OPEN UNIVERSITY SEPTEMBER 18, 2006
-
Read Later
READ LATERAvailable only to subscribers. SUBSCRIBE TODAY
-
Listen
ARTICLE AUDIO
- Font Size
by Jacob T. Levy
Sometimes a given blog hits its stride in a way that makes it consistently important or even essential reading, but leaves others without much to say beyond, "Hear, hear." Because the blogosphere thrives on controversy or at least nitpicking, "Hear, hear" is kind of boring and not often said--and so sometimes the best posts aren't as linked to or as read as they should be.
I'll say it. For the past two weeks or so, Balkinization's contributors, including our own Sandy Levinson, have been putting up post after important post on executive power, torture, and the Bush administration's extravagant constitutional claims. I think these may be the most morally and constitutionally urgent matters in the American political order right now. I lack any interesting expertise that would let me write anything on the subjects you should read instead of reading their posts. A selection:
Marty Lederman:
Torture Save Lives?
Will Congress Authorize Violations of the Geneva Convention?
OLC is Unwilling to Say That That These Techniques Comply with Geneva
Jack Balkin:
Brian Tamanaha:
Sandy Levinson:
Hear, hear. Please, go read.
1 comments
I posted this in response to Prof. Lederman's "Clarity Through Obfuscation" post: "Let me get this straight: you are saying that an al Qaeda terrorist should be entitled not to the same protections against coercive interrogations as a common criminal etc. but to greater protections? A thief who steals an ear of corn in, say, Wichita, cannot, under the Due Process Clause, be subjected to any treatment that "shocks the conscience." KSM cannot be treated in any way that is "degrading" even if the conduct in question falls short of shocking the conscience, right? Aside for the grotesque absurdity of your preferred state of affairs, are you unaware that the Administration's position is consistent with nineteen years of American law and policy? If you bother to look at the US Declarations and Reservations to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment you'll see that the US has always interpreted prohibitions against "cruel, inhuman or degrading treatment or punishment" applying to conduct that is "the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States," in other words (as applies to pretrial detainees), conduct that "shocks the conscience." Lastly, your pious condemnation of "context-dependency" is just plain silly. The American people, no people in fact, will put up with a legal regime that disables them in conducting a war against a murderous enemy (which has zero regard for the laws of war) for the sake of letting law professors exhibit their delicate sensibilies and moral purity to the world." The professor has not deigned to reply. Perhaps some of your readers can answer the question.
- balaam
September 19, 2006 at 1:01pm