Law: April 2009 Archives

Torture Investigations

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Maybe I haven't been following the calls for torture investigations closely enough, but it seems to me that there need to be two things that I'm not seeing for me to be convinced that the people issuing such calls are sincere about the issue and not just pursuing a politically-motivated witch hunt.

1. Speaker of the House Nancy Pelosi, Senate Majority Leader Harry Reid, and a number of other congressional Democrats were involved in discussions with President Bush and other administration officials when all this was actually going on, and they seem to have given their approval of whatever actually took place with official sanction. Or at least they voiced no objections. That's what I keep hearing. But I have heard very little about anyone seriously suggesting that they be investigated. The only reason I can think of for that is that they're Democrats. Someone with more information than I have should feel free to correct me on this if I've got the facts wrong, but it's very hard to see this as a movement to correct for mistaken policies and hold those responsible accountable unless all who were responsible are going to be investigated.

2. As far as I've been able to discern, the U.S. military has long used techniques like waterboarding in training their special forces to be able to withstand harsh interrogation techniques. My understanding is that they train them in techniques that are uncontroversially torture. Yet President Obama continues President Bush's claim that the U.S. doesn't torture. Those who accept it from Obama but didn't from Bush need to account for this, and if they think these procedures are immoral in principle then they ought to be consistent and issue a call to hold accountable those responsible for torturing our own troops, including any at high levels who knew about this and allowed it. (I suspect that would be all the presidents for at least as far back as Jimmy Carter, the earliest president still alive.) Again, it's possible that I don't have all the facts on this, and I'd be happy to receive corrections on this, particularly if you can back it up with sources I'd be likely to trust. But what I read of the very memos that everyone's getting all excited about now (even though they say almost nothing that we didn't already know) seems to confirm that this has been going on with our own troops.

I don't think this shows us one way or the other whether these policies are legal, morally justifiable, or worth pursuing an investigation about (and I see those as three somewhat independent issues). I actually think those issues are more complex and difficult to navigate than either side wants to acknowledge. See my 2004 post and then my 2007 pair on the moral and linguistic issues. (I can't say that I'd agree with everything in those posts now, though.)

But it doesn't seem to me that most of the people who are actually raising a big stink about this are doing so for consistent, principled reasons unless they're willing to apply it to the above two cases. (That doesn't mean they're all hypocrites, because they might not see the inconsistency and might be willing to adjust their behavior if they did see it, or perhaps they have arguments for differential treatment of the different cases, although I'm not sure what those would be.)

Most tests I find to determine how closely one might align with which Supreme Court justices are fairly superficial and don't base their calculation on very many issues. They also usually focus on general issues that don't always line up well with the actual cases that we have justices' votes on. I've found one that's a lot better, although it does have a few problems still. This one is mainly focused on actual cases, although its reliance on mostly hot-button political issues, while providing some familiarity for those who aren't heavy court-watchers, probably skews the results, whereas one that included more mundane issues might lead some to side with justices whose views they disagree with on hot-button political issues.

I have a few comments on the test before I get to my results and question-by-question analysis and explanations. This quiz gets most of the issues right and in some places makes finer distinctions between views than most. As far as I can tell, almost all of the questions (with one exception I can detect) are based on actual votes of justices rather than expected views or general tendencies. I do see two problems, though, and they are substantial.

One is that it does still oversimplify in a few places. It seems to ask questions about the result, which fails to capture the various reasons justices might go for that result. Thus an originalist who supports originalist reasons for a certain result might be on the same side as a non-originalist who picks the same side for living constitutionalist reasons. Someone indicating that choice then gets both names associated with them, and that's unfortunate. I found a lot of these cases put me on the same side as justices whose reasoning I don't support. Most people aren't going to read the cases or even summaries of them, either, and thus they will be going fully on policy preferences. Some justices do that anyway unashamedly, and sometimes the ones who seek not to do that will smuggle policy preferences in without admitting it. But if I want to see if I'm like a certain justice, I should see if I agree with the justice's reasoning, not whether the outcome is the one I'd prefer if I were in a legislative body. Making this quiz result-based masks the real differences between the justices, treats policy outcomes as the only issue of dispute, and thus skews the results.

Some of the questions themselves are not framed correctly at all. For instance, on #10 it asks if suspected terrorists who aren't U.S. citizens have any constitutional rights, and everyone on the Supreme Court would say yes to that. But that issue has never been before the Court. So what's it doing here? What they probably meant to ask is whether they have some specified set of rights (e.g. habeas corpus and related rights to use U.S. courts to challenge their imprisonment, which the Supreme Court did disagree on). On several questions, I thought the question asked about a more minor matter of disagreement than what the main dispute in the case was about. In a few cases, I thought the opinions were so splintered that it wasn't really a good case to ask such a broad question about, as if your view on the issue of the question would tell you much about how much your reasoning or preferences are like those of any particular justices.

But, all that being said, this is still one of the better tests matching your answers to legal questions with justices who voted on those cases, so I thought it was worth spending some time seeing where I really come out, and I decided to look at some of these cases I was less familiar with in more detail to try to overcome some of the problems in how the questionnaire is conducted. Now on to my results and analysis.

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