tag:blogger.com,1999:blog-11542449.post2741567070438051272..comments2024-03-04T05:55:35.225-05:00Comments on Vital Remnants: Khalid Sheikh Mohammed and the Obama administration's contradictory policy on terrorismMartin Cothranhttp://www.blogger.com/profile/16452612266051351726noreply@blogger.comBlogger57125tag:blogger.com,1999:blog-11542449.post-37753547315800201322009-11-27T10:30:17.731-05:002009-11-27T10:30:17.731-05:00> We've gone over your utilitarianism befor...> We've gone over your utilitarianism before, and you seem to think using bigger and bigger examples will somehow compel assent, when you're just assuming your premise.<br /><br />Well, it's no longer my "utilitarianism", is it? It's *our* utilitarianism. Remember?<br /><br />> Thomas: There's a big difference between allowing torture as a policy, and Leehttps://www.blogger.com/profile/12974887002402743628noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-64810332026532670452009-11-26T14:57:16.028-05:002009-11-26T14:57:16.028-05:00Lee,
You were arguing that KSM's trial shoul...Lee, <br /><br />You were arguing that KSM's trial should not take place in civilian court not because he's just a terrorist, but because he was an enemy combatant picked up on the battlefield. That was the crux of your argument, and you exerted a great deal of faux outrage that I was interpreting your argument in a way that would actually apply to KSM. It wasn't a quibble. You'reThomas M. Cothranhttps://www.blogger.com/profile/07824873424225826685noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-50980730872447934842009-11-26T12:46:54.713-05:002009-11-26T12:46:54.713-05:00> You claimed repeatedly that foreign nationals...> You claimed repeatedly that foreign nationals have no rights under the Constitution...<br /><br />I still maintain they don't. We do confer some rights as an act of grace, but it seems clear even from practice that we confer only a subset of those rights enjoyed by citizens.<br /><br />> you claimed that suspending habeas corpus was ok because Lincoln did it (when Lincoln did many Leehttps://www.blogger.com/profile/12974887002402743628noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-5985519588303728422009-11-26T12:35:34.400-05:002009-11-26T12:35:34.400-05:00> There's a big difference between allowing...> There's a big difference between allowing torture as a policy, and keeping it illegal but refusing to punish in a very rare instance that it prevents a great atrocity.<br /><br />In other words, when somebody does something right, we still have to rub his nose in the fact that he really did something wrong. So we'll give him the Congressional Medal of Honor, so he can wear it to hisLeehttps://www.blogger.com/profile/12974887002402743628noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-45109327259470411362009-11-26T12:25:32.699-05:002009-11-26T12:25:32.699-05:00> The criminal courts still have jurisdiction i...> The criminal courts still have jurisdiction if they want it, and nations in the past have chosen public trials for those who have committed egregious acts against a nation (see Eichmann's case).<br /><br />A curious example for illustrating due process, no? For one thing, it was Israel, not the US. For another, Israel suspended their law prohibiting capital punishment just for Herr Leehttps://www.blogger.com/profile/12974887002402743628noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-33473584717671020012009-11-26T12:16:04.011-05:002009-11-26T12:16:04.011-05:00> You're awfully sensitive for someone advo...> You're awfully sensitive for someone advocating torture.<br /><br />You've chosen to get personal, and I'm only asking for the same consideration you have asked for yourself. I.e., you complained in an earlier thread that you didn't want blanket opposition poor torture to be construed as indifference to the lives of terrorist victims:<br /><br />> You have the familiar Leehttps://www.blogger.com/profile/12974887002402743628noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-7121723913845629172009-11-23T10:29:18.896-05:002009-11-23T10:29:18.896-05:00Aside from the interpretive issue, I will say this...Aside from the interpretive issue, I will say this about torture. The law actually allows for choice of evil defenses, where a defendant may say that if he violated the law to avoid a greater evil, and this can be a defense. I'm not sure if this could be applied to the torture statute, because if I remember right, the treaty that Reagan signed that led to the way the statute is specifically Thomas M. Cothranhttps://www.blogger.com/profile/07824873424225826685noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-11415661181208761442009-11-23T10:19:14.993-05:002009-11-23T10:19:14.993-05:00You're awfully sensitive for someone advocatin...You're awfully sensitive for someone advocating torture.<br /><br />I don't know that anyone is saying KSM has a right to a civilian trial (correct me if I'm wrong, but even the Obama administration has not said that). My understanding of the Supreme Court cases is that, as I said, habeas corpus has a wider applicability than the bill of rights. Courts have applied that to mean that Thomasnoreply@blogger.comtag:blogger.com,1999:blog-11542449.post-84354860223035804272009-11-23T00:46:50.150-05:002009-11-23T00:46:50.150-05:00(Regarding the constitutional rights of (illegal) ...(Regarding the constitutional rights of (illegal) aliens, different subject, but still interesting, this post on Volokh:)<br /><br />http://www.volokh.com/posts/1218685192.shtml<br /><br />Second Amendment Doesn't Protect Illegal Aliens<br /><br />So concludes a Magistrate Judge in the Southern District of Florida, in U.S. v. Boffil-Rivera, recommending that the District Judge reject a Leehttps://www.blogger.com/profile/12974887002402743628noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-27291959583819561692009-11-23T00:35:41.657-05:002009-11-23T00:35:41.657-05:00> Did you read the part right above that? You k...> Did you read the part right above that? You know, the one that says: "Torture is defined as any act by which severe pain or suffering, whether physical or mental..."<br /><br />Yep.<br /><br />> The "extreme form of..." is not actually a definition, as you asserted, but a distinction of torture from cruel and inhumane treatment--which is also, as it happens, a war Leehttps://www.blogger.com/profile/12974887002402743628noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-42981278877356123942009-11-23T00:11:29.367-05:002009-11-23T00:11:29.367-05:00> Sorry, I had read your statement as consisten...> Sorry, I had read your statement as consistent with advocating torture and indefinite suspension. Sometimes one can be grateful for inconsistency, I suppose.<br /><br />So even when you misread what I write and step in a big pile of it, it's still my fault.<br /><br />And I was pretty clear about what I think about torture. But to you, the entire explanation was nothing more than a Leehttps://www.blogger.com/profile/12974887002402743628noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-91697935248465338022009-11-23T00:10:15.246-05:002009-11-23T00:10:15.246-05:00This comment has been removed by the author.Leehttps://www.blogger.com/profile/12974887002402743628noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-80890096027131667532009-11-22T23:30:16.170-05:002009-11-22T23:30:16.170-05:00Oh, and by the way, that section you're citing...Oh, and by the way, that section you're citing in the Code of Federal Regulation is just making the distinction I was earlier about how "serious" pain was an even lower standard than "severe" pain... and also a war crime under the federal statute. So that actually hurts your position in several ways.Thomas M. Cothranhttps://www.blogger.com/profile/07824873424225826685noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-42490272464977232712009-11-22T23:25:52.699-05:002009-11-22T23:25:52.699-05:00Did you read the part right above that? You know, ...Did you read the part right above that? You know, the one that says: "Torture is defined as any act by which severe pain or suffering, whether physical or mental..."<br /><br />The "extreme form of..." is not actually a definition, as you asserted, but a distinction of torture from cruel and inhumane treatment--which is also, as it happens, a war crime under federal law.<br />Thomas M. Cothranhttps://www.blogger.com/profile/07824873424225826685noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-85322275321288738252009-11-22T23:00:00.628-05:002009-11-22T23:00:00.628-05:00Sorry, I had read your statement as consistent wit...Sorry, I had read your statement as consistent with advocating torture and indefinite suspension. Sometimes one can be grateful for inconsistency, I suppose.<br /><br />I'm having a bit of trouble keeping up with you. First you say KSM has no right to a trial because the Constitution does not apply to foreign nationals. When that turns out to be flat out false (on a plain reading of the Thomas M. Cothranhttps://www.blogger.com/profile/07824873424225826685noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-2434961962241691592009-11-22T21:07:38.449-05:002009-11-22T21:07:38.449-05:00Okay, Lee, don't go overboard...
Please strik...Okay, Lee, don't go overboard...<br /><br />Please strike the word "calumnies" from the previous post. My bad. I shouldn't overstate. Substitute: "aspersions".Leehttps://www.blogger.com/profile/12974887002402743628noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-85873662580393789122009-11-22T20:58:22.443-05:002009-11-22T20:58:22.443-05:00The post that started all this high dudgeon about ...The post that started all this high dudgeon about quoting briefs instead of law:<br /><br />> Lee: 'And here's Holder's own Justice Department on torture:'<br /><br />>> "Torture is defined as 'an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment'"<br /><br />And here&#Leehttps://www.blogger.com/profile/12974887002402743628noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-28498834212906316672009-11-22T20:10:54.889-05:002009-11-22T20:10:54.889-05:00> If a lawyer misinstructed the jury, he could ...> If a lawyer misinstructed the jury, he could be censured. Judges have an even higher standard to measure up to. What you're advocating is far worse than judicial activism, it's full scale judicial legislation.<br /><br />So then, we should soon find the DOJ lawyers who wrote that brief will be censured? Fired? Prosecuted?Leehttps://www.blogger.com/profile/12974887002402743628noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-24835674558772492842009-11-22T20:07:51.327-05:002009-11-22T20:07:51.327-05:00> KSM was not picked up on a battlefield, he wa...> KSM was not picked up on a battlefield, he was picked up at a house in another country, and not by the military, but by two intelligence services. So your whole thing about him being the first terrorist picked up on a battlefield about (that I had so cruelly misinterpreted) was flatly wrong.<br /><br />Okay, so if Josef Goebbels had been picked up by the OSS in the home of a friend in Leehttps://www.blogger.com/profile/12974887002402743628noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-16041508935972020822009-11-22T19:54:03.336-05:002009-11-22T19:54:03.336-05:00Thomas, why can't I change a word in a law I d...Thomas, why can't I change a word in a law I don't like, if you can simply change the words that I wrote into something you can refute?<br /><br />You wrote this:<br /><br />>> And if you're fine with whatever Lincoln did, I'm sure you won't mind of Obama arrests a whole legislature when they're about to vote on something he doesn't like.<br /><br />And I wrote Leehttps://www.blogger.com/profile/12974887002402743628noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-7130169691715588002009-11-22T19:41:25.629-05:002009-11-22T19:41:25.629-05:00You said:
"I meant foreign combatants, terro...You said:<br /><br />"I meant foreign combatants, terrorists picked up off the battlefield."<br /><br />KSM was not picked up on a battlefield, he was picked up at a house in another country, and not by the military, but by two intelligence services. So your whole thing about him being the first terrorist picked up on a battlefield about (that I had so cruelly misinterpreted) was flatlyThomas M. Cothranhttps://www.blogger.com/profile/07824873424225826685noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-39847265276149728472009-11-22T18:44:09.162-05:002009-11-22T18:44:09.162-05:00> And, again, the problem with the brief is tha...> And, again, the problem with the brief is that it makes the standard for pain "extreme" rather than "severe". Hopefully you can see the problem with allowing a lawyer's brief to substitute different words into a statute, effectively rewriting part of the statute. Wouldn't defendants like to have that power!<br /><br />When a trial takes place, are lawyers allowed Leehttps://www.blogger.com/profile/12974887002402743628noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-41503151649383505862009-11-22T18:39:55.546-05:002009-11-22T18:39:55.546-05:00> Wasn't KSM picked up in a raid at a frien...> Wasn't KSM picked up in a raid at a friend's house in Pakistan rather than on a battlefield?<br /><br />If we had picked up Josef Goebbels at a friends house on the Army's way through Germany, would we have had to try him in a US civilian court?<br /><br />> And if you're fine with whatever Lincoln did, I'm sure you won't mind of Obama arrests a whole legislature Leehttps://www.blogger.com/profile/12974887002402743628noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-8703193446347345802009-11-22T12:05:47.060-05:002009-11-22T12:05:47.060-05:00And, again, the problem with the brief is that it ...And, again, the problem with the brief is that it makes the standard for pain "extreme" rather than "severe". Hopefully you can see the problem with allowing a lawyer's brief to substitute different words into a statute, effectively rewriting part of the statute. Wouldn't defendants like to have that power!<br /><br />And, under the federal war crimes statute, the Thomas M. Cothranhttps://www.blogger.com/profile/07824873424225826685noreply@blogger.comtag:blogger.com,1999:blog-11542449.post-18301743315963319452009-11-22T11:53:48.593-05:002009-11-22T11:53:48.593-05:00Wasn't KSM picked up in a raid at a friend'...Wasn't KSM picked up in a raid at a friend's house in Pakistan rather than on a battlefield?<br /><br />And if you're fine with whatever Lincoln did, I'm sure you won't mind of Obama arrests a whole legislature when they're about to vote on something he doesn't like.<br /><br />The Constitution governs at least those situations over which the United States has Thomas M. Cothranhttps://www.blogger.com/profile/07824873424225826685noreply@blogger.com