Wednesday, December 06, 2006

Deans, Delahunty, and Detainees Part II

Comment on yesterday's post:

Anonymous said...

oh, i get it

"Concluding that the Geneva Conventions do not apply to particular detainees does not mean that torture is either condoned or authorized."

who cares!

except, this is simply against a lawyer's ethics to suggest a way around established law. does the law mean nothing? is it merely something we must get around in order to get more power?

I am going to need help decoding this particular comment. To say (correctly, in my view) that the Geneva Conventions do not apply is to say that the law means nothing? And the fact that the legal analysis did not authorize torture is meaningless when discussing so-called "Torture Memos"?

Delahunty and others are accused of facilitating torture because they said that the Geneva Conventions did not apply to Al-Qaida detainees. The thinking was as follows:

If Geneva applies, torture is prohibited
Assume Geneva does not apply
Therefore, torture is not prohibited

or a more simple example

If A, then not B
Assume not A
Therefore, B

This is a logical fallacy of denying the antecedent. There are other things that could make B not true. Similarly, there are other things that make torture against the law.

The discussion should be about the applicability of the laws in question, not on torture. Reasonable minds can disagree on this point. We should encourage people with different perspectives to speak their minds. And we should encourage lawyers to provide interpretations of the law that are consistent with the text of the law. I have yet to see a point-by-point refutation of Delahunty's memo.


Blogger Mahan said...

It would surprise me greatly if you were to see such a refutation, frankly. The arguments I have so far seen advanced against the memo as a result of this academic protest (if that is the term) appear to be on the same intellectual plane as that left by your anonymous commentator, and wasn't that a wonderful stand for the Geneva Conventions, to not identify yourself?

If that is, in fact, the level to which American legal education is being reduced (to be fair, it isn't just legal scholarship, but this is taking place at the Law School), the American academy is in far worse shape than I've ever imagined it to be, and I'm very glad I'm not involved in it. To paraphrase a classic movie, I could feel my mind going, Peter...

December 06, 2006 8:34 PM  
Anonymous Anonymous said...


The administration seems to view the law as an impediment to "making America secure." That view is extremely dangerous, but they've sought out legal justification for it.

So while "saying the Geneva conventions don't apply" doesn't necessary mean the law "means nothing," it is just one example of many showing their disregard for law. These examples are well known and I won't go into them.

Also, it's not the words in the legal analysis (although those have certainly been debated), it's the way in which a lawyer helped his client get around the law. That is simply unethical, regardless of what the memo explicitly said.

December 07, 2006 9:05 AM  
Blogger Peter said...

Re: The comment above.

I should say that "anonymous" should get his own blog. Many bloggers use his tactic(including me, when I'm lazy) of linking to something as a substitute for making an argument.

If we want to have a debate about the Bybee memo, let's do. But that is a separate thread. Delahunty did not author that memo. The fact that John Yoo wrote a cover memo for the Bybee memo, and separately co-authored the Delahunty memo, does not mean that Delahunty is responsible for the former.

Another controversial memo (this time regarding Guantanamo) was written by Lieutenant Colonel Diane Beaver. "The Beave" was my deputy staff judge advocate at Fort Riley, Kansas. She edited most of our memos when we were in administrative law. Mostly stuff like missing binoculars and permissible assistance to the local Boy Scout chapter. Under the Bybee-works-with-Yoo-works-with-Delahunty logic, I would be responsible for LTC Beaver's controversial memo since I co-authored a separate memo with her.

Finally, It DOES matter what the memos actually say. If it didn't, we might as well call them the "Blue Cow" memos or the "Deluxe Barbie and Ken Doll Playset" memos.

December 07, 2006 11:26 AM  

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