New images from Abu Ghraib

Wired has a 3 minute video with previously unseen photos from Abu Ghraib. The piece includes an interview with a research psychologist, Philip Zimbardo, who studies how regular people become capable of committing acts of torture and prisoner abuse.

Zimbardo conducted a now-famous experiment at Stanford University in 1971, involving students who posed as prisoners and guards. Five days into the experiment, Zimbardo halted the study when the student guards began abusing the prisoners, forcing them to strip naked and simulate sex acts.

His book, The Lucifer Effect: Understanding How Good People Turn Evil, explores how a "perfect storm" of conditions can make ordinary people commit horrendous acts.

He spoke with Wired.com about what Abu Ghraib and his prison study can teach us about evil and why heroes are, by nature, social deviants.

Battlestar Galactica

The producers of Battlestar Galactica gave an hour long interview to the legal blog Concurring Opinions talking about torture and morality and other legal topics in the BSG world they have created. I haven't listened yet, but I will. I imagine that these interviews (especially the first two parts) would be well worth listening to in the context of the episode many of us watched the other night ("Pegasus").

Part I: Legal Systems

Part I-B: Torture, Necessity and Morality

Lithwick on torture

Dahlia Lithwick takes up the issue of the changing definition of, and public acceptance of, torture. Her argument tracks some of the same ideas that came up in our discussion on Wednesday and places revelations like the Abu Ghraib photos in the context of the shifting public debate over torture.

A few years ago I wrote about the connection between the torture photos taken at Abu Ghraib and the congressional debate over detainee treatment rules. I argued that the leaked photos, along with memos from the Justice Department's Office of Legal Counsel that redefined torture in appalling new ways, were not in fact a public relations blow to the Bush administration, but a sort of foot in the door for looser torture standards—a way to begin desensitizing the American people to the kinds of abuse that had been going on in secret. Two years after the images surfaced, Congress enacted a law essentially permitting the acts depicted. And just as those images paved the way to our broader torture policy, the CIA torture tapes now stand to do the same thing for water-boarding in particular.

Does Lithwick's argument support Scarry's concern that torture warrants would legitimate torture more broadly and make it more common, or does this argument suggest that Dershowitz is right and warrants are needed in order to set boundaries on the use of torture? Does the fact that we are having a class discussion about torture support Lithwick's account of change in the public understanding and acceptance of torture?

torture under law

Scott Horton, in an address to a religious audience, reviews Torture and Democracy by Darius Rejali. We have discussed torture as a moral issue in class, Horton's is a moral argument from a different perspective, but it is also a political argument, and a claim about national identity. It is an interesting piece on what sounds like a good book. The thesis:

Few societies had a more carefully charted system of torture than the Romans. They used torture much as President Bush contemplates its use, namely as a tool for interrogating enemies. They specified permitted techniques and detailed who could use it and under what circumstances. They regulated its admissibility as evidence in legal proceedings. They refrained from negative moral judgments about torture, but while embracing its use, they also noted that it really wasn’t particularly effective or useful in extracting information from subjects. The prime rule they devised is the one that Paul relies upon in Acts–they forbade torture to be used against a citizen who was uncondemned. That is to say, torture could be used as a punishment, but not in connection with interrogation.

But Rejali tells us that the barriers and internal rules could not hold. Once torture emerged as a practice authorized by law in some circumstances it spread very quickly, and ultimately the prohibition against torturing citizens could not be sustained. Moreover, he catalogues the appearance of torture and efforts of states to control it over many centuries and in many societies, with impressive chapters on the French in the waning colonial era, the Nazis through World War II, the Soviets from the Bolshevik Revolution, the Communist Chinese, the Iranians from the time of the Shah and after his overthrow, and finally, and most surprisingly, the United States under George W. Bush. There are clear lessons to be drawn from these historical excursions, but the experience of the Romans—the most masterful state-builders of antiquity—really tells us all we need to know. Torture is a virus which cannot be effectively controlled. If permitted at all, it will undermine the integrity and worth of humanity in any society in which it is let loose. It is the ultimate social agent of corrosion.

William and Mary case

I mentioned this case in class yesterday, although I had it a bit wrong. The President of William and Mary was either fired or forced out, depending on your interpretation of matters, in a dispute over a) an art show he allowed to take place on campus and b) the relocation of a cross from a prominent campus meeting space.

Is this a free speech case? Does it raise First Amendment religion clause issues? Would it be different if it had happened at a public university? Is Jon Stewart the most famous alum of William and Mary? Should alumni or outside groups have anything to say about what happens on a campus or the decisions made by university presidents?

DoJ - Waterboarding illegal today

A Justice Department lawyer will testify today that the DoJ has never found waterboarding to be legal under US law and that it would not be legal under current guidelines. This should be interesting testimony to watch, if you are near C-SPAN.

Updated: In today's testimony, Steven Bradbury actualkly argued that CIA waterboarding wasn't torture because it wasn't the same as what the Japanese did during WWII or what the Spanish did.


I had forgotten this, I believe some of you have read it before, but a former Navy instructor describes waterboarding and how it is used. In the New Yorker, Jane Mayer investigated the ways in which survival training provided source material for interrogation techniques at Guantanamo.

Waterboarding

This is a brief clip of a waterboarding demonstration. It is disturbing.



And it would be smart to ask prospective employers if they think waterboarding employees as a teambuilding exercise is a good idea. If they say "yes, all of our employees show that sort of loyalty to our firm" then you should run away.

Torture

As we get ready to discuss torture, here's some linky goodness to give an idea of where some major players in the debate over torture stand today.

In Return of the 9/11 President, Dan Froomkin suggests that if the President wants to claim that torture has provided information that has prevented attacks in the past then he needs to put up or shut up and tell us something specific. I won't hold my breath for that day.

Torture is sometimes used in situations that don't involve ticking time bombs (David Kurtz at Talking Points Memo) and now an FBI "clean team" has spent the last 16 months trying to get the 6 suspects charged today in cases related to 9/11 to repeat incriminating statements possibly first made under torture.

Scalia: "Freedom tickling not prohibited by 8th amendment." Since torture isn't punishment for a crime, it can't be "cruel or unusual punishment" which I suppose is true, if one ignores that this would mean that it is only after conviction that individuals have rights to humane treatment, and ignores the 5th amendment protection against self-incrimination. Scalia's argument is simply weird when one considers that we have to read the 8th amendment along with the 5th amendment. It seems clear in the history of the 5th amendment that it prohibits torture of suspects in order to induce self-incriminating testimony. Would Scalia think it was fine to seize the cars of speeding suspects - that as long as they are not convicted of the speeding offense then the seizure of their car is not an "excessive fine" under the 8th amendment or a violation of 5th amendment due process? (Please ignore that, in fact, this absurd state of affairs does exist under RICO and property of those suspected of drug crimes is seized all the time.)

Secrecy and Iraq war history

Today's New York Times includes an piece on a RAND corporation study of the Iraq War. The unclassified report was delivered in 2005 and has yet to be publicly released.

Why might such an unclassified report remain effectively secret? Is this proper?

What are the similarities to New York Times v US (Pentagon Papers case)?

Detainee cases

There are some new developments in the detainee habeas corpus cases at the Supreme Court. I am not sure what these new developments portend for the detainees or the pending cases.

Also, keep an eye out today and tomorrow for developments in the PAA votes in the Senate.

George Carlin

Just a quick reminder, here is a recent version of George Carlin's "Seven Words you Can Never Say on Television" which was broadcast on the Pacifica network leading to the case FCC v Pacifica.

Those of you who read this blog at work will probably want to turn the sound down before watching the video as the language is definitely not work (or, for that matter, library) safe.

More obscenity

OK, I don't want this whole blog to be about butts, but today I said obscenity convictions are rare and now authorities in Virginia Beach are going to show you why.

Police, saying they were responding to citizen complaints, carted away two large promotional photographs from the Abercrombie & Fitch store in Lynnhaven Mall on Saturday and cited the manager on obscenity charges.

If you have been in an Abercrombie Store lately, I am sure you saw the same pictures. Click through on the link to see one of the two pictures, I think I can confidently say that you will not find it patently offensive, at least not in the way that would make you want to throw up or turn away in disgust.

Obscenity

The Miller test for obscenity is vague and subjective, perhaps this can give some insight into what it is trying to get at.

Journalists' sources and free speech

Does a government subpoena issued to a journalist to demand that he turn over the name of a source restrict free speech? How would New York Times v US (Pentagon Papers case) affect your answer in this particular national security related case?