Advocate of Arbitrary Torture Shows Lack of Ethics

Although I regret this particular manifestation highly, it’s obviously not surprising that Ed Whelan is a reprehensible, thin-skinned bully. (Who apparently can’t use a search engine.) Or as Cole says:

For those of you keeping score at home, the current President of the Ethics and Public Policy Center not only worked for the Bush administration OLC while they were creating the legal justification for torture, but is now using their email address to send juvenile emails while outing anonymous bloggers because they pointed out he was wrong.

Meanwhile, for anyone tempted to read any of Whelan’s “analysis” of Obama’s judicial nominations, I would just get your relentless parade of vacuous cliches — especially embarrassing in a post-Bush v. Gore era — from Pajamas TV commentators; at least they’re funnier when they’re mangled.

UPDATE: Jonathan Adler says in comments:

Do you have a citation for your claim that Ed Whelan is an “advocate of arbitrary torture”? Others, such as Andrew Sullivan, have apologized making such claims, as Whelan did no work on interrogation-related issues at OLC and, to my knowledge, has never written in defense of coercive interrogation techniques.

Fair enough; I haven’t thought carefully about the responsibility borne by anyone who worked at OLC in that era and hasn’t spoken out, but absent further information I retract this specific charge of supporting torture. Obviously, I stand by my evaluation of his appalling behavior with respect to publius (and certainly don’t agree that his posts about Whelan weren’t “substantive.”)

…OTOH, Matt Weiner in comments:

Also, here‘s Ed Whelan on Jack Goldsmith’s book:


But, as I hope to discuss in follow-on posts, Jack’s book is far more than a discussion of the Bush administration’s understanding and exercise of presidential power. It is, among other things, a deeply conservative critique of the development in recent decades of various “lawfare” constraints on the President’s exercise of traditional wartime powers.

In the current political context, criticism of “‘lawfare’ constraints on the President’s exercise of traditional wartime powers” means supporting the theory that the executive ought to be able to do whatever he wants in the name of preventing terrorism, unrestrained by any laws (sorry, “lawfare”). And Whelan knows full well that what the executive wanted to do was to torture. True, he weasels around this by saying that he is “not well positioned to comment” on the issues, but anyone who’s been paying attention knows what he means. If someone in 1930s Germany talked about the importance of the government’s being able to assume extraordinary powers in a state of emergency, we’d know damn well what they meant.

And here Whelan endorses the idea that torture could well have prevented another terrorist attack, and if it had done so it would’ve been wrong to prevent torture. (I haven’t read Goldsmith’s book, so I can’t comment on whether this is an accurate representation of what Goldsmith thinks; in any case Goldsmith has considerable honor as someone who upheld the rule of law in the face of the Bush Administration’s torture policies, whereas on his best account Whelan was a bystander. I think I’m running out of allowable links, but at Volokh’s Dilan Esper says “he seems to be sorely misreading Goldsmith’s position… Goldsmith’s central point… is that the best way to INCREASE executive power is to do it lawfully, because then there is not as much pushback from other institutions.”)

As Sullivan says, “if anyone dares imply that a member of Bush’s torture-authorizing OLC, who refuses to say what his position on waterboarding, could be, you know, in favor of torture, he goes ape-shit.” Whelan doesn’t deserve a scrap of credit on this issue, and his writings seem designed to obfuscate his defense of torture just enough that professional smoke-blowers (sorry, former directors of environmental studies at the Competitive Enterprise Institute) can demand retractions.