On Hiatus

Update (5/27): I will clear the occasional comment. If the volume of comments increases, I will not, solely due to time constraints.

I will relusctantly put this blog on hiatus for about a month, starting at 11:59 PM Sunday 24 May. I have some pressing professional responsibilities which require my complete attention. I will not post anything, unless there are unforeseen circumstances arising. I do not plan to clear comments after today, but if you submit them in about a month, I will take care of them when I come back. I thank everyone for their interest.

Chris

Devilish Discords, A Reply to Robert Zimmerman

(On 5/21/09 I revised the original essay. Most of the changes are minor editing to clarify some points that may have been confusing (http://forums.talkleft.com/index.php?topic=2008.0), but the final paragraph is entirely new.)

Professor Robert Zimmerman has written numerous times about the Duke lacrosse case and how the faculty responded. His praise of Professor Leitner’s article (the “sense” in the sense-and-nonsense post) indicates that he is sympathetic to the group of 88 faculty who signed the listening statement. Yet he has also written about the excesses of some in the Duke community (http://reharmonized.an-earful.com/2007/11/trouble-with-potbanging/). His assessment (http://reharmonized.an-earful.com/2007/12/sense-and-nonsense/) of Professor Steven Baldwin’s op-ed to the Duke Chronicle in October of 2006 is typically David Broderesque in its attempt to find some wrong on both sides (for example, http://reharmonized.an-earful.com/2007/11/lacrosse-racket-postscript).

Baldwin wrote (http://media.www.dukechronicle.com/media/storage/paper884/news/2006/10/24/Columns/The-Administrations.Mismanagement.Of.Lacrosse-2384801.shtml), “The faculty who publicly savaged the character and reputations of specific men’s lacrosse players last spring should be ashamed of themselves. They should be tarred and feathered, ridden out of town on a rail and removed from the academy.” Professor Robyn Wiegmann replied (http://media.www.dukechronicle.com/media/storage/paper884/news/2006/10/25/Letters/Cultivate.Community.Of.Critical.Thought-2400650.shtml), “Being tarred and feathered is the language of lynching, and the practice of lynching was rarely one that eventuated in a court case of any kind, let alone one in which the defendants claim 10 minutes on one of the most important television programs in the United States. My disappointment in Duke right now is that it wants to avoid the analysis of the language and history of race, instead of using this moment-in its broad social implications-to actually study it.” Baldwin then apologized by saying (http://media.www.dukechronicle.com/media/storage/paper884/news/2006/10/25/Letters/insensitive.Language.Unintentional-2400648.shtml?norewrite200610261312), In particular, in the next-to-last paragraph of the editorial I used some terms that I have now learned have racial connotations for some…I deeply regret that what for me is a totally non-racial issue has assumed that character.”

Zimmerman critcized Baldwin, writing, “I’m happy to grant that it was past time for faculty members to speak publicly and critically about the treatment of the lacrosse players on campus and by Nifong. I’m hard pressed to think of a way of making the point that’s more obnoxious and less constructive than Baldwin’s, though.” By failing to say what he would find constructive, Zimmerman took the easy way out: He cloaks himself in a mantle of moderation (indicating some wrong on both sides), but he doesn’t have to commit himself and take a stand against the group of 88 and their allies. In contrast, Zimmerman praised Wiegman’s reply as “well-modulated” and implied that her “language of lynching” statement has been blown out of proportion. Why didn’t he defend Baldwin by the same criterion? Most of Baldwin’s letter concerned the right and wrong ways that a university might treat its students; his tarring and feathering comment is no more the bulk of what he is saying than Wiegman’s language of lynching comment, perhaps less.

Zimmerman treated Baldwin’s comment that certain faculty “removed from the academy” literally. He also described “targeted” faculty as engaging in a “it-for-tat that strikes me as unwarranted” when they wrote to Broadhead to ask for his removal. This is a false equivalence. No one has ever said that Baldwin contacted President Broadhead to remove anyone. Moreover, because he coupled it with a clearly metaphorical call for tarring and feathering, the passage in his letter cannot be read as an actual call for anyone’s dismissal. However, some members of the Duke faculty had previously called for Coach Pressler’s removal (Pressler was forced to step down), and now some were literally calling for Baldwin’s.

Zimmerman conceded that tarring and feathering are not really the language of lynching, “but so what? It’s still the language of intolerance and vigilantism, directed indiscriminately at an unspecified group of colleagues who didn’t live up to the paternalistic standard Baldwin set for himself and the university.” Zimmerman thus set up a false alternative; a professor need not agree with Baldwin’s principle of in loco parentis to refrain from publicly shaming his or her students (not only is it wrong to do so, but it is also not a very effective teaching tool). Since Baldwin was not literally calling for tarring and feathering, one can ignore Zimmerman’s equating Baldwin’s comments with vigilantism, however given his post on the potbangers, he is probably sincere in reviling vigilante justice. More problematic is that he seems to be holding up tolerance as always and unquestionably a good thing. Yet, the Duke faculty should not tolerate mistreating students any more that it should tolerate racism.

Zimmerman’s cavalier “so what” is inadequate in two ways. First, accuracy of expression is among the central goals of the academy (I would put it close to the top). Baldwin was criticizing specific members of the faculty for what they did do, whereas Wiegman was calling Baldwin, a self-described liberal, to task for something that he did not do, that is making a remark with strong intimations of racism. Even if Wiegman, a professor of Women’s Studies and Literature, were merely ignorant of the origins of the phrase to tar and feather (which seems unlikely), it would still be a serious error. Furthermore, for Zimmerman to say that her false charge of racial insensitivity does not matter while at the same time praising those who raise issues of racial inequality (such as Wiegman and Leitner) is blatantly inconsistent.

If one is in any doubt that some Duke professors shamed their students in wildly inappropriate ways, the Liestoppers board has collected some examples (http://s1.zetaboards.com/Liestoppers_meeting/topic/1632939/1/). I will present only a sample. Grant Farred accused the Duke students who registered to vote with the intention of ousting Prosecutor Michael Nifong of racism and naked self-interest. As the case was unraveling, Houston Baker called the lacrosse players a “scummy bunch of white males.” If a Duke professor had called a black fraternity a scummy bunch of black males, I wonder what the public outcry would have been. Karla Holloway rebuked the women’s lacrosse team for wearing armbands in support of the men’s team, whose season had been cancelled (Until Proven Innocent, p. 234). Tim Tyson likened the team to “white supremacists” and said that the spirit of the lynch mob lived in that house on Buchanan Street (http://durhamwonderland.blogspot.com/2008/05/tyson-reinvents-history.html). He also said that Duke students not talking to Sgt. Mark Gottlieb outside the presence of their attorneys “may be illegal” and constituted a “terrible moral miscalculation.” Perhaps most disappointingly Father Vetter and Reverend Wells, both of whom minister to the Duke community, independently gave sanctimonious, guilt-presuming sermons. Most astonishing, though, is Kim Curtis’ interpretation of the players’ confidence that the DNA results would exonerate them. She implied that the lacrosse players knew that someone else had perpetrated a rape and that the players were accomplices by not naming him.

To paraphrase the NYT’s Peter Applebome, some in the media had declared open season on the Duke lacrosse team in general and the three indicted players in particular. One wonders why more in the faculty did not rebuke the media for doing so, instead of painting bull’s-eyes on the players’ backs. Zimmerman does not understand what makes the Baldwin-Wiegman exchange “unbearably sad” to Harvey Silverglate (co-founder of FIRE). Perhaps it was that the discussion about the inexcusable way that the “feckless” faculty were treating their own students was interrupted by a claim that these faculty were victims, an eerily similar claim to one found in the clarifying statement made the following January (http://www.concerneddukefaculty.org/) by the Group of 89.

Here are some questions to which I would like to hear Professor Zimmerman’s answers. Is it his contention that a discussion of the language and history of race was more urgent than a discussion of how Duke should treat its students in legal peril? What did this “moment” actually have to do with the “language and history of race” in the first place? If Wiegman knew that tarring and feathering was not associated with lynching but made this charge anyway, would Zimmerman still say, “so what?”

No one has ever claimed that the three indicted players used racial epithets on the night in question. Therefore, long before October of 2006, there was no reason to believe that the alleged rape had anything to do with race. Yet Wiegman and the Group of 89 still wanted to speak of nothing else: They played the accusation of racism as though it were an ace that could never be trumped. When I first encountered this case, I believed that the members of the Group of 88 were sincere in their concern about racism at Duke, despite being overzealous about the accusation of rape. After Wiegman’s spurious charge of racism against Baldwin, Huston Baker’s racist attack on the players, and the Group of 89’s showing more concern over unspecified racism and sexism than for its students being denied due process, I can no longer take their claims seriously.

Full disclosure: I am the reporter who originally solicited Harvey Silverglate’s comments (http://web.duke.edu/~kcl10/DSFEDuke/Duke_Taylor11.pdf).

The final Duke photographic lineup and some thoughts on Tulia, Texas

Chapter 13 in the book “Race to Injustice: deals with eyewitness-identification procedures. The authors are Gary L. Wells, Brian L. Cutler, and Lisa E. Hasel, and the first two authors helped to develop the procedures that Durham adopted prior to the lacrosse case as well as serving as consultants for the defense. With respect to the final array of photographs on April fourth, the authors write, “The repeated presentation of certain suspects’ photos is obviously egregious; ironically, existing recommendations for proper identification procedures have spent little time discussing this issue…precisely because it seems so obvious.” The American Psychology-Law Society and the North Carolina Innocence commission both recommend against showing the same faces multiple times, and for doing the lineup in a double-blind fashion (meaning that the officers in charge of presenting the photos should not know who the suspects are).

Recently a commenter here claimed that the lineup was not to identify her alleged attackers but rather to help her recall who was at the party. However, even if this rationale were true, it would still violate the recommendation on not showing faces multiples times put forth in the chapter by Wells, et al. Moreover, once Ms. Mangum picked certain individuals in the photos, I would predict her to identify them in a trial based on her memory of the photos. In stark contrast to the views of these authors, Professor Irving Joyner of North Carolina Central University and case monitor for the NCNAACP (http://www.usatoday.com/news/nation/2007-02-27-duke-race_N.htm), says “as long as she can identify the men in court, the photo lineup is ‘really unimportant.’" Her identifying them would be enough to "support" a verdict of guilty in a rape case in North Carolina (“Until Proven Innocent,” p. 379), meaning that the jury could have convicted Reade Seligmann and Collin Finnerty, both of whom had alibis for the time in question.

This is where the conviction of some forty-six putative drug dealers, most of whom were black, in Tulia, Texas, a town of about five thousand might be discussed for comparison. The story of the mostly wrongful convictions is the subject of a documentary (“Tulia, Texas”) aired as part of the Independent Lens series on PBS in February of 2009. The convictions were based entirely on the word of one undercover cop in the absence of other witnesses or corroborating fingerprints. Curiously when this film premiered in Wilmington in November of 2008, a representative from the WPD mentioned the Duke case in passing, when discussing whether a case like Tulia could happen here. In assessing the motives of the now discredited policeman, it is fair to point out that the professional rewards for exaggerating the number of drug dealers was considerable.

An exacerbating factor in both the Duke case and the Tulia case is the role of stereotypes. The first defendants in the Tulia case faced an all-white jury, and one can speculate that the stereotype of blacks being more likely to use and deal in drugs played a part in these convictions (http://www.texasobserver.org/article.php?aid=611). Likewise it was easy to believe the early story of jocks gone wild because it played into a picture of rich, white men of privilege doing whatever they pleased. The combination of a low threshold for conviction and stereotyping the defendants would seem to be synergistic in its ability to generate miscarriages of justice.

However, there were differences between this case and the Duke case, the first being that a few of the Tulia defendants were able to produce alibis and had their charges dropped. Another difference is that poverty and the use of long prison sentences against the first defendants caused some of the rest to accept plea-bargains. Finally, one area of both similarities and differences is the role of the press. Attorney Jeff Blackburn noted, “The only say we had was in the press. Mr. Blackburn, who hired a private investigator out of his own pocket, also said, “We had to go outside [the legal system], to the press. I’m glad that we had the allies that we did. [Otherwise] it would have been swept under the rug.” The allies to which Mr. Blackburn referred included the ACLU of Texas, the William Kunstler Foundation, and the NAACP legal defense fund (http://www.forejustice.org/wc/tulia_travesty.htm). The Tulia case illuminated the positive role the press has to play when someone is wrongfully convicted. In the Duke case the NCNAACP argued for a pretrial gag order (http://www.wwaytv3.com/node/1260). These are typically issued when publicity will impair a defendant’s right to a fair trial (see Chapter 8 in “Race to Injustice”). The NAACP legal defense fund is allied with the NAACP but not affiliated with it.

When the punishment for an offense is a multiyear prison sentence, there should be a higher standard of evidence required to obtain a conviction than the word of one person. Despite the cautionary lesson from Texas, the federal drug laws have not been changed. One wonders how criminal statutes came to have weak requirements for conviction. In Chapter 12 of “Race to Injustice” on the grand jury system, former Federal prosecutor Michael Seigel writes, “Without a doubt, the worst accusation that an individual can face today is that he is a child molester or rapist.” I submit that when the public is fearful about a particular type of crime, or when it holds a type of crime in special contempt, politicians will tilt the law in favor of conviction.

A report in Vincent Clark's appearance at the University of North Carolina, Chapel Hill

The publicity agent for Crystal Gail Mangum, Vincent “Ed” Clark, spoke and answered questions on Wednesday 22 April 2009 at the Sonja Haynes Stone Center on the campus of the University of North Carolina, Chapel Hill. The program was called 
"Cracks in the Justice System: Victims of Money, Media and Misconduct, " and it was sponsored by chapters of certain campus sororities or fraternities (http://www.unc.edu/student/orgs/onetnx/events.html
). The presentation included readings from the writings of several wrongly convicted minority individuals, including Ronald Cotton, Lesly Jean, and Hector Gonzalez. In response to a question after the presentation was over, Mr. Clark implied that he was working on a case in which two retarded boys are being held on the basis of signed confessions, in spite of both individuals being illiterate.

Mr. Clark, who represents Crystal Gail Mangum, the accuser in the Duke lacrosse case, is an affable and voluble individual. Ms. Mangum has published her memoir, “Last Dance for Grace” with Mr. Clark’s assistance, and the two have attempted to tell her life story to the media for some time. He discussed having conversations with Inside Edition and HBO, among others. He says that after initial enthusiasm among creators, their bosses or their boss’s bosses quash the project. The producers say something close to “Vince, they won’t let me do it.” Mr. Clark puts at least some of the blame for this on the families of the Duke three, who have dinner with Sumner Redstone. Mr. Clark says that Ms. Mangum wants to talk about herself and the mistakes she has made. She disappoints some in the media, who would like to have her confront Mr. Cheshire or the Duke three on camera. He attributed to 60 Minutes senior producer Michael Radutzky a statement to the effect that he would put a bullet into prosecutor Michael Nifong’s head so that no one would believe Ms. Mangum.

Mr. Clark spoke about the many hours he spent interviewing Ms. Mangum and also the time he spent going to church and listening to her speak with her pastor. “My job was to listen to Crystal.” Mr. Clark said that there are blogs that have criticized Ms. Mangum every day for three years: “That is why I have an affinity for her. What if she is lying, shouldn’t she be allowed to finish college?” Mr. Clark asked rhetorically whether the members of the audience had ever done anything with which they were uncomfortable. A member of the audience asked if she were lying, should she be prosecuted. Mr. Clark said that if one accepts the Attorney General’s conclusion that the three are innocent, they have to accept his decision not to prosecute. Earlier he noted that the AG said that she believes her story.

Mr. Clark implied that attorney Joseph Cheshire didn’t want most prosecutors who were guilty of misconduct put in prison, only Mr. Nifong, who made the mistake of going up against the wrong people. He also quoted professor Angela J. Davis, professor of law at American University, as telling Mr. Cheshire “Joe, you know this is not right, what you did to her.” Professor Davis has written extensively on prosecutorial power.

He also took issue with the idea that the lacrosse case was the worst case of prosecutorial misconduct ever. He said that Mr. Nifong never should have been talking in public. He also said that the Durham police department has “some problems with other investigations.” About the Duke three, Mr. Clark contrasted their experience with those of Mr. Gonzalez and the other individuals discussed in the program, saying, “They were shown on television.” When later asked about the Newsweek cover featuring mug shots of two of the accused players, Mr. Clark said that he and Crystal both thought that it “never should have been done.” Much earlier, Mr. Clark had characterized a discussion on Nancy Grace’s show as a scream fest.

With respect to Crystal and her family, he said that some in the media doubted that Crystal was a student at North Carolina Central University, but that when they saw professors greet her, the cameras shut off. Mr. Clark asked what was wrong with photos of Crystal sitting in class or with her diploma, which he said does not occur. Mr. Clark said that Ms. Mangum’s father tried to hold the family together, but that her mother had psychological problems. The media latched on to Ms. Mangum’s cousin Jakki, to whom Crystal had not spoken in six years, because of the desire within the media to portray Crystal’s family in a freakish light. Jakki, who is a transsexual, was treated as a family spokesperson.

After the presentation an observer characterized Ms. Mangum’s comments earlier that evening by quoting Ms. Mangum, “I want to tell my story.” However the observer indicated that Ms. Mangum spoke only about her experiences with the media, not about the case itself. When this remark was overheard by a presumed event organizer, this individual said that a discussion of the case itself was not the point of the evening.

O’Neil’s Analysis of Duke’s Group of 88: Casuistry Triumphs Over Common Sense

Robert M. O’Neil authored the chapter “Faculty Reactions, Contentious Debate, and Academic Freedom,” in the book Race to Injustice. KC Johnson has already reviewed this article (http://durhamwonderland.blogspot.com/2009/01/review-race-to-injustice.html). I would go further than Professor Johnson does, however, who writes “In a few other areas, however, O’Neil seems excessively willing to give the Group the benefit of the doubt.” The chapter is solicitous about the woes of the Group of 88 and nearly silent about its faults to the point that its objectivity is hopelessly compromised. The problems with his article are as often sins of omission as sins of commission.

O’Neil’s article is weakest in its analysis of chemistry professor Steven Baldwin’s interactions with the Group of 88. O’Neil has nothing to say about Baldwin’s main point, that a university and its faculty should use the principle of in loco parentis to guide its actions toward students (http://media.www.dukechronicle.com/media/storage/paper884/news/2006/10/24/Columns/The-Administrations.Mismanagement.Of.Lacrosse-2384801.shtml?sourcedomain=www.dukechronicle.com&MIIHost=media.collegepublisher.com). Indeed, O’Neil spends little if any time on the fact that the Group of 88 and its allies upbraided the lacrosse players and their families in public.

Baldwin closed:

“On the other hand I do not believe that a faculty member publicly describing any student in pejorative terms is ever justified. To do so is mean-spirited, petty and unprofessional, at the very least. The faculty who publicly savaged the character and reputations of specific men’s lacrosse players last spring should be ashamed of themselves.

They should be tarred and feathered, ridden out of town on a rail and removed from the academy. Their comments were despicable.”

I discussed the Duke lacrosse case with a very highly esteemed professor at Wabash College, my alma mater. He said that he did not think that Wabash would treat its students this way. He thought and hoped that they would be defended against the outside world and raked over the coals in private (presumably for the boorish behavior of some of the players). Baldwin made clear that acting in loco parentis did not mean forswearing accountability. Yet he also indicated that the Group of 88 and/or the faculty had dispensed with the presumption of innocence. Those casually following the case in the spring of 2006 might have concluded that the lacrosse players were a rotten bunch, given that their professors’ comments seemed to buttress those of District Attorney Michael Nifong.

However, it is Baldwin’s pentultimate comment that draws O’Neil’s fire. Baldwin’s desire to remove the offending faculty is “starkly uncollegial (p. 46). In ascending order of seriousness, there are a number of problems with O’Neil’s analysis. First, Baldwin was not literally calling for their removal any more than he was planning to buy feathers and warm up a vat of tar. Second, Robyn Wiegman claimed that tarring and feathering was the language of lynching (something that she and the rest of the group must have known was untrue), implying that Baldwin was a racist. As Johnson remarked, this is hardly collegial. At least Baldwin’s essay was based in what the Group of 88 and its allies had actually done. Third, members of the Group of 88 met with President Broadhead and asked him to fire Baldwin, literally to remove him from the academy. O’Neil does not even mention the latter two points, which seem far more uncollegial. It was Baldwin who defused the situation (with the encouragement of the provost) by apologizing for saying that the errant faculty should be “tarred and feathered,” though Harvey Silverglate opined that Baldwin surrendered the moral high ground by doing so. Fourth, Houston Baker called for Duke to fire Coach Pressler and to dismiss the players (http://www.dukenews.duke.edu/mmedia/features/lacrosse_incident/lange_baker.html). O’Neil fails to address any of these behaviors.

It is pertinent that Karla Holloway publicly criticized the women’s lacrosse team (Until Proven Innocent, p. 234) for “the team-inspired and morally slender protestations of loyalty that brought the ethic from the field of play onto the field of legal and cultural and gendered battle as well.” The women’s lacrosse team had worn armbands in support of the three indicted players. The hypocrisy of criticizing women (including at least one woman of mixed racial heritage) for speaking out when the Group of 88 had thanked protestors for their demonstrations against the supposed racism and sexism of the men’s team is obvious. It also makes risible the Group of 88’s opening claim that “We are listening to our students.”

O’Neil quotes the policy of the American Association of University Professors, which states that professors “should show respect for the opinions of others,” but he points out that this policy was modified in 1970. Even in diluted form, the AAUP’s policy would seem contrary to Houston Baker’s December 2006 response to a polite email from a lacrosse parent. The parent had asked Baker to reconsider his views in the light of recent evidence. Baker called the players “farm animals,” among other obnoxious comments.

It is legitimate to ask whether criticism of students falls within a faculty member’s academic freedom or does it constitute a violation of the university’s or the AAUP’s code of faculty conduct. Yet, one has to look at all the facts, not select only the criticisms of the Group of 88 that one thinks one can rebut. Moreover, if we conclude that the faculty had the right to shame the student-athletes and even to ask that they be kicked out, but fail to ask should they have done so, we are missing the more critical issue. Baldwin said that the impact of the ad was devastating, swinging the pendulum against the players (http://www.diverseeducation.com/artman/publish/article_7059.shtml). O’Neil gives little consideration to this viewpoint, just as he ignores Wiegman’s, Holloway’s, and Baker’s incivility, preferring casuistry to common sense.

A proposal to limit preventive detention

With the detention center at Guantanamo Bay in Cuba recently in the news, I would like to consider whether a liberal democracy should tolerate preventive detention under any circumstances. Some have called for indefinite detention of a small number of detainees who are putatively too dangerous to release. Jack Cloonan and Sarah Mendelson rejected this approach in their article on closing Guantanamo (http://www.washingtonpost.com/wp-dyn/content/article/2008/11/28/AR2008112802371.html) as being inconsistent with the rule of law. Unlimited detention with no judicial oversight is contrary to the writ of habeas corpus (http://www.huffingtonpost.com/geoffrey-r-stone/a-more-dangerous-engine-_b_41998.html). However, Congress can suspend this writ under limited circumstances. Although it is beyond the scope of this essay to consider the constitutional issues surrounding habeas corpus, I would like to take up a hypothetical example to illustrate what is wrong with some aspects of our current detainee policy and to show how it could be made better. I do not speak as one who is an expert in terrorism, so my example should be taken with that in mind.

Let us assume that there exist terrorist cells, consisting of low-level operatives who will be given information on a need-to-know basis for Al Qaeda or another organization. Suppose that the Justice Department claimed that it needed preventive detention to stop terrorists from committing a particular violent act. Could we fashion rules to grant this power that is well short of violating the principle that a prison has the right to challenge his detention in front of a neutral party? I suggest the following guiding principles.

The rules governing this preventive detention should be written by the Congress as statutes; they must not emanate from the Justice Department itself. The investigators would seek a warrant from a judge or panel of judges based on evidence of an imminent threat that rises to the level of “reasonable suspicion.” The detention should be of limited duration (its purpose is only to disrupt a terrorist operation that had just been set into motion), or if for a longer period of time than (let us say) one week, the detention could be challenged in a second court. Both courts would have to be secret, something along the lines of the FISA court. The detention could not be repeated unless new evidence was offered each time. There could be no interrogation of the detainee, unless a lawyer with security clearance were able to render assistance. Charlie Cassidy and Cassandra Porsch mentioned this idea in the context of special administrative measures in an article in the Georgetown Journal of Legal Ethics (Volume 17, Issue 4, p.681, 2004).

In contrast to the hypothetical situation above, the rules for the monitoring of attorney-client conversations (one of the so-called “special administrative measures”) were generated within the Justice Department and adopted by the Bureau of Prisons without comment. It is worth noting that the Military Commissions Act removed the right of enemy combatants to challenge their detention in courts (http://www.huffingtonpost.com/geoffrey-r-stone/restoring-habeas-corpus-r_b_42674.html). These two examples imply that our present system shortchanges both the legislative and judicial branches of our government, thus bypassing critical checks and balances. The essays of Geoffrey Stone (http://www.huffingtonpost.com/geoffrey-r-stone/trust-us-as-governance_b_43058.html), the statements of the Coalition to Defend Checks and Balances (part of he bipartisan Constitution Project), and Charlie Savage’s book, Takeover: the Return of the Imperial Presidency,” suggest that the separation of powers, in which all three branches of government play their constitutional roles (www.bordc.org/resources/cdcstmt.pdf), is never more needed than when balancing liberty against security.

Why the use of torture is contrary to our national interest

The change in administrations is a good time for our government to rethink its torture or cruel and inhumane treatment of detainees, as well as other deviations from standard judicial procedure. Besides being morally wrong, here is why these policies are bad:

1. Such policies are against U.S. law. Harold Hongju Koh, Dean of the Yale Law School, testified eloquently on this point in the Gonzalez confirmation hearings (http://www.humanrightsfirst.org/blog/index.asp). No person, not even an enemy combatant is outside the law, despite this administration’s arguments to that effect. Jordan Paust’s book gives the most extensive discussion with which I am familiar.
2. These tactics hurt our troops in several ways. First it renders them more likely to be subjected to the same treatment. Second, torture makes it more difficult to gain the trust of he local population, as Iraq veteran Paul Rieckhoff pointed out (http://www.huffingtonpost.com/paul-rieckhoff/torture-is-not-us_b_11846.html). Third, the possibility of harsh treatment makes enemy soldiers less likely to surrender and more likely to fight to the death (http://www.nytimes.com/2006/09/25/opinion/25rieckhoff.html?_r=1). Rieckhoff’s essay is not only eloquent, but he speaks from a position of authority.
3. Torture provides the information that the torturer wishes to hear, not necessarily the truth. John McCain’s experiences in Viet Nam give one example of this. The false information obtained from suspected Al-Qaeda terrorist Ibn al-Shaykh al-Libi on the supposed Iraqi chemical weapons was used to justify the war in Iraq. This incident is only demonstrates how damaging it is to our nation to torture information out of suspects. Another example in the treatment of Abu Zubaydah. Ron Suskind gives an account of some of our practices in “The One Percent Doctrine: Deep Inside America's Pursuit of Its Enemies Since 9/11.”
The highest profile example of false confessions was probably the Central Park jogger rape case (http://www.counterpunch.org/cassel1221.html). If one accepts that there is such a thing as a false confession, then it is inescapable that the problem will worsen when the interrogation methods are “enhanced.” Finally, unlike a more disinterested interrogator, the torturer has an enormous stake in believing that the intelligence he or she gleans is true: The torturer would have to confront that his or her objectionable actions served no purpose if the intelligence were lies told only for the sake of ending the pain, a colossal problem of cognitive dissonance.
4. These practices alienate our allies and our potential allies around the world. Iraqi support for the invasion dropped precipitously immediately after the Abu Ghraib photographs were published. The editorial page of the Economist wrote (11 January 2003), “The taboo against torture is also strongly and deeply supported by western public opinion. If America, covertly or openly, begins to use torture systematically against al-Qaeda suspects, there is bound to be a backlash, both at home and abroad. Many
of the subjects might be innocent people, which would be morally repellent--and
would hand a propaganda victory to Islamic extremists.”
5. These practices are inconsistent with the fundamental conservative tenet of not discarding principles and practices that have served us well since the time of the Revolutionary war. Our nation has been a leader in the humane treatment of prisoners in armed conflicts, starting with George Washington and continuing through WW II and Korea. Is Al-Qaeda a more dangerous enemy than Germany or Japan was in the 1940s?

These reasons make a compelling case for altering our present, seriously misguided course. Finally I should mention two treatments of the ticking time bomb scenario. I have reviewed Dr. Brecher’s indispensible book on this subject in an earlier post (12 December 2008), and Michael Kinsley’s article in Slate is an insightful response to Charles Krauthammer’s position (http://www.slate.com/id/2132195/). The discussion of the arguments for and against torture here is abbreviated by intention; however, I will expand on some of these points, especially the ticking bomb rationale in subsequent posts.

Bibliography
“The One Percent Doctrine: Deep Inside America's Pursuit of Its Enemies Since 9/11,” by Ron Suskind.
“Beyond the Law,” by Jordan J. Paust.
“A Question of Torture,” Alfred McCoy.
“The Guantanamo Files,” by Andy Worthington.
“The Dark Side,” Jane Mayer.
“Torture and the Ticking Bomb” by Bob Brecher.
“Eight O’Clock Ferry to the Windward Side,” by Clive Stafford Smith.
“Guantanamo and the Abuse of Presidential Power,” by Joseph Margulies.

Videography
The Ghosts of Abu Ghraib
Standard Operating Procedure
Taxi to the Dark Side