A representative argument from Bradbury

If you believe this was offered in good faith, I've got a bridge to sell you. It's taken from Section II.B of Bradbury's 30 May 2005 memo.

As a condition to its advice and consent to the ratification of the CAT, the Senate required a reservation that provides that the United States is

bound by the obligation under Article 16 to prevent "cruel, inhuman or degrading treatment or punishment," only insofar as the term "cruel inhuman or degrading treatment or punishment" means the cruel unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Consitution of the United States.

...
Conceivably, one might read the text of the reservation as limiting only the substantive (as opposed to the territorial) each of the United States obligations under Article 16. That would not be an unreasonable reading of the text. Under this view, the reservation replaced only the phrase "cruel, inhuman or degrading treatment or punishment" and left untouched the phrase "in any territory under its jurisdiction," which defines the geographic scope of the Article. The text of the reservation, however, is susceptible to another reasonable reading--one suggesting that the Senate intended to ensure that the United States would, with respect to Article 16, undertake no obligations not already imposed by the Constitution itself. Under this reading, the reference to the treatment or punishment prohibited by the constitutional provisions does not distinguish between the substantive scope of the constitutional prohibitions and their geographic scope. As we discuss below, this second reading is strongly supported by the Senate's ratification history of the CAT.
...
The Supreme Court has repeatedly suggested in various contexts that the Constitution does not apply to aliens outside the United States. See, e.g., United States v. Belmont, 301 U.S. 324, 332 (1937)("[O]ur Constitution, laws, and policies have no extraterritorial operation, unless in respect to our own citizens."; United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936) ("Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens...."; see also United States v. Verdugo-Urquidez, 494 U.S. 259,271 (1990) (noting that cases relied upon by an alien asserting constitutional rights "establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country"). Federal courts of appeals, in turn, have held that "[t]he Constitution does not extend it guarantees to nonresident aliens living outside the United States," Vancouver Women's Health Collective Soc'y v. A.H. Robbins Co. 820 F 2d 1359, 1363 (4th Cir. 1987); that "non-resident aliens...plainly cannot appeal to the protection of the Constitution or laws of the United States," Pauling v. McElroy, 278 F.2d 252,254 n.3 (D.C. Cir. 1960) (per curiam); and that a "foreign entity without property or presence in this country has no constitutional rights, under the due process clause or otherwise," 32 County Sovereignty Comm. v. Dep't of State, 292 F.3d 797, 799 (D.C> Cir. 2002) (quoting People's Mojahedin Org. of Iran v. Dept of State, 182 F.3d 17, 22 (D.C. Cir. 1999)).
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The reservation required by the Senate as a condition of its advice and consent to the ratification of the CAT thus tends to confirm the territorially limited reach of U.S. obligations under Article 16. Indeed, there is a strong argument that, by limited the United States obligations under Article 16 to those that certain provisions of the Constitution already impose, the Senate's reservation limits the territorial reach of Article 16 even more sharply than Article 16 standing alone. Under this view, Article 16 would impose no obligations with respect to aliens outside the United States. And because the CIA has informed us that these techniques are not authorized for use against the United States persons, or within the United States, they would not, under this view, violate Article 16.

Schematically:

1. Article 16 of the Convention Against Torture prohibits signatories from engaging in "cruel, inhuman or degrading treatment or punishment."

2. When ratifying the CAT, the Senate attached a legally binding reservation specifying that "cruel, inhuman or degrading treatment or punishment" as referenced in the treaty meant just those cruel, unusual, and inhumane treatments which would be prohibited by the Fifth, Eighth, or Fourteenth amendments.

3. While one could, conceivably, take this reservation to apply to the question of what kinds of treatments amount to "cruel, inhuman or degrading treatment or punishment", it is more reasonable to interpret the reservation as limiting the scope of the CAT so that the US did not, by signing the CAT, undertake any obligations which were not already narrowly specified by the Fifth, Eighth, or Fourteenth amendments.

4. Constitutional protections, including those of the Fifth, Eighth, and Fourteenth amendments, apply only to U.S. citizens and (some) resident aliens; aliens outside of U.S. territory do not have constitutional protections.

5. In signing the CAT, the United States did not undertake any obligations not to engage in "cruel, inhuman or degrading treatment or punishment" of aliens so long as such treatment or punishment takes place outside of U.S. territory.

Excerpts from Letter VI (declassified August 19, 1662)

"One of the methods," resumed the monk, "in which we reconcile these apparent contradictions, is by the interpretation of some phrase or other. Thus, Pope Gregory XIV. decided that assassins are not worthy to enjoy the benefit of sanctuary in churches, and ought to be dragged out of them; and yet our four-and-twenty elders affirm that 'The penalty of this bull is not incurred by all those that kill in treachery.' This may appear to you a contradiction; but we get over this by interpreting the word assassin as follows: 'Are assassins unworthy of sanctuary in churches? Yes, by the bull of Gregory XIV. they are. But by the word assassins we understand those that have received money to murder one; and accordingly, such as kill without taking any reward for the deed, but merely to oblige their friends, do not come under tho category of assassins.

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"I see very well how that follows from the doctrine of Vasquez," said I. "But how would you answer this objection, that, in working out one's salvation, it would be as safe, according to Vasquez, to give no alms, provided one can muster as much ambition as to have no superfluity; as it is safe, according to the Gospel, to have no ambition at all, in order to have some superfluity for the purpose of alms-giving?"

"Why" returned he, "the answer would be, that both of these ways are safe, according to the Gospel; the one according to the Gospel in its more literal and obvious sense, and the other according to the same Gospel as interpreted by Vasquez. There you see the utility of interpretations. When the terms are so clear, however," he continued, " as not to admit of an interpretation, we have recourse to the observation of favourable circumstances. A single example will illustrate this: The popes have denounced excommunication on monks who lay aside their canonicals; our casuists, notwithstanding, put it as a question, 'On what occasions may a monk lay aside his religious habit without incurring excommunication?' They mention a number of cases in which they may, and among others the following: 'If he has laid it aside for an infamous purpose, such as to pick pockets or to go incognito into haunts of profligacy, meaning shortly after to resume it.' It is evident the bulls have no reference to cases of that description."

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"And how does he reconcile that?" said I.

"By the most subtle of all the modern methods, and by the nicest possible application of probabilism," replied the monk. "You may recollect you were told the other day, that the affirmative and negative of most opinions have each, according to our doctors, some probability—enough, at least, to be followed with a safe conscience. Not that the pro and con are both true in the same sense—that is impossible—but only they are both probable, and therefore safe, as a matter of course. On this principle our worthy friend Diana remarks: 'To the decision of these three popes, which is contrary to my opinion, I answer, that they spoke in this way by adhering to the affirmative side—which, in fact, even in my judgment, is probable; but it does not follow from this that the negative may not have its probability too.' And in the same treatise, speaking of another subject on which he again differs from a pope, he says: 'The pope, I grant, has said it as the head of the Church; but his decision does not extend beyond the sphere of the probability of his own opinion.' Now, you perceive that this is not doing any harm to the opinions of the popes; such a thing would never be tolerated at Rome, where Diana is in high repute. For he does not say that what the popes have decided is not probable; but leaving their opinion within the sphere of probability, he merely says that the contrary is also probable."

"That is very respectful," said I.

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"The difficulty lies in discovering probability in the converse of opinions manifestly good; this is an achievement which none but great men can attempt. Father Bauny excels in this department. It is really delightful to see that learned casuist examining, with characteristic ingenuity and subtilty, the negative and affirmative of the same question, and proving both of them to be right! Thus in the matter of priests, he says in one place: 'No law can be made to oblige the curates to say mass every day; for such a law would unquestionably expose them to the danger of saying it sometimes in mortal sin.' And yet in another part of the same treatise, he says, 'that priests who have received money for saying mass every day ought to say it every day, and that they cannot excuse themselves on the ground that they are not always in a fit state for the service; because it is in their power at all times to do penance, and if they neglect this they have themselves to blame for it, and not the person who makes them say mass.' And to relieve their minds from all scruples on the subject, he thus resolves the question: 'May a priest say mass on the same day in which he has committed a mortal sin of the worst kind, in the way of confessing himself beforehand?' Villabolos says he may not, because of his impurity; but Sancius says he may, without any sin; and I hold his opinion to be safe, and one which may be followed in practice."

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"True," he replied; " but this shows you do not know another capital maxim of our fathers, 'that the laws of the Church lose their authority when they have gone into desuetude'... We know the present exigencies of the Church much better than the ancients could do. Were we to be so strict in excluding priests from the altar, you can understand there would not be such a great number of masses. Now, a multitude of masses brings such a revenue of glory to God and of good to souls, that I may venture to say, with Father Cellot, that there would not be too many priests, 'though not only all men and women, were that possible, but even inanimate bodies, and even brute beasts—bruta animalia—were transformed into priests to celebrate mass.'"

--Blaise Pascal, Provencial Letter #6. April 10, 1656.

How to use torture

But for most of 2002 and into 2003, Cheney and Rumsfeld, especially, were also demanding proof of the links between al Qaida and Iraq that (former Iraqi exile leader Ahmed) Chalabi and others had told them were there."

It was during this period that CIA interrogators waterboarded two alleged top al Qaida detainees repeatedly — Abu Zubaydah at least 83 times in August 2002 and Khalid Sheik Muhammed 183 times in March 2003 — according to a newly released Justice Department document. |McClatchey|

But we don't torture

"Detainees subject to sleep deprivation who are also subject to nudity as a separate interrogation technique will at times be nude and wearing a diaper," it said, noting that the diaper is "for sanitary and health purposes of the detainee; it is not used for the purpose of humiliating the detainee and it is not considered to be an interrogation technique."

"The detainee's skin condition is monitored, and diapers are changed as needed so that the detainee does not remain in a soiled diaper," the memo said. |CNN|

Not as useful a reference work as one might hope

Signs, Omens, and Superstitions By Astra Cielo (1918)

Read it. Or don't.

Till Armageddon no shalam no shalom

When I was a freshman in college back in the eighties, I took an introductory survey course in the humanities. One of the books we read was Into That Darkness, Gitta Sereny's biography of Franz Stangl. This was, of course, at the height of the canon wars, so I suppose that Bloom and Hirsch would have been scandalized to see that book on the reading list. Truth be told, I probably would have sympathized with them. As much as I enjoyed the book, the central question it posed seemed faintly ridiculous. Could the Holocaust happen here? Could decent people, step by tiny step, lose all human moral sense? Of course not.

Am I evil?

Writing about Tony Snow's cancer today, Ogged -- a cancer survivor himself -- had this to say:

Best of luck to him. I want my right-wing hacks discredited, not dead. We have to believe in redemption. |Unfogged|

What to say? Let's start with this. Cancer freaks me out. Pretty much everyone on my mother's side of my family is dead, and they all died of cancer. Two summers ago a friend of mine died of leukemia. And of course Neal's wife Sarah is in treatment for breast cancer, and I'd strongly prefer that things go well.

I also believe in redemption, or something like it. People can change, and they do. My grandmother, for example, was a thoroughly unpleasant woman for the great majority of her life, but during the year or so that her lung cancer was in remission she was a real sweety.

On the other hand, by my reckoning Tony Snow is a seriously evil dude. Let's remember that even before he became a willing participant in and designated dissembler for the moral catastrophe that is the Bush administration, he was a member of a right wing punditocracy that does its level best to enable and legitimize policies that any decent person would be ashamed of. He ought to have known better, and frankly I think that he probably did. Why shouldn't I wish him ill?