Thursday, April 23, 2009
This, from Chris:
I'm not sure from Rob's response whether or not we actually disagree on principle. I articulated a non-consequentialist argument in support of the permissibility of waterboarding KSM-- fairness is distributing harms permits us to waterboard KSM if waterboarding KSM is our only available means to prevent one of his plans from killing innocents. Rob responds by denying that we will ever be so situated ... or that we cannot ever know that we are so situated, or that we cannot reasonably believe that we are so situated. There might be effective ways to get info from KSM that don't involve waterboarding. Waterboarding might not work. And the like. I grant that these will often be genuine possibilities. None of this, however, is responsive. Surely those who are responsible for protecting the innocent can realistically be circumstanced such that waterboarding a known terrorist who admits to knowing about future attacks is our only remaining means of acquiring the necessary information (even if unlikely to work). (What possible reason could we have for thinking this to be impossible?)
So far as I know, we might have been so circumstanced with respect to KSM -- as a last resort, having tried all manner of alternatives, we possessed no realistic way to gather any more information than waterboarding KSM. Perhaps, perhaps not. That's why we want information about who knew what, when, and where, which was the initial question. We should have a impartial and bipartisan analysis of what was done to KSM, what he said, what his statements led to. Then we'll be in a position to judge whether those who waterboarded KSM actually has reason to waterboard him.
If you're in the Chicago area this evening, make time for what promises to be a fascinating conversation at Loyola University Law School. Titled A Jesuit law school -- what's the difference?, the program features MoJers John Breen and Susan Stabile, along with Notre Dame law prof Vince Rougeau and Boston College law prof Tom Kohler.
Congrats to Rick and Tom B. for lending a hand to the cause of religious liberty in Connecticut. It appears that the proposal they submitted (along with Doug Laycock, Carl Esbeck, and Robin Wilson) helped shape the same-sex marriage bill that was passed last night. Over at the Volokh Conspiracy, Dale Carpenter applauded the new bill and commented specifically about the Berg-Garnett et al. proposal:
The proposal is important, both because it comes from acknowledged experts in the field of religious liberty and because it is likely to be endorsed in some version by even more academics and other advocates. My guess is that something like it will be introduced every time a same-sex marriage bill is considered.
I've complained before about the lack of commitment by Catholic schools to educating children with special needs. Well, someone's finally doing something about it, and it appears that they are doing it very, very well! Nicole Garnett brought to my attention an new initiative of Notre Dame's teacher training through service program, Alliance for Catholic Education ("ACE"). The goal of the initiative is as follows: "Based on the Theology of Inclusion, Catholic Schools will be prepared to educate the children of God regardless of special needs in learning, behavior, language acquisition, or social-economic status."
You can read a detailed memo about his initiative here, but it's clear from the introduction that these people absolutely understand what so many Catholic parents of kids with special needs have been trying to explain:
Inclusion, in educational circles, is defined as providing an equal education to all children, and to the maximum extent possible, educating all children in the same setting. Catholic social teaching compels schools to include and serve traditionally marginalized students, including students in poverty, those with special needs, and English language learners. Over the past half-century Catholic schools have strived to be inclusive toward students in poverty. However, during this same time period, they have largely failed to craft service delivery systems for students with special needs and for English language learners. . . . We must first remind principals, teachers, and parents that Catholic education for the baptized is not a choice but a responsibility. Secondly, we must give schools the tools to both address learning, language and behavior issues of children in the classroom, and to understand how to access federal and state monies to support this endeavor. And, perhaps, most importantly, we must frame this work in our Catholic faith, in Scripture, in our Church documents, and in Catholic social teaching.
And its also very clear that ACE has a solid appreciation for the challenges that this project presents to Catholic schools. ACE has been conducting a pilot program in Florida for a number of years to train teams of teachers in under-resourced Catholic schools to recognize and deal with various learning and behavioral problems, and to tap into the IDEA-mandated resources available from the state to support education of students with special needs. Going forward, ACE is proposing to offer its graduates who have a major or minor in Theology training on the Theology of Inclusion, preparing them to offer workshops on this topic to diocese and school boards, and to consult with schools to train teachers to implement this theology. Long-term, ACE is proposing to develop a Master of Arts in Inclusionary Practices.
This is wonderful news!
Leslie Green has posted a new paper that should be of interest to MoJ-ers. Here's the abstract:
This article defends legal instrumentalism, i.e. the thesis that law is distinguished among social institutions more by the means by which it serves its ends, than by the ends it serves. In Kelsen's terms, '[L]aw is a means, a specific social means, not an end.' The defence is indirect. First, it is argued that the instrumentalist thesis is an interpretation of a broader view about law that is common ground among theorists as different as Aquinas and Bentham. Second, the following familiar fallacies that seem to stand in the way of accepting the thesis are refuted: (1) If law is an instrument, then law can have no non-instrumental value. (2) If law is an instrument, then law always has instrumental value. (3) For law to be an instrument, there must be generic end that law serves. (4) If law is an instrument, law must be a neutral instrument. These claims are all wrong. In passing, the instrumentalist thesis is distinguished from other, unrelated, views sometimes associated with instrumentalism, including Brian Tamanaha's diagnosis of the vices of American law, and the views of those who think that jurisprudence is an instrument in the service of social ends.
The Colorado House of Representatives has voted -- narrowly -- to repeal the death penalty. According to this story, the person who cast the deciding vote did so on the basis of "moral appeals he had heard, including from Archbishop Charles Chaput, the senior Roman Catholic clergyman in Colorado." (HT: American Papist).
But wait, this can't be correct . . . Arbp. Charles Chaput is a narrow-minded Republican hack, right?
Villanova law student Casey Khan responds to Chris Eberle's post regarding torture as the distribution of harm:
Prof. Eberle gives one of the most sophisticated arguments I've seen for a limited instance of justified torture. The reason the argument fails, however, is the same reason all consequentialist ethical arguments ultimately fail, it is reduced to a state of incalculable contingencies.Prof. Eberle argues that since KSM culpably set in motion a plan that is going to potentially kill innocents, it is permissible distribute the harm away from the innocents, and redirecting the harm to KSM by torture. The option is binary according to Prof. Eberle, waterboard KSM stopping the plan to kill innocents, or LA's innocents are destroyed.
[An op-ed in today's NYT, by Ali Soufan, who was an F.B.I. supervisory special agent from 1997 to 2005.]
My Tortured Decision
My Tortured Decision
FOR seven years I have remained silent about the false claims magnifying the effectiveness of the so-called enhanced interrogation techniques like waterboarding. I have spoken only in closed government hearings, as these matters were classified. But the release last week of four Justice Department memos on interrogations allows me to shed light on the story, and on some of the lessons to be learned.
One of the most striking parts of the memos is the false premises on which they are based. The first, dated August 2002, grants authorization to use harsh interrogation techniques on a high-ranking terrorist, Abu Zubaydah, on the grounds that previous methods hadn’t been working. The next three memos cite the successes of those methods as a justification for their continued use.
It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Along with another F.B.I. agent, and with several C.I.A. officers present, I questioned him from March to June 2002, before the harsh techniques were introduced later in August. Under traditional interrogation methods, he provided us with important actionable intelligence.
We discovered, for example, that Khalid Shaikh Mohammed was the mastermind of the 9/11 attacks. Abu Zubaydah also told us about Jose Padilla, the so-called dirty bomber. This experience fit what I had found throughout my counterterrorism career: traditional interrogation techniques are successful in identifying operatives, uncovering plots and saving lives.
There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified. The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process.
Defenders of these techniques have claimed that they got Abu Zubaydah to give up information leading to the capture of Ramzi bin al-Shibh, a top aide to Khalid Shaikh Mohammed, and Mr. Padilla. This is false. The information that led to Mr. Shibh’s capture came primarily from a different terrorist operative who was interviewed using traditional methods. As for Mr. Padilla, the dates just don’t add up: the harsh techniques were approved in the memo of August 2002, Mr. Padilla had been arrested that May.
One of the worst consequences of the use of these harsh techniques was that it reintroduced the so-called Chinese wall between the C.I.A. and F.B.I., similar to the communications obstacles that prevented us from working together to stop the 9/11 attacks. Because the bureau would not employ these problematic techniques, our agents who knew the most about the terrorists could have no part in the investigation. An F.B.I. colleague of mine who knew more about Khalid Shaikh Mohammed than anyone in the government was not allowed to speak to him.
It was the right decision to release these memos, as we need the truth to come out. This should not be a partisan matter, because it is in our national security interest to regain our position as the world’s foremost defenders of human rights. Just as important, releasing these memos enables us to begin the tricky process of finally bringing these terrorists to justice.
The debate after the release of these memos has centered on whether C.I.A. officials should be prosecuted for their role in harsh interrogation techniques. That would be a mistake. Almost all the agency officials I worked with on these issues were good people who felt as I did about the use of enhanced techniques: it is un-American, ineffective and harmful to our national security.
Fortunately for me, after I objected to the enhanced techniques, the message came through from Pat D’Amuro, an F.B.I. assistant director, that “we don’t do that,” and I was pulled out of the interrogations by the F.B.I. director, Robert Mueller (this was documented in the report released last year by the Justice Department’s inspector general).
My C.I.A. colleagues who balked at the techniques, on the other hand, were instructed to continue. (It’s worth noting that when reading between the lines of the newly released memos, it seems clear that it was contractors, not C.I.A. officers, who requested the use of these techniques.)
As we move forward, it’s important to not allow the torture issue to harm the reputation, and thus the effectiveness, of the C.I.A. The agency is essential to our national security. We must ensure that the mistakes behind the use of these techniques are never repeated. We’re making a good start: President Obama has limited interrogation techniques to the guidelines set in the Army Field Manual, and Leon Panetta, the C.I.A. director, says he has banned the use of contractors and secret overseas prisons for terrorism suspects (the so-called black sites). Just as important, we need to ensure that no new mistakes are made in the process of moving forward — a real danger right now.
Wednesday, April 22, 2009
This from Chris Eberle:
Rob expresses the concern that the argument I articulated in favor of waterboarding KSM blurs the line -- unacceptably -- between interrogation and punishment. But I'm not sure about that. I don't think that waterboarding KSM is permissible because he 'deserves' to be punished. Retribution plays no role in the argument I articulated. Rather, I think that KSM's culpability helps us to determine how to distribute inevitable harms. That is, given the plan KSM culpably set in motion, some innocents are going to die. But we have available to us an unexpected means of redirecting the harm -- not to its intended, innocent targets, but to KSM. Given either that innocents in LA will die or that KSM will be waterboarded, KSM's having culpably initiated a plan that will otherwise result in the death of those innocents permits us to take the second option. His culpability determines who will be harmed, given that *someone* will be harmed.
Just to make clear that this argument presupposes no claim about KSM deserving to be punished, note that the argument I articulated permits KSM's waterboarding only if that would actually help to thwart his plan to kill innocents, and would be impermissible if waterboarding him had no such consequence. (I assume that, were he to 'deserve' to be waterboarded, we would be obliged, or at least permitted, to waterboard him even if doing so prevented no plan of his. He would be getting what he deserved.)