David Hackett Souter

R. Emmett Tyrrell offers a column on the retirement of Justice David H. Souter, observing that while we conservatives are not unhappy to see him go, neither is he particularly admired or respected by the liberals. Such, I suppose, are the inevitable unappetizing fruits of Souter’s arid and sterile Brahmanic legal positivism.

Is it possible that Justice David H. Souter has sensed what I have sensed in reading the liberals’ dutiful adieus to him, their judicial Benedict Arnold? They all are snickering behind their hands. Sure, he pleased them enormously with his 19 years of tergiversations against conservative jurisprudence, after being President George H.W. Bush’s “conservative” Supreme Court nominee. But through all Souter’s years here in Washington, he revealed himself to be a stupendously self-absorbed oddball and not much else. He fell far short of the liberals’ conception of a progressive Supreme Court dissenter, to wit: a charismatic, outspoken, slightly outre intellectual on the model of William O. Douglas.

Souter has been, as The Washington Post puts it, notable for his “quirky independence in spurning the right.” The operative word here is “quirky.” It is not meant as a compliment. Our liberals admire eccentricity but not the eccentricity of a misanthropic loner. Thus, in every supposedly friendly retrospective that I have read of him since he informed the Democratic president that he, a Republican’s Supreme Court nominee, is retiring, the liberals have stressed his weirdness: the misfit, the loner, the guy whose luncheon consists of yogurt and an apple, which he eats “core and all.” That was The New York Times speaking. ….

These are the details that the liberals have been relating as they recapitulate his career as a Republican-turned-progressive. As I say, they are snickering.

They have very little to say about Souter’s work on the court other than that he sided routinely with the liberal minority. I can understand their reticence. After conferring with scholars who follow the court, I can report that they recall not one opinion of his that was memorable for anything other than smugness. As one told me, Justice Stephen Breyer’s dissents have been “thought-provoking,” Justice John Paul Stevens’ “intelligent.” Souter, in his dissents, has been simply a liberal tag-along. There is something about him that is not quite adult. He asks questions persistently, the liberals say with a wink. Well, so does a lost child. ..

Souter’s bland years on the court should remind us how important it is for our leaders to have experience. President Bush and his advisers might have thought it was clever of them to nominate a judge with almost no paper trail. After serving on the New Hampshire Supreme Court for seven years, Souter served just two months on the 1st U.S. Circuit Court of Appeals before his nomination. But for almost two decades, it has been clear that he is out of his depth. The troubling thought is that the president who is about to nominate Souter’s replacement is out of his depth, too.

I began this column with a question. Does the departing justice realize that the liberals, whom he benefited, are snickering? The answer is no. As with much else, he is oblivious.

The inimitable Frank J. Fleming summarizes the liberal establishment position of moral superiority on coercive interrogation.

If the CIA torture memos tell us anything, it’s that Americans still have a long way to go towards civility. When disenfranchised youths flew planes into buildings, it should have been a time of quiet introspection. Instead, Americans gave into baser emotions and demanded vengeance against our “attackers.” Since we had the barbaric Bush administration in charge, they gave into those demands and soon loosed the sadistic Cheney, who took a break from blasting his friends in the face with a shotgun to turn his violence on foreign minorities. Pretty soon our intelligence agencies had grabbed some random Arab terrorist masterminds off the street and started inconveniencing them, making them uncomfortable, and — dare I say it — torturing them.

And now we are no better than they are. Less better even.

A civilized nation should never torture. Period. Ever, for any reason. No matter how many lives are at stake. It always just reduces us to animals that thirst for the pain of others. We say we want it to stop “terrorists” from killing us, but if in the process we murder our own humanity, what’s the point? And anyway, torture doesn’t work. I don’t care what basic logic or common sense or history tells you. It never works. Ever. That’s what studies say. Scientific ones where, to test the efficacy, they tortured monkeys to see if they could get the monkeys to talk, and none of them ever did. So with that issue settled, for what other reason could we be seeking torture but inhuman sadistic pleasure?

Yes, some are claiming that the torturing of Khalid Sheikh Mohammed saved thousands of people from a plot to blow up the Library Tower in Los Angeles, but that’s ridiculous. First of all, if they really got useful information, then they obviously didn’t use torture because it’s a well-known fact that torture doesn’t work (remember the studies I mentioned). But they claimed they used waterboarding, which they say is not torture but we all know is totally torture. I mean, they hold someone down and pour water — real water — on his face; try that on a cat and see if it acts like that isn’t torture. Thus, since waterboarding is torture, it obviously didn’t cause KSM to give up information because torture doesn’t work. Thus, he must have given up the information for reasons completely unrelated to the waterboarding.

Now look at what we (and by we, I mean you, because I’m not a part of this) have become. Torturers. And what did we gain? Information on a terror plot that was probably never going to happen in the first place. And even if it was going to happen, it’s not like thousands of people don’t die in LA every year anyway. Plus, “Library Tower” isn’t actually a library. So we gained nothing, and we debased ourselves by becoming nothing more than common Cheneys. Just because someone masterminded a plot that killed thousands doesn’t make it right to pour water on him.

So I hope your bloodthirst has been quenched, you mindless barbarians. You may say Khalid Sheikh Mohammed is “evil,” but then I ask, “Who is holding whom hostage and pouring water on his face?” No wonder the rest of the world looks at us and sees who the real terrorists are. This is what our torture has done to us. And I weep.

Read the whole thing.

Ever wonder how the same story with exactly the same spin manages to appear in so many columns and lead stories at exactly the same time?

Warner Todd Huston explains that it is not an accident.

The Washington Post’s Howard Kurtz has let the cat out of the bag in the Post’s April 27 issue about a regularly scheduled secret media dinner attended by some of the top left-wing journalists in the country. But it isn’t just the lefty scribblers that have attended these secret, off-the-record dinners for these gatherings have each featured a guest. Rahm Emanuel, Sec. of the Treasury Tim Geithner, and Fed Chairman Ben Bernanke have all recently had their chance to schmooze the press and guide them with the spin desired by the White House.

So, not only does Obama’s Chief of Staff Rahm Emanuel have secret daily phone calls with which to program the media’s coverage of the White House, now it is revealed that Emanuel and other Obama staffers have been attending secret dinners to help the press “understand” what the White House wants reported? As Kurtz says, it all sounds “rather cozy,” doesn’t it?

The secret dinners for Obama staffers and his boosters in the Old Media have been going on for “more than a year” and are sponsored by David Bradley, the owner of the Atlantic. In attendance have been some of the most well known lefty journalists in Washington. Not surprisingly, not a single name mentioned in the Kurtz report is conservative.

Torture

historical examples of usage omitted

2. Severe or excruciating pain or suffering of mind or body; anguish, agony, torment; the infliction of such. …

figurative meanings omitted

— Oxford English Dictionary, 1971, p. 3357.

————————————————-

The left has loudly and persistently accused the Bush Administration of violating International Law, the US Constitution, the Geneva Convention, and conventional standards of human decency by torturing detainees.

These accusations have been advanced by a large variety of allied voices at every level of print and electronic publication employing the same inflammatory characterizations, the same reliance on preassumed conclusions, and the same intimidating tone of exaggerated emotionalism.

The left’s punditocracy naturally avoids ever questioning whether modest forms of coercion, such as waterboarding, slaps to the face or abdomen, sleep deprivation, and deliberately-caused temperature discomfort, etc., carefully and deliberately calculated to stop short of inflicting any enduring harm to the subject, actually do rise to the level of meeting the normal (non-figurative) definition of torture.

A slap to the face may be painful, humiliating, and unpleasant, but it is really “excruciating” or “severe?” Most of us (of the older generation, at least) actually have been slapped in the face in childhood by other children and even by adults. My elementary school principal did not like an angry letter to the editor about her school policies I had composed in the 8th grade and slapped me across the face. I can’t say that I ever thought of myself as a torture victim or an appropriate case for an investigation by some International Committee on Human Rights.

When I read over the list of coercive measures sanctioned by the Bush Administration for use in extracting information from only three of the most important participants in a conspiracy which brought about the violent deaths of more than 3000 innocent American civilians and which was actively in the process attempting further such attacks on an even greater scale, most of them remind me of the ordinary cruelties inflicted on small children commonly by schoolyard bullies.

Waterboarding amounts to the victim being briefly deprived of breath by facial immersion in an attempt to use fear of drowning to compel cooperation. Is there really anyone in America who didn’t have his or her head held underwater at least once by a larger bully or childhood playmate?

Abu Zubaydah was placed by CIA interrogators into close propinquity with a caterpillar. I’m afraid that when I search my own conscience I can recall dropping a caterpillar down the back of at least one female classmate back in the third grade myself.

The controversial coercive interrogation methods were employed by the Bush Administration against, we must remember, only three spectacularly guilty murderers whose hands were dripping with innocent blood, and were clearly not excruciating. They were capable of, and intended to, induce discomfort, probably even anguish, but not agony.

Severe is a relative term, I suppose. But, in the context of forcible interrogation, surely a severe form of coercion would be a practice capable of producing permanent injury or death.

What traditionally defined real torture, more specifically than the OED’s definition, was the permanence of the result. Someone would not be refered to as “tortured,” who had been beaten up or simply slapped around. A person referred to as having been tortured would have to have suffered, at the very least, lasting serious injury.

Torture has always conceptually involved pieces of one’s anatomy being cut or burned, fingernails pulled out, bones broken, and joints dislocated. Having your head dunked or your face slapped or being confronted by a caterpillar may be unpleasant, but only in the context of figurative speech is it torture.

A common perspective on the subject is that real torture has to include an ultimate threat of ending with death. The audience finds credible this viewpoint as illustrated in the 1941 John Huston film version of The Maltese Falcon.

Sam Spade finding himself unarmed in the presence of Caspar Guttman and his criminal allies successfully defies threats of torture because his adversaries can’t afford to kill him.

Joel Cairo: You seem to forget that you are not in a position to insist upon anything.

Caspar Cuttman: Now, come, gentlemen. Let’s keep our discussion on a friendly basis.

There certainly is something in what Mr. Cairo said…

Sam Spade: If you kill me, how are you gonna get the bird? If I know you can’t afford to kill me, how’ll you scare me into giving it to you?

Caspar Guttman: Sir, there are other means of persuasion besides killing and threatening to kill.

Sam Spade: Yes, that’s…That’s true. But none of them are any good unless the threat of death is behind them.

You see what I mean?

If you start something, I’ll make it a matter of your having to kill me or call it off.

Caspar Guttman: That’s an attitude, sir, that calls for the most delicate judgement on both sides. Because, as you know, in the heat of action, men are likely to forget where their best interests lie, and let their emotions carry them away.

Look at the first definition again. The coercive tactics employed by the Bush Administration did not produce “excruciating pain.” The US Administration was not a cruel tyranny (whatever the infantile left may chose to think). Our intelligence officers were not savages or brigands, though the three interrogation subjects certainly were. The discomforts inflicted on the three interrogation subjects were not done out of hatred or revenge, but to protect innocent lives. The only small portion of the Oxford Dictionary’s definition which fits is the purpose of causing unwilling witnesses to provide information. But that is only a descriptive portion of the definition, and the vital and key “excruciating pain” element of the definition is completely missing.

QED: The coercive tactics employed by the Bush Administration against three Al Qaeda detainees were not torture, not by the best dictionary definition of the word, and not by our conventional “ordinary language” understanding of the meaning of the word.

The Wall Street Journal correctly observes that Obama has moved the United States one long step in a very dangerous direction by pandering to his radical base with hints of possible prosecutions of Bush Administration attorneys simply for writing legal opinions.

Mark down the date. Tuesday, April 21, 2009, is the moment that any chance of a new era of bipartisan respect in Washington ended. By inviting the prosecution of Bush officials for their antiterror legal advice, President Obama has injected a poison into our politics that he and the country will live to regret.

Policy disputes, often bitter, are the stuff of democratic politics. Elections settle those battles, at least for a time, and Mr. Obama’s victory in November has given him the right to change policies on interrogations, Guantanamo, or anything on which he can muster enough support. But at least until now, the U.S. political system has avoided the spectacle of a new Administration prosecuting its predecessor for policy disagreements. This is what happens in Argentina, Malaysia or Peru, countries where the law is treated merely as an extension of political power.

Our political system relies on the voluntary surrender of power to a newly elected government. If new administrations are going to prove dissatisfied with the power to set current and ongoing policy, and are going to make a practice of criminalizing and punishing the decisions of their predecessors, voluntary surrender of power is, to say the least, significantly disincentivized.

Sooner or later, as in Ancient Rome, a leader, like Julius Caesar, facing proscription by his political adversaries will cross the Rubicon to defend himself and his supporters, and the political system will be permanently changed.

Rosa Brooks, talking head

Not only has the Obama administration ruled out forceful interrogations of captured terrorists, his latest highly controversial appointment to the Department of Defense of all places is likely a strong signal that radical policy changes will not be stopping there.

Newsmax:

A liberal newspaper columnist and former counsel to billionaire George Soros’ Open Societies Institute has been tapped for a key Defense Department position despite what Washington insiders have termed her “extremist,” Bush-bashing views.

Rosa Brooks will serve as principal adviser to Undersecretary of Defense Michele Flournoy. … In that substantial insider position, Brooks, who once famously penned that the Bush administration’s “big legal lies paved the way for some of the most shameful episodes in our history,” will have constant contact with DOD policy chief Flournoy, who reports directly to Defense Secretary Robert Gates and eyeballs every major defense department decision.

Gates, a holdover from the Bush era, hasn’t exactly embraced the controversial Brooks. One anonymous staffer characterized Brooks as an “extremist,” noting that her coming onboard was Flournoy’s doing, not his leader’s, according to a report in HumanEvents.com.

“Gates did not hire her,” the official emphasized.

In 2007, Brooks wrote: “Thanks to U.S. policies, al-Qaida has become the vast global threat the administration imagined it to be in 2001.”

That sort of attitude, along with Brooks’ apparent lack of military or policy experience, has many pundits scratching their heads over the hiring.

“It is hard to think of a more inappropriate political appointment at a time when America needs a hard-headed approach to winning a global war instead of defeatist, far-left rhetoric,” wrote the U.K.’s Telegraph.

When any small group of fringy leftwing kooks and nutcases protests anything, the leftwing punditocracy gravely stroke its collective chin and warns of the rising tide of popular indignation. But when thousands and thousands of Americans participate in more than 600 protests against taxes and federal spending in cities all across the nation, the left sneers at the symbolism and dismisses the protests as unrepresentative and contrived.

Marc Ambinder was the rare exception in the liberal punditocracy who questioned the official party-line.

The… tea-party enthusiasm on the American right has provoked a fairly typical reaction from the organized American left. It’s a fake. It involves tea bags and (a) Dick Armey. It’s got the consistency of astroturf, not natural grass. …

In the age of hyperconnectivity, just what would an organic grassroots movement look like, anyway? Are people who’ve organized on behalf of causes before forbidden from joining? Can the movement not accept help and money from outside players?

Ambinder’s right, of course. And the scale of yesterday’s protests ought to be considered far more significant in the light of the consideration that protests and street theater are not really our thing. Conservatives write angry letters to the editorial page and argue with liberal friends. We don’t typically march around in public waving signs.

Conservatives tend to be busy and productive people with responsibilities. It’s a lot harder to assemble a mob of mortgage-paying adults with jobs they need to be at than to get yourself a gang of students and urban slackers ready for a lark. The thousands seen yesterday obviously constituted only the smallest tip of a much larger iceberg, an iceberg which does reliably vote.

The Left is chortling about what a big, bold he-man Obama is, not actually forbidding the US Navy’s use of armed force to rescue the hostage American ship’s captain.

Jules Crittenden appreciates the irony.

Lefty bloggers are crowing about how tough their guy is because some SEAL snipers whacked three pirates. The lefties seem to mainly be interested in this as an opportunity to snark on the right, claiming that pirate whackage or the lack thereof was set as some kind of definitive right-wing benchmark of Obama’s wieniness. That’s OK. This is their special moment. …

In fact, news reports indicate the dithering has already begun. Never mind that. I just want to say I’m thrilled about the handwringing, Kumbayah-singing, peacenik left’s new enthusiasm for swift, extra-judicial 7.62 justice by executive order, and the lack of calls for human rights investigations, prosecutions, etc.

Special Ops service veteran Jeff Emanuel is less impressed with the Obama administration’s performance.

Almost immediately following word of the rescue, the Obama administration and its supporters claimed victory against pirates in the Indian Ocean and declared that the dramatic end to the standoff put paid to questions of the inexperienced president’s toughness and decisiveness.

Despite the Obama administration’s (and its sycophants’) attempt to spin yesterday’s success as a result of bold, decisive leadership by the inexperienced president, the reality is nothing of the sort.

What should have been a standoff lasting only hours — as long as it took the USS Bainbridge and its team of NSWC operators to steam to the location — became an embarrassing four-day-and-counting standoff between a rag-tag handful of criminals with rifles and a U.S. Navy warship. …

[I]nstead of taking direct, decisive action against the rag-tag group of gunmen, the Obama administration dilly-dallied, dawdled, and eschewed any decisiveness whatsoever, even in the face of enemy fire, in hopes that the situation would somehow resolve itself without violence. Thus, the administration sent a clear message to all who would threaten U.S. interests abroad that the current occupant of 1600 Pennsylvania Avenue has no idea how to respond to such situations — and no real willingness to use military force to resolve them.

Any who think they weren’t watching every minute of this are guilty — at best — of greatly underestimating our enemies. …

Like the crew of the Alabama, which took swift and decisive action to take back their own ship rather than wait for help from Washington that they knew could not be counted on, Captain Phillips took matters into his own hands for the second time in three days, leaping into the water to create a diversion and allowing the NSWC team to eliminate his captors. The result, of course, was the best that could possibly be expected: three pirates dead, the captain unharmed, and a fourth Somali man who had surrendered late Saturday night in custody.

One thing that will bear watching will be what the Obama DOJ attempts to do with the captive pirate. My money is on a life of welfare checks, a plot of land (in a red state, naturally), and voting rights in Chicago, New York, and Seattle.

Warner Todd Huston is sick and tired of all the nonsense.

[S]eminal changes in the fabric of a nation should only be undertaken when that fabric is rotten even to its core. There have been bad spots of America that had to be surgically removed, we all know. But the core of this nation, despite its blemishes, is not now and never has been rotten.

And so I am tired of the many people who are native to this country that want to destroy what it is to make it into what it isn’t, never was, and cannot be. If we wish this country to be as great into the future as it has been in the past this self-destructive behavior must be stopped.

I am tired of the Constitution being treated as if it is written on a chalkboard to be erased and re-written at will. I am tired of judges imagining they can write laws instead of just read them. There is a reason that judges are said to be “reading at law,” a reason they why they aren’t called legislators. …

I am tired of being told that Americans “deserve” to die just because they got up to go to work that day. No one, anywhere, deserves to be blown up in an office building, a disco, a mall or as they travel in a commuter train. I am tired of being told that the people who perpetrate such acts are driven to it by the United States and merely need to be “understood” instead of stopped, sick of being told they should be treated like a purse-snatcher instead of a terrorist.

I am tired of actors as assumed “experts” on issues that they portrayed in a movie. Acting like a doctor studying a disease or acting like a lawyer representing the downtrodden does not equal being one or having the expertise to discuss it in the halls of Congress. I am also tired of singers who think that because they have sold a few thousand albums they are entitled to impose their every harebrained political, environmental, or religious theory upon their audiences. Playing a guitar does not qualify one for brain surgery or rocket science. Being able to rhyme with a mouthful of gold-plated teeth does not make one a philosopher.

Robert Stacy McCain, in the American Spectator, urges all-out resistance to Gay Marriage arguing (correctly) that any surrender to the left’s demands for egalitarian social change only leads to the next demand. He’s perfectly right, too.

Back in the 1970s, William F. Buckley Jr. was invited to debate feminist author Germaine Greer at the Oxford Union, but found that he and Greer were unable to agree on the wording of the resolution to be debated. After a long exchange of trans-Atlantic telegrams, Buckley in exasperation cabled his final proposal: “Resolved: Give ’em an inch, they’ll take a mile.”

In that simple phrase, Buckley summed up a basic truth about the conservative instinct. Over and over, we find ourselves fighting what is essentially a defensive battle against the forces of organized radicalism who insist that “social justice” requires that we grant their latest demand.

We know, however, that their latest demand is never their last demand. Grant the radicals everything they demand today, and tomorrow they will return with new demands that they insist are urgently necessary to satisfy the requirements of social justice.

When they refer to themselves as “progressives,” radicals express their own basic truth: Their method of operation is always to move steadily forward, seeking a progressive series of victories, each new gain exploited to lay the groundwork for the next advance, as the opposition progressively yields terrain. Such is the remorseless aggression of radicalism that conservatives forever find themselves contemplating the latest “progressive” demand and asking, “Is this a hill worth dying on?”

My own instinct is always to answer, “Hell, yes.” Nothing succeeds like success and nothing fails like failure. Ergo, to defeat the radicals in their latest crusade (whatever the crusade may be) is to demoralize and weaken their side, and to embolden and encourage our side. Even to fight and lose is better than conceding without a fight because, after all, give ’em an inch and they’ll take a mile.

Read the whole thing.

Bad economic news has proven good news for the left, who first used public dissatisfaction over the economy to win the election last November, and who have since gleefully taken every market plunge and corporate insolvency as the basis for another power grab.

Russ Smith observes the happy leftwing American elite making hay while clouds fill the sky.

There’s presently a school of thought, mostly among the liberal intelligentsia, that the devastating recession has morphed from sheer panic to sour resignation throughout the nation. As a result, we’re now seeing the first wave of magazine and newspaper articles that assess the wreckage and grandly speculate upon the future of American society. This “first draft of history” is premature—in fact, the Las Vegas-tinged economy, where the rules are constantly changing, remains enveloped in gut-wrenching uncertainty—but I’m not an armchair sociologist with a sinecure at a prestigious university or think tank, or insulated by the downturn from inherited wealth or celebrity.

These pundits, left-leaning economists, and other designated “experts,” differ on the precise ramifications of the vanished “American Dream,” but the crux is similar: we’re entering a long, long era of reduced expectations and simpler way of life. Considering the sources—and academia is the epicenter—it’s not surprising that “Reaganism” is now a filthy word, Wall Street money-grubbers are and will be considered pariahs on the order of pornographers and ambulance-chasing lawyers, and high taxes are both necessary and desirable. An element of this commentary is the lingering resentment of the Bush years—the “stolen” election of 2000, Kerry’s loss in ’04, and the supposed philistinism of the former president—but the larger theme is, hey, we’re now in charge!

Hat tip to Bird Dog.

Meghan Clyne, in the New York Post, sees the appointment of ultraleftist Yale Law School Dean Harold Hongju Koh to the top legal position in the State Department as a step toward putting Koh on the Supreme Court.

Judges should interpret the Constitution according to other nations’ legal “norms.” Sharia law could apply to disputes in US courts. The United States constitutes an “axis of disobedience” along with North Korea and Saddam-era Iraq.

Those are the views of the man on track to become one of the US government’s top lawyers: Harold Koh.

President Obama has nominated Koh — until last week the dean of Yale Law School — to be the State Department’s legal adviser. In that job, Koh would forge a wide range of international agreements on issues from trade to arms control, and help represent our country in such places as the United Nations and the International Court of Justice.

It’s a job where you want a strong defender of America’s sovereignty. But that’s not Koh. He’s a fan of “transnational legal process,” arguing that the distinctions between US and international law should vanish. …

Koh has called America’s focus on the War on Terror “obsessive.” In 2004, he listed countries that flagrantly disregard international law — “most prominently, North Korea, Iraq, and our own country, the United States of America,” which he branded “the axis of disobedience.”

He has also accused President George Bush of abusing international law to justify the invasion of Iraq, comparing his “advocacy of unfettered presidential power” to President Richard Nixon’s. And that was the first Bush — Koh was attacking the 1991 operation to liberate Kuwait, four days after fighting began in Operation Desert Storm.

Koh has also praised the Nicaraguan Sandinistas’ use in the 1980s of the International Court of Justice to get Congress to stop funding the Contras. Imagine such international lawyering by rogue nations like Iran, Syria, North Korea and Venezuela today, and you can see the danger in Koh’s theories.

Koh, a self-described “activist,” would plainly promote his views aggressively once at State. He’s not likely to feel limited by the letter of the law — in 1994, he told The New Republic: “I’d rather have [former Supreme Court Justice Harry] Blackmun, who uses the wrong reasoning in Roe [v. Wade] to get the right results, and let other people figure out the right reasoning.”

Worse, the State job might be a launching pad for a Supreme Court nomination. (He’s on many liberals’ short lists for the high court.) Since this job requires Senate confirmation, it’s certainly a useful trial run.

More background, from Volokh.