The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Monday, June 07, 2004

More conniptions on torture

Recall the wise words of the judge in the hate-crime case of US v Cartman:
I am making an example of you, to send a message out to people everywhere! That if you want to hurt another human being, you better make damned sure they're the same colour as you are!

Much the same logic applies to the Western conventional wisdom on torture - compared to the other bodily harm that the state might inflict on humans for political purposes.

Anti-personnel land mines, for instance, are fine by Uncle Sam - can't defend South Korea without them. So that's all right. Napalm - AOK (used in Iraq). Flechettes - dandy. Fuel air explosives - cost of doing business.

Several thousand dead civilian Iraqis - a price worth paying [1]. And, last time I looked, the US was still claiming ownership of nuclear warheads capable in all of cleansing several hundreds of millions of humans from the planet.

Yet, somehow, running a few volts through a guy's dick jerks the offence-o-meter pen right off the chart.

The latest (via Kos) is the draft of a document (leaked to the WSJ - reprint) produced by Pentagon and other USG lawyers for Donald Rumsfeld, and dated March 6 2003, advising on just what USG could get away with and still have an arguable case under US and international law.

It apparently considers, for example, the defences of necessity and superior orders.

The working-group report elaborated the Bush administration's view that the president has virtually unlimited power to wage war as he sees fit, and neither Congress, the courts nor international law can interfere. It concluded that neither the president nor anyone following his instructions was bound by the federal Torture Statute, which makes it a crime for Americans working for the government overseas to commit or attempt torture, defined as any act intended to "inflict severe physical or mental pain or suffering."

It seems that the legal side of the Pentagon's interrogation operation was working with some degree of professionalism.

Which is rather more than can be said of those trying to extract information in Iraq.

  1. Has anyone from USG said this in so many words: not that I can see. But the lack of the weeping and wailing and gnashing of teeth that the Abu Ghraib photos brought forth speaks volumes.


There was a blogospherical debate on torture last year to which I made a modest contribution, expanding on points made here (March 12 2003 - the piece links through to other, more august, participants' contributions.)

There is commentary on the legalities from Phillip Carter, ex-USA and just graduated from UCLA Law School (the Volokh stamping-ground, I think.)

He suggests that the presidential powers claimed in the draft memo do not exist, and cites the 1952 US Supreme Court case of Youngstown Co v Sawyer in which the seizure of steel mills by Harry Truman, by Executive Order, under colour of his constitutional powers, inter alia his powers as commander-in-chief and under Article II, was held unconstitutional.



On the anti-personnel land mine question, it seems that, without my realising it, USG's stance has softened: an AP piece of February 27 says
The Bush administration said Friday it intends to make all U.S. land mines detectable to American forces and scrap those not timed to self-destruct.

But the change will take till 2010, and the US will stay out of the Ottawa land-mine convention.

What would President Kerry do? A cursory search finds no Kerry policy on the subject. (Bill Clinton, of course, failed to sign the Ottawa convention)

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