We get letters (update)

Dan Simon replies to my arguments about universal jurisdiction and torture.

My apologies to Dan Simon. Having promised to post in full his response to an earlier post (in which he was identified only as “Sam” because I was quoting from his emails without having cleared it with him first), and having gotten that response, responded to it, and gotten a further response from him, I then dawdled about posting a follow-up.

Here’s his initial response in full with a further comment from me below. I’m happy to continue the dialogue if he’s so minded.

Dan Simon:

1) By all means, feel free to post my name (and my blog URL, if you like). I stand by my emailed comments.

2) While I’m flattered by the “smarter-than-average” label, I deeply resent being called a “Redblogger”. I’m vigorously non-partisan and non-ideological, and feel not the slightest obligation either to agree with American Republicans or to disagree with American Democrats. In fact, I’m not even American, and rather dislike the color red in general. As far as I’m concerned, the blinders of ideology and partisanship are the most pernicious influences on what might otherwise be intelligent, useful public political discussion in the blogosphere.

3) Perhaps it’s because I’m not a conservative, but I harbor none of the “pure state-worship characteristic of modern ‘conservatism'” you ascribe to me. My opposition to “universal jurisdiction” is not that it might be used to violate the sovereignty of Burma by incarcerating members of the Burmese junta. Indeed, as I pointed out, I have no objection whatsoever to violating the sovereignty of brutal tyrannies like Burma (not to mention a certain Middle Eastern former regime) in an effort to remove their dictators from power.

But we both know there’s absolutely zero chance of “universal jurisdiction” ever being used for that purpose. Strongmen in power have tools–diplomatic immunity, which even you embrace, is an obvious one–to protect them from arrest. And if they ever lose power, they know they have much more to fear from their replacements than from some faraway court.

Rather, “universal jurisdiction” will only ever be used to pursue partisan political vendettas against unpopular, powerless foreigners whose only real crimes are having a local constituency that hates them, having no local constituency with any reason to defend them, and coming from a foreign country (most likely a human rights-conscious democracy) that’s too weak, divided or pusilanimous to threaten retaliation in kind.

It’s bad enough that the law is often used ruthlessly and unscrupulously to attack partisan political opponents (viz., Bill Clinton) within otherwise-civilized democratic countries. At least in those cases, the other side will usually rise to the defense of a defensible target. Against foreigners, however, it’s almost always open season, unless the country in question is willing to act equally aggressively in defense of its targeted citizen. And the democracies of the world have enough trouble maintaining a united front against tyranny in the face of internecine partisan conflict, without it spilling across national lines in this form.

4) I’m far from an expert on Donald Rumsfeld, but as far as I know,

i) Torture is only a war crime when performed on prisoners of war.

ii) Whether waterboarding is torture is as fuzzy a question as the definition of torture itself.

iii) It has never been established that Rumsfeld ordered the waterboarding of anyone (although again, I haven’t been following the issue very closely, and am willing to be proven mistaken on this question of fact).

Otherwise, though, your logic is impeccable.

Two responses on Dan’s last point:

1. The suggestion that soldiers who torture civilians rather than POW’s aren’t guilty of war crimes has no basis, so far as I know, either in logic or in law.

2. There was no ambiguity about whether simulated drowning (waterboarding) constituted torture when the Spanish Inquisition did it. There was no ambiguity about whether simulated drowning constituted torture when the KGB did it. There was no ambiguity about whether simulated drowning constituted torture when the North Vietnamese did it. There was no ambiguity about whether simluated drowning constituted torture when we tried Japanese officers as war criminals for using it. I defy Dan, or anyone else, to come up with a single claim by an American official before 9/11 that waterboarding was anything other than torture.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com