture by the United States.
Be interested to hear your thoughts on all this once you read the book, Prof. Kerr.
Is it true that Greedy Clerk has been banned?
The moral blindness reflected in this remark leaves one speechless.
So outlandish and ridiculous hypotheticals are only OK if used against Yoo? I see how things work. And there are numerous ways al-qaeda could kill millions if we are unfortunate enough--getting their hands on biological or nuclear weapons. Whether or not that leads to a downward spiral and loss of civilized government, hopefully we will never know.
I can appreciate the legal question, and reasonable people can disagree. But that is not what occurred in this thread, Yoo was labeled a "monster" and a "fascist" for disagreeing on that legal issue. If they weren't too busy patting each other on the back for their moral clarity, they might realize their moral absolutism leads to some pretty ridiculous conclusions as well (one child's testicles trumps millions of lives, for example).
On the Category III question, John's work on the September 25, 2001 OLC Opinion, the Torture Memo, the final DoD Working Group Report, and the March 14, 2003 memo (still undisclosed) are the places to start.
Also, in this exchange with Neil Kinkopf, John tries to stick to the topics of his book, but Neil finally draws him out on the ignoring-statutes question, and John finally explains that Congress could not prohibit the President from using nuclear weapons. I kid you not:
http://makeashorterlink.com/?N6CA1436C
Of course those who run this blog have a right to ban occasionally nasty lefties and not ban consistently very nasty righties, but that seems contrary to the guiding philosophy of this place. It will also have the predictable effect of driving out intelligent liberals, who help make this place an arena for what is often high-level debate, as opposed to a self-satisfied echo chamber. If the decision to ban Greedy Clerk has in fact been made, I hope it will be reconsidered and rescinded.
But, even if those posters were both drooling, feces-tossing morons, ground zero of the legal debate is, what are the limits on the president's Article II powers, in general, and in wartime (especially in this wartime). And it's not a totally stupid view that Yoo was bending the law and Constitution to make it easier for the executive to mistreat people who didn't deserve it (ie, that German guy we kidnapped). See Prof. David Cole: "by all accounts, Yoo had a hand in virtually every major legal decision involving the US response to the attacks of September 11, and at every point, so far as we know, his advice was virtually always the same— the president can do whatever the president wants."
Also, your utilitarian logic might take us to places that few of us want to go (ie, Richard Mellon Scaife or Jack Welsch's right to accumulate ridiculous amounts wealth while an unconscionable number of children are hungry should be forbidden by law).
The moral blindness reflected in this remark leaves one speechless.
Right, Magoo. Innocents having to wait on line to travel along a road. Innocents getting blown up by a bomb. To one with true moral insight it is obvious that the former is incomparably worse.
Neil Kinkopf draws Yoo out? You mean by use of ad hominems? I think Kinkopf looked patently ridiculous.
Not quite. That assumes that crushing said testicles is guaranteed to yield information that would prevent whatever disaster was looming, if that disaster is guaranteed to happen regardless of outside factors. This in turn assumes that the person being interrogated knows the needed information and that he will give it up through torture. I don't really know if there is any science as to how well torture works, but at best, your statement should be "one child's testicles trumps the possibility of saving millions of lives."
I am at a loss to find a single ad hominem argument in the Kinkopf piece; all the assertions in the review are about claims that Yoo has explicitly advanced, either in his academic work or in his DOJ writings, and Kinkopf attempts to challenge those assertions on Yoo's own terms -- through a broadly originalist interpretation of constitutional text. It is surely not the last word on every point (it is a book review in the NYRB, after all, not a law review article), but I think it is anything but "patently ridiculous."
KMAJ: analyzing 9/11 and terrorisms effects on the law and the Constitution. I think we are seeing a lot of pre-9/11 analysis in a post-9/11 world.
Bob: So, the meaning of the Constitution changes over time, in your estimation? Small-government conservatives have invested a lot of effort in scholarship from an opposite view. (Not that there are many of those left anymore...)
That is a circuitous argument, what does change are the parameters of the situations to which the Constitution must apply, not the Constitution itself. Do you think the Founders even entertained terrorists being able to use a weapon with the destructive force of a plane into a building, nevermind nuclear, chemical or biological weapons ? Your question lends credence, rather than detraction, to the pre-9/11 and post 9/11 comparison.
Further, I find your argument to be a double-edged sword, you seek to make a pejoratively tainted observation that exposes only one edge of that sword. The other edge would then be to ask:
So, the meaning of the Constitution 'doesn't' change over time, in your estimation? Large-government progressives have invested a lot of effort in scholarship from an opposite view.
The insertion of such non sequiturs is more diversionary than it is applicable to furthering the discussion of the subject.
One can disagree about this, but surely not about the children of "terrorists."
I offer the article by Harvard law professor, Charles Fried for due consideration.
The Case for Surveillance
I think he has put his finger on the executive branch position and identifies the locus of the debate:
(excerpt)
In the context of the post-9/11 threat, which includes sleeper cells and sleeper operatives in the United States, no other form of surveillance is likely to be feasible and effective. But this kind of surveillance may not fit into the forms for court orders because their function is to identify targets, not to conduct surveillance of targets already identified. Even retroactive authorization may be too cumbersome and in any event would not reach the initial broad scan that narrows the universe for further scrutiny.
Moreover, it is likely that at the first, broadest stages of the scan no human being is involved -- only computers. Finally, it is also possible that the disclosure of any details about the search and scan strategies and the algorithms used to sift through them would immediately allow countermeasures by our enemies to evade or defeat them.
If such impersonal surveillance on the orders of the president for genuine national security purposes without court or other explicit authorization does violate some constitutional norm, then we are faced with a genuine dilemma and not an occasion for finger-pointing and political posturing.
If the situation is as I hypothesize and leads to important information that saves lives and property, would any reasonable citizen want it stopped? But if it violates the Constitution can we accept the proposition that such violations must be tolerated?
We should ask ourselves what concrete harm is done by such a program. Is a person's privacy truly violated if his international communications are subject to this kind of impersonal, computerizerd screening? If it is not, at what stage of further focus do real, rather than abstract and hysterical concerns arise? And to what extent is the hew and cry about this program a symptom of a generalized distrust of all government, or of just this administration?
Yoo was kind enough to answer the ABSURD hypothetical, I think you are obligated to be just as forgiving as he; assume the legitimacy of the hypothetical without qualification. It's hard to imagine a situation where crushing an innocent child's testicles would be required, or even thought to be required, to yield information, but Yoo answered the question as given. His detractors should do the same--is crushing one child's testicles worse than millions dying?
One can disagree about this, but surely not about the children of "terrorists."
Actually, it's my understanding that the Geneva Convention is pretty explicit on what actors receive its protection, and terrorists are not among them.
While other treaties may protect the terrorist's child (and I imagine there are several), I don't believe he would receive any protection under the Geneva Convention, as I understand GC deals with the treatment of POW's only.
The Framers' insistence on prohibiting general warrants unquestionably has, throughout the Nation's history, had the effect of inhibiting the discovery of "important information that saves lives and property." I suppose one must infer that the Framers were just a bunch of unreasonable natural-fiber, sandal-wearing, hirsute, somewhat fragrant hippie chick pie wagons.
Quite the contrary, and your sarcastic hyperbole is typical of 'dismissive without substance' rhetorical replies. You refuse to address the changed realities that existed when the Founding Fathers wrote the Constitution. Did they have any conception of the advances in weaponry that would unfold ?
You also fail to acknowledge the delineation between foreign and domestic, nor do you address the blurred area that is created by technological advances. You leave out the probable cause element and the criminal versus intelligence paradigm in play.
If one cannot concede the effects of such destructive power in weaponry nor terrorism on interpretation of the Constitution, then I would proffer the opinion that such a person is an ideological absolutist. The terrorists ability to kill thousands bears no import on such a persons ability to reason and balance liberty and life.
You refuse to address the changed realities that existed when the Founding Fathers wrote the Constitution. Did they have any conception of the advances in weaponry that would unfold?
The fact that this meme has been trotted out in defense of expanded powers by so-called originalists is staggering. When convenient, the Constitution is a living document?
I found Yoo's war powers chapter exceptionally informative and his treaty chapter a sure cure for insomnia. The former was fascinating in his analysis of the declaration of war concept as it existed when the Constitution was written.
He did overlook one aspect of the "changed realities" since then, though - Congressional legislation 1940-1960 which codified and considerably extended Presidential war powers. I learned of those while studying the U.S. economy during the period 1940-55 - World War Two and the post-war growth of the garrison state. I don't know if Professor Yoo was wholly unaware of those statutes, or chose to ignore them for the sake of brevity.
An important element of these statutes is that they become effective only upon a formal declaration of war by Congress, though in some instances a Presidential proclamation of a specified state of emergency suffices. Some of these statutes give a President considerable additional power concerning domestic security. One was frightening - the McCarran Act. One of my father's friends in the FBI, Don Edwards (who later became a Congressman from San Jose), told him that he was on the FBI's list of people to detain immediately upon invocation of the McCarran Act. It was fortunately repealed.
The Geneva Convention protocols which we've signed, together with our reservations to them, give some minimal treatment to everyone, terrorists included. Basically we can't torture them, needlessly starve them, etc. Captured terrorists have much broader rights under American law than under the GC, both concerning treatment and execution.
The GC's effective upon the U.S. permit us to shoot captured terrorists on capture, with no trial or any sort of process whatever. They only require a "competent tribunal" when there is some question as to a person's status as an unlawful combatant. There is no such question for terrorists captured in the field, i.e., "in arms".
Hamdi and Lindh were captured "in arms" - their Taliban units surrendered to the Afghan militias we had rented, and so could be immediately shot under the GC. Padilla was not "captured in arms" so the GC requires that some form of military tribunal determine his status as an unlawful combatant before we can shoot him.
U.S. law, on the other hand, requires at least expedient military court trials of unlawful combatants, for violation of the laws of war, before they can be shot. Examples of those can be found in the really quick &dirty field courts held by American forces during the 1944 Battle of the Bulge for SS leader Otto Skorzeny's commandoes captured wearing American uniforms.
Statutory changes since then, such as the postwar replacement of the Articles of War with the Uniform Code of Military Justice, etc., have sigificantly enhanced the procedural protections for unlawful combatants in American custody. They are much better off under American law as it presently exists than under the GC protocols applicable to us.
Some Geneva Convention protocols written since the Vietnam War give unlawful combatants still greater protection, but we haven't ratified any of those.
Darn tootin', Challenge. Because if one goes along with your line of thinking, the big END JUSTIFIES MEANS written in the sky, then one should be willing to torture any one innocent person to save millions of lives. How about two innocent persons? How about 10 innocent persons to save 500,000 lives? Would you agree to 100 innocent persons to save 100,000 lives? We'll call you and Mr. Yoo, Challenge, when the actual situation comes up, to see what the "numbers of exchange" you have worked out for that particular day are.
You err. I helped write Advanced Dungeons &Dragons. Mr. Yoo does not appear on its list of demons.
Well, we can't very well call him Hastur, can we?
Oops.
Of course I believe that the President does not have that authority. The fact that you find that view ridiculous is frightening. The Republic would not be "preserved" by such an act. It would be destroyed. What we love about America is not its National Parks and natural ores. It's the ideas and values which gave rise to this great nation. Those ideas do not involve the sacrifice, under any conditions, of innocent children. Sorry if Yoo thinks otherwise.
Are you willing to have your testicles smashed to demonstrate your commitment to the principle for which you claim to stand?
I also helped develop Call of Cthulhu, whose publisher also publishes The Hastur Cycle, though my name does not appear in COC's credits.
byomtov,
Demons I know.
Yoo and Gonzales seem to be two birds of a feather. We need to start flying in a different direction pronto, and I personally feel comfortable that the SC will be at the helm of that flight and Congress will take their lead.
No disrespect taken, nor any intended in return.
The fact that this meme has been trotted out in defense of expanded powers by so-called originalists is staggering. When convenient, the Constitution is a living document?
That syllogistic 'meme' of 'expanded powers' is just that. The War Powers Act and FISA were incursions into executive power. Should we call those expanded legislative powers and expanded judicial powers ? We can quibble back and forth over which is the correct Constitutional position. One of the warnings of the Founders was the nature of the legislative branch to try 'absorb all power in to it's vortex'(Madison - July 21, 1787 / Debates of the Federal Convention).
Text in full:
It would be useful to the Judiciary departmt. by giving it an additional opportunity of defending itself agst. Legislative encroachments; It would be useful to the Executive, by inspiring additional confidence &firmness in exerting the revisionary power: It would be useful to the Legislature by the valuable assistance it would give in preserving a consistency, conciseness, perspicuity &technical propriety in the laws, qualities peculiarly necessary; &yet shamefully wanting in our republican Codes. It would moreover be useful to the Community at large as an additional check agst. a pursuit of those unwise &unjust measures which constituted so great a portion of our calamities. If any solid objection could be urged agst. the motion, it must be on the supposition that it tended to give too much strength either to the Executive or Judiciary. He did not think there was the least ground for this apprehension. It was much more to be apprehended that notwithstanding this co-operation of the two departments, the Legislature would still be an overmatch for them. Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitutions; &suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles.
I do not think anyone can argue that executive authority that exists today comes close to approaching that which Lincoln and FDR wielded. Nor can it be argued that since executive authority has been at a low ebb since the end of the Vietnam era.
I didn't "refuse" anything; I did offer an observation in response to Fried:
The Framers' insistence on prohibiting general warrants unquestionably has, throughout the Nation's history, had the effect of inhibiting the discovery of "important information that saves lives and property."
Do you honestly dispute the accuracy of that statement?
My point was that does not address the reality that today's weapons can cause mass destruction and loss of life. We can point to 'the Gorelick wall' as a hindrance to the detection of the 9/11 tragedy which prevented the seeking of a warrant that would have allowed a search of the Mousaoui hard drive.
Also, that statement does not address the delineate the difference between criminal and foreign intelligence surveillance.
Supposing that the administration had known of the 9/11 plot before it was carried out, would they have wabted or been able to prevent it?
I do not think anyone can argue that executive authority that exists today comes close to approaching that which Lincoln and FDR wielded. Nor can it be argued that since executive authority has been at a low ebb since the end of the Vietnam era.
Well, since we brought 'changed times' into it, the exectuive can undoubtedly do 'more' now then he could then, just based on technology.
One of the warnings of the Founders was the nature of the legislative branch to try 'absorb all power in to it's vortex'
And the/a catalyst for the revolution was the king doing the same - hence checks and balances.
Though I may not agree with all of Yoo's analysis, I think his constitutional scholarship is quite intuitive and usually based on sound foundations. I have not yet read his book, but war powers seems to be one of his areas of expertise, I imagine that chapter would be quite insightful.
You make one of my points about executive branch powers being expanded, and probably at or near their zenith in the period from FDR to the end of the Vietnam era, when the War Powers Act and FISA encroached heavily on the executive branch, though all presidents basically ignored the War Powers Act and considered it unconstitutional. It has never been seriously enforced.
When you consider that Congress has only declared war 11 times in 5 wars (6 times in WWII), yet we have been involved in over 100 military actions in our history. So you can see Congress has not exercised their declaratory authority often, and it has not impinged on the executive branch taking action. Madison was very wary of the legislative branch 'absorbing all power into their vortex'.
Constitutional history is replete with many bad laws, the McCarran 'anti-communist' Act being but one. That was a very strange era in our history, one that I think we were not fully informed about. I have done extensive reading on the VENONA Project, and find that there is so very much we weren't taught in our history books or was glossed over. Whether it was because the USSR was our ally in WWII, I do not know, but communist espionage in this country went to some of the highest levels of our government. I have often wondered why the Soviet gulags, which killed two to three times as many people as the Nazis, did not get as much play as the Nazi death camps, both were atrocities and crimes against humanity.
and
I believe I already have, and that others have as well. As I stated before, such threats were found in the Schmidt report to be illegal. Specifically, they "violated the UCMJ, Article 134 Communicating a threat." That report was highly lenient in terms of what it authorized. While the Roberts Circuit court disagrees with me, I also believe that Common Article III of the Geneva Conventions applies to suspected terrorists, so this would clearly be out of bounds. Less controversially, such actions are prohibited by Congress in the McCain Amendment and the Convention against Torture as well. So I think that there are pretty clear prohibitions.
Regardless, the point isn't just that no EXISTING law should stop Bush from doing awful stuff; see Marty Lederman's post about Yoo arguing that even if Congress wanted to, it couldn't stop Bush from using nuclear weapons.
That interpretation scares me.
This isn't just about hypothetical testicles, though. As one commenter noted above Yoo's arguments (and arguments like them) have dramatically expanded what the president can do. Checks and balances are important, and I don't like the fact that the executive can detain someone without charge, use secret evidence obtained by torture in a military tribunal, continue detaining individuals even that have been found to be innocent, deny access to counsel, hold mock executions (e.g. waterboarding), and so on, simply by asserting with no evidence whatsoever that a person is a terrorist. I don't like that other branches can't determine whether "enemy combatant" status is warranted, or whether a person is really so dangerous that he has to be denied a lawyer. I don't like that Congress and the courts are essentially powerless to constrain the executive whenever Bush waves his hand and says the word "terrorism."
We KNOW that this administration trumps up its accusations (I was about to say "charges," but they decline to charge people). That's why Padilla isn't being tried for attempted dirty bombing and was allowed all the benefits of a civilian court once it looked like the Supreme Court would intervene. It's also why people have been released from Gitmo after rotting there for months or longer without ever having been charged. If they were terrorists, why were they released? If they weren't terrorists, why were they held for so long? Do these questions not bother you?
I guess the Republic has already suffered many deaths and destroyed many times over, according to Minnie.
Are you and your family (and every one you know) willing to die for a child's testicles?
Am I and my family and everyone I know going to die? Yes, eventually we will. Will I smash a child's testicles if I thought it might keep myself alive a little longer? Surely not, because what kind of a life would it be knowing I had done such a thing.
I answered your question, so answer mine. And furthermore, answer your own.
Will you smash a child's testicles to save your life?
Rhetorical questions only add to an argument if they are an adequate analogy to the situation/decision you seek to influence. Otherwise they only seek to gain some emotional reaction advantage in the debate not based on a substantive similarities. Crushing a child's testicles is injecting an exaggeration that which most people would find abhorrent, on its face, while limiting the choice to only your life, versus that of thousands or more, makes the question superfluous in scope and relevance.
It is the insertion of the emotional element alone that makes the question dishonest, because it takes the argument away from calm reason. You also seek to sway by making the action a personal one, 'Would YOU crush...', which makes the rhetorical question even less sound, as 99.9%+ of people would not be in such a situation, ever. Even so, if you wish to inject the abhorrent, to gain an emotional advantage, the question still needs to be rephrased to:
"Would you condone crushing the testicles of a child to save thousands or more lives ?"
To add a counter emotional and personal element, I could add, 'if among those thousands was every member of your extended family'.
How likely is it that I am going to ever be in the position of having to crush testicles or that you will be in the position of having to decide the fate of your entire family ? Neither unrealistic situation really adds to the resolution of the debate, instead they tend to inflame the emotions and overrule rational thinking.
I do find it interesting when people find a need to insert such exaggerated and emotional rhetorical flourishes into discussions/debates, it reveals far more about the individual who puts it forth than it adds to any conclusion to be reached on the subject under discussion.
Think about it, what normal person would think about crushing a child's testicles ?
It is intellectually dishonest to say you would "condone" something that you would not yourself do.
If you say that you would condone crushing a child's testicles under the hypothetical that it might save lives, then I have to ask whether you are willing to do it. Are you?
To flip the earlier accusation against me, Challenge's argument "seems to be based mostly on sort of [totalitarian] sentiment that there just must [not] be a law against anything so [good]" as torturing innocents to save lives. I think that there are laws against it, and no one seems to have argued otherwise.
It is intellectually dishonest to frame a question in such black and white terms. Should we turn your question on its head and ask would you kill your entire family to save a child's testicles ? Would I then be able to ascertain that you condone the murder of your family or crushing the child's testicles, whichever your choice would be, and therefore would be willing to kill your family or crush the child's testicles yourself ? Your rhetorical question, nor its reverse, seeks any substantive information, instead seeking an answer with which you may demean any respondent who would respond in the affirmative because such an act can be called abhorrent.
Such sophistry. I don't condone murder, much less of my family, and I don't condone torture, much less smashing a child's testicles, and I would commit neither act.
You seek to place me in the classic "double-bind" scenario, so let's just make it more concrete, in which a gun is pointed at your loved one, and a gun placed in your hand. You are then told to shoot an innocent child or your loved one will be killed. What do you do?
I will answer my own question, to wit: I will not shoot the child. Even if I did, nothing would stop you from shooting my loved one anyhow. The choice is really not mine to make as to what you will do.
I notice you never actually answer the very questions that you pose.
Perhaps you begin to grasp the concept, neither rhetorical question has a satisfactory answer. Even the answer you pretend to give is based upon a condition that you invoke to make your choice seem to be the correct one, that your loved one will be killed anyway. What if that condition is a guarantee that your loved one will be spared ? Who would want to kill a child or have their loved one killed ? Anyone can pretend to answer such rhetorical questions, but unless one is truly faced with that situation, any answer is a quintessential example of sophistry. Unlike you, I do not pretend there is a correct answer, it is an ethical dilemma that has no good option. Would you condemn the person who killed the child to save their loved one or would you condemn the one who let their loved one die ? Or perhaps you would condemn both ? You try to sit in judgement of someone who is put in the position to have to make such a judgement when you have never been in, nor ever will be, in such a situation.
What is even more glaring about your rhetorical question, is that you juxtapose the innocent child with a terrorist in the equation, I included your family among the innocent civillians that would die. Who is creating the greater moral and ethical distortion in the rhetorical question ?
First, it is totally intellectually honest to frame a question in black and white terms. Moral principles can, and should, withstand both probable and lifeboat situation tests. Also, "reductio ad absurdem" is not something to be dismissed; it is a valid logical tool by which to point out the inherent absurdity of an argument if carried to its extreme. For example, once a person buys into the notion that it is okay to sacrifice one child's testicles to save 2,000,000 people's lives, that person can no longer argue that it is not good to sacrifice one innocent child's testicles to save two people's lives. As the old joke goes, you're only haggling over "price" at that point.
To ask if DTI would kill his entire family, when he has already demonstrated that he is a person of such finely honed morality that he would not sacrifice a single child at the altar of expediency, suggests you actually have no understanding of what he is saying. It's painful to watch someone like Defending the Indefensible having to debate such an issue with someone who has no understanding of his point, and worse, is likely never to have that understanding.
Even so, answer his question. Would you smash, or authorize another to smash, an innocent child's testicles to save 1,000,000 people's lives? That is, in fact, the question on the table.
I admire your jumping to his defense. But the intellectual dishonesty is in not displaying both sides of the double edged sword in the morality play that is engaged when one presents an 'reductio ad absurdem' example. The intellectual dishonesty is broadened when one enters into semantic diversions with claims of expediency as opposed to referencing lives lost. To do so, is to give lesser value to the lives that one is willing to cede to their altar of self-aggrandized superior morality. I merely pointed out the other side of his extreme hypothetical. Does it make one more humane or moral when the decision, either way, results in death ?
I will answer you one more time, and then you must answer, or we are at an end, because you keep dancing around the questions you yourself ask, much less the ones I have posed.
I have given my answer, I will not murder or torture an innocent on any condition that you may give me. None whatsoever. To the extent you give me guarantees, I do not trust them, and have no reason to believe them. Even if I did, I would not sink to your level by committing an act of the same nature as you threaten to do to my loved one.
Do not tell me that I have no right to make a judgment as to what
Though you avoid a direct answer, you did give one, you would let your loved one die. Were I given the choice of one thousand innocent people dying or a child's testicles being smashed, as abhorrent and repugnant as the choice would be, I could not in good conscience allow one thousand innocent people to die. Even if I were not the one who had to do the smashing, the decision would haunt me the rest of my life. It is a simple weighing of the consequences, one thousand people dead versus one child maimed but still alive.
You tried to change the question when you invoke trust into your hypothetical. That was not part of your original question.
I appreciate your honesty, although we disagree.
There is of course no guarantee that smashing the child's testicles would persuade an alleged terrorist to divulge information which could save a single life, much less a thousand. This is presuming she even has such information to divulge and would not lie (particularly to someone who had just permanently mangled her son).
Would it be harder to live with the knowledge of what you had done if it yielded no benefit? Could you still justify your action based on a "good-faith belief" that it would have saved lives?
Following Minnie's question, would you do the same thing to save 100 lives? 10? 2? What number of people need to estimated at risk to make this moral calculus work? Does it only work if one or more of the people at risk are members of your own family or ones you love? Does this change the equation?
The hypothetical is not a real world scenario, there would be far better means than threatening to crush a child's testicles. It is all fine and good to sit in a hypothetical world and make moral judgements, but were these scenarios actually to occur, you would not be operating in an emotional nor informational vacuum.
No one claims it is not a difficult question, but putting the hypothetical control strictly in your hands, no other influences, no other options, you have to maim a child's testicles or kill 100 people, if you choose neither, both will occur, what will you do ? That is the perspective I came at this from. Neither of us would want to do either, and hopefully neither of us would be put in just such a position.
No you didn't.
I think I've already answered this clearly, and portraying my unwillingness to commit torture as "killing" 100 people is improperly shifting the moral responsibility. I am not going to be an agent of murder or torture. What you will do if I don't do what you want me to do is completely beside the point of how I decide what I will do. This is the nature of the double bind, and it is the only moral solution from my perspective. I will not be party to it, and you can only make me party to it with my own consent, which I decline to give.
While neither of us is likely to find ourselves in this identical position, we are all occasionally subjected to apparent double binds. "Do what I want or I'll do something you don't want me to do" kinds of scenarios are not that uncommon. That kind of threat simply does not work with me. If doing what you want means me hurting someone who doesn't deserve to be hurt, I'm not doing it, even if you're going to hurt the same person if I won't. You are responsible for your moral choices, I'm responsible for mine.
You're free to disagree with me, and apparently you do, but this is what I think, and this is what I will do.
"Nuh-uh!" is hardly an argument.
Let's recast the question a bit. If you had a choice between authorizing the crushing of one innocent child's testicles, one one hand, and a) permitting the crushing of 1 million innocent children's testicles, plus b) allowing all 1 million of those children to be sexually molested, plus c) allowing all 1 million of those children to then be brutally killed, which would you choose? And which is the humanitarian position?
I think I've already answered this clearly, and portraying my unwillingness to commit torture as "killing" 100 people is improperly shifting the moral responsibility. I am not going to be an agent of murder or torture. What you will do if I don't do what you want me to do is completely beside the point of how I decide what I will do.
Actually, the one thing you haven't done is answer clearly. You have dodged and averted. You try to set parameters that are not offered in the choice you would have to make. You divert by trying to insert 'what I would do' if you don't do something. I am not part of the equation, I put the hypothetical scenario before you with three options only, choose one or the other or do nothing and both will happen. What your answer is clearly doing is refusing to answer because you do not like the choices and is akin to taking your bat and ball and going home because you do not like the rules. My hypothetical is the typical 'no win' situation that occurs often in real life, just not to that extreme, but your 'testical crushing' hypothetical is just as extreme.
Now if you were to ask would I agree with the 'waterboarding' of Khalik Sheik Mohammed that did provide information to prevent terrorist attacks that would kill an untold number of innocent people, I would give an unreserved yes. That would be a 'specific' reality based question. I don't think anyone being able to claim 'at least I still have my principles' would be any solace to those who died in a terrorist attack or to their families. In fact, I think you would be reviled for not doing something to save them, when you could have. I also believe you would be blamed for the deaths, as much as those who committed such an atrocity, because you let them die, their blood would be on your hands. How selfish is it to value your principles over the innocent lives of others ?
I am sorry, DTI, but that is disingenuous after demanding an answer from me on your question that I disagree with on its premise.
Kate: Minnie, If you had a choice between authorizing the crushing of one innocent child's testicles, one one hand, and a) permitting the crushing of 1 million innocent children's testicles, plus b) allowing all 1 million of those children to be sexually molested, plus c) allowing all 1 million of those children to then be brutally killed, which would you choose? And which is the humanitarian position?
Kate, I would not authorize the crushing of one child's testicles under any circumstances. Period. Get it?
As for what is the "humanitarian position", I don't know. You tell me. I don't belong to that club. Who's the head of it, Cheney? Yoo? I belong to the club of doing what is ethical and moral, never violating core principles, and letting the chips fall where they may.
Have you ever heard of Patrick Henry? Perhaps you might enjoy reading up on him.
Got it. Your rejection of utilitarian approaches is certainly a rarity: in my experience, 99.99% of people are utiliarians at heart, whether they are on the radical left, radical right, or right in the middle. (I'm not sure why you associate utiliarianism with Dick Cheney and John Yoo, but so be it.)
My point was who defines what is "humanitarian"? As for the Philosophy of Utilitarianism, no, I don't subscribe, as I am an objectivist. However, on a "practical" basis, I don't concede that being morally guided by objective principals is not "workable" or likely to achieve the best results. I believe just the opposite in fact.
Actually, objectivism is generally justified on utilitarian grounds, but perhaps you mean something different by the term than most followers of Rand. Her foundation was pretty weak, actually: A=A, or equivalently, tautologies are tautological.
Actually, objectivism is generally justified on utilitarian grounds, but perhaps you mean something different by the term than most followers of Rand.
Respectfully, I cannot speak to how objectivism is justified by unknown people. To her credit, Ayn Rand was always extremely careful to make the point that only she spoke for her philosophy.
I can tell you that she herself never came close to using utilitarian grounds to "justify" her philosophy. She was most assuredly not a fan of Pragmatism, which, in many ways, is the antithesis of her philosophy. I'll see if I can find some direct quotes of hers to post to illustrate that point.
I disagree her foundation was weak. While the fact that "A=A and cannot be B while it is being A" may seem to you a tautology, suprisingly, most people do not live their lives acknowledging that A is always A. They have a subjective view of the world, with shifting realities, whereas hers was objective.
You didn't answer the question, that is obvious.
Subjectivism is not an inferior perspective, from the standpoint that each of us can only know the world through our senses and perceptions. Moreover, there is much that cannot be arrived at through reason, but requires intuitive understanding of the relationships between things.
A is not always A, nor does a thing necessarily exclude its opposite or all the points between.
We could get into a much longer discussion, but my principle point is in trying to dissuade you from thinking that arguing from any "-ism" is likely to be helpful.
I will try to give you an example of A being not-A, just to settle the point. "Cold" water is HOT to a person suffering from frostbite. Subjectively, and in objective effect. "Warm" water could actually cause physical burns to the skin.
A is A. Rest assured.
And nothing wrong with "isms." Capitalism, for one. It beats statism any day of the week.