Neither The New York Times Nor The Red Cross Settle the Question

Last week, I replied to copithorne's claim that conservatives offer no public policy perspectives. I argued that copithorne closed his ears to conservatives by relying on false premises, then demonizing his opponents for starting from a different world-view.

A score of comments later, copithorne still insists he's right. This post replies to two specific points.

1. The effect of Bush's tax cuts on the economy: I never said I supported deficits or Bush's spending policies--he spent too much. I did say that tax cuts can stimulate the economy and increase tax receipts. Again, I note that the Bush tax cuts helped to reduce the Federal deficit about 65 percent between 2003 and 2007 (when the credit crisis started). I note he hasn't responded, except to deny suggesting that Bush intended "to enrich the wealthy." But he said Bush's policy "was to give tax cuts to the wealthy." I've showed he gave tax cuts to all. Contrary to copithorne's assertion that recent economic gains were confined to the wealthy, the poor have thrived--middle class stagnation is a fantasy of class-warfare partisans.
   
   The New York Times chart that copithorne cites--which blames Bush for much of the deficit--is seriously flawed, as Alex Tabarrok, Von at Obsidian Wings, Megan McArdle, Arnold Kling, Burton Folsom, EconomistMom, Gateway Pundit and Wolf Howling have detailed. As the Economist says:

   Bad as the deficit was under Mr Bush, it will quadruple this year, from $459 billion in 2008 to $1.845 trillion (from 3.2% of GDP to 13.1%), according to the non-partisan Congressional Budget Office (CBO). Mr Obama vows to slash it in half within four years, but that will still leave it bigger than the deficits for which he once lashed Mr Bush.

   See also Megan McArdle again, Gateway Pundit again and Donald Marron.
   
   If deficit reduction is copithorne's priority, Obama's projected annual budget deficits will exceed the largest deficit of any year during the previous Administration:
   
   
   source: March 21st Washington Post
   
   Since then, of course, spending plans have multiplied -- which will require higher taxes or more borrowing -- far out-stripping the relatively low amount spent on the Iraq war. On that subject, copithorne is silent--better, at least, than the reliably over-dramatic Andrew Sullivan.



2. The applicable law defining prohibited interrogation techniques: copithorne says that Bush's policy was to torture. Uh, no. As I've already explained, the fact that the Bush Administration carefully examined the law shows per force that it did not decide to torture--had it, such examinations would have been unnecessary.
   
   In comments, copithorne says that the fact that the Red Cross accuses the United States of torture establishes "a moral authority" that we have. Uh, no. As commenter Jess says, the Red Cross doesn't make such determinations. That organization's self-description is a "humanitarian protagonist" (only the British Labour party considers the Red Cross anti-Islamic). copithorne apparently favors adopting plaintiffs' view without regard to the other side's argument. Uh, no. Whether we've committed torture depends on the law: the words of the relevant treaty, statute, regulations and interpretations in the cases.
   
   The United States has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (S. Treaty Doc. 100-20, entered into force for U.S. Nov. 20, 1994, albeit with a relevant reservation). The key provisions are the definition of torture in Article 1(1):

   For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

   Article 4 requires that state parties to the agreement criminalize torture. Finally, Article 16(1) requires that state parties "undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
   
   Most criminal law is state law. The United States implemented Article 4 for U.S. officials acting outside the United States in 18 U.S.C. Section 2340A. The statutory definition of torture is at 18 U.S.C. Section 2340. Under Federal regulations (8 C.F.R. Section 1208.18) and U.S. case law, torture requires the specific intent "to inflict severe physical or mental pain or suffering." Pierre v. Attorney General, 528 F.3d 180, 189 (3d Cir. 2008) (en banc).
   
   The Bush Administration legal analysis -- particularly the August 1, 2002, and May 30, 2005 memos -- fully examine the applicable international and domestic constraints and definitions to derive a set of interrogation methods that would not constitute torture. These were applied to unlawful combatants, which are neither POWs nor civilians.
   
   Even Bush administration detractors concede the memos are "a serious attempt to stay within the bounds of the law, while defining the law as liberally as possible. That may be wrong, but it doesn't seem to be criminal." The Administration carefully attempted to preserve American lives and national security while walking a fine line of avoiding criminal behavior. And they were bound by the requirement, echoed in the Senate reservation, that "U.S. obligations under international law are subordinate to, and cannot override, the Constitution."
   
   copithorne blithely derides the Bush memos:

   If I get my lawyer to write a note saying it is OK to steal your car, will it then be morally acceptable to steal your car?
   
   Is that how moral reasoning works in your tribe?

   His analogy is false. The question is what constitutes stealing (or in this case, torture). Under copithorne's quip, lawyers could transform bumping a fender while parallel parking into grand theft auto.
   
   As I said initially, copithorne "may disagree with the outcome . . . and dispute the reasoning" of the Bush memos. But that doesn't make his view settled law. There's little precedent and ample scope for debate. Indeed, copithorne's reasoning may represent only a minority of Americans. Yet copithorne's repeated and mocking reference to the conservative "tribe" show how unwilling he is even to credit the good faith of his opponent--which borders on Paul Krugman-ism.
   
   And much of the problem lies in blaming lawyers for political policy. As is happening in San Francisco. As I already pointed out to copithorne, that's the function of elections and popular sovereignty--the core of democracy. But to him, winning the election means not having to say your opponent is serious.

Conclusion: I'm always willing to debate the rational. But copithorne says I deny objective reality and promote moral relativism. Uh, no. It is copithorne who presumes his opponents have nothing to offer. Again, like Samuel Johnson, "I refute it thus."