Saturday, May 30, 2009

"The purpose of torture, is torture" ~ George Orwell, 1984

Dick Cheney and his spawn are currently doing the rounds of the usual right-wing talkshows to claim both that waterboarding isn't torture and that it worked. Since Dick Cheney almost radiates pure evil and kills plants by his mere proximity (even his friends call him Vader), it's doubtful anyone takes him that seriously but his spawn at least appear human so perhaps someone will listen to them. I won't but perhaps someone will. Naturally, Cheney is proclaiming, roughly, "Oh, if you knew what I know". This normally only works on small children.

It's easy to see why the Cheney clan is doing this. Dick Cheney has staked his reputation on this issue and, by the accounts of pretty much everyone, he's a paranoid, megalomanical man but his arguements are weak at best. To argue that waterboarding isn't torture flies in the face of five hundreds years of history. When the Spanish Inquisition invented waterboarding, they called it the rather more accurate name of "the Drowning Torture". Understand this, waterboarding isn't simulated drowning, waterboarding IS drowning. The victim is positioned and their respiration restricted to ensure they have no choice but to breathe in water. So you're drowning. Nor is the danger merely physical. While you (probably) won't die, the physical effects last for months, the mental effects for even longer. Major trauma of this kind breaks the mind of the victim. That's why Americans executed Japanese for using waterboarding after World War II (contrary to Liz Cheney's lies, people were executed purely for that crime). The Nazis didn't use waterboarding as far as we know (it's unclear why given the other tortures they enacted). But virtually everyone who has actually been waterboarded say that it's torture. Eric "Mancow" Muller and Christopher Hitchens (both normally right-wingers), Jesse Ventura (a libertarian who doesn't much like either party); they all say it's torture.

So waterboarding is torture. Unequivocally so. And it has been considered torture for centuries. But waterboarding isn't even the worst crime that was committed. Among some of the others were "walling" (swinging a suspended prisoner into a wall); rape and sexual tortures, electrotorture and old-fashioned beatdowns. I've seen a few of the photos that have leaked out. I read criminology for intellectual interest and I've seen more crime scenes photos than I care to remember. Even for me, the photos are difficult to look at. Perhaps that's because in photos of crime scenes, the victims are usually dead. Whatever it is that made that person a person rather than an ambulatory bag of protoplasm and trace elements, that's gone to wherever spirits go to. All that's left is a cooling hunk of meat. But the photos that have leaked out show living victims, pleading, hurting and broken. Even for me, they're difficult to see.

And so, we come to the claim that torture worked. First off, worked how, exactly? What is it that was being attempted here? If we assume the much-ballyhooed "ticking time-bomb" scenario, then the whole thing falls apart. It took months to get permission to use torture on these prisoners. Of course, since ticking time-bomb scenarios simply don't happen in real life, it's doubtfull we even need to bother with that blind alley. The claim that torture yielded useful information is likewise ridiculous. We now have on record numerous statements from those involved in interrogating these prisoners. They all say that useful information was obtained before torture was employed and dried up when torture started. And that's not surprising because we have lots and lots of studies that say torture does not produce reliable information.

More to the point, the question is not "does torture work?", the question is "is torture legal?". And the answer, bluntly, is no. The Geneva Conventions ban torture. Ah, say the right, but the terrorists didn't sign the Conventions. No, they didn't but the Conventions are what is called a "unilateral compact". That means they are binding on all signatories, regardless of who we're fighting. We could be fighting Martians and we'd still be bound by the Conventions. Then comes the claim that the terrorists aren't covered by the Conventions. Sorry but this one falls apart as well. Put simply, anyone held in custody is either a criminal (and entitled to all the rights and protections thereof), a civilian (who should be relased) or a PoW. There is no middle ground here. If you take them off a battlefield, they're a PoW. Then there is the claim that the extraordinary circumstances make torture allowable. Sorry, wrong again. The Conventions and the UN Declaration on Torture (which the US is a signatory to) both specifically knock down that arguement. Both say that no extraordinary circumstances may be used as justification for torture. The US law against torture, championed by the patron god of right-wingers, St. Ronnie of Reagan, said much the same thing.

So, waterboarding is torture and torture is illegal in all circumstances. Still, perhaps there could be some situation (perhaps the Martian war mentioned above) where you have no other choice. If that is the case, the right thing to do, the honourable thing to do, is to do what you must and then resign and submit yourself to the rule of law. Stand by your principles, stand up and say "I did it because I had to but it was entirely wrong, it must never be done again and I will take the consequences of my actions". If you believe your actions were justified, stand before the court and justify them.

But Cheney doesn't work that way. He, either personally or through others, created the systemic practice of torture and now, he is relying on the new media's tendancy toward "Oooh, shiny!" attention spans to escape the consequences. And the news media is going along with him. Because it's easy and cheap. It's easier and cheaper to describe the torture dispute as a partisan fight (hence the obsession with what Pelosi knew and when) than it is to do actual research.

I disagree with Jesse Ventura a lot of the time but I have a lot of respect for him as well, mainly because he always tells you exactly what he thinks. On this, he and I are in agreement. Every single person who enacted, approved or signed off on torture should be prosecuted.

Friday, May 29, 2009

About Justice Sotomayor

So, Obama has chosen his first Supreme Court nominee. Her name is Sonia Sotomayor. She's a highly experienced Appellate Court judge; she was first nominated as a judge by Poppy Bush and later promoted to the Appellate Court bench by Bill Clinton. She also happens to be female and Hispanic.

Predictably, the right are going insane over her nomination. Since they seem determined to make their stand on the hill marked "Obstructionism", that shouldn't be too surprising. What is surprising is that their attacks on Justice Sotomayor are so, well, weak. They're not even serious attacks, just the pained howls of a political party rapidly fading into insignificance. Still, as we don't have anything better to do (well, I don't and since you're reading this, nor do you), let's knock them down:

- She's a judicial activist! The right has thrown this charge at every single judge who made a decision they disagree with for the last thirty years. First off, there is no such thing as a judicial activist. All judges make law from the bench. In fact, it's impossible to avoid. Due to the operation of stare decisis, a judicial decision once made becomes binding law on all lower courts. An interpretation of the law by one judge becomes binding on all judges in lower courts unless and until it is overruled. That's how precedent works. It is, in a very real sense, the bedrock of our legal system and it means that judges can't avoid making law from the bench.

Secondly, this seems to be based on one remark Justice Sotomayor made in a speech a couple of years ago. The remark was, paraphrased, that "appellate courts make policy". Sounds damning, right? Except that in context, she was talking about the simple fact that a decision makes policy with regard to how that point of law is interpreted in future i.e. she is talking not about anything sinister but about the operation of precedent (outlined above).

- She has a 60% reversal rate! True but really, really misleading. In order to arrive at that statistic, you have to narrow the roughly 380 decisions Justice Sotomayor has made or signed on to down to only those five which have been ruled on by the Supreme Court (there is one other still pending). Of the five which have been reviewed by the Supreme Court, three have been reversed which is where the right is getting this 60% talking point.

However, that is, as said, really misleading. The Supreme Court doesn't review cases routinely, they choose their own cases through a process called certiorari. Essentially, what happens is that the Supremes look down a list of cases which have petitioned for certiorari until they find one which they think is interesting or decided wrongly and then choose to hear that case. The result is that the Supreme Court has an average reversal rate of about 75%. The SCOTUS reverses about three-quarters of the cases that come before it. On those grounds, Justice Sotomayor is batting above the average. Further, Justice Alito had an even higher reversal rate. On the hundreds of opinions that he authored or concurred with, two were taken up by the SCOTUS and both were reversed. So, if we want to phrase things that way, Justice Alito has a reversal rate of 100%.

- She's a reverse racist! There is no such thing as reverse racism. It's still just plain old racism, even if it's directed at white people. Further, the charge of "reverse racism" has now become a convenient excuse for white people to actually be racist.

Now, this seems to come from a concurring opinion she gave to the controversial New Haven 20 case. The case, in brief, concerned an exam (pertaining to promotion prospects) given to some firefighters which was thrown out by the city when no black firefighters passed. Justice Sotomayor joined with the majority refusing to hear the case (thereby upholding the opinion of a lower court which said the city had the right to do so). So, she's a reverse racist who believes in quotas, right? Wrong. See, there are several reasons a court can decline to hear a case. One is that they think the lower court decided the case correctly. Another, often used on the Appellate Court with highly controversial cases, is to fast-track the case to the SCOTUS, thus saving everyone the time and cost of arguing the case in full. Guess which this case comes under? You guessed it.

Here's an excerpt (Katzman, writing for the majority):
"The Supreme Court now has before it a petition for certiorari in this case, which I recognize presents difficult issues. As the Supreme Court decides whether to grant certiorari, it has for it's review the district court's opinion, the panel's per curiam opinion and opinions concurring with and dissenting from the decision denying rehearing en banc. The issues are therefore sharply defined for the Supreme Court's consideration of whether to grant certiorari".
Translation for those who don't speak legalese: "This case is maddeningly complex, it's going to get appealed anyway, all the evidence and opinions are there so SCOTUS, it's all yours". The decision was a procedural move to fast-track the case to the Supreme Court.

- She's not bright enough! Here's a partial list of those who disagree: Poppy Bush, Bill Clinton, Orrin Hatch, six other Republicans on the Judicial Committee (all still serving), Lehman College, Princeton University, Brooklyn Law School, Pace University School of Law, Hofstra University, Northeastern University, Columbia Law School, New York University School of Law and the ABA. Oddly, she was also elected a member of the American Philosophical Society. Also, Harriet Miers.

- She's an affirmative action pick! This has now become a rallying cry for actual racism. Anytime someone of an ethnic minority is chosen for a high-profile position, the cry goes up that they are an affirmative action pick. It has now become simply a label to excus racism and therefore, I'll be devoting no further time to it.

- She's empathetic! And? Since when is empathy a bad thing? Being empathetic doesn't mean disregarding the principles of law, it simply means understanding the position of those before a court of law. Think that's bad? Poppy Bush said exactly the same thing of Clarence Thomas when he was nominated.

- She's nasty and a bully! Call a wahbulance. First off, how can she be bother empathetic and a bully? Secondly, so what? No one included "sunny disposition" on the list of qualifications. So a few of her colleagues can be fond to say she's unpleasant. I'm sure a few of my colleagues could be found to say the same thing. In life, not everybody is going to like you. Most of us learn that lesson on our first day of school but apparently, it's needs to be reiterated. Thirdly, compared to Scalia?

Justice Sotomayor's record says she is extremely bright; committed to the principles of law and that far from a "judicial activist", she is a left-leaning moderate. She's good enough, she's smart enough and, doggone it, people like her. Of course, since the right is determined to sabotage every single thing Obama is trying to do, they are going to raise a hue and cry over this nomination. They may even try for a filibuster (Republicans filibuster nearly everything when they're in the minority but threatened the "nuclear option" of eliminating the filibuster entirely when they were in the majority and the Democrats filibustered far less). Hopefully, they'll lose because justice Sotomayor is exactly the kind of Justice you want on the Supreme Court and it would be a tremendous loss to the law if she were another victim sacrificed on the pyre of conservative obstructionism.