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Torture and the Vagueness Paradox

[ 0 ] September 15, 2006 |

The Editors discuss a typically exceptional piece by Dahlia Lithwick, which points to the danger of overly-specific definitions of torture. In his particularly testy press conference today, [more here] President Brags-About-Torture spoke again and again about the need for “clear standards,” which makes the truth of Lithwick’s point manifest:

The president himself raises the real reason for the change in the torture standard. He can’t get his interrogators to interrogate people as long as they are afraid of being dragged into court to answer for it later. The administration has been worried about its interrogators’ liability for their abuses since the debate about suspending Geneva began. And again yesterday, the president was emphatic in his contention that “as long as the War Crimes Act hangs over their heads, they [interrogators] will not take the steps necessary to protect” Americans. The War Crimes Act of 1996, passed by a Republican Congress, made it a felony to violate the Geneva Conventions. But while it sounds like Bush seeks to offer interrogators legal clarity, what he really strives to offer them is legal immunity.


In a superb article last fall in the Columbia Law Review, professor Jeremy Waldron argued that there is “something wrong with trying to pin down the prohibition on torture with a precise legal definition.” That it seems to “work in the service of a mentality that says, ‘Give us a definition so we have something to work around, something to game, a determinate envelope to push.’ ” And indeed it would be worrisome if the president were trying to create a sharp, bright line-rule for when interrogation crosses into torture, so that his agents could dance right up to it and stop, or find tricky ways to tunnel under it. But I suspect that the Bush administration doesn’t seek to clarify the definition of torture so much as to confound it. The whole objective of defining, refining, and then redefining the rules has become an end in itself. It keeps our attention trained where the president wants it: on the assertion that old bans on torture don’t work and that this conflict is unlike any conflict contemplated under existing international law. All this murk and confusion has begun to be the object of the game and not a casualty of it.

Right. Paradoxically, while making the rules a little more specific may seem to place a greater restraint on government, in cases like this, it’s the opposite. Consider the “cruel and unusual punishment” clause of the 8th Amendment. Had the framers tried to define particular forms of cruel and unusual punishment rather than writing it as a vague principle, what would have happened is obvious: the government could have used forms of punishment that were as bad or worse than the listed punishments but not actually prohibited–and, needless to say, this problem would get far, far worse over time as new forms of cruelty were made possible by technology. There are obvious legal problems created by the inherent indeterminacy of the standard, but a standard that will sometimes fail to constrain the state is better than a standard that will not only inevitably fail but actually legitimize forms of punishment it is designed to prohibit. What Bush seems to want is a definition just specific enough to make some forms of the torture he wants people to engage in clearly legally protected, which is much worse than a broader standard that would have greater deterrent effect. What Bush sees as a bug–people worried about facing legal consequences for torturing suspects–is of course a feature.

Don’t Tell Me The Cover-Up Has Got You Too!

[ 0 ] September 14, 2006 |

Shorter Verbatim Crazy Randian: “Shooting at a Montreal college campus. The cafeteria where the shooting took place is known as “Jew cafe”. I am sure there will be a media black out on the jew hate aspect of the shooting…UPDATE: It was not antisemitism.”

I lived about 10 minutes away from Dawson for five years and taught any number of its graduates, and every year McGill commemorated the victims at the Universite de Montreal who were shot by misogynist psychopath Marc Lepine. So this attack seems particularly horrible to me; hopefully all of those injured will be able to recover soon.

State and Non-State Violence in Guatemala

[ 0 ] September 14, 2006 |

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Since the world needs more smart people who think about state and society theory, Matt’s post about violence against women in Guatemala reminds me that Angelina Godoy has written a terrific book that contains some fascinating work about the roots of mob violence in Guatemala. Depressingly, but importantly, she notes the ongoing effects that state terror has on societies:

“Lynchings in contemporary Guatemala can be grouped into two broad categories. First, there are those lynchings imposed through force and fear by former paramilitaries or military supporters, many of whom continue to exercise de facto authority in the postwar period….Second, however, there are also many lynchings carried out without coercion, by communities in which majorities often support such practices. These are acts are testament to a more troubling and complex sociological legacy of violence: not only to the persistence of dark forces, but to the seductive power of order through violence that was imposed by the state during wartime but today may be carried out at the behest of new and emerging forces in civil society. Ultimately, it is the perplexing tragedy of these popular lynchings that concerns me most, for they reveal in many ways the full extent of the transformation of social life under the practices of state terror.” (p.99)

That this private violence is used to uphold traditions of gender inequality is tragically unsurprising.

Why Do Homophobes Hate The IDF?

[ 0 ] September 14, 2006 |

In the credit-where-credit-is-due department, Ed Morrissey points out that discrimination against gays in the military, always bad, is particularly indefensible during times of recruiting shortfalls. This point, in particular, isn’t made often enough:

In fact, gays serve openly in the military now; they do it in Britain. American and British troops have served together in Afghanistan and Iraq without this causing damage to morale and cohesion. They also serve openly in the IDF, one of the finest fighting forces in the world, although their leadership could use a refresher course after Lebanon. Both armies work jointly with American forces, and 22 other nations also allow gays and lesbians to serve without hiding themselves.

I’m always amused by the number of people who 1)decry women and gays serving in the military and 2)worship the IDF. The Israeli military, of course, demonstrates the foolishness of these reactionary prejudices (and, of course, similar arguments were used to defend the racial segregation of the military as well.)

Tabloid TV Kills

[ 0 ] September 14, 2006 |

Although the show (natch) declines any responsibility, a woman whose daughter was recently abducted committed suicide after being cross-examined on Nancy Grace’s screamfest. Weigel reminds us of this excellent TNR story about Grace:

Alas, sometimes her confidence is misplaced. In 2001, Grace was outspoken in her suspicion that California Representative Gary Condit played a role in the disappearance and murder of Chandra Levy. But Condit was never charged, and, although the Levy case remains unsolved, Washington, D.C., police long ago ruled out Condit as a suspect. The next summer, when the kidnapping of twelve-year-old Utah girl Elizabeth Smart was the case du jour, Grace pounced on one of the police’s initial suspects, the Smart family’s handyman, Richard Ricci. Grace all but proclaimed Ricci’s guilt in the kidnapping after Salt Lake City police arrested him for stealing jewelry from the Smart house. Ricci was eventually exonerated of kidnapping Smart–when she was found in March 2003 and a couple was charged in her abduction–but only after he had died in prison of a brain hemorrhage. King later asked Grace if she felt guilty about “all the whacks we took at Mr. Ricci” on his show. “No, I don’t,” she replied. “I’m not going on a guilt trip, and I’m not letting you take the police with me on a guilt trip.”

Wow, assuming people are guilty with little to no evidence isn’t always reliable? Get her show off the air before she kills again.

Here’s A Lesson from 9/11: Don’t Take Harvey Mansfield Seriously

[ 0 ] September 13, 2006 |

Self-appointed upholder of academic standards Harvey Mansfield, in a column arguing that universities should become depoliticized by adopting a whole bundle of reactionary bromides familiar to anyone who’s seen The O’Reilly Factor, recycles this bit of abject nonsense:

The feminists at Harvard seek to remove every vestige of patriarchy in America, but they have said almost [using the word "almost" here is the kind of skill that's important to learn. It's what separates us from the animals. Except the weasel.--ed.] nothing about the complete dismissal of women’s rights by radical Islam. To do so would be to attack Islamic culture, and according to multiculturalism, every culture is equal and none is evil. They forsake women in societies that repudiate women’s rights and direct their complaints to societies that believe in women’s rights. Of course it’s easier to complain to someone who listens to you and doesn’t immediately proceed to slit your throat. No sign of any rethinking of feminism has appeared in the universities where it flourishes.

The idea that feminists have ignored the plight of women outside of North America is simply a complete falsehood. The tensions between “multiculturalism” and women’s rights and feminism and the struggles of women outside of liberal democracies have of course been the subject of extensive debate and analysis among feminists, but Mansfield cannot be aware of it because he knows exceptionally little about feminist thought. The idea that it’s illegitimate to criticize unjust practices if there are worse practices embedded elsewhere is, of course, a classic technique of those who oppose progressive goals while preferring not to engage arguments on the merits. And the stuff about “re-thinking feminism” is just a non-sequitur; even of feminists should be paying more attention to international rather than domestic issues, this calls for a wider application of feminists principles, not a re-thinking of them.

What’s offensive, of course, is not strawfeminists propped up by Mansfield who don’t care about the oppression of women in the Islamic world, but people who could care less about it using it as a prop to advance goals that are fundamentally hostile to women’s rights. And, by the way, how has the Bush administration’s foreign policy advanced women’s rights? By leading to the imposition of Sharia law in Iraq? Maybe this is the “re-thinking” of feminism that Mansfield has in mind:

So far, enforcing the hijab for women and a ban on shorts for men are consistent in most districts of western Baghdad. In other areas, women are not allowed to drive, to go out without a chaperone, and to use cell phones in public; men are not allowed to dress in jeans, shave their beards, wear goatees, put styling hair gel, or to wear necklaces; it is forbidden to sell ice, to sell cigarettes at street stands, to sell Iranian merchandise, to sell newspapers, and to sell ring tones, CDs, and DVDs. Butchers are not allowed to slaughter during certain religious anniversaries. Municipality workers will be killed if they try to collect garbage from certain areas…

Or maybe this?

For me, June marked the first month I don’t dare leave the house without a hijab, or headscarf. I don’t wear a hijab usually, but it’s no longer possible to drive around Baghdad without one. It’s just not a good idea. (Take note that when I say ‘drive’ I actually mean ‘sit in the back seat of the car’- I haven’t driven for the longest time.) Going around bare-headed in a car or in the street also puts the family members with you in danger. You risk hearing something you don’t want to hear and then the father or the brother or cousin or uncle can’t just sit by and let it happen. I haven’t driven for the longest time. If you’re a female, you risk being attacked.

I look at my older clothes- the jeans and t-shirts and colorful skirts- and it’s like I’m studying a wardrobe from another country, another lifetime. There was a time, a couple of years ago, when you could more or less wear what you wanted if you weren’t going to a public place. If you were going to a friends or relatives house, you could wear trousers and a shirt, or jeans, something you wouldn’t ordinarily wear. We don’t do that anymore because there’s always that risk of getting stopped in the car and checked by one militia or another.

There are no laws that say we have to wear a hijab (yet), but there are the men in head-to-toe black and the turbans, the extremists and fanatics who were liberated by the occupation, and at some point, you tire of the defiance. You no longer want to be seen. I feel like the black or white scarf I fling haphazardly on my head as I walk out the door makes me invisible to a certain degree- it’s easier to blend in with the masses shrouded in black. If you’re a female, you don’t want the attention- you don’t want it from Iraqi police, you don’t want it from the black-clad militia man, you don’t want it from the American soldier. You don’t want to be noticed or seen.

But at least “W is for Women” in Afghanistan, right? Er, not so much; in fact, the administration’s intense interest in protecting women’s rights compelled it to allow the Taliban to regain de facto control of much of Afghanistan so that it could also ensure that radical opposers of women’s rights could form a quasi-state in Iraq that was even more dependent on Islamist militias.

Well, you have to give him this: the fact that Mansfield is given a platform in university presses and major newspapers to spew ignorant nonsense about feminism is a data point for his academia-in-decline thesis…

Thwart Islamofascism By Surrendering In Advance

[ 0 ] September 12, 2006 |

Non-graphic format Wuzzadem: The best way to defeat Islamofascism is to admit that their underlying beliefs about sexuality and gender are completely correct, and to distribute lots of free copies of Dinesh D’Souza’s new book.

Via Roy, who as a bonus offers us his parody of the most overrated show in television history.

Shameless Hack of the Year

[ 0 ] September 12, 2006 |

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Well, Maybe Some Night Classes To Brush Up

Rich Lowry.

And, by the way, where are these new troops coming from? A draft that might actually compel Rich Lowry to be part of this massive new force? Pouring more money into military recruitment instead of upper-class tax cuts? Cyborg super-troops produced in the basement of the National Review‘s office?

Anne Applebaum, You Gotta Be Putting Me On

[ 0 ] September 12, 2006 |

Shorter Anne Applebaum: Two British newspaper columns prove that a rising wave of anti-Americanism was inevitable whether the Bush administration fought the War on Terra (TM) by installing an Islamist quasi-state in Iraq or by doing something rational and defensible. And I’m stunned that the Europeans haven’t reacted with such brilliant strategies as creating massive, highly effective new federal bureaucracies. As for my systematic evidence that European attitudes towards the United States under Clinton weren’t much more positive than under Bush…look, it’s Halley’s Comet!

Learning To Flinch

[ 1 ] September 11, 2006 |

Speaking of degenerative projects, in responding to Jon Rauch’s point that in The Party of Death he flinches at the implications of his underlying philosophical premises, Ramesh Ponnuru says:

Second: It’s not as though Rauch welcomes my efforts to find a middle ground. If I say, for example, that I think abortion should generally be prohibited but women who seek it should not be jailed, Rauch doesn’t praise my moderation. He says I’m being inconsistent and ducking the issues. His whole line of argument — and in this he is very typical of sophisticated pro-choice writers — is designed to push pro-lifers such as me toward a more extreme position.

A few points:

  • I would no more praise someone’s “moderation” in believing that women shouldn’t be punished for taking a life than I would praise someone for wanting laws against infanticide repealed. I’ve already been through this at length, but Ponnuru’s position here is simply indefensible. We can argue about differential punishments, etc.–not every state punishes murder in the same way–but to hold that getting an abortion is akin to murder when justifying criminalization but less serious than jaywalking when it comes time to apply criminal sanctions is to fatally undermine the justification. Exempting women from legal sanctions isn’t a compromise of pro-life principles; it’s a repudiation of them. And while I don’t think that this is true of Ponnuru specifically–indeed, I have little doubt that he would happily lock women who get abortions up and throw away the key if it were viable–it also can’t be avoided that the exemption of women from punishment has its roots in sexist conceptions of women as passive victims who aren’t quite moral agents.
  • Another problem is that Ponnuru’s pragmatism doesn’t go far enough. If we can compromise to this extent to tailor policies to political reality, don’t we need to consider the effectiveness of laws? And if we do, we will find that criminalization is a largely ineffective and grossly inequitable way of reducing abortion rates. A society in which women can’t spend a day in jail for getting an abortion (which also means that increasingly viable forms of self-abortion couldn’t be punished at all) is not a society in which abortion laws can be effective even if their ends were desirable.
  • It is true, in a sense, that I am trying to push Ponnuru to more “extreme” positions. This is for the simple reason that given the choice between an even minimally consistent pro-life legal framework and a pro-choice legal framework, I am unshakably convinced that the public would support the latter. As Ponnuru half-concedes earlier in his reply, what seems to be a fairly robust pro-life minority is largely artificial; once abortion bans become halfway rational support for them craters, and non-arbitrary enforcement would reduce this support to LaRouchian levels. The fact that intelligent and principled pro-lifers aren’t willing to support laws that are logically consistent with their premises makes it clear that they understand this too.
  • And, of course, given that most people are not willing to act in a way that is even minimally consistent that terminating a pregnancy is like killing a child, the pro-choice position is the correct one. In a free society, leaving the choice to individual women–which does not compel anyone morally opposed to abortion to obtain one–makes far more sense than enacting irrational regulations that accomplish nothing but to force the most disadvantaged women to obtain abortions that, on balance, will be much less safe. On issues such as abortion, where moral positions are simply incommensurable and fundamental liberties are involved, splitting the difference is not laudable.

…since this seems to be coming up a lot in comments, in re: the effectiveness of criminalization, note that Latin American countries where abortion is illegal have far higher abortion rates than liberal democracies where abortion is legal (and in most cases state-funded.) While I’m sure abortion bans have a net negative effect on abortion rates, 1)many other factors are more important, and 2)doctors perform large numbers of abortions under any legal regime. Again, the question about banning abortion is not whether abortions will be effectively banned, but whether poor women will be able to get safe ones.

Plan B And Degenerative Definitions

[ 0 ] September 11, 2006 |

Aspazia has more on Plan B.

To to add a brief addendum to our discussion last week, Santorum’s attempt to re-define Plan B is sort of a definitional equivalent of a degenerative research program. It’s true on some levels that all definitions are arbitrary, and Santorum’s attempt to redefine abortion so as to encompass preventing a pregnancy as well as terminating a pregnancy. You can’t prove that such a definition is incorrect (although you can say that his attempts to fool his audience to think that Plan B is an abortifacient under existing technical definitions is dishonest.) But then we have to ask–is Santorum’s definition useful? Does it describe the relevant concepts more accurately? And the answer, of course, is no. This definition would have many logical consequences–seeing birth control as roughly morally equivalent to abortion, seeing the number of embryos that don’t implant as a health crisis far worse than AIDS and cancer put together, etc.–that Santorum is obviously not willing to embrace. His definition has no conceptual value at all–its only value is the crudely instrumental political one of evading his extremely unpopular position on emergency contraception
by conflating it with the more contested issue of abortion. And, therefore, it should be rejected by anyone with a shred of intellectual honesty.

Questions I’d Prefer You Not Answer

[ 0 ] September 10, 2006 |

After reading this, I’m reminded that I can’t decide what’s worse: the fact that the President of the United States likes to brag about breaking the law to engage in grossly immoral conduct, or that his implicit assumption that drawing attention to his lawlessness and contempt for basic norms of human decency are a net political positive is likely to be right.

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