Welcome Gregory Fried, and Host Mary.

[As a courtesy to our guests, please keep comments to the book.  Please take other conversations to a previous thread. - bev]

Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror

Mary, Host:

Father and son, Charles Fried (former solicitor general of the United States under Ronald Reagan, legal scholar at Harvard University and author of Modern Liberty) and Gregory Fried (chair of the Philosophy Department at Suffolk University and author of Heidegger’s Polemos) have undertaken the daunting task of examining the limitations and excesses of modern day Presidential power to gather intelligence by torture and surveillance. In order to reach their ultimate conclusions as to the interplay of law, morality, civil community and political leadership, the Frieds review sources and thought from Aristotle to Machiavelli to the Bible, including principles from epieikeia to “dirty hands” to religious and secular precepts relating to human dignity. They have deliberately kept the conversation, “as wide as possible” in recognition that “ours is a nation founded in philosophy.”

While the authors are very clear on their own conclusions, they give an even-handed examination to competing arguments and points of view, legal and philosophical. With respect to torture, the authors use a painting by Leon Golub, titled Interrogation I, to serve as a visual focus for their discussion. This imagery reinforces that a serious discussion of torture must reach beyond a dry legal analysis and into the moral and philosophical underpinning of who we are and how our communities function. You cannot look at Golub’s picture and think that the first reaction of a man or woman should be to look up a statute or reach for a dictionary. For some, the discussions on torture may be too weighted towards a religious view that decries torture of man in part as the desecration of the image of God, but the authors also consider and at times propound a more humanist approach as well.

While they bring each of their backgrounds to bear, legal and philosophical, the Frieds reach agreement that the prohibition on torture should and must be absolute, despite consideration of the “ticking time bomb” scenarios commonly used to bolster the opposing arguments. They posit that torture is not wrong because it is illegal, but rather, it is illegal because it is wrong (and not just inherently, but absolutely, wrong). Golub’s picture provides a constant visual reinforcement that argument follows, rather than leads, when a basic and absolute wrong is at issue.

Father and son fail to agree, however, on the consequences of such an absolute prohibition. Gregory believes that the consequences of violation of such a prohibition, “if we assume the worst” should necessarily require criminal prosecution. Charles, on the other hand, argues that “Cheney is not Hitler”with respect to a consideration of the scale of violation and worries that prosecution would be seen as politically motivated and that failed prosecutions might be worse than a lack of prosecution. Charles offers the argument that while torture can never be justified, at times it may be able to be excused and the Bush administration reactions may into this category.

With respect to government surveillance rather than torture, the Frieds reach different conclusions. Just as Golub’s Interrogation I is used to focus the visceral response to torture, surveillance discussion is focused in part by the historical references: the actions of President Lincoln in suspending habeas corpus after the Fort Sumter surrender and of President Jefferson in assuming the powers of the purse after the Chesapeake-Leopard affair. Given the authors’ determination that surveillance, unlike torture, is by its nature a legal wrong, it is not surprising to see the conversation align itself around historical precedent. In both of these “precedents” however, the Presidents who usurped powers not granted to them by the Constitution did so publically and then promptly went before Congress with a request for Congress to step in and give after-the-fact ratification to what had already been done.

Both of the historical precedents involved situations where the actions at issue would have been perfectly Constitutional if they had been done by the Legislative rather than the Executive branch – they were “illegal” not in their end result, but rather in the governmental process used to achieve that result.

Similarly, we can also say that parts of the President’s Surveillance Program were wrong only because they were illegal – they violated FISA – and that Congress’s action in 2008 in passing the FISA Amendments Act cured that defect. Congress went further and immunized those whose actions were illegal when they did them, but were illegal no longer.

pp 153-154.

In contrast to torture which is an absolute wrong even when used to gather intelligence to save lives, the Frieds determine that surveillance is instead a well recognized power of the sovereign and is only wrong”when done illegally. They argue that Congressional actions to revise FISA and grant immunity are on a par with Congressional actions to ratify Lincoln’s suspension of habeas and to ratify Jefferson’s spending.

It is very often a thankless task to tackle such complex and emotional subjects and I would like to thank the Frieds for their efforts to take the argument from soundbytes and towards a deeper discussion. With that, I’d like to welcome Gregory Fried to FDL today.

91 Responses to “FDL Book Salon Welcomes Gregory Fried, Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror”

egregious October 17th, 2010 at 2:01 pm

Welcome to Firedogake – glad you could join us today!

BevW October 17th, 2010 at 2:01 pm

Gregory, Welcome to the Lake.

Mary, Thank you for Hosting today’s Book Salon.

Mary October 17th, 2010 at 2:01 pm

Thank you for spending time with us this afternoon Gregory. One quick question before we get going – the title of your book made me wonder if the original thought was to address only torture and if not, how you came to decide on pairing the analysis of Executive branch directed torture with an analysis of Executive branch directed surveillance programs?

Gregory Fried October 17th, 2010 at 2:01 pm

I am delighted to be here, Mary.
Greg

Gregory Fried October 17th, 2010 at 2:03 pm

In fact, the book arose out of a variety of concerns, all summed up by the subtitle: torture, privacy and presidential power. In our view, the three are linked by the pressures facing government and society in the age of terror. Torture is simply the most sensational of the three. But not for that reason the only issue that is essential.
Greg

Mary October 17th, 2010 at 2:03 pm

One of (the many) things I was left wondering after I finished you book was what does it really mean from the standpoint of individual responsibility and duties to conclude that torture is an absolute wrong? Is the duty to merely refrain from engaging in the torture or is there a more affirmative duty – to speak out, to expose, to protect, . . .?

Gregory Fried October 17th, 2010 at 2:04 pm

To expand on that point a little: the executive faces tremendous pressure in times of emergency, and that is what, in our view, bridges the issues of torture and invasion of privacy.
Greg

dakine01 October 17th, 2010 at 2:05 pm

Good after noon Gregory and Mary and welcome to FDL this afternoon Gregory.

Gregory, I have not had an opportunity to read your book but do very much agree with you that Cheney and many others in the Bush Admin should have been prosecuted. I also understand your father’s perspective but he is forgiving of the crimes itself. As many prosecutors have stated over the years, they still have to prosecute the crime, even if they wind up losing.

So here’s my question, how do we reclaim the rule of law and the Constitution as right now, it is not just the torturers and the wire tappers but it is all the institutions including the banks who commit fraud and seem to think there are no punishments so they can do as they wish.

It seems crimes are only for the “little people” to paraphrase Mrs Helmsley

Gregory Fried October 17th, 2010 at 2:06 pm

There is certainly a duty to speak out. That is why I felt so strongly after Abu Ghraib — first to find out what I could, then to speak out against what I believe is a serious crime and also a profound threat to the principles of our government.
Greg

dakine01 October 17th, 2010 at 2:07 pm
In response to Gregory Fried @ 7

As a technical note, there is a “Reply” button in the lower right hand of each comment. Pressing “Reply” will pre-fill the comment number and commenter name to who you are replying. It will make it much easier for folks to follow the “conversation”

Note: Some browsers don’t like to let the Reply work correctly if it is pressed after the page has been refreshed and before the page completes loading.

Gregory Fried October 17th, 2010 at 2:09 pm
In response to dakine01 @ 8

You are right that it is terrible that only “the little people” have to pay the price for these crimes.

If I may speak (cautiously) for my father, what I think he’d say is that in our system of law, there is NOT a requirement that prosecutors prosecute all crimes. There is discretion in our system, though not in others. He would NOT say that not prosecuting is the same as forgiving, however. I think that is true.

How do we restore the COnstitutional balance here? There is no obvious way other than to call for action on these crimes.

Greg

Gregory Fried October 17th, 2010 at 2:09 pm
In response to dakine01 @ 10

Got it now. Thanks.
Greg

Jim White October 17th, 2010 at 2:09 pm

Thanks for being here, Gregory, and thanks for hosting, Mary. (And, as always, thanks to Bev for organizing.)

Gregory, your book is a compelling read and I thank you and your father for the effort you put into working through such complex subject matter on a level that a very wide audience can appreciate.

I find your arguments on torture to be compelling and laid out well (and I side with you against your father on the final conclusions regarding prosecutions) but I do differ strongly with a part of your argument on page 113.

Where you state:

There is no reason to believe that President Bush too, in his response to 9/11, was moved by anything other than a similar sense of honor, the sense of an unexpected, awesome responsibility, and the imperative to do his duty.”

I realize that this passage is in your preface to the FISA section, but, to the extent that it can be extended to the torture discussion, I differ strongly. There is a significant body of evidence pointing to much of the worst torture (including waterboarding KSM 183 times) taking place in order to produce a false confession linking Saddam Hussein to the 9/11 attacks. Doesn’t that take away the argument that Bush was torturing for noble reasons?

rmwarnick October 17th, 2010 at 2:11 pm

I think the self-serving logic behind the Bush-era “legal” rationale for torture went like this: “If we can kill a guy, and that’s legal, then it must be OK to non-fatally torture him.”

That was basically it. Boneheads.

spocko October 17th, 2010 at 2:11 pm

Greetings: I sent a longer version of this question to Dr. Fried last night to lay out my thinking and reasons.

The right wing media’s support of torture and the linguistic trick of renaming torture and torture techniques have had a profound impact on the views of a large part of this country.

What steps are you and the promoters of your book taking to actively challenge the right wing media’s views on their support of torture?

So, are you planning any active work to educate/challenge the right wing media’s views in support of torture?
Here is the thinking behind the question.

I had noticed that when the media talked about torture and its support they often look to four areas:

1. Rush Limbaugh’s famous, “Blowing off steam” comment
2. The TV show 24, “.i.e. Bauer’s torture works, is necessary, and the person tortured is the right one. Also, by its very nature, 24 leads to area number 3
3. The “Ticking Time Bomb” scenario, as articulated by Alan Dershowitz
4. Yoo or Bybee memos for legal support

What I rarely see in the media is someone actively destroying each of those scenarios.

I also believe that PR people who have book authors on tour need to actively challenge the right wing media by picking fights, calling them out and opposing them. These actions will give the mainsteam media a fight they can write about and hopefully will sell a few more books.

When Sean Hannity says, “Waterboarding isn’t torture” lots of people believe him. The one person who wanted to argue with Hannity about torture, Jesse Venture, had his interview cut short before he could raise the issue. The right wing can not have a real discussion on this topic and they keep getting away with not having their morally repugnant views and legally incorrect views challenged.

I don’t expect you to go on Fox and call them out, it’s a rare individual who can beat back their bullying. But we can’t ignore the fact that the right wing have come down on the side of torture and they have convinced a number of decent people of their views. People on the right need a strong moral, legal or military argument to hold in their head to oppose someone like Hannity.

Gregory Fried October 17th, 2010 at 2:13 pm
In response to Jim White @ 13

Jim,

If it is true that KSM was tortured that way IN ORDER to produce a false confession, that would undoubtedly be true — that it would be profoundly dishonorable, not to mention criminal, even treasonous, given the stakes. That is part of the problem: we don’t have the full account of why he was tortured in THIS way and who ordered that it be done so many times, and why.

Greg

Mary October 17th, 2010 at 2:14 pm

You cover a lot of ground in your book. When I read the section on “learning to not be good” I tended to tie some of that section to the very muted response in America to torture, not just to the torture of Khalid Sheik Mohamed, but to men like Khalid el-Masri and Maher Arar as well. It made me wonder if leaders who adopt the Machiavellian approach at some point are required to also teach their communities what they have learned? Hasn’t America in large degree “learned” over the last several years to tolerate torture, as long as it comes with the right trappings of patriotism?

Gregory Fried October 17th, 2010 at 2:14 pm
In response to rmwarnick @ 14

Certainly for some, it was something like that.

Greg

Gregory Fried October 17th, 2010 at 2:16 pm
In response to Mary @ 17

That is what worries me so much, Mary: that with the show ’24′ and the actions of the Bush administration, and with media commentators like Rush justifying torture, we are undergoing a profound shift in what I would call the fundamental moral consensus in our nation. That would be a terrible blow to our democratic republic, because — as we say in the book — torture is the device of tyrannies, not of democracies.
Greg

Mary October 17th, 2010 at 2:19 pm
In response to Gregory Fried @ 16

I had a very similar reaction to Jim when I read that same sentence. I do appreciate the fact that your book makes its argument against torture based on the “eve IF they are simply trying to do the best thing to protect the nation” but I am much more cynical as to motivation. We did have a certain amount of public record from reporting (although not legal) sources with respect to Ibn al-Shaykh al-Libi and we will never really get to final answers there, due to his “suicide” when he somehow ended up in Libya.

I guess with so many instances like al-Libi’s and with Congressional inaction seemingly all that can be expected from either party, what would you hope under a best case scenario your book could accomplish with respect to Americans and torture?

Gregory Fried October 17th, 2010 at 2:20 pm
In response to spocko @ 15

Spocko,

I (we) are doing the one thing we know we can do to oppose this mentality: to write a book for as wide an audience as possible and to do as much as possible to speak about it in public (that is, not just academic) settings, such as here on Firedoglake (thank you very much, Bev and Mary!).

But how can one counter the power of Rush, TV shows like 24, and Fox News? A friend suggested to me that I write a movie script. Well, maybe, but I’m an academic. I have to do what I know. We all do. We need to be informed and to speak out against bad arguments and untruths wherever we see them.

Greg

Gregory Fried October 17th, 2010 at 2:22 pm
In response to Mary @ 20

In a best case scenario: a Congressional investigation (and possible criminal prosecution, as warranted) of the history of torture by our government.

Good luck with that though after this November!

Greg

Jim White October 17th, 2010 at 2:23 pm

Greg,

Much of your father’s argument against prosecutions for torture rests on claiming that it would be seen by the public as just more political vindictiveness where the Democrats would be firing back for the Republicans’ impeachment of Clinton. This argument has been around for quite a while, and came up in 2008 at Netroots Nation in an very interesting session where Cass Sunstein was making this very argument. The very next speaker was Don Siegelman, who also was a victim of a political prosecution. I asked him if he thought that the public would be able to distinguish between prosecutions of real, heinous crimes such a torture and political prosecutions such as his or Clinton’s. Not too surprisingly, he said he thought the public could distinguish between the two types of prosecutions.

Did you try presenting an argument along these lines to your father? Doesn’t his justification paint the public as unable to distinguish real crimes from politics?

Gregory Fried October 17th, 2010 at 2:25 pm
In response to spocko @ 15

By the way, Spocko, I entirely agree with you that those making the arguments for torture need to be challenged directly, in a public setting. The problem is, that never seems to happen — we are never, as it were, in the same room as them. The one instance that I thought was most telling was Jon Stewart’s interview of John Yoo — but Yoo did a very fine job of putting Stewart on the defensive. At least the latter failed to deal Yoo any serious damage.

Greg

Gregory Fried October 17th, 2010 at 2:30 pm
In response to Jim White @ 23

Jim,

That’s a good question. I have faith that the public would know the difference.

However, there are reasons to be concerned. For example, a Gallup poll in 2009 showed that 51% of Americans supported the “enhanced interrogation” used by the Bush administration and that an even great number opposed prosecutions.

As my father has said, if we prosecute, we won’t see the end of the trials until the final years of the second Palin administration. That’s meant to be a joke, but a dark one: there is reason to worry that the far right in this country would be profoundly mobilized by criminal prosecutions of a president — something that has never happened before — who would claim to have been doing nothing more than protect us. That could indeed sweep Sarah Palin, or someone like her, into the presidency.

Is that really so far-fetched? Alas, no….

Greg

spocko October 17th, 2010 at 2:30 pm
In response to Gregory Fried @ 21

Greg:
I’m glad you are here. And I understand you being an academic understandably directs your expertise in a certain way. My question in some way is directed to the people in marketing and PR on your side of the issue.

As I laid out in my letter I professionally prepare people for press and media interviews and have worked with PhDs, CEOs, CFOs, scientists, and authors of many stripes. It pains me to see stories where an author falls into a narrative set up by the other side. I hate seeing right wingers “winning” the story because they went on the attack, putting the other side on the defensive. It’s about more than just who has the snappier sound bite, but even in that area I see too many experts getting in their own way when talking to the press.

And aggressive media plan would be something like I developed in response to Hannity’s support of torture, where I would get
the Catholic Church,
Malcolm Nance former SERE trainer and Fox News commenter who wrote the famous blog post. Waterboarding is Torture. Period
National Religious Campaign Against Torture
Dean of West Point, Brigadier General Patrick Finnegan
And Linguist Geoff Nunberg

To condemn him in each of the areas that he is misleading his audience about torture.
That is the kind of coordinated directed program that needs to happen to make an impact on the right wing.

Mary October 17th, 2010 at 2:32 pm
In response to Gregory Fried @ 19

This is what has me worried as well. I’ve seen some of what, from a legal perspective, we would have called a slow rollout that seemed realtively structured. Driblets and bits and pieces of things began to be acknowledged until they were accepted or the media felt they had been “dealt with” and then, for example when 3 waterboardings became dozens, and a dozen dozen, and more – the fact of waterboarding was already “old news” even though the old news had been a lie. It also seems at times that very sophisticated political messaging gets employed.

Gregory Fried October 17th, 2010 at 2:34 pm
In response to spocko @ 26

Spocko,

From your lips to God’s ears, as they say!

I am not a PR person, far from it. So my question to you is, why ISN’T this happening? Why are there NOT such debates on the air? Has our media culture become SO polarized and SUCH an echo-chamber of like-speaking-to-like that no producers are interested in setting up such scenarios?

I simply am ignorant of the media culture, so I am asking you. I would welcome the chance to tilt at those windmills, but is has not been offered….

As for why the opponents to torture do so badly, well, perhaps they are not accomplished sophists in the way that Hannity & co. are. Those folks have skills, whatever else you want to say about them.

Greg

RevBev October 17th, 2010 at 2:38 pm
In response to spocko @ 26

And the American psyche….people are so overwhelmed and get so much stuff. That’s a great plan. Why hasn’t it happened? I was wondering today where are the voices that call us to be our better selves? Carter certainly tries, but there needs to be more and more effective.

donbacon October 17th, 2010 at 2:38 pm

While examining the limitations of torture, have you considered that torture is not only wrong, but probably ineffective?

Jacobo Timmerman, an Argentine journalist, was tortured back in the seventies by the police. When asked about it later, he said that it was a thoroughly dehumanizing experience. “I felt I was becoming a vegetable, casting aside all logical emotions and sensations–fear, hatred, vengeance–for any emotions or sensation meant wasted energy.”

There is other anecdotal evidence that people under torture tell their masters what they probably want to hear.

Do torturers widely believe that they might get rational thought from such activity, and why do you believe they think so?

Mary October 17th, 2010 at 2:40 pm

In the Lincoln and Jefferson precedents you discuss in the book, Congressional action initially would have avoided the issues of unconstitutionality and illegality as you note. However, with the Bush and Obama surveillance programs, neither Congress nor the Executive is authorized to violate the Fourth Amendment. The FISA Ct Chief Judges who were briefed on (some part of) the Bush program, Lamberth and Kollar-Kotelly, both reportedly felt that the program violated the Fourth Amendment and this was the opinion as well of Judge Diggs-Taylor, one of the few other judges who actually required a description of the program as well. Doesn’t that put the Congressional effort to “fix” things by amendments to FISA in a different category?
Put another way, while the Constitution contemplates some government surveillance, more importantly it affirms a right to be free from all other kinds of government surveillance. Doesn’t the fact that a broad array of potential government surveillance was prohibited as a part of the social contract the nation reached in its earliest stages indicate that America’s reaction to government surveillance is that it is, in many forms, also something intrinsically wrong, to be prohibited outside of the limited grant of the Fourth Amendment – putting it more on a par with the visceral reaction to torture as well?

PS – I think you could do a good job with screenplay – you don’t know until you try.

Gregory Fried October 17th, 2010 at 2:40 pm
In response to Mary @ 27

Mary,

That may be it, but I suspect (though what to I know) that the “slow roll out” of information is due to the resistance in the implicated governmental agencies to offering that information up, as would only be natural — these are, after all, crimes. Felonies.

But the effect is that the public has become inured to the facts, and in the meantime, “24″, Rush, Hannity, Cheney, etc etc etc have succeeded in openly justifying such techniques as what hard-nosed, red-blloded Americans do to defend their country. And a lot of the country buys it.

So much the worse for us.

Which gets back to Spocko’s point: why is it so hard to get effective voices on the other side?

In part because the Democrats have been quite craven on this issue. Yes, Obama has discontinued the worst Bush practices. Yes, he made a point of it in his campaign. BUt I suspect that many Americans think that electing Obama was one way — and perhaps a sufficient way – to “just say no” to torture.

But the precedent is still there, like a loaded gun on the table, as Justice Jackson put it.

Greg

Jim White October 17th, 2010 at 2:40 pm

Greg,

Your argument that allowing the executive branch to break the law with impunity leading inevitably to tyranny is very well-crafted and compelling. It seems to apply particularly well to Obama in the area of state secrets. This was a concept the Bush administration used to hide many of its worst actions and seems to be the Bush tactic that Obama has embraced and even extended with the most enthusiasm. Have you and your father discussed state secrets as they apply to the concept of a representative democracy? It would seem to me to make a terrific follow-on book (hint, hint).

spocko October 17th, 2010 at 2:41 pm
In response to Gregory Fried @ 24

Yes, it is hard to get them in a room and confront them directly. Also, not everyone is trained to deal with verbal bullies like Hannity or legal experts like Yoo.

One way it is done is to challenge them by proxy in the media. Or in your own panels.

We need people like you helping us develop the arguments so we and your PR team can take them to new places with aggressive methods.

I asked Mark Danner some of these questions (like how to argue with wingnuts about the problems with the Ticking Time bomb) after his book Torture and Truth came out. His answer surprised me and helped me with my future conversations and arguments with the right wing.

Video here

Gregory Fried October 17th, 2010 at 2:42 pm
In response to RevBev @ 29

Bev,

I sometimes despair of this question. Jon Stewart and Colbert seem to be the only public voices that are able to seize a mainstream audience on a question like this. Stewart’s rally next weekend may be an important bellweather. I sincerely hope so.

Greg

Gregory Fried October 17th, 2010 at 2:44 pm
In response to Jim White @ 33

Jim,

I was terribly disappointed by the outcome to the Binyam Mohammet (sp?) case on state secrets and I agree entirely with you that this is a very serious problem. I am not sure of my father’s view on this, so I will leave him out of it, but it strikes me as a mockery of justice to use the states secrets argument in cases where the methods are a matter of public record in any case. But more than that, in this war on terror (so called), the states secrets defense could be used to cover just about anything. It’s a terrible precedent.

Greg

Mary October 17th, 2010 at 2:47 pm
In response to spocko @ 26

One thing that I think has been hugely detrimental to something like this happening is that with each instance that has dribbled into the public, either the Bush or Obama administration promised investigations. And that kind of broad terminology was all that any media used and was what members of Congress who – for whatever reasons – also did not want to be bothered with these issues, used.

But as several blogs have noted at those various junctures, the types of investigations planned were almost entirely geared towards makings sure nothing would come from them. The details on the scope of investigations (such as investigations that targeted ephemeral “state of mind” issues for Yoo and Bybee in connection with their drafting and would have required a literal smoking gun of an intent disclosure (like an email saying – “here’s how to cover up torture”) were useless from the start. Real investigations, into things like why no litigation hold notices were put on for any of the torture evidence, and why the ED of VA was both investigating criminal charges for torture with videotapes of the torture at their fingertips, while other lawyer in the ED VA were signing off on declarations to the court that there were no such videotapes – - the devil was in the details and the Executive branch investigations to which everyone deferred made sure those details were never investigated. Then statutes of limitations run out, evidence is destroyed, and lies to the courts, issued repeatedly and under two administrations, become operating procedure.

Mary October 17th, 2010 at 2:49 pm

In the Lincoln and Jefferson precedents you discuss in the book, Congressional action initially would have avoided the issues of unconstitutionality and illegality as you note. However, with the Bush and Obama surveillance programs, neither Congress nor the Executive is authorized to violate the Fourth Amendment. The FISA Ct Chief Judges who were briefed on (some part of) the Bush program, Lamberth and Kollar-Kotelly, both reportedly felt that the program violated the Fourth Amendment and this was the opinion as well of Judge Diggs-Taylor, one of the few other judges who actually required a description of the program as well. Doesn’t that put the Congressional effort to “fix” things by amendments to FISA in a different category?

Put another way, while the Constitution contemplates some government surveillance, more importantly it affirms a right to be free from all other kinds of government surveillance. Doesn’t the fact that a broad array of potential government surveillance was prohibited as a part of the social contract the nation reached in its earliest stages indicate that America’s reaction to government surveillance is that it is, in many forms, also something intrinsically wrong, to be prohibited outside of the limited grant of the Fourth Amendment – putting it more on a par with the visceral reaction to torture as well?

Gregory Fried October 17th, 2010 at 2:51 pm
In response to donbacon @ 30

donbacon,

We were trying to make a deontological, rather than a consequentialist argument against torture — that is, that it is simply and always wrong because of the kind of act that it is, not because of the bad things that result from it. We did not want to undermine our case by mixing the two.

That said, I agree that torture is usually ineffective. Also, if you talk to professional interrogators, and I have, they will tell you that torture is very unreliable. It’s use, historically, has been to terrify a population, to get forced confessions, and to punish, not to gather reliable information.

That said, I think our government was desperate after 9/11 for intelligence. If you read Jane Mayer’s book, The Dark Side, or Jack Goldsmith’s book, The Terror Presidency, they really did believe, based on threat assessment intelligence, that attacks as bad or worse than 9/11 were coming our way. The Bush folks were humiliated by the blow on 9/11 and felt a deep responsibility to prevent another such attack. So they were willing to try anything, I think. That is not a justification or an excuse. Just a reconstruction of what I take to be the human, all to human, motivations.

Greg

spocko October 17th, 2010 at 2:53 pm
In response to Gregory Fried @ 28

Excellent question and I’ll give both an answer/excuse and some suggestions.

I wanted to get Sean Hannity’s views on torture condemned by the Pope.
Sean Hannity is the most prominent right-wing Catholic broadcaster in the country today.

Both the last Pope and the current Pope have made statements against torture.

Sean Hannity’s moral views on torture comes from folks like Dick Cheney and John Yoo–not from the current views of his faith, Catholicism.

Pope Benedict XVI has said that “the prohibition against torture ‘cannot be contravened under any circumstance.’”

However when I contacted the Archdiocese of New York (where Hannity lives in his $6.5 million dollar mansion) my calls were not returned. When I corresponded with a Jesuit who wrote a book on this topic he told me he could not participate in a debate with Hannity. When I spoke to the ED of the National Religious Campaign Against Torture he was very helpful and I was given good information and access to resources, but they didn’t want to challenge or attempt to educate Hannity, but rather preferred to work “behind the scenes”

The note from the Jesuit was troubling, but the ED of NRCAT comment about how they just couldn’t take on Hannity because it might upset their membership really depressed me.

Hannity is a right wing authoritarian. He is also a Catholic and should be cowed by the Pope on this issue. But the Pope has other things to worry about (as does his NY church) I mention the Church and the joke is the Spanish Inquisition. The Church hasn’t been pro-torture for a long time. And they can actually talk about how they understand better how wrong it was/is.

My suggestions next post.

Gregory Fried October 17th, 2010 at 2:56 pm
In response to Mary @ 38

Mary,

I understand your frustration, but I don’t think so. The 4th amendment says no “UNREASONABLE searches and seizures” and “no Warrants shall issue, but upon probable cause.” I just do not think that there is anything in the Constitution that “affirms a right to be free from all other kinds of government surveillance” — and there are plenty of decision by SCOTUS that affirm the right of the government to conduct all sorts of surveillance WITHOUT a warrant. Indeed, FISA was enacted to limit the government given that legal history.

So, I think we have to face it: the fact that warrants have to be issued on probable cause does NOT mean that ALL surveillance WITHOUT a warrant is unconstitutional.

But maybe I misunderstood you.

Greg

Mary October 17th, 2010 at 3:02 pm

I think where Jon Stewart failed a bit with John Yoo is that Stewart went in with a bit too much briefing from the news and too little briefing from people who spent time with Yoo’s opinions and knew what duties and responsbilities he had as a lawyer, separate and apart from his humanity. Stewart relied on humanity in his arguments and I don’t think that is how you deal with someone like Yoo.

For example, the mainstream myth has been, over and over, that the Yoo/Bybee OLC memos provided a “good faith” defense to torturers and both Yoo and Bybee sat by while Congress and members of the Executive branch argued “good faith” as a reason for providing amnesty or not having investigations. And yet – if you read the memos, they both very clearly state that torturers will not likely be able to benefit from a “good faith” defense, since what looks like torture will not easily be ascribed by a jury to being a pure action that had no intent to torture attached.

These kinds of areas are where Yoo is best questioned imo. Not asking him how he could think that only pain equivalent to organ failure is torture, but instead asking him what due diligence he performed for his opinions, what he was required to do when he discovered the fact basis of his opinions was invalid, whether or not torturers could claim a “good faith reliance” on his opinions and if not, why not, etc. (note that both Yoo and Bybee have argued when they were investigated by OPR that their opinions were not reliance opinions and could not be used for that purpose, and yet they both sat silent while the Executive branch sold the media and Congress on the fact that the opinions WERE opinions given to the torturers and upon which the torturers could rely – they sat silent while the Exec branch completely misrepresented their opinions to Congress and the media.

Stewart does a wonderful job with politicians, bc selling their humanity is a part of their pitch, so he can skewer them. Yoo is selling something very different.

Gregory Fried October 17th, 2010 at 3:03 pm
In response to spocko @ 40

Spocko,

Do you know Jim Carroll, the novelist, historian, former Catholic priest, and Boston Globe editorialist? He’d be a fantastic speaker on the question of Catholicism and torture. I know him well, so if you are in a position to get him air time on this question, we can talk. He is also a VERY fine speaker and not easily spun out by demagogues…

Greg

AdamPDX October 17th, 2010 at 3:06 pm

“Because It Is Wrong”

Yeah. Exactly!

I usually add some expletives, though.

Gregory Fried October 17th, 2010 at 3:07 pm
In response to Mary @ 42

Mary,

That’s an excellent analysis of the Stewart-Yoo episode. But notice that it requires such a fine-tuned understanding of rhetorical strategy, as well as of the facts, that it’s hard to imagine it being deployed in the heat of the moment by someone not totally immersed in the material, not even someone as smart as Stewart. Yoo is no easy dragon to slay!

Greg

RevBev October 17th, 2010 at 3:07 pm
In response to Gregory Fried @ 43

I wonder…and do you think the torture breakdown has contributed to the other incivility we are seeing? Something must account for the whole general coarseness we are seeing all around.

emptywheel October 17th, 2010 at 3:08 pm
In response to Jim White @ 13

That, and the fact that Bush ignored warnings. I have long believed that Bush overreacted to compensate for his failure to respond to warnings.

Gregory Fried October 17th, 2010 at 3:11 pm
In response to Adam503 @ 44

Thanks, Adam. If I thought the expletives would work, I’d use them. But I think that it’s the other side in this argument that is the master of the gutter brawl. I am fairly certain that the argument against torture, if it is to win out eventually, must be equated with the voice of moderation. The sad truth is that the public mood in the US right now is one lusting for red meat (emphasis on the RED), and so a strong but moderate voice find it hard to get a hearing. Obama has tried mightily to restore a sense of moderation to American political debate (and I agree with his deep point here: it is very dangerous, the political divisiveness of the past 10-15 years). That is why my father and I tried to write a CIVIL exchange on this topic.

But maybe we got the tone wrong. But it’s the only one I know….

Greg

spocko October 17th, 2010 at 3:13 pm

One of the reasons that there aren’t “popular” debates about torture is because it a real downer. It’s not ‘entertaining enough and producers can hear the channels change all over the the country. So when anything happens it needs to be a news event. And often when news events happen we are on the defensive and lots of people want to bury it right away.

So when there are new photos that might be released there is a lot of talk about “moving forward” and “more damage will happen” it will put lives at risk. At that point, where there is a news event it is the opportunity for people against torture to push the discussion forward and challenge the people who support it.

“Sean if you still feel that waterboarding isn’t torture why don’t you want to see the video tapes of this torture? Sean, if you still believe that waterboarding isn’t torture why didn’t you get waterboarded for charity.”

Yes, this is ‘entertainment’, but it is also a wedge into their lies, myths and linguistic renaming tricks.

Another thing that I will point out is these events/forums don’t happen for free by magic. So who is the person paid to set up these events to hammer at the incorrect messages by the right? The groups that should be doing it had an opportunity when I came to them and didn’t take it. They would rather have their little academic conferences in a hotel somewhere instead of wading into the mud of the right wing noise machine.

I’ve helped dozens of companies make millions, got radio hosts who support torture fired and cost a radio station millions in revenue. Yet when I brought my expertise to bear to help push this issue it was ignored.

gesneri October 17th, 2010 at 3:14 pm
In response to Adam503 @ 44

And because what happens to the torturer and the society that gives him license to do it is, if possible, worse than what happens to the abused. It’s a complete moral breakdown. There should be no argument–it’s wrong, that’s it, the end.

Gregory Fried October 17th, 2010 at 3:15 pm
In response to RevBev @ 46

Bev,

I am no sociologist or cultural historian, but I can point to several factors to the erosion of civility:

1) The severe blow to the economy and the panic that folks are feeling.

2) A general sense among conservatives that their world is changing — for the worse. But they are used to it their way, and their are in a fury.

3) The rise and now apotheosis of talk-radio style punditry. Rush is a de-facto leader of the Republican party, not to mention Glenn Beck.

4) Perhaps a long-simmering cultural sense, since the anti-authoritarianism of the 1960′s, that moderation is a sign of inauthenticity, uncoolness, and wimpiness.

That’s just winging it, though.

Greg

Mary October 17th, 2010 at 3:15 pm
In response to Gregory Fried @ 41

I’d disagree with you on that, but it is perhaps more than we can get into in comments.

As a thumbnail, though, while your book titles its chapter “The Big Ear” a very famous reference to government surveillance also comes from Judge Keith and it is “the uninvited ear.” As most SCOTUS cases that involve planned government surveillance over any period of time have held, the warrant clause is a modifier from unreasonable searches and seizures. SCOTUS was very clear in Judge Keith’s case (U.S. v. US Dist Ct) that however reasonable it might have been, government surveillance of U.S. citizens communications was prohibited without a warrant based on probable cause. In the wiretap area where US citizens are involved, that has been the position of SCOTUS.

The interesting part about FISA is that it evolved in huge parts from dicta in the Keith case, which attempted to suggest ways to expand, not limit, government surveillance powers given the limitations that were coming from the holding of the Keith case itself. Whether FISA itself, even prior to amendment, met the Keith case standards and dicta is very questionable (and it’s why “the wall” evolved, bc of the concerns as to FISA’s unconstituationality without the wall) but the beauty of the legislation is that they have so far managed to avoid review by SCOTUS.

There are some limited types of searches that are allowed without warrant, but wiretap searches of communications and in particular, seizure of such communications and storage for later use, as is being done, have never been allowed by SCOTUS. We may be due for a change there, too, but the same kind of structure that was attempted in the MCA (using a limited court review) and struck down is at the heart of the secret FISA court. And now that the amendments allow for FISA warrants to issue for criminal investigation purposes but in areas where there is not probable cause for a Dist Ct to issue a warrant – the Keith case dicta has been blown through pretty entirely.

emptywheel October 17th, 2010 at 3:16 pm
In response to spocko @ 26

One of the problems is that those successful messages have been tested, and they end up not working. I know that pollsters have even tested whether Colin Powell, who remains (bizarrely) one of the most trusted people in America, condemned torture and hit back and the narrative. And it didn’t work in poll testing.

Which is not to say we shouldn’t try. But that’s why the political institutions aren’t trying.

I went to the underwear bombers hearing the other day. He looked like a boyscout. No one in the court house even knew he was there. But fearmongering about him was one of the biggest factors in making Dems cower even more.

Gregory Fried October 17th, 2010 at 3:17 pm
In response to gesneri @ 50

Gesneri:

This is a VERY important point. It’s not just the victim of torture who is harmed, it is also the torturer. And then the torturer brings that sickness home: to the family, the workplace, and to politics. Many soldiers go into law-enforcement.

And so the cancer spreads….

Greg

AdamPDX October 17th, 2010 at 3:23 pm
In response to Gregory Fried @ 48

It used to mean something to say “war crime” to even the hardest of the hard righties.

Now the far right doesn’t even blink when it’s pointed out they may be doing something that is could be considered helping war criminals.

A punk rock band just got back from GITMO. They went to go play for the guards at GITMO. I was sickened.

David Kaib October 17th, 2010 at 3:24 pm
In response to Mary @ 38

These surveillance programs were completely unmoored from suspicion, took in massive amounts of data that could never be analyzed, and operated without oversight. They were illegal under FISA at the time. That made them unreasonable, and therefore unconstitutional, regardless of congressional authorization after the fact.

Gregory Fried October 17th, 2010 at 3:24 pm
In response to Mary @ 52

Mary,

Judge Keith is but one judge in one court of appeals. Alas, but so it goes.

Also, I am no lawyer, but while SCOTUS has not explicitly allowed data storage, I am unaware of any case where SCOTUS forbids it, either.

And, just how and when surveillance w/o a warrant is reasonable is a matter of controversy in the courts, literature, etc.

We might argue FOR a side on this, but it is surely not (yet) a matter of settled doctrine.

Greg

Jim White October 17th, 2010 at 3:25 pm
In response to Gregory Fried @ 35

Stewart’s rally next weekend may be an important bellweather.

I hope you are right. I am going to be there and will be watching the crowd to see if those who are there to represent “sanity” seem to have an appreciation of how warped the current public discourse has become.

If you could coach Stewart on the issue of torture and prosecutions, how would you have him approach it at the rally?

Gregory Fried October 17th, 2010 at 3:26 pm
In response to DavidKaib @ 56

This is a non-sequitur. If it was wrong (unreasonable) because it was illegal, then making it legal removes the unreasonableness.

As we argue in the book, while the prohibition on torture SHOULD be absolute, privacy is not. We should not confuse the two.

Greg

spocko October 17th, 2010 at 3:27 pm
In response to emptywheel @ 53

Emptywheel: I’m interested in this polling you are discussing. And which messages they were testing.

My friend Interrobang pointed something very profound to me the other day.
“When most Americans think about torture, they think of themselves as the person doing the torture, they don’t think of themselves being the one being tortured.” It’s a world of difference to be on the other side of the fence. The right lack empathy and don’t see themselves on the waterboard being tortured to tell someone information they don’t have being tortured for a crime they didn’t commit.

In my discussion with Mark Danner he also brought up the views on torture right after 9/11 vs. years latter. There is a blood lust in many people that took over them. And this same blood lust is still referenced by the right wing media.

Gregory Fried October 17th, 2010 at 3:29 pm
In response to Jim White @ 58

“If you could coach Stewart on the issue of torture and prosecutions, how would you have him approach it at the rally?”

I think the simplest thing to do is to say it is contrary to all our fundamental principles, explicitly opposed by our greatest leaders (Washington, Lincoln) even in our most dire conflicts, that it is like a cancer whenever introduced into society and the law.

Above all, what Al Qaeda wanted to make us do is undermine ourselves. Torture does just that. It’s un-American. We have to stand for fundamental principles.

Greg

Mary October 17th, 2010 at 3:29 pm
In response to emptywheel @ 53

I still think the lack of personal narratives is a part of the reason why we have this issue. The stories of the Chinese Uighurs, and in particular of the two brothers, with one who would not leave when he was given the opportunity because he could not bear to leave his brother (who had become psychologically damaged during his time at GITMO and was not being released for that reason) should have been story the media hit hard. But it was left hidden away.

AdamPDX October 17th, 2010 at 3:32 pm

Here’s the story about pop punk band at GITMO..,.

Punk popsters rock out for Gitmo guards

Band members posed in Reagan, Death Squad t-shirts at Gitmo

“I smoked a Cuban in Cuba,” Bowling For Soup guitarist Chris Burney tweets, “Fuck all y’all.”

Oi! Nothing’s more punk rock than enjoying a cigar after rocking out for the guards who work at an infamous military prison where torture was allegedly practiced.

Well, maybe not the rocking out part, exactly, but since — technically — Americans are legally prohibited from smoking or purchasing cigars from Cuba even outside the states it’s definitely not something a poseur would do, right?

http://www.rawstory.com/rs/2010/09/punk-popsters-rock-gitmo-guards/

Gregory Fried October 17th, 2010 at 3:32 pm
In response to spocko @ 49

Spocko,

That is a very dispiriting testimony. All we can do is keep trying. I am a teacher and an academic. I am no veteran of the talk-show cut-and-thrust. I’d try my best, if given the chance, though.

But as I said before, no one has asked this particular Don Quixote onto a national talk-show! And our publicists as Norton are trying….

Greg

dakine01 October 17th, 2010 at 3:33 pm
In response to Gregory Fried @ 59

If it was wrong (unreasonable) because it was illegal, then making it legal removes the unreasonableness.

But doesn’t that start things way down a proverbial “slippery slope?” What’s to stop the folks in power from starting to make all sorts of crimes legal retroactively? Including torture?

Mary October 17th, 2010 at 3:35 pm
In response to Gregory Fried @ 57

Judge Keith’s case was a SCOTUS decision – sorry if that was confusing. He was the defendant in the case that went to the Sup Ct bc he had custody of warrantless government surveillance and would not return it to the government and had ordered that it be provided to the defense. The government’s case was based on a produced history of Executive branch orders authorizing such wiretaps – it’s always been done. But the Sup Ct noted that those cases had never been brought before it and it agreed as, to my knowledge it always has on US citizen wiretaps, that however subjectively reasonable the Exec might believe them to be, they need a warrant from an independent magistrate. But that’s probably a topic for another time. Sorry to digress.

spocko October 17th, 2010 at 3:35 pm

As I’m sure many of you here know, the producer creator of “24″ is a good friend of Rush’s. (He even accompanied him on his trip to the Dominican Republic, the one where he stopped at the boarder with a vial of viagra pills not written in his name.)

The Dean of West Point, Brigadier General Patrick Finnegan, an expert on interrogation, when to the writer of “24″ and told them to “knock it off” with some of their sick scenerios because the real recruits were thinking that Jack Bauer’s way, was the way to go. The producer of “24″ was notably absent that day.

This interlocking relationships that support the sick right wing fiction –>> reality connection need to be both pointed out and interrupted.

Gregory Fried October 17th, 2010 at 3:36 pm
In response to Mary @ 62

“I still think the lack of personal narratives is a part of the reason why we have this issue.”

I am SURE you are right, Mary. These people are not “us” — they don’t look like “us” or talk like “us” — my goodness, they don’t even speak English! No one wants to hear their stories or empathize with them.

But if we started torturing right wing militias here in the US, well, then you’d see them font and center on Fox News.

Greg

David Kaib October 17th, 2010 at 3:38 pm
In response to Gregory Fried @ 59

Greg,

Maybe I misunderstand you, but if it was wrong for a host of reasons, and you remove one, that does not make it not right. Being illegal was only one of things I listed.

But more than that, I think if a law forbids searches in a particular set of circumstances, then Congress may be perfectly free to change the rules going forward, but not necessarily backwards. That is, a search that was illegal at the time is therefore unreasonable, even if Congress changes the rules after the fact.

That said, I agree with difference between torture, which is absolutely forbidden, and searches, while disfavored, are not.

Mary October 17th, 2010 at 3:41 pm
In response to Gregory Fried @ 59

I do think its much harder to not confuse the two, though.

Torture is a part of a continuum and privacy is as well I think. What is torture? Is it what was done to Tyler Clementi? If “some kinds” of uninvited contact, or limitations on movement, etc. are “reasonable” and are not torture, where does the visceral reaction come in? And isn’t there a very strong argument to be made that the privacy continuum is similar to the contact and control continuum. Some reasonable control and contact is allowed, but not “torture” while some kind of reasonable surveillance might be allowed, while other surviellance becomes just as “uninvited” and unwelcome and damaging in its field as torture?

I know you deal some with the torture continuum in your book – what conclusions did your reach there as to when the uninvited became the prohibited, when was something “torture” to be absolutely prohibited and when was it soemthing less?

Gregory Fried October 17th, 2010 at 3:41 pm
In response to dakine01 @ 65

“But doesn’t that start things way down a proverbial “slippery slope?” What’s to stop the folks in power from starting to make all sorts of crimes legal retroactively? Including torture?”

Thanks, dakine01. Two things, first off:

1) As we say in the book, torture is (or at least SHOULD be!) illegal because it is (by its very nature) wrong. Invasion of privacy is wrong because it’s illegal.

Now, that’s a little imprecise, but the basic point is that NO law could EVER make torture right. But SURELY some forms of invasion of privacy MUST be possible, otherwise no government could ever investigate or prosecute crimes.

So, it may be illegal to photograph someone on the street as a matter of invasion of privacy. But would we say then then that the law could never change on that matter? Surely that would be absurd.

But it’s not absurd to say that torture is always wrong, no matter what the law says.

We Americans need to see reason on this point. Yes, privacy is a core value, and we do “absolutely” need to have SOME realm of privacy to survive as a free society, but the contours of that privacy depend on history, culture and technology.

No so with torture.

Greg

spocko October 17th, 2010 at 3:43 pm
In response to Gregory Fried @ 64

Greg: Yes it is. I’ve trained hundreds of people to talk with the press and media and not everyone has the right personality for each media venue. When I coach someone to be on radio or TV I use people who worked in the industry, when I coach book authors and CEOs I use former trade or business press to rehearse them.

I’d be happy to work with you and your Norton people. You have my email so if your want to get me in touch with your Norton people we can do that. This is an issue I’ve been very keen on for years.

Margot October 17th, 2010 at 3:43 pm
In response to Gregory Fried @ 68

People I grew up with had fathers who were tortured on the Bataan Death March. This is not ancient history to me.
Are we so removed from WW2 that we have forgotten these men?

Gregory Fried October 17th, 2010 at 3:46 pm
In response to DavidKaib @ 69

“But more than that, I think if a law forbids searches in a particular set of circumstances, then Congress may be perfectly free to change the rules going forward, but not necessarily backwards. That is, a search that was illegal at the time is therefore unreasonable, even if Congress changes the rules after the fact.”

DavidKaib: granted — it was illegal at the time. That does not make it unreasonable (n the larger sense — it might have been very reasonable!), just illegal. For example, in the book, we discuss the case of traffic law in Massachusetts: here, it is illegal to drive in the breakdown lane. Does that mean that it is unreasonable for a husband to drive his wife, in labor, in the breakdown lane, during rush hour? (This is a real case: they were given a ticket for breaking the law — while she was in labor!)

Furthermore, it is a well-attested principle in our law that once an act is declared legal, no one is to be prosecuted for breaking the law in the past.

Greg

Mary October 17th, 2010 at 3:46 pm
In response to Gregory Fried @ 68

I’ve found it really interesting that at the same time the DOJ has been pursuing Jon Burge, not directly for his torture bc of expiration of statutes of limitations, but still for lying about his torture – torture that was then directed at the “other” it has been simultaneously covering for its newly minted torturers.

Gregory Fried October 17th, 2010 at 3:48 pm
In response to Margot @ 73

“People I grew up with had fathers who were tortured on the Bataan Death March. This is not ancient history to me.
Are we so removed from WW2 that we have forgotten these men?”

Margot: the sad truth is, yes, we are and yes we have. But you and all those who think like you have a duty to remind us. Speak out!

And let’s not forget: the US government, after WW2 put Germans and Japanese on trial, and EXECUTED them, for doing things that were done to prisoners under the Bush regime.

Greg

dakine01 October 17th, 2010 at 3:49 pm
In response to Gregory Fried @ 71

But SURELY some forms of invasion of privacy MUST be possible, otherwise no government could ever investigate or prosecute crimes.

But this seems to be where the disconnect is coming. If the law wants to prosecute and invade privacy, there needs to be that pesky “probable cause” that a specific crime has been or is going to be committed.

Not a blanket hoovering of phone calls and emails and such because they can which is apparently where they are today.

Gregory Fried October 17th, 2010 at 3:49 pm
In response to Mary @ 75

“I’ve found it really interesting that at the same time the DOJ has been pursuing Jon Burge, not directly for his torture bc of expiration of statutes of limitations, but still for lying about his torture – torture that was then directed at the “other” it has been simultaneously covering for its newly minted torturers.”

Excellent point, Mary. The Burge case is a textbook example of the cancer of torture, once it enters law-enforcement. Illinois is still reeling from the aftershocks.

Greg

perris October 17th, 2010 at 3:51 pm

late to this salon and I see I missed a good one, a comment, i don’t know if it’s been mentioned yet;

FDL Book Salon Welcomes Gregory Fried, Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror

while obviously true, in today’s fox/cheney world that feeds right into the right wing “anti liberal” frenzy

not only for that reason but the main reason;

torture is counter productive, you get less information, you waste assets tracking bad information

and even that’s not the big one

the big one is the fact that for everyone you torture you have created a legion of terrorists, every father, son, brother, sister, friend, friends friend becomes your enemy

you breed more terrorists, more terrorism and THAT is the real reason you need to prosecute the criminals who advocate for a program that does that much harm to us, our children, our grand children, our allies

Mary October 17th, 2010 at 3:52 pm
In response to Gregory Fried @ 74

While I disagree with you on some points regarding privacy, I do want to point out for those who have not read it a fascinating section in your book where you discuss civil disobedience. Sometimes, the law doesn’t cover all it should, as it should, and there is a almost a civil duty to challenge it. I think you carry that over a bit into the discussion of an Executive faced, as Lincoln was, with an emergency that had to be addressed – should he have followed the letter of the law or not?

Emergency, excuse, justification – these are all areas that grey out the black lines of the law.

RevBev October 17th, 2010 at 3:52 pm
In response to Gregory Fried @ 76

No wonder he hides out in his Dallas compound…sickening.

Gregory Fried October 17th, 2010 at 3:53 pm
In response to dakine01 @ 77

“But this seems to be where the disconnect is coming. If the law wants to prosecute and invade privacy, there needs to be that pesky “probable cause” that a specific crime has been or is going to be committed. Not a blanket hoovering of phone calls and emails and such because they can which is apparently where they are today.”

Well said, dakine01. But US constitutional doctrine does NOT require probable cause for ALL surveillance, just for warrants. It prohibits UNREASONABLE searches.

If not, then police searching, say, for KKK terrorists who had just committed a crime using a truck with Confederate flags could not drive around parking lots looks for neo-Confederate bumper stickers. They’d have to get a warrant for probable cause before they even so much as looked at each car!

Greg

spocko October 17th, 2010 at 3:55 pm
In response to Gregory Fried @ 68

I am SURE you are right, Mary. These people are not “us” — they don’t look like “us” or talk like “us” — my goodness, they don’t even speak English! No one wants to hear their stories or empathize with them.

My goal to defund right wing radio and their hosts started out based on their sick views of torture. I wrote one of them who was talking about he was “pro-torture” he considers himself a theocon. He wrote back

To: “Mr. spocko”
Date: Jun 17, 2005 8:04 PM
Subject: Re: Why don’t you want to admit that Americans torture people?

no beating around the “Bush” on this one:torture of those who would like to
kill us is okay by me. I’ve said it on the radio and will make sure I say it again loud and clear for misguided people like you.

A morning host wanted to torture and blow the brains out of a criminal in Lincoln NE who was arrested too many times.

These hosts help create an environment where torture is necessary and just, and since they wouldn’t participate in a balanced discussion I went about talking to them in a language they understood, money. They heard that.

BevW October 17th, 2010 at 3:55 pm

As we come to the end of this Book Salon,

Greg, Thank you for stopping by the Lake and spending the afternoon with us discussing your new book and Torture.

Mary, Thank you very much for Hosting this great Book Salon.

Everyone, if you would like more information,
Greg’s website
Mary’s post can be found here at FDL and Seminal.

Greg’s book

Thanks all,
Have a great week.

Gregory Fried October 17th, 2010 at 3:57 pm
In response to Mary @ 80

“I do want to point out for those who have not read it a fascinating section in your book where you discuss civil disobedience. Sometimes, the law doesn’t cover all it should, as it should, and there is a almost a civil duty to challenge it. I think you carry that over a bit into the discussion of an Executive based, as Lincoln was, with an emergency that had to be addressed – should he have followed the letter of the law or not? Emergency, excuse, justification – these are all areas that grey out the black lines of the law.”

Thanks, Mary. We are short on time, so I will be brief:

I think that the crucial points are that a) such emergencies will come up; b) executives will have to break the law to serve the public good.

Two corollaries: a) There are some things that may never be done, even for the public good, such as torture; b) the executive MUST come clean and restore the law by saying what he or she has done, and asking for rectification in the law, and exposing him or herself to sanction. That was Jefferson’s view!

Greg

Gregory Fried October 17th, 2010 at 3:58 pm

Thanks so much, Mary, Bev — and everyone. I am honored by your questions. Please keep talking.

Greg

spocko October 17th, 2010 at 3:59 pm

Thank you so much for writing the book Greg and coming here to discuss it. Thank you Mary for hosting.

Mary October 17th, 2010 at 4:02 pm
In response to Gregory Fried @ 82

One of the real problems of the FISA court is that Congress set it up in a way that looks, on its face, to be protective of privacy concerns (there are even felony and civil penalties for violations) and yet, as a practical matter (these are just like the Bush/Obama investigations for that matter) it can not be utilized for such a protective purpose. It allows for no advocacy. It allows for no Sup Ct review. Most importantly, the Judges are not empowered to take any action against government wrongdoers, even when they are advised of such wrongdoing. This was what faced Judges Lamberth and Kollar Kotelly when they were briefed on a part of the program. They could (and reportedly did) tell DOJ that they thought the program was unconstitutional (not illegal under FISA, but unconstitutional), but what could they do? They were briefed secretly on what was designated to be “classified” material. They did the only thing they could – set up a firewall. One which was reportedly broken under each judge, with Judge Kollar-Kotelly reportedly so furious she was going to start making Ashcroft sign personally under penalty of perjury to certify her firewall orders were being respected.

What I waited and waited for, after the reports came out, was for anyone in Congress to ask questions about those reports. Never, in the arguments about the “good faith” wiretapping did anyone ask DOJ about the truth of the reports about the FISCt Chief Judge’s determination and if the judges’ input as to unconstituationality had been provided to the telecoms or to the Judiciary are intel committees or even put in a signed out memo for the file.

Mary October 17th, 2010 at 4:05 pm

Slow typist.

Thanks so much for sharing your time and insight Greg. I hope that you get a chance at the talk show cut & thrust (@64) on this topic in particular.

Thanks Bev – thanks also to all the wonderful commenters today.

Jim White October 17th, 2010 at 4:06 pm

Thanks for a terrific discussion, Greg. Please feel free to join the conversation here at Firedoglake any time you like.

David Kaib October 17th, 2010 at 4:07 pm
In response to Gregory Fried @ 74

This is a fair point – I should have said absent exigent circumstances, an illegal search would be unreasonable in a constitutional sense. I think you can apply that idea to the MA driving example, as well as to Lincoln (regardless of whether you agree that it excuses all his actions) but clearly not to the Bush Admin, which went to Congress and received changes in the law but did not ask for this authorization.

As for prosecution, I admit I was unaware of that principle, although I am not convinced that it would apply to impeachment.

Regardless, my main concern is that I do not believe Congress had any authority to authorize such behavior.

I am not yet convinced on all of the lines you are drawing between torture and surveillance, but I am convinced that it is worth reading the book to get the nuance.

Sorry but the comments are closed on this post