In your Blogging Heads discussion, you did, indeed, state that "torture is wrong." It hasten to add that torture is also illegal under both U.S. and international law.

Sadly, you have joined the ranks of those who would somehow justify breaking both our laws and our moral code based upon an assumption that "they thought they were doing the right thing." There is nothing in the Constitution of the United States which allows the President to break the law without consequence simply because he claims to "be doing what he thought was the right thing" and it's clear that this particular President knew full well that he was not doing the right thing since the administration went to great lengths to secure legal opinions from its own Department of Justice to cover it's actions. Additionally according to administration officials, the reason the Bush administration failed to sign the Treaty of Rome, was because central reason is to protect the country's top leaders from being indicted, arrested or hauled before the court on war crimes charges. That, it appears to me, seems to indicate a thought process which is not bent upon "doing the right thing.

When you allow for individuals to break the law, based solely upon what they believe to be necessary, even though it is clearly against the law, you end up with anarchy.

What a tellingly dishonest “summary” of what you actually said in the clip discussed by Glenn Greenwald. Yes, you said torture was bad; that’s not too hard to say, is it? And you said that political leaders are supposed to remember the Constitution – indeed, what you actually said was:

“It doesn’t let the policy principals off the hook, because the policy principals are supposed to remember that the Constitution is around, and are in fact not necessarily just supposed to go with the will of the people but remember their oath of office as well.”

However, you then proceeded to openly excuse illegal acts by these “policy principals”, notwithstanding the acknowledged internal opposition to those acts, by noting “the people who pushed back primarily, interestingly enough, were lawyers and…this is not to excuse…but if you’re a national security person, and I’ve seen this, you don’t care much about the legal niceties.”

So, in the passage your “summary” above omits, you quite simply eviscerate your otherwise correct and laudable recognition that the American people have the right to expect that our leaders will keep their actions within the rules laid down by our Constitution, which they have taken a specific oath to protect and defend; according to your “personal” insight, such people just don’t pay attention to “legal niceties” like their own lawyers’ warnings about illegality, because, well, they’re “national security” types and can’t be bothered.

You can’t have it both ways – which you obviously recognize so you leave that “excuse” part out of your effort to pretend you’re a protector of the rule of law. No, you’re offering to excuse illegal executive acts that have contributed to the decimation of the standing of America in the entire world, and you’re just too dishonest and immoral to actually say “it’s OK with me, we’re America dammit.” Kind of a shame. Your type of “pseudo-intellectual apologia” is contributing to a shameful abdication of accountability by America from which our ability to recover cannot be presumed. Wouldn’t it be better to actually take the position you say, above, you meant to take: Torture is unacceptable, we are a nation of laws, those who have broken those laws must be held accountable.

What Constitution?: What you (and Greenwald) fail to comprehend is that an explanation of a person's actions is not tantamount to an excuse of their actions.

LOL Brilliant headline Dan!

Just wanted to draw your attention to a couple of errors in your post.

-I clicked the unambiguous "torture is wrong" link and caught a reference to some kind of juvenile ticking time bomb fantasy exception in your 2005 post. I figured you must have missed this as I can't imagine why you would allow something that stupid to be quoted on your blog without comment.

-You also left out the following points that were made very explicit in the bloggingheads chat:
6. Torture is illegal under US law and the rule of law applies to both the political class and military personnel.
7. Torture is not even necessary as non-coercive interrogation tactics such as rapport-building are as effective if not more effective than torture in gathering reliable actionable intelligence.
8. War criminal are war criminals even if they are American, their reasons for committing war crimes in no way diminish their sins.

I didn't actually watch more than a few minutes of the bloggingheads chat, I'm just assuming these points were made clear because you implied that you and Greenwald only disagree an iota, and these are all major points.

P.S: Waterboarding puppies! So funny!

Walter: In my bloggingheads diavlog, I believe I also failed to mention that murder is wrong. By your (and Greenwald's) logic, I suppose this makes me pro-death.

Failure to exhaustively chronicle one's position on a topic does not allow you to infer that I actively support the opposite.

Thanks for the reply. However, if you're suggesting that all you meant to imply was that you have a special insight as to what their motivation was, certainly you understand that's neither insightful nor news. So what, they couldn't be bothered with obeying the law? Like that's worth putting on the scale?

If you want to clarify your published comments by noting that the excuse/justification you were suggesting is actually no excuse whatsoever in your view and the argument actually supports, rather than diminishes, the importance of prosecuting this type of high level illegality, such a clarification would be welcome. Instead, we have you and your pal nodding to each other about how insightful this observation is -- surely we can all understand why our leaders feel comfortable ignoring the legal ramifications of what they are doing because, well, they're important Policy Principals and have other things to consider.

Glenn understands you just fine. You, however, seem to be blinded by your own self-importance. Sorry for that.

Dan - In my post, I explicitly noted -- on at least three occasions -- that you said that torture was wrong. Therefore, claiming that I failed to understand or note that you said this is blatantly dishonest.

My criticism of your remarks is that: (a) you repeatedly attempted to mitigate what was done by claiming it was done with good motives, and (b) you insist that the torture issue is a "complicated question, not cut and dried."

For all your petulant complaints that I misrepresented what you said, I (a) explicitly noted the points you claim I ignored; (b) described the points of yours that I was criticizing [(a) and (b) above] completely accurately, and you don't claim otherwise, and (c) posted the full, unedited video of your remarks so that everyone could hear it for themselves (and, I should note that, with 250 comments and counting, while many people have disagreed with some of what I wrote, nobody -- not a single person -- claimed that I mischaracterized your remarks).

Since you now claim that you weren't attempting to mitigate the torture program (a very odd claim given that you argued that torture is not cut and dried -- sounds like mitigation to me), please answer this: do you think that the Bush officials responsible should be prosecuted for committing war crimes?

Really? This is your defense of, and rationale for your recent ramblings on BHTV? I'm afraid, sir, that the defensiveness of your ego is rather clearly visible for all to see through your nearly translucent skin.

If you really do fancy yourself as some sort of high-quality intellectual, you would do better if you defend YOU less, and argue the POSITION a bit more. Otherwise, you might end up doing such things as justifying OUR leaders breaking with the of the Rule of Law.

Please try actually addressing the issues raised by the, OK, "apparent" positions implied by your assertions in your BH conversation. These positions, or at least the clear implications that can be drawn from them, have, IMO, been made more than adequately clear by Mr. Greenwald's blog and a couple of the earlier posters to this blog.

Dan,

On some topics what you don't say does matter quite a bit. So let's say for the sake of argument that you do agree with points 6, 7, and 8, and let's add point 9;

9. Most if not all of the principals that designed and instituted the torture regime are currently not under any investigation whatsoever and are probably anticipating long lives full of freedom and luxury, while Guantanamo Bay still exists and detainees who have never been charged with any crime are currently being held in stress positions and deprived of sleep with no short term hope of their situation getting any better.

If you accept points 6 thru 9, then what exactly is the value, at this moment in history, of having a wistful dialogue about the noble intentions of our leaders? I can't see any, but maybe you can enlighten me.

Bonus Question: When you say, "if you’re going to go after Bush administration officials for violating the law," who is the "you" in that statement?

Mr. Drezner: You falsely imply that Greenwald accused you of considering torture to be right. What Greenwald took issue with was your belief that torturers should not be punished.

Glenn, you write, "My criticism of your remarks is that: (a) you repeatedly attempted to mitigate what was done by claiming it was done with good motives, and (b) you insist that the torture issue is a "complicated question, not cut and dried."

Your criticism suggests to me that you are simply incapable of listening to what I said. I was not attempting to mitigate anything -- I was trying to understand the motivation behind the Bush administraton's moves. I note that you seem to endorse the notion that justice is possible without any understanding -- do you, as a lawyer, genuinely believe this to be the case?

Furthermore, you are conflating what I said about torture vs. what I was saying about preventive detention (the topic of the Boston Review essay that Josh and I were debating). The two are not the same thing -- and I should note that, with more than 50 comments on the bloggingheads site and counting, while many people have disagreed with some of what I said, nobody -- not a single person -- claimed that I mitigating torture.

On whether those who authorized torture should be punished -- yes, I think they should, provided such acts can be proven in a court of law. The diavlog with Josh was specifically about Condi Rice, however, not the Bush administration writ large.

"The diavlog with Josh was specifically about Condi Rice, however, not the Bush administration writ large."

Dan,

Are you unaware that Condi Rice, as national Security Advisor, chaired meetings in which the "Principals" met to review and discuss the actual techniques utilized by the United States on prisoners and then went on to approve those very techniques, which included waterboarding?

http://abcnews.go.com/thelaw/lawpolitics/Story?id=4583256&page=1

How can you honestly separate Ms. Rice from the Bush administration writ large?

One more thing, Dan.

I read Greenwald's article and I couldn't find a single thing in it about anything you may or may not have said about preventative detention. Everything he quoted was from the torture discussion segment of the diavlog.

I also note that you claim Greenwald is conflating what he said about preventive detention and torture and yet, you didn't seem to mention a single conflation. Just to satisfy my curiousity, would you mind letting us know just what conflations you are talking about so we can go back and see where you're coming from?

You've accused Greenwald of a pretty serious lapse of integrity and I feel you should back up that accusation with something specific, which you didn't seem to do in your original post here.

My opinion for what it's worth: what went on was clearly illegal; the question is less one of intention (can't government torture nearly always be assigned to what officials believe is a good cause, i.e., Iranians torturing dissenters who they think threaten their state by expressing pro-Western views?), and more of externalities.

Are the externalities of prosecuting them negative enough to justify no prosecution? But this question is essentially a political one, not a legal one. Because of this, simply preventing those whose job it is to prosecute those who break the law is no answer. That just sets up a double-standard under the law. Instead, there needs to be an explicit political decision (such as pardons) based on potential externalities. The current model of the political/media class as identified by Greenwald is untenable. Someone needs to make an explicit decision on this issue and then be subject to any potential political fallout. The only way for this to seemingly happen is for the wheels to begin to be put in motion for prosecution of these potential crimes; if the next administration wants to issue pardons or not, they will have to face the consequence of their decisions on the matter.

Why, I wonder, did D. Drezner not get tenure at Chicago?

Man, *nothing* is funnier that waterboarding puppies.

Speaking of conflation, can we separate colloquial intent from mens rea? If I kill my neighbor to feed my starving kids, I'm pretty sure that the intent that matters is my intent to commit the act.

Or do I get to argue in court that I didn't mean to kill that guy, I just chopped his head off to keep my family safe?

Glenn does occasionally come off as just a *tad* humorless, but he is talking about important stuff. I'm an American. I don't believe in torture. When that Dick Cheney has people tortured, it's me doing it, and it's not funny. Not as funny as waterboarding puppies, anyway.

Drez-man? Stick to the argument. You've been pwned. Back up or cave.

I should add, in fairness--after checking out your 'blog bio--that there's plenty of hope for you yet, sir: Buffy the Vampire Slayer is funny as hell. : )

Professor Drezner,

If you disagree with what Greenwald has said, then address those issues with some substantive counter arguments, don't resort to absurd personal attacks. I suspect you would give a grade of F to any of your students who used a similar approach in a paper. Or are you holding yourself to a lower standard than that which you apply to your students? Hmmm. That would explain your ambivalence about Bush-regime torture.

Vermonter17032: Glenn opens his post by saying, "Behold the now-solidified Smart, Reasonable American Consensus on torture: the agreed-upon method for dismissing away -- mitigating and even justifying..." So one would therefore have a reasonable expectation that Glenn is about to discuss people who are justifying, dismissing, or mitigating torture.

In my bloggingheads comments, I did not justify or dismiss torture, as even Glenn acklowledges. He mistakes my discussion of motives and democratic pressures to "do something" as mitigation. So at best Glenn's lead into this topic is disingenuous and at worst it is malicious. I have e-mailed him on a factual error in his update as well and he has failed to correct it. I see little point in engaging someone who refuses to respond to logic or evidence.

With regard to the title to this post, I made the assumption that readers know that Glenn does not in fact waterboard puppies, and that this is exaggeration for comic effect. Come to think of it, however, given the humorless nature of Glenn and his readers, I can see the mistake. So, to be explicit: Glenn does NOT waterboard puppies.

So, what you're saying is that because you are a personally good personal person (personally), you couldn't possibly be on the wrong side of the torture question, and anyone with the utter gall and poor breeding to actually HOLD you to your statements, and to dissect your STATEMENTS as to their actual CONTENT, is just a mean old meanie who doesn't understand (to the extent compatible with national security considerations) what a goodgood, thoughtful, compassionate, soft-handed, kindhearted uber-mensch you are and what a dretful dretful pass you have come to to be subjected, your poor pink skin all a-welt, to such an unfair thrashing! O the humanity!

Where can I spit? Your shoes or your lapel? Face okay?

Dan,

If you didn't know that Condi was in on the principal meetings where they decided specific torture techniques such as how many times to slap somebody, or which stress positions to use and for how long, how can you pretend to offer relevant opinions. As a casual reader of corporate media (like ABC), and a regular blog reader I knew about that. Are you really that ignorant, and still held up as some sort of expert concerning torture? Or will you just decide to ignore the inconvenient facts? To my knowledge, nobody in the administration has ever denied the ABC report, and Dick Cheney's recent comments serve to confirm this in my mind.

I've never heard of you before GG called a spade a spade, and now reading your "rebuttal" I had to laugh outloud. Your personal attacks on Glenn are sophomoric, and laughable.

It is embarrassing that you even care "why" war crimes were committed, that is not important. The whole point of GG's writing was that the effort to explain away, justify, and offer rationale for war crimes gives comfort to those who have perpetrated them.

Every criminal action is justifiable to the perpetrator - that is obvious - otherwise they would not commit the crime! A hungry person steals food, a jealous person murders their cheating spouse, etc, etc. We have laws to stop people from doing whatever they want - like laws against torture. Your efforts to sympathize with the war criminals, and willfully ignore evidence in the public sphere are disgusting and should be embarrassing.

Glenn Greenwald is a tool. That is all.

To argue that whether to torture is a "complicated question" and "not cut and dried" is, without question, to mitigate torture -- and that's particularly true as you accompany that claim with the insistence that it was all done with noble motives (Bush officials just wanted to protect us -- that's all).

By definition, even as you pay lip service to the idea that torture isn't something we should do -- and just listen to the cursory, bored way you quickly dispense with those platitudes: "yeah, sure - it's something we shouldn't do, but . . . " -- you're asserting that torture is not an unambiguous moral wrong. It's a hard question -- not cut and dried.

I don't blame you for being embarrassed about offering those sorts of mitigating defenses, but offer them you did, and everyone can hear it for themselves, no matter how many insults you petulantly hurl.

Observe that just 20 posts are on Drezner's blog on this topic and 375 on Glenn's; the level of debate is rarely descends to ad hominem on Glenn's and seems to be the first response from Drezner; and finally consider that Drezner is on the War Machine payroll ("official blogger" for "Foreign Policy").

Why expect reason or honesty from a camp follower? They just fellate whoever pays the bills.

I thought conservatives liked moral absolutes?

I think it's fine to try and explain the motivations of those who decide to use torture on grounds of national security, even though I don't think there's anything terribly new or interesting in the motives of the Bush administration--every government who makes that decision has the same rationale.

I don't see the thin-skinnedness that you attribute to Greenwald; I see a passionate disagreement based on how to frame the issue--i.e. for you as a political scientist thinking about what motivated the Bush administration is a question to be pursued. For a Constitutional lawyer, on the other hand, the law is key. So, there is a kind of disciplinary difference at work in which people speak past each other.

Nonetheless, I think Greenwald's point is less about your comments alone but about the fact that a discourse is emerging to counter the political pressure that was building for the establishment of an independent prosecutor to investigate whether the Bush administration broke the law, regardless of what they thought they were doing. Glenn's point is I think a fair one on this--all torture in the modern state is done in the name of national security. Whether it is done by an American or an Egyptian leader is irrelevant from the viewpoint of international law. No?

Surely, the establishment of a two tier justice system in which the President and his staff can break the law with impunity while those outside the political class are subjected to mandatory sentencing, is something that we all can agree is dangerous for a liberal democracy.

"In my bloggingheads comments, I did not justify or dismiss torture, as even Glenn acklowledges (sic). He mistakes my discussion of motives and democratic pressures to “do something” as mitigation."

That's just pathetic, bub. Come clean here and admit that you've been appropriately nailed by a larger brain (Greenwald). And I say this as a large brain.

I watched the diavlog and came away with the same impression. Your whole argument can be summed up pretty easily: Torture is evil, except when Americans employ it. Because they had Noble Intentions.

Greenwald has eviscerated your presumed "logic", but don't feel too bad, you're just another in a long line of equivocating douchebags.

Everyone here has expressed excellent points, but one serious issue has not been addressed: how one can assume noble motives from Bush & Cheney? I see no evidence of that. In fact, I see much evidence to the contrary: that Bush & Cheney's motives were not to protect the country, but rather to justify an unjustifiable and illegal "war on terror" by rounding up random suspects and coercing false confessions.

In criminal cases, the defense may offer an affirmative defense: the defendant may have had noble motives for his crime, he may even have some element of self-defense that can be demonstrated. However, an affirmative defense has to be proven via evidence.

If there is an investigation and trial, the defendants and their very well-paid attorneys can present this defense. Until then, it's wishful thinking.

Loretta, you make an important point. But first I'd like to note that Dan seemingly does support prosecutions for torture:

"On whether those who authorized torture should be punished — yes, I think they should, provided such acts can be proven in a court of law."

When Dan talks about "understanding" and the law, I thought the same thing as Loretta "Yes, that's what affirmative defenses are for at trial" or "That can be taken into account at sentencing as mitigation."

I don't think you should use prosecutorial discretion to apologize for the motivations of potential defendants. If there is cause to believe a crime has been committed, then investigate and prosecute; if the defendants have an affirmative defense of justification or necessity let them raise it and prove it exists as both a legal and factual matter.

And that really gets to the heart of this issue for me, which is that there may be those who believe that the motivations for the administration are so self-evident and so noble that such an investigation would be futile.

In Jane Mayer's, The Dark Side, there was a passage about one detainee who was so broken because of the "learned helplessness" techniques that were used on him that he started to masturbate violently to the point of injury. I remember it so plainly because it disgusted me so much. If the story proved true, it would be very hard for me to believe that there was some nobility of purpose that justified or mitigated doing that to another human being. And it's this very conduct that I think cries out for open investigation.

Dan,

Torture isn’t a complicated question, it is cut and dried!

It is a violation of United States and international law. The Bush administration knew exactly what they were doing and also clearly understood that it was illegal. Their state of mind or “possible” good intentions in no way mitigates their responsibility and accountability for their crimes.

Dan,

I feel as though you're using the excessive aspects of Greenwald's maximal approach as a way to evade what is, at minimum, a legitimate critique.

That critique, as I would construct it, is that it seems implicit, in the way that you're discussing torture, that you believe that torture isn't so obviously wrong that it should be taboo.

You believe torture is wrong, in other words, but you could break bread with someone who felt differently without feeling particularly compromised.

I realize you didn't make this argument explicitly, but it seems implicit in the way that you discuss the subject. There's a lack of moral outrage in your tone that's hard to imagine coming from someone who reacts to the idea of the America government torturing people, as Greenwald does (and as I do), with visceral revulsion.

I don't believe it's morally incumbent on you to feel visceral revulsion (I don't believe it morally incumbent on anyone to feel any particular emotion), but there is a genuine question as to the nature of the rhetoric one should use to discuss a morally abhorrent action. By focusing on the narrowest, and most emotionally dry, interpretation of your rhetoric, you're avoiding this question.

-Dan-O

Deborah: I think your point about "disciplinary differences" is a useful and clarifying one. Glenn sees me, in trying to understand the motivations of Bush administration officials, as providing an affirmative defense of them (which I'm not). I see Glenn's condemnation of my approach to this question as an indictment of any kind of positive analysis of the Bush administration (which I hope he is not doing). I do think this explains some of the ill will, however.

Daniel O.: I neither explicitly nor implicitly accept the notion that torture is, under any circumstances, the right thing to do. It should be taboo. Even that statement, however, becomes tricky once one asks how torture should be defined. Surely not all interrogations are forms of torture. Do you feel there is a bright-line divide?

You're correct to infer that I did not loudly express revulsion, but that was in part due to the nature of the debate Josh and I were having. We could have spent 5 minutes reinforcing each others' statements that torture is wrong, but instead we went to the areas where we might have a productive disagreement.

I just watched the video of the Drezner/Cohen conversation, and any reasonable person would conclude that the participants are indeed doing their best to put a halo of moral ambiguity around the actions of the Bush administration regarding the torture question. I take Dan Drezner at his word when he says he believes that torture is wrong, but in that conversation he and Cohen clearly make an effort to fuzz the edges by bending over backward to attribute noble motives to the Bushniks.

It's worth pointing out that the administration outsourced all of the torture-- they made sure that it took place offshore, in Abu Ghirab, Guantanamo, and various middle eastern and eastern european nations. They contracted with private US air carriers at great expense to fly detainees out of the country for the purpose of interrogation under torture. Seems to me that anyone who sincerely believed that they were doing the righteous and noble thing in defense of the nation wouldn't have felt the need to export the dirty work out of country.

So Glenn Greenwald enjoys water boarding puppies. The important thing is that we understand why Glenn Greenwald enjoys waterboarding puppies. The fact that he does this, well, it's "complicated".

There are many things you could have said about Glenn by way of insult, but to accuse him of being a poor reader is laughable and sad. If this is the best you've got...

Some guy just shot 9 people to death while dressed in a Santa suit. I would really love to hear you and your buddy, oh so seriously, drone on and on about his motives.

Your biggest failure though, was to ask us to believe that someone like Cheney's primary motive was to keep America safe. Do you really believe that this is why Cheney climbs out of his coffin every night?

There You Go Again,

I think Daniel hit the nail on the head.

The line between interrogation and torture may be bright and sharp, or it may be dim and fuzzy. But nobody on this blog, including yourself, has any doubt that this administration crossed this line.

Two things aggravate me about your attitude (I think its more your attitude than your position). 1) You seem to be intent on scoring points for being tolerant and open-minded at the expense of being right. and 2) Our outrage stems from the probability that all of these people who authorized torture in our name are likely to get away with it.

I guess I would have more patience with you guys nattering on about motivation if the torturers were in jail.

Daniel W. Drezner,

I have two "political science" questions that do not seem related.

1) What do you think would have been the outcome if Saddam Hussein had been brought to an international criminal court?

2) Is there enough evidence of an illegal American torture regime to bring any of our leaders to a similar court?

(o.k. three questions)

3)Is there enough evidence currently in the public record about an illegal American torture regime to justify further investigation?

Mr. Cohen submitted an additional blogging heads link in his defense to Mr. Greenwald's characterization of him, in Mr. Greenwald's threads. He goes some distance toward acquitting himself by the views he expresses therein, and by taking the time to put that link in Glenn's threads.

Is there anything you would like to submit in your own defense? Aside, from assailing Mr. Greenwald's sense of humor?

Dan writes:

"Even that statement, however, becomes tricky once one asks how torture should be defined. Surely not all interrogations are forms of torture. Do you feel there is a bright-line divide?"

It's a little creepy that you use Cheney's illusion of "bright line" to demarcate where legal interrogation techniques end and torture begins. This is fallacious. It is my understanding that torture is clearly defined and enumerated in laws that were enacted in the US and in the Geneva Conventions and other military codes that we have, up until 2001, followed.

We, as a nation of laws and supposedly on the side of the angels, have more responsibility to maintain moral authority, because we know better. It's one thing for an ignorant, uneducated, brainwashed zealot to commit an atrocity; we can pity that person to some extent and realize that he may have lived a brutal, myopic life. It's quite another matter for privileged, Ivy-League educated, worldly men like Cheney, Addington, Bush and Yoo to commit heinous crimes.

To ascribe noble motives to Americans while automatically condemning the acts of unindicted, untried "enemy combatants" is preposterous.

"Even that statement, however, becomes tricky once one asks how torture should be defined. Surely not all interrogations are forms of torture."

By saying this you are implying that what we did may or may not be considered torture.

Do you really believe that we didn't torture these people?

If you believe that we tortured these people, why are you even introducing that argument? And if you don't believe we tortured people, why don't you just say that and be done with it?

Your arguments remind me of all those tedious undergraduate philosophy courses I took. You need to deal with the real.

Dan, you wrote:

I neither explicitly nor implicitly accept the notion that torture is, under any circumstances, the right thing to do. It should be taboo. Even that statement, however, becomes tricky once one asks how torture should be defined. Surely not all interrogations are forms of torture. Do you feel there is a bright-line divide?

This is exactly where confusion over your position arises. Almost every commentator on this subject admits to certain distinction among treatment of prisoners. As you say, all arrests and interrogations come with aspects of humiliation and physical restraint, but these degradations are incidental to lawful imprisonment and are necessary for society to function. There is, from there, I would say a sliding scale into cruel, inhuman and degrading treatment and then torture, which is a question of fact for the fact-finder in a proceeding (although it's necessary to say that *both* are a crime under U.S. and international law).

U.S. case law likes to use the words "shock the conscience" as a term of art for this sort of treatment. However, many Bush administration defenders like to put a subjective element into this definition: meaning it may shock the conscience of a reasonable person to administer mind-altering drugs to a suspect against his will in the ordinary case, but when dealing with a suspected terrorist who may have actionable intelligence, such actions no longer shock the conscience because of the necessity of the desired ends and the good faith intentions of the people administering the drugs.

And that's where you have a break down of the taboo -- because now you're defining away torture based on who you're torturing or why you're torturing them. And the law has never and does not admit to this (for what I think are obvious reasons).

So the question really is not what Glenn asked above, do you think that the Bush officials responsible should be prosecuted for committing war crimes? but the greater question of whether you believe there is a subjective element in the definition of torture?

Please don't use what "a mass majority of Americans felt at the time" to bolster your arguments. According to the poll below, our feelings were less bloodthirsty than Mr. Douthat's.

Terror Suspect Treatment
Most Americans Oppose Torture Techniques

Analysis
By David Morris and Gary Langer
ABCNEWS.com

May 27, 2004— Americans by nearly 2-to-1 oppose torturing terrorism suspects — but half believe the U.S. government, as a matter of policy, is doing it anyway. And even more think the government is employing physical abuse that falls short of torture in some cases.

Given pro and con arguments, 63 percent in an ABC News/Washington Post poll say torture is never acceptable, even when other methods fail and authorities believe the suspect has information that could prevent terrorist attacks. Thirty-five percent say torture is acceptable in some such cases.

There's more of a division, though, on physical abuse that falls short of torture: Forty-six percent say it's acceptable in some cases, while 52 percent say not.

Sampling, data collection and tabulation for this poll were done by TNS.

Majorities identify three specific coercive practices as acceptable: sleep deprivation (66 percent call it acceptable), hooding (57 percent) and "noise bombing" (54 percent), in which a suspect is subjected to loud noises for long periods.

Dan, Glenn, you both have said that the Bush administration that authorized torture should be punished if it can be proven in a court of law. So there, that's it, done. The thing is, I haven't heard anything about when the court date is going to be. I haven't heard anything about these proceedings even getting started at all. You both know much more about these things than I do. What can we do to see the people who authorized torture and therefore broke the law have their day in court? This, to me, is all that matters at this point. Why isn't this happening?! How can we help make it happen!? These people broke the law. If I steal, I have to go to court. These people caused pain to people who may or may not have done anything wrong. It makes me sick that it seems like they are about to get away with it.

Nearly every commenter on this post is a shill for Greenwald.

Greenwald's tactics

Step 1: write post and link to opponents blog to direct readers.

step 2: sit back and allow the hounds to attack.

step 3: perpetuate useless argument on opponent's blog.

step 4: repeat.

Get off your self-righteous horse, Greenwald.

Dan said:
"I suspect Greenwald didn’t comprehend these points in the diavlog because I failed to say 'torture is wrong' fifty more times. Based on my prior experiences with him, he’s the kind of guy who needs a lot of repetition in order to comprehend what he’s reading."

Dan, I guess you think we are stupid. Or is it just the fact that you don't think people who read blogs are *worth* giving any sort of reasoned explanation for your views vis a vis Glenn Greenwald's comments.

I understand it is easier to offer snark than point-by-point arguments. I enjoy a good laugh, despite your description of Glenn's readers as humorless. I just find torture less than amusing.

Dan,

What is the consensus, if any, of the "Foreign Affairs' editorial board with respects to trying, and if covicted, punishing the Bush Crime Familly for torture. I'm not being snide.

Lefftee

I am not an intellectual nor an academic. I am sort of an average-joe.

I watched the video and said to myself, "these guys are putting forth a ton of academic BS as to why and when torture is justifiable." That's just how it came across to me.

Not only from the words but also the cursory manner in which they were holding the discussion, as if they were discussing the proofs of the existence of a god.

Professor, in responding to the commenters in this blog, you appear to be defensive, evasive and in a struggle to find some rationale for you performance.

You are doing an extremely poor job of it!

You can't make up for your deficiencies by blaming Glenn Greenwald. This is important.

Chris:
"If I steal, I have to go to court. These people caused pain to people who may or may not have done anything wrong. It makes me sick that it seems like they are about to get away with it."

The law does not distinguish whether the victim of torture is guilty or innocent. Therefore, it makes absolutely no difference whether they may or may not have done anything wrong. Torture of any human, whether he be evil or good, is illegal.

President-Elect Obama should, as soon as is possible, take whatever steps are necessary to ensure that the abuses of the Bush administration are fully investigated and if the investigation reveals probable cause for prosecution, then all those persons, Republican, Democrat, and Independent, who are found to have engaged in or enabled this activity, regardless of their rank in government, regardless of whether they are elected officials, appointed government employees, civil service employees, or non-government employees (contractor personnel) must be prosecuted to the full extent the law allows.

Upon conviction, if that occurs, the Court can consider miligation during the sentencing process.

Period.

Mr. Drezner,

Suppose an American serviceman is captured overseas and tortured by his captors, who excuse their actions by claiming that they sincerely believe that they are acting in the best interest of their country. Are you OK with that?

Greenwald’s tactics

Step 1: write post and link to opponents blog to direct readers.

step 2: sit back and allow the hounds to attack.

step 3: perpetuate useless argument on opponent’s blog.

step 4: repeat.

Not true. I peek in at Daniel from time to time, and saw this post. I put the url in Glenn's comment's section. Glenn did not tell me to, and if he had, I'd have told him...well, he just would not do that.

Myself, I have a bit more sympathy for what Daniel was trying to articulate than some. Nevertheless, his post may have gone unnoticed, but for me. And I thought -- and still think -- it merits the engagement it has received.