Excellent analysis. I, for one, am just tired of the Culturally Imperial Left ginning up an hysteria and then claiming that I'm a bad/evil person if I don't 100% agree with the position they've developed for me. Those days are over.

Thankee.

Geez, David, you're on a roll when it comes to cogent writing. Another very good piece.

I have seen this issue bandied about in other blogs, and one peculiar suggestion often crops up:

Suppose we have a situation in extremis, such as the proverbial hidden nuke set to go off in a few hours. Torture sets a bad precedent, slippery slope and all that, but doing nothing is seen as hideously impotent. At this point someone will suggest that we torture the suspect, the torturer should then be convicted of whatever crime is merited, and then appeal to the appropriate Executive Official to pardon him (the torturer).

Unfortunately, appealing to the good graces of the Governor or President is tragically flawed - a real crap shoot. Ask Gerald Amirault.

David:

At the risk of a piling-on flag, I agree: excellent analysis.

Having been through it, anyone who

"...consider[s] it to be torture if the military uses sleep deprivation, or "stress positions" also used in military training, or heavy metal music, or good cop/bad cop, or the mere use of woman M.P.'s as guards, or wrapping terrorists in the Israeli flag, or threatening to turn them over to the Saudis, or forcing them to renounce Islam..."

has proven themselves incapable of correctly discerning even the most glaringly obvious distinctions.

Great analysis, but two issues arise in my mind:

* I think to say that there is no conservative position on torture may be an overly-broad statement; I think most conservatives oppose torture in most circumstances. Your later comments appear to indicate that you understand that, however.

* I think believing that we are in a fight for civilization itself is a perfectly defensible conservative viewpoint, although I probably wouldn't go quite so far; I tend to think that we can crush Islamists at any time as long as we decide to do so, and that consequently the most important fight is within and not without. Considering that the Islamists could smuggle a nuke into the country and potentially kill millions of Americans, however, conservatives are justified in viewing them as extremely dangerous, as least in the short-term.

Mr. Cohen:

Great analysis, but two issues arise in my mind:

* I think to say that there is no conservative position on torture may be an overly-broad statement; I think most conservatives oppose torture in most circumstances. Your later comments appear to indicate that you understand that, however.

* I think believing that we are in a fight for civilization itself is a perfectly defensible conservative viewpoint, although I probably wouldn't go quite so far; I tend to think that we can crush Islamists at any time as long as we decide to do so, and that consequently the most important fight is within and not without. Considering that the Islamists could smuggle a nuke into the country and potentially kill millions of Americans, however, conservatives are justified in viewing them as extremely dangerous, as least in the short-term.

Guys.

These murderers of women and children had panties put on their heads. Women soldiers ridiculed them. They were forced into humiliating situations and threatened by dogs.

Are you kidding? Only their pride was hurt. Their heads and all other body parts were still where they were.

Enough moralizing. Abu Gharib was a frat hazing, not torture. Was it disgusting, was it foolish, yes. Was it also a setup by those who wanted to embarrass the U.S. and perhaps stop the war in Iraq, yes and yes again.

Just because Nazi Germany was evil didn't mean that every American in 1944 was more virtious than every German. Any large fighting force, or any organization like a prison that requires strict disciplanary rules, is bound to have a sadist pop up now and then. But extrapolating out the actions of Graner and others at Abu Ghirab to imply that the entire U.S. military structure under the current administration is equal to Hitler is what the left excells at, and once that idea takes root in the media, then the definition of what is considered "Nazi-like torture" is expanded to satisfy their agenda.

It's the same tactic that was used 35 years ago, after Seymour Hirsh's Mi Lai stories, which led two years later to John Kerry sitting in front of a congressional committee claiming that torture was as normal as breathing for the U.S. military. And make no mistake, that's where the left would really like to take the theme of the war on Iraq and the war on terror in general over the next four years.

A few months before the prison scandal broke I was lurking at a left wing board which had a thread on the possibility of a My Lai happening in Iraq. Most of the posters were salivating at the prospect of such a tragedy. For these people, the Abu Gharib incident serves as the next best thing.

Something else conservatives should keep in mind is that while whatever went on was happening, the caliphascists were lobbing mortar rounds in Abu Ghraib, killing inmates by the dozen. But nobody who complains about abuses at Abu Ghraib seems to consider that one of them.

I assume that Sullivans hyper ventilation about torture says more about Sullivan, who, I have come to believe is just a wacko, than it does about the war or Iraq.

I have not heard or read any allegations of what I would regard as real torture of the sort that the KGB, the SS, the Spanish Inquisition or any of the other first class torturers of history would regonize as torture.

I heard Juan Williams on FNC the other night screaming about the tortures inflicted on the prisoners, one of them was loud disco music, another was having a woman rub her genitals over your body. I kid you not.

Wake me up when the bring out the rubber hoses.

Can I enter even if I'm only a moderate, David?

While all this analyis makes sense to me abstractly, being a prisoner is not abstract. It's real.

Anyone who says the words 'Geneva Convention' in connection with US armed forces east of Suez is not living in the real world.

I could cite lots of examples, but I'll stick with the most recent I encountered, in an excellent (well, not excellently stylish) autobiography called 'Baby of Bataan' by Joseph Q. Johnson.

As a 16-year-old POW of the Japanese in 1942, he watched as a Japanese officer chopped off his best friend's head. He pinged that the Geneva Convention wasn't working.

Never has, either.

When Sully describes the naked human pyramid he seems wistful.

Point (1): The attacks are somewhat partisan, but there are real issues here. It should be controversial for any Administration to float a memo suggesting that the President, in his role as Commander-in-Chief and Grand Pooh-Bah, can ignore a specific federal law and order soldiers to commit torture.

Point (2): True only in a narrow sense. Before 9/11 the consensus in this country was that torture is cowardly and barbaric and should not be used by a civilized government. The issue is not whether torture violates some philosophic definition of conservatism, but whether torture violates American values and our sense of being the Good Guys.

Points (3) and (4): "We're not sure that there was any torture." Technically true, but considering how poorly Abu Ghraib was being run would anyone be surprised if definitive proof of torture came to light? It's true that there's a difference between torture and the abusive techniques used at Abu Ghraib, and it's true that the Usual Groups complain that even mild mistreatment is "tantamount to torture". But some suspects were threatened with torture by dogs or by wires -- a form of abuse that _is_ almost like torture.

I'm skeptical of testimony from detainees, but allegations have been coming from our own people. General Taguba thought there were credible claims that detainees had been beaten. A soldier has claimed that a detainee was beaten while in custody and died an hour later. In one of the FBI memos which recently came to light someone who was not a detainee claimed that suspects were regularly beaten, burned with cigaretts and subjected to strangulation.

POint (5): Fair but irrelevant. Even libertarians belive that the national government should have the power to wage war and to arrest terrorist suspects. The issue is how suspected terrorists and insurgents should be treated in custody.

Points (6) and (7): The most disturbing thing isn't that some soldiers committed atrocities. That happens in every war, unfortunately. What are particularly scandalous are (a) that the Bush team was at least considering the possibility of using torture and wondering how to legally get away with it, and (b) that this cavalier attitude probably facilitated the Abu Ghraib abuse. There's a logical case for authorizing torture, but real adults like OJ or Alan Dershowitz make the case openly and honestly. The Bush team seems to be making the case on the sly: wondering if they can legally sanction torture while keeping the torture secret, and perhaps turning a blind eye to allegations of serious abuse and possible torture.

Woah.

Long time, no see Peter.

Welcome back.

Welcome back, indeed.

1. This was not meant to be a theoretically sound point, but merely recognition of the fact that conservatives, like anyone else, are reluctant to attack our own side. Also, as Bob Dole found out in '96, asking, "Where's the outrage" always comes across as plaintive whinging.

2. Conservatives are being called out to comment as conservatives, not as Americans. I am also less sure than you that there was a consensus against torture before 9/11, or that 9/11 wasn't sufficient to change any such consensus. Finally, before we get outraged at torture, there needs to have been torture for us to get outraged at.

3, 4 and 5. We really need to keep abuse of prisoners seperate from torture as state policy. I'm against abuse of prisoners. Much of what happened was real abuse and served no useful purpose. I have no problem with the prosecution of the AG MPs and the breakdown of military discipline at AG, even given the constant attacks AOG mentions, has to be slapped down, hard. Harry's point that US prisoners are mistreated by our enemies regardless of what we do is well-taken, but my concern is that we abide by our own morality and that we maintain good military order. (Also, there are libertarians who object to any war other than to repel an invasion, but then there are as many libertarianisms as libertarians.)

6 and 7 (with a little 1). You have made me go and read the so-called torture memos (curse you and your progeny for three generations). They can be read here, here and here. Having read them, I find them not only not shocking, but well within the scope of reasonable legal interpretation and most likely right.

First of all, the president certainly has the right and power to ignore specific federal law under the proper circumstances. Suppose, for example, that Congress passed a law that said that the President could only nominate judges from a list provided to him by the Senate Majority Leader. The President could, and should, ignore that law.

Second, that's not what the Bybee memo said. What it said was that the War Crimes Act expressly made illegal certain violations of the Geneva Conventions; the President has the power to suspend our treaty obligations as well as the power to declare Afghanistan a failed state to which the GCs would not apply; so, even assuming that the Geneva Convention applied to our invasion of Afghanistan, the President could suspend the treaty and, as a result, actions that might violate the GCs, if it applied, wouldn't be a violation in this circumstance and, thus, not a violation of the WCA.

The only thing here that approaches controversy is that the President has the power to suspend the GC as it applies to Afghanistan. Without getting into the merits, this is not some new idea that the Bush administration dreamed up out of whole cloth.

I quote, at length, from the Bybee memo:

Article II of the Constitution makes clear that the President is vested with all of the federal executive power, that he "shall be Commander in Chief" that he shall appoint, with the advice and consent of the Senate, and receive, ambassadors, and that he "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties." U.S. Const. art. II, Sec. 2, cl. 2. Congress possesses its own specific foreign affairs powers, primarily those of declaring war, raising and funding the military, and regulating international commerce. While Article II, section I of the Constitution grants the President an undefined executive power, Article I, section 1 limits Congress to "[a)ll legislative Powers herein granted" in the rest of Article 1.

From the very beginnings of the Republic, this constitutional arrangement has been understood to grant the President plenary control over the conduct of foreign relalions. As Secretary of State Thomas Jefferson observed during the first Washington administration: "The constitution has divided the powers of government into three branches [and] . . . has declared that 'the executive powers shall be vested in the President,' submitting only special articles of it to a negative by the senate." Due to this structure, Jefferson continued, "[tlhe transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly." In defending President Washington's authority to issue the Neutrality Proclamation, Alexander Hamilton came to the same interpretation of the President's foreign affairs powers. According to Hamilton, Article II "ought . . . to be considered as intended . . . to specify and regulate the principal articles implied in the definition of Executive Power; leaving the rest to flow from the general grant of that power."' As future Chief Justice John Marshall famously declared a few years later, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. . . . The [executive] department . . . is entrusted with the whole foreign intercourse of the nation. . . ."

On the few occasions where it has addressed the question, the Supreme Court has lent its approval to the executive branch's broad powers in the field of foreign affairs. Responsibility for the conduct of foreign affairs and for protecting the national security are, as he Supreme Court has observed, "'central Presidential domains.'" The President's constitutional primacy flows from both his unique position in the constitutional structure and from the specific grants of authority in Article II making the President the Chief Executive of the Nation' and the Commander in Chief." Due to the President's constitutionally superior position, the Supreme Court has consistently "recognized 'the generally accepted view that foreign policy [is] the province and responsibility of the Executive.'" This foreign affairs power is independent of Congress: it is "the very delicate, plenary and exclusive power of the President as sole organ of the federal government in the field of international relations - a power which does not require a basis for its exercise an act of congress."

In light of these principles, any enumerated executive power, especially one relating to foreign affairs, must be construed as within the control of the President. . . . The treaty power is fundamentally an executive power established in Article II of the Constitution, and power over treaty matters post-ratification are within the President's plenary authoriry. As Alexander Hamilton declared during the controversy over the Neutrality Proclamation, "though treaties can only be made by the President and Senate, their activity may be continued or suspended by the President alone."

Now, people can disagree with this analysis; or agree with it, but disagree with a decision to authorize torture, but I can't find the memo itself shocking.

I forgot to mention that I don't consider the threat of torture, no matter how vile, to be torture.

Actually, I do not believe that US prisoners are mistreated no matter what we do.

What I said is that they are mistreated by those who mistreat whether there is a Geneva Convention or not.

Our prisoners have not been mistreated when we controlled enemy prisoners that we could retaliate against, if -- and this is the key point -- the enemy cared what happened to his own prisoners.

Every US Army unit of the battalion level and above has in its office a history of POWs that makes this point, starting with the mutual threats of the American rebels and the British to hang each other's prisoners in New York in 1777.

East of Suez, no government has ever cared about its own prisoners and so was free to treat the prisoners it held however it wished.

See also 'A Gentleman from England' by Fitzroy Maclean.

These people really are not like us.

I was not thinking of the Bybee memo, I was thinking of this memo ( http://online.wsj.com/public/resources/documents/military_0604.pdf ), described by a liberal commentator on Slate as "How to torture alleged terrorists and get away with it" ( http://slate.msn.com/id/2102203 ). While the memo presents many issues, a good money quote is found on page 21: "In order to respect the President's inherent constitutional authority to manage a military campaign, 18 U.S.C section 2340A (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority. Congress lacks authority under Article I [of the Constitution] to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war.... Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."

How convenient!

It's a remarkable claim. The memo not only argues that a particular law banning torture doesn't apply to soldiers interrogating suspected combatants, but argues that any such law would be unconstitutional.

The claim is symptomatic of the Bush administration's entire attitude since 9/11. They've been obsessed with maximizing the power of the Executive Branch to do whatever the hell the President wants, including reserving the right to abuse and torture suspected terrorists (even if the President never exercizes this right).

Peter: Thanks for making my point so nicely. This isn't about torture at all. It's about trying to get conservatives to complain about something that is thought to support some paranoid delusion that the administration is "obsessed with maximizing the power of the Executive Branch to do whatever the hell the President wants." That is completely and totally false. First, the administration has bent over backwards to respect Congress' role -- too much so, for my taste. Second, the constitution says that all of the executive power of the government of the United States is vested in the president. He doesn't have to maximize his power.

I don't know how I can be any clearer: the President has all of the executive power of the government and any effort by congress to invade that power, except in the limited ways allowed to it by the constitution, are of no force and effect. Far from being shocked by the idea, I'm all for it. For what it's worth, that was also my position during the Reagan, Bush and Clinton presidencies. It has nothing to do with torture, but really comes into play in my belief that much of the administrative state is unconstitutional.

The President executes the laws, but Congress can clearly regulate the conduct of government employees on the job. Similarly, Congress has the authority to regulate the conduct of soldiers, even on the battlefield. Otherwise huge parts of the Uniform Code of Military Justice would be unconstitutional.

The memo basically argues that the Commander-in-Chief can order soldiers to torture captured prisoners, proof against any federal law. This is a rather expansive reading of the President's powers, one a typical person would consider "controversial".

Well, controversy is as controversy does, I suppose. However, to suggest that the president merely executes the laws is a crabbed understanding of the executive power. In foreign affairs, in particular, but also in some areas of domestic affairs, the president has plenary power to act outside of any applicable review. He can, for example, excuse any violation of any criminal law and no one can second guess him. That's not controversial, that's the constitution.

Another pertinent example is prosecutorial discretion. Every day, prosecutors decide not to bring certain prosecutions. That, too, is an unreviewable exercise of executive power.

In any event, the issue here is whether I'm shocked to find out that some people in the Defense Department wrote a memo suggesting that the President could authorize the use of torture; a memo that never made it to the President and which was never adopted. And the answer is, no, I'm not shocked.