Discussion With Joe Finder

I didn't like Joe Finder's NYT OpEd and he challenged me to give him space to defend himself. I have done so and what follows is our discussion, uncut and unedited. It is a bit long as blog posts go, but that is how such a thing as this is done.

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Chuck -- First, thanks for affording me the opportunity to argue with you on your blog. I respect that. You're the only blogger/attacker who's taken me up on my offer, and I admire it. Now, have at me.
You call me a "right-wing torture apologist." We'll get to that, but let's start with "What changed?" You say:
"Well, now what changed other than the (D)/(R) in power? ...

Available Information is what changed."

OK -- here's why I think you're not getting my point. I have not found any evidence that Holder’s opinions in 2002 differed in any way from Bush policy, and as far as I’m concerned, anyone who explicitly and vocally supported Bush policy and offered no objection whatsoever is, to one degree or another, complicit. Sure, he added that we should treat detainees “humanely” – but so did Rumsfeld and Gonzales. It’s all well and good for him to have raised objections in 2008, when it was politically expedient to do so. But where was he in 2002? Forget about "available information." No: this was a question of morality and the law. I didn't hear Holder saying the detainees should have the right to habeas corpus, did you? Tell me what he said in '02 that differed from what even Colin Powell was saying -- and bear in mind, Colin Powell approved waterboarding.
Your move.
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Joe,
I’m not confident that Geneva applied to irregular non-uniformed non-governmental combatants as a legal point, that their treatment by the US should have comported with it is beyond doubt for me. The Habeas Corpus debate happened well after 2002 and in my mind anybody who asserted that anyone we held was held as a criminal rather than a POW wasn’t due Habeas is an ass. I have no information that Holder asserted any position on that. I found myself in the middle of a political mess thanks to our Republican Congress that had real fallout for someone it shouldn’t have and that time line was well post 2002. Powell was a complete disaster at State and he’s never been any hero to me, though what State and Holder have in common misses me. Linking the names Rumsfeld, Gonzales, and Holder in respect to saying “humanely” is meaningless as an argument since both Rumsfeld and Gonzales were active participants in torture and there is no such information about Holder.

In 2002 the fact of torture was unknown, that in itself is new information, not now but since then when it was secret. Information that the majority of detainees were in fact quite innocent or not prosecutable has been dribbling out over the last couple years after the previous Administration aggressively lied about it and their intentions to try them. Facts about the lying and deceits at Guantanamo are pretty recent. There are some heroes in this play and I don’t argue that Holder was one of them. Arguing that he has no standing as someone with newly minted powers to make change because he didn’t when he had no power to do so is an odd argument, politically speaking. Along with the change in D/R came a change in the power to do something about evidence that emerged post 2002. That’s not climate, that is power – a different thing.

To make your argument regarding Holder you need to lose the 2002 date to keep it even slightly credible or you’re asserting Holder had knowledge of secrets and lying. If you know such a thing there are a lot of heads that need lopping beyond Yoo and fellow cretins. Lawyers with knowledge of criminal activity are required as officers of the court to disclose it to the relevant authority. Under US law and court precedent torture is illegal, period, and waterboarding was prosecuted as a crime and convictions obtained; despite Yoo, et al opinions.

I never mistake the law for morality or conversely. If Holder does, I don’t want him as AG. It may be wishful thinking for the law and sense to have something in common, but morality simply isn’t part of that equation. I believe anyone with knowledge of torture had a moral imperative to oppose it, legally only some meet that imperative as a legal question. But my morality is my own. I can’t question or applaud Holder’s morality because I don’t know what his choices were or knowledge was. If you can show something this would be a good time.
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Chuck,
I'm afraid you're just flat-out wrong, and this may explain why you disagreed with me so strongly.

1. You're wrong that the habeas corpus debate happened "well after 2002." This is important. The U.S. began taking prisoners to GITMO in January 2002. The first habeas corpus petition for Guantanamo detainees was filed on January 20, 2002 in a federal court in California. Then one was filed on February 19, 2002, by those heroes at the Center for Constitutional Rights. (It wasn't until June 2008 that the Supreme Court ruled, in Boumediene vs. Bush, that the detainees had that right -- but lawyers began trying to file habeas petitions just as soon as people began arriving at Guantanamo in January. And the Bush administration made it really hard -- like, they wouldn't even give the lawyers the detainees' names or permit access to them! You think it was an accident that these detainees were being held at the Gitmo naval base, which is not on U.S. territory? That was one of the main reasons the prisoners were being kept there! So let's not pretend that no one was thinking about habeas in 2002. In May 2002 the debate became public in the U.S. And Holder? . . . He said that we had the right to detain them indefinitely!

2. You're wrong if you think the Geneva conventions don't apply to non-uniformed combatants. There are 4 Geneva Conventions. Geneva 4 covers everyone denied POW status even if they participate in hostilities. And Common Article 3 -- which appears in all four Geneva Conventions -- says everyone you're holding in an international conflict is entitled to the basic standards of humane treatment. The Bushies said NONE of Geneva Conventions applied. And Eric Holder didn't disagree. He said nothing about Common Article 3 or Geneva 4.

3. Holder knew nothing about planned torture in 2002, I have no doubt. BUT . . . in January 2002 he said we had the right to detain them indefinitely -- look it up. That doesn't accord with habeas corpus, right? And he said we needed to be able to interrogate them. So any legal authority who, in 2002, failed to argue for any of the Geneva Conventions was basically enabling those who wanted to torture. Sorry -- here's where you and I fundamentally disagree. If you think it's good enough to take a stand on a breach of law after the abuses have been going on for six years, you lose me. You give people legal protections because international law requires it -- and so do our standards of humane treatment. That's how you keep the torturers out of business. Eric Holder didn't have the moral courage to take a stand on this in 2002. And frankly I hold that against them. And I'm sorry that you (and the hypocrites on the left) forgive him for this. I think you're seriously mistaken.
Joe
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Joe,

1) You are quite right about Common Article 3 and I never disputed that.

2) I know how hard BushCo made things, that is at least part of what I’ll give to Holder, the part where they lied and dissembled. Once BushCo created the criminal status versus military/POW status for detainees I cannot see how Habeas could be denied by any lawyer. Despite being wrong, holding people indefinitely and torturing them are two different things. If Holder stated that they were subject to indefinite detention once criminal status was defined, he was wrong, that I do not know. You said Holder stated they were due humane treatment – Article 3.

3) No, I don’t believe the Geneva Conventions keep the torturers out of business. US law, precedence, and history keeps them out of business or is supposed to, when it doesn’t going to jail will. (we are signatories for OUR reasons) I do not forgive Holder a thing; I understand a lack of power to address something and having the power to address it. I generally don’t have much power, just a voice that gets some respect from some with power. I have to get along with a lot of people who lost their minds after 9/11 and took awhile to get them back. The fact that I did not lose my mind may make me a bit better judge of events but I haven’t noticed that being right has done most any good at all.

4) You are making Holder’s inaction on Habeas a factor in his standing to prosecute torture. While Holder is no hero to me (and I’ve never presented him any such light) and he was apparently stupidly wrong on detention that says not a thing about the correctness of the DOJ going after torture under his direction.

5) Let’s focus on things like Treaties for a second. Due to our power we do not sign treaties because they are imposed on us; we sign them to gain our ends. In the case of torture (and the Geneva Conventions in general) we signed them to ensure others obeyed were subject to punishment. It is symptomatic of that power that people like BushCo decided those rules don’t apply to us. I have been extremely unhappy with the Obama Administration’s adherence to some of BushCo policies. The archives are clear on that and so was my reaction to any back pedaling promotion by anyone, you got hit this time.

6) Here we hit the part you don’t like in particular, I don’t see how torture can be a conservative/liberal argument, but the Republicans have made it such. It is their party theme so I will hold them to it and anyone who aligns with them in argument advances their agenda. If President Obama makes such an argument I will label it as right wing torture apology. It is their dog and its fleas belong to them and if they get on you, you’ve got their fleas and need fumigated. They want this to just go away and justify it in the same breath – they really badly want Obama’s “no more” to be the end of it. (until they do it again)

7) While I may be on the left I do not trust anyone with power, I trust to keeping them in check.
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This was terminated by mutual agreement, though it did not cover all issues, it also was getting long and interfering with Joe's book.

Joe,
Thanks for coming out to play and for being a gentleman about it.