Archive for February, 2010

On Prosecuting Torturers (And The Like)

Posted in Links, Poli-ticks on 20100227 by Avenging Sword

Given the recent headlines regarding the OPR Report on Yoo & Bybee, I figured I’d run the risk of repetition and whip some of my previous comments into an actual post regarding whether we should prosecute those who tortured.[1] If you’ve no desire for exposure to repetition, I’ll save you the trouble by presenting my conclusion up front:  I don’t think prosecutions are a good idea.

It’s not that I don’t think the potential targets of such prosecutions are guilty; though I’ve not looked into the question in detail, my SWAG is that yes, interrogators & the like did indeed [insert favored torture euphemism] detainees, prisoners, etc.  Nor would I be surprised if explicit or implicit approval of such behavior extended up the chains of command.  Well, torture is illegal, isn’t it?  If we truly believe in the rule of law, why shouldn’t we prosecute the torturers & their accomplices?

The rule of law is important, but it is not an end in itself.  It is a means to several ends, among them being the maintenance of social peace.  Strictly speaking, the “upholding the rule of law” would have required prosecuting every Confederate veteran for treason; this was not done, for the sake of social peace.  Strictly speaking, “upholding the rule of law” would require rounding up & deporting every single illegal alien; arguably, we’d be better off not doing that, again, for the sake of social peace.[2] As Gregory Rodriguez noted (albeit in a different context):

It is true that the failure to punish lawbreakers challenges the rule of law and our collective sense of fair play. When we abrogate that rule, we threaten to undermine the social contract. And yet the very idea of pardons and amnesties presupposes that law has its limits and that, on occasion, it is trumped by other values – social cohesion, for one, and a larger view of justice, for another. If the hunger for judgment and punishment is driven – and I believe it is – by a sense of resentment toward lawbreakers, then acts of political forgiveness represent the lifting of that resentment.

As a means to keep the peace, in 1795 President Washington pardoned the leaders of a rebellion against the whiskey tax, a controversial law that was later repealed. In order to “bind up our nation’s wounds” during and after the Civil War, Abraham Lincoln and Andrew Johnson issued more than 200,000 presidential pardons to Union deserters and Confederate soldiers. Indeed, Johnson’s 1868 Christmas amnesty proclamation granted unconditional pardons to all participants in the war.

In 1947, President Truman issued pardons to 1,500 World War II draft resisters. A few years later, he granted amnesty to 9,000 deserters from the Korean War. A generation later, in 1974, Ford offered a conditional amnesty to men who evaded the draft during the Vietnam War. In 1977, in one of his first acts as president, Jimmy Carter granted draft evaders a “full, complete and unconditional pardon.” His act was meant to put the divisions and antagonisms of the war behind us.

If there was a near-universal domestic consensus that the Bush et al committed/condoned criminal actions worthy of prosecution, then I’d be far less leery of impeachment.  As it is, I see no such consensus.  When I look at polls[3] regarding torture (and the prosecution thereof), what’s striking to me isn’t the (occasional, sometimes-slim) majorities in that oppose torture & favor prosecutions, but rather the substantial minorities that support torture and oppose prosecution.

Having read about Jacksonians a while back, this frankly doesn’t surprise me.  Nevertheless, given the existence of such division amongst Americans, I fear that prosecutions of Bush et al, particularly if conducted by the other party, would be viewed by a non-trivial portion of the public not as “upholding the rule of law”, but rather the pursuit of a partisan political vendetta.  From which the take-home message would not be “Don’t do illegal stuff”, or even “Don’t get caught”, but rather, “If you hold political office, never let go of power, lest your enemies hound you ’till you’re in chains”.  This would not be a healthy development for the Republic.

I would say more along these lines, but John Hawkins already said it a while back:

Trying to prosecute key Bush Administration officials on what are viewed as trumped up, politically based charges would create a firestorm of partisanship and outright hatred that would surpass anything in American history since the Civil War. Members of a political party in the United States, whether it be Republican or Democrat, are simply not going to stand by idly with their hands in their pockets while their political views are criminalized.

At best, this would lead to tit-for-tat prosecutions. By that, I mean if Democrats throw George W. Bush in jail for ten years, Republicans will do their best to find an excuse to throw Barack Obama in jail for ten years — and don’t think it can’t happen. The American political system tends to be cyclical and so today the Democrats may be on top — but in four to eight years, when Obama leaves office, it’s entirely possible the GOP could be in charge of both Houses of Congress — and looking for an opportunity to get payback for Bush. Again, that is the best case scenario. The worst case scenario could mean blood in the streets, riots, and a breakdown of the “orderly transfer of power” that has always been a hallmark of American democracy.

One of the reasons that has never been an issue previously is precisely because the loss of power for an American politician doesn’t mean that he’s threatened with the loss of his life or liberty. If we throw the rule of law out the window and leaving office may mean a prison sentence or worse, those “orderly transfers of power” we have in this country are going to begin to break down — and politicians will use any means necessary to remain in charge. It’s understandable if that sounds farfetched since events of that sort haven’t happened on a widespread scale here since the Civil War, but there are many nations across the world where a change of leadership is a terrifying and violent ordeal for the populace. There’s very little to be said for potentially joining their ranks.

Ultimately, I’m more inclined to echo Matthew Yglesias’s opinion that, if we’re concerned about preventing torture in the future, we should be less concerned about prosecuting past torture than shrinking those aforementioned “substantial minorities” into the consistently-low-single-digit range.  Granted, on the one hand, it’s possible that torture prosecutions would present a “teachable moment” & further this goal.  OTOH, however, it’s also possible that they could indeed be seen as another data point on a trendline of using the criminal justice system to harass political opponents.[4] Does the risk of the latter outweigh the potential benefit of the former?  I’m not sure, but my gut tells me no.[5]

Interesting aside:  Brad Wendel notes the relevance of the torture memos debate to the question of legal (in)determinacy.  More on that rather dry & abstract question from Lawrence Solum here.

[1] Or “used enhanced interrogation techniques”.

[2] I fully recognize that there were/are other factors militating against prosecution in both of the cases.

[3] See, e.g., here, here, and here.

[4] And on the gripping hand, as Tyler Cowen points out, it’s possible that we might throw a torture trial, and the torturers might actually win.

[5] I wish I had more supporting evidence than a SWAG, but absent a handy-dandy alternate universe upon which I could run controlled socio-political experiments, it seems guesswork is all I’ve got to go on.  Alas.

Gollum: A Psychiatric Diagnosis

Posted in Random on 20100220 by Avenging Sword

The first & last paragraphs of a recent article in The British Medical Journal: 

Sméagol (Gollum) is a single, 587 year old, hobbit-like male of no fixed abode. He has presented with antisocial behaviour, increasing aggression, and preoccupation with the “one ring.”


Gollum displays pervasive maladaptive behaviour that has been present since childhood with a persistent disease course. His odd interests and spiteful behaviour have led to difficulty in forming friendships and have caused distress to others. He fulfils seven of the nine criteria for schizoid personality disorder (ICD F60.1), and, if we must label Gollum’s problems, we believe that this is the most likely diagnosis.

(HT Discoblog via Volokh Conspiracy)

In re the Austin IRS Incident

Posted in Poli-ticks on 20100219 by Avenging Sword

1.  It seems this guy was a chronic tax avoider.  Color me unsympathetic.

2.  On the topic of tax avoidance, see this article:  Ten Tax Protestor Claims To Avoid.

3.  Those curious about the tax code provision may want to peruse this comment thread over at the TaxProf Blog.

4.  More relevant links from the TaxProf Blog.

5.  Title-of-the-day award goes to this post at the Tax Policy Blog:  Austin Suicide Pilot Allegedly Upset By Denial of Ind. Contractor Status to Non-Ind. Contractors.

6.  One reason we need to simplify our tax system.

7.  Reading the perp’s complaints regarding the recent wave of bailouts makes me wonder whether I’m the only guy left in the country who’s even vaguely sympathetic to Bernanke, Paulson, & Geithner.  Hmmm…maybe they should’ve taken the do-nothing approach back in Sept. ’08.  Tough on the rest of the country, but at least it would’ve shut up the latter-day liquidationists for a generation or so.

8.  I honestly don’t know if tea-party rhetoric was a contributing factor in this case.  Looking at his suicide note, it seems his issues w/ the IRS/government date back many years.  My SWAG is that he already had all the necessary impetus to do what he did; anything the tea partiers might’ve said would’ve been mere icing on the cake.  That said, as I previously noted WRT the prolife movement:  anyone using sufficiently extreme rhetoric should consider incidents like this a cost of doing business.

Left-Wing(nut) Birthers

Posted in Law, Poli-ticks on 20100209 by Avenging Sword

Via Volokh Conspiracy, I came across this interesting article.  It traces the Birther hoax’s actual origins not to right-wing conspiracy theorists, but rather to disgruntled Hillary Clinton supporters.  Admittedly, I’ve never followed the birthers closely, so I’m not sure if this is true or not.  If it is, however, it strikes me as more than a little ironic.  And amusing.

Though I consider the birthers’ prominence a lamentable example of the ignorance that frequently pervades our political system, it does have a couple of upsides.  First, I suppose the birthers do provide some measure of ongoing entertainment value.  Second, those seeking to debunk the birthers have produced a number of websites digitizing (inter alia) pre-Fourteenth Amendment discussions of birthright citizenship.  I found these occasionally useful when researching an article I’m writing about that topic:  Though good mostly for research leads (e.g., names & dates of court decisions to be hunted down elsewhere), they did also provide me with my first copy of Lynch v. Clarke (the leading antebellum case re. birthright citizenship for US-born children of aliens).

Secession, Salmon Chase, and the Treason Trial of Jefferson Davis

Posted in Law on 20100203 by Avenging Sword

So I was surfing the ‘Net recently, on the lookout for info re. Pius IX & the American Civil War, [1] when I came across a (relevant) page that made some interesting assertions:

Following the War Between the States (1861-65), Jefferson Davis, President of the defeated Confederate States of America, was imprisoned with a view to his being tried for treason on account of his leadership role in the South’s effort to make of itself an independent nation. Two years later, however, he was released and went into exile in Montreal (in Catholic Quebec) and then wandered in Europe before returning to these shores to spend his final days in his home state of Mississippi. His release came after a finding by the Chief Justice of the United States Supreme Court, Salmon P. Chase, that there was nothing in the U.S. Constitution that prohibited the secession of states. If secession was not illegal, neither Davis nor any other Confederate leaders could be guilty of treason.[2] [Emphasis added]

Despite my dim knowledge of Civil War history, I found the bolded passage rather odd, since even I knew that Chief Justice Chase was not a Confederate sympathizer.  In fact, Chase was a (Radical) Republican[3] who’d been Lincoln’s Treasury Secretary[4] prior to serving on the Supreme Court.  Add in the considerable effort expended by Union men in denying the propriety of southern secession,[5] and it seemed mighty peculiar that a Supreme Court justice would publicly endorse secession’s constitutionality so soon after the Civil War.

It turns out my initial suspicion was correct:  about the only things the aforementioned account gets right are the fact that 1) Davis was imprisoned; 2) the Johnson administration did attempt to try him for treason; and 3) Davis was eventually released.

Among the things it gets wrong:

  1. There were several hurdles to a treason trial of Jefferson Davis.  First, northern public opinion was divided regarding the prosecution of “arch traitors”.  Some[6] supported such prosecutions, while others[7] preferred a policy of leniency.  Second, trying Davis for treason carried the potential for adverse political consequences.  A “not guilty” verdict would embarrass the government; while a finding of guilt would make a martyr of Davis while stoking southern resentment.[8] Third, there were practical obstacles to conducting a jury trial of Davis in war-torn Virginia.[9]
  2. Lingering uncertainty regarding the constitutionality of secession was actually cited as a reason why Davis should be tried.  Northerners who opposed secession hoped that a successful conviction of Davis would establish a judicial precedent discrediting secession’s constitutionality.[10] Similarly, Davis wanted to be tried, since he hoped to use the proceedings “as a platform to vindicate the rightness of the path he had chosen in 1861;”[11] had his case gone to trial, his defense lawyers had planned to “capitalize on the position that Davis had acted constitutionally when he left the Union.”[12]
  3. Although a writ of habeas corpus did secure Davis’s release from military detention, this merely transferred him from military to civilian custody.[13] His release from the latter was effected not by a judicial ruling regarding secession, but rather via payment of bail.[14]
  4. Chase did oppose Davis’s trial, both privately and in his official capacity as Chief Justice, but not because he endorsed Davis’s take on the legality of secession.[15] Privately, he agreed with those in the north who favored leniency for former rebels.[16] Publicly, as one of the presiding judges in Davis’s trial, Chase also favored ending the proceedings.  His reason for doing so, however, turned not upon the question of secession, but rather on his interpretation of the Fourteenth Amendment’s third section.[17] This provision, which barred former Confederates like Davis from holding public office (absent approval by two-thirds of Congress), was viewed by Chase as imposing a “punishment” for treason.  That being the case, a treason trial of Davis would violate the Fifth Amendment’s prohibition upon Double Jeopardy, since it would seek to punish him again for the same offense.[18] (Similarly, when seeking to have the treason indictment dismissed, Davis’s lawyers didn’t raise the constitutionality of secession as a defense.[19] Rather, they focused on the Fourteenth Amendment,[20] along with general considerations of justice.[21])
  5. Chase’s opinion wasn’t what ended Davis’s treason trial.  Rather, since he and the other presiding judge disagreed regarding whether or not Sec. 3 imposed a “punishment” or a “disqualification”, the case was certified to the Supreme Court.  Before that tribunal could act, outgoing President Johnson granted a full pardon to all Confederates for the “offence of treason.”[22] Although Reconstruction politics kept the prosecution alive for a few more months,[23] eventually the indictment against Davis was dismissed.  It was Johnson’s pardon proclamation therefore, that (effectively) ended the prosecution of Davis.[24]
  6. Finally, later that year Chase addressed the constitutionality of unilateral secession, when he authored the Supreme Court’s opinion in Texas v. White.[25] Money quote:  “The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.”[26]

[1] My search also left me with “The Bonnie Blue Flag” running through my head for much of that afternoon, thanks to this page.

[2] A variant on this assertion, to the effect that, “the majority of justices on the U.S. Supreme Court at that time acknowledged the right of secession”, can be found here.

[3] See C. Ellen Connally, The Use of the Fourteenth Amendment By Salmon P. Chase in the Trial of Jefferson Davis, 42 ARKON L. REV. 1165, 1169 (2009), available at (describing Chase as the “sole voice of the Radical Republicans in Lincoln’s cabinet….”).


[5] See, e.g., Michael Stokes Paulsen, Is West Virginia Unconstitutional?, 90 CAL. L. REV. 291, 302-311 (2002) (discussing Lincoln’s argument that secession was unconstitutional).  For a Congressional perspective, see CONG. GLOBE. 36th Cong. 2nd Sess. 404-405 (statement of Sen. Simmons); also id. at 224-229 (statement of Sen. Baker).

[6] Connally, supra note 3, at 1182 (noting Edwin Stanton’s support for trying Davis); also WILLIAM BLAIR, WHY DIDN’T THE NORTH HANG SOME REBELS?: THE POSTWAR DEBATE OVER PUNISHMENT FOR TREASON 8-11 (2004) (discussing northern public support for treason trials of Confederate civil & military leaders); also id. at 19-20 (discussing Sen. Jacob Howard’s strong support for such trials).

[7] Connally, supra note 3, at 1171 (discussing Lincoln’s preference for leniency towards former rebels); also BLAIR, supra note 6, at 24 (discussing Horace Greeley’s shift in favor of clemency for former Confederates); also id. at 26-27 (discussing abolitionist Gerritt Smith’s opposition to trying Davis).

[8] Connally, supra note 3, at 1179; also BLAIR, supra note 6, at 31.

[9] Virginia was chosen by Attorney General Speed, since that was where Davis allegedly committed treason (while participating in the Confederate government in Richmond).  See BLAIR, supra note 6, at 18.   As for practical obstacles, Blair notes that, in Virginia,

Legal authority was still tentative and civil order was still being restored.  District Courts had not been sitting in the former Confederates states [sic] and did not appear to be ready to begin in the near future.  Even if they did resume fairly quickly, officials understood that it would be well nigh impossible to put together a jury of twelve individuals who returned a guilty verdict.  As in murder trials, the jury in treason cases had to reach a unanimous decision, allowing Davis to go free if only one person dissented.

Id.  See also JAMES G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 114-115 (1926) (discussing special counsel Richard Henry Dana’s concern that a southern jury might embarrass the government by failing to convict Davis of treason).

[10] See BLAIR, supra note 6, at 24 (“At first, [Horace] Greeley had been in favor of a treason trial [of Davis] in order to clarify the issue of state sovereignty and secession.”); also id. at 28 (discussing a similar rationale underlying A.B. Brown’s support of a treason trial).  But see also id. at 7 (“Although a significant proportion of northerners believed that secession was wrong and ran against the intentions of the Founders, they did not think that case was solid enough to guarantee the successful prosecution of Confederates in civil courts.”).

[11] Connally, supra note 3, at 1174 n.70 (citing DONALD E. COLLINS, THE DEATH AND RESURRECTION OF JEFFERSON DAVIS 19 (2005)).

[12] See BLAIR, supra note 6, at 30.  To avoid this difficulty, as well as the possibility of acquittal by a jury of sympathetic southern civilians, Maj. Gen. Benjamin Butler had previously proposed trying Davis via military commission.  See BENJAMIN F. BUTLER, BUTLER’S BOOK: A REVIEW OF HIS LEGAL, POLITICAL, AND MILITARY CAREER 915-918 (1892).

[13] Case of Davis, 7 F. Cas. 63, 75-76 (C.C.D. Va. 1867).

[14] Id. at 78; see also Connally, supra note 3, at 1193.

[15] Indeed, prior to Davis’s trial, Chase had ruled that North Carolina’s ordinance of secession & admission to the Confederacy “did not effect, even for a moment, the separation of North Carolina from the Union….”  See Shortridge v. Macon, 22 F. Cas. 20, 21 (C.C.D. N.C. 1867).  Though this statement does not formally condemn the constitutionality of secession, it does hint at such a position.  It also accorded with mainstream Republican doctrine regarding the legal status of various Confederate states during the Civil War.  See John Harrison, The Lawfulness of the Reconstruction Amendments, 68 U. CHI. L. REV. 375, 391-392 (discussing Rep. Samuel Shellaberger’s theory that, although ordinances of secession did not remove states from the Union, they did, effectively, destroy the antebellum governments of those states – thereby disrupting relations between said states and the rest of the Union, and necessitating the restoration of said relations via Reconstruction); also id. at 391 n.88 (discussing how Shellaberger’s thesis gained mainstream acceptance among Republicans).

[16] Connally, supra note 3, at 1185


No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

U.S. Const. amend XIV, § 3.

[18] Case of Davis, 7 F. Cas. 63, 102 (C.C.D. Va. 1867) (“THE CHIEF JUSTICE instructed the reporter to record him as having been of the opinion…that the indictment should be quashed, and all further proceedings barred by effect of the fourteenth amendment to the constitution of the United States”); also Connally, supra note 3, at 1166-1167, 1196-1198.

[19] The closest they came was Charles O’Conor’s argument that, since the Confederacy had exercised de facto authority over its claimed territory prior to its downfall, it was unjust to charge inhabitants of that territory with treason for acts done in support of the Confederate government during that time.  See Case of Davis, 7 F. Cas. 63, 99-100 (C.C.D. Va. 1867).  Though Davis’s indictment was ultimately dismissed, US courts rejected the argument that the Confederacy had been a de facto government.  See, e.g., Williams v. Bruffy, 96 U.S. 176 (1877) (“The Confederate States was an illegal organization, within the provision of the Constitution of the United States prohibiting any treaty, alliance, or confederation of one state with another, whatever efficacy, therefore, its enactments possessed in any state entering into that organization must be attributed to the sanction given to them by that state.”); also id. at 177 (“Whatever de facto character may be ascribed to [the Confederate government] consists solely in the fact that for nearly four years it maintained a contest with the United States and exercised dominion over a large extent of territory. Whilst it existed, it was simply the military representative of the insurrection against the authority of the United States; when its military forces were overthrown, it utterly perished, and with it all its enactments.”); also Keppel v. Petersburg Railroad Co. 14 F. Cas. 357 (C.C.D. Va. 1868) (“The Confederate government can not be regarded as a de facto government in any such sense, that its acts are entitled to judicial recognition as valid.”).  Thorington v. Smith, 75 U.S. 1 (1868), did uphold the validity of contracts specifying payment in Confederate currency, but only on the grounds that said currency had been “imposed on the community by irresistible force”.  Id. at 11.  Similarly, Ford v. Surget, 97 U.S. 594 (1878) upheld immunity for a person who executed a Confederate order to burn cotton, by noting that the defendant “acted under duress or compulsion” in obeying this order; and by analogizing the defendant to Confederate soldiers (to which the United States had granted combatant immunity).  Id. at 607.

[20] Case of Davis, 7 F. Cas. 63, 90-91, 98-99 (C.C.D. Va. 1867).

[21] Id. at 99-102.

[22] Proclamation No. 15, 15 Stat. 711 (Dec. 25, 1868).

[23] RANDALL, supra note 9, at 116-117.

[24] Case of Davis, 7 F. Cas. 63, 102 (C.C.D. Va. 1867); also Connally, supra note 3, at 1198-1199.

[25] Texas v. White, 74 U.S. 700 (1868).

[26] Id. at 725.