Comment by DanielBMarkham | Hacker News Reader

Comment by DanielBMarkham | Hacker News Reader

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I'm voting this up even though I think it's a horrendous idea. Here's why:

The problem isn't that there wasn't a crime: it certainly looks like there was. I am outraged by parts of what I've read. The problem was that the system sought to legally justify it. The problem is that we changed the system so that a good portion of people believe there was no crime. If somebody is told by the system that there is no crime, we can't then go backwards in time and declare there was one. History shows us that such legal application is always more destructive to society than the original incident.

An important concept to understand is "criminalizing politics". That's when politicians, who rotate through office and are expected to spend most of their lives as private citizens, make decisions that could be criminal but do not involve personal gain.

We elect people to make hard choices that involve results that could be construed in other contexts as criminal, especially with respect to foreign policy. We always have.

I do not like any of this, but it's very important to understand that the problems here are systemic. A different president and VP were just as likely to make the same choices. Want to go back and try people for Japanese interment? All the rendition done prior to 2000? Assassinations and coups overseas? Spying on MLK? Such an emotional attitude is understandable, but you just can't continue a government like that. If the system was acting as best as it could, and it screws up? You fix it. You don't get the firing squads out. That's banana republic territory.

So let's fix the system so it doesn't happen again. If we want somebody to hang, start a nice show trial. But since folks were acting in good faith (which is more important than "just doing their jobs"), pardon them and let's move on. There is no justice to be had here. We need to learn. This is not the time to let emotional outrage lead us into hurting each other needlessly.

You already had laws preventin torture. Your politicians ignored those laws and used devious contructions to avoid those laws - "enemy combatants" and "no longer an enemy combatant" being a useful example. You pay Afghan forces for prisoners, you torture those prisoners, and then when they haven't given you any useful information you declare them "no longer an enemy combatant". This construction avoids the need for trial; for innocent until proven guilty; for observing the geneva convention; for observing the UDHR and a bunch of other international law.

Your post, and I say this politely, fucking sucks. They knew they were breaking the law; they paid lawyers to create bizarre interpretations of those laws; they then strongly suggested to subordinates that torture was desirable without actually ordering it, leaving those low pay employees to take the fall and the prison sentences.

"Only following orders" has never been an excuse for committing atrocities and war crimes.

I don't believe the claim of good faith that you propose: I think that they knew they were committing crimes and that they intended to get away with it, because they could count on people like you to not hold them accountable.

I'm so displeased with the government taking actions like this, I think it's preferable if we do cause a massive panic and shut down the system at a high level -- even while we let some of the bureaucracies run -- until we can sort this out.

I think that we need to make it clear that it's unacceptable to cross some lines in the name of "making a hard choice", and that there are personal consequences to signing off on those kinds of crimes -- that as a nation, we mean it when we declare certain kinds of actions beyond the authorization of government.

Were it more timely, I also think that we should prosecute on a number of the other things you listed. Alas, we didn't, because of thinking like yours, and it seems merely to have encouraged more lawlessness from officials.

You didn't actually propose fixing anything: you merely advocated doing more of the same and hoping that it just gets better, nor did you propose any reason that prosecuting people for knowingly breaking the law wouldn't lead to a change in the behavior of officials.

Your answer was a non-answer.

> The problem is that we changed the system so that a good portion of people believe there was no crime.

I don't think any of the principals in this atrocity ever really "believed" there was no crime. They decided, as Dick Cheney told Meet The Press earlier this year, "I have no problem as long as we achieve our objective." They didn't (and still don't) care whether torture is a "crime". All they cared about was making sure the system didn't get in their way.

This is a great point, but I don't think it leads to no prosecutions. As you point out, the problems here are systemic - and a vital part of the system is accountability.

In a better world, the mid-level bureaucracy of the military and CIA would be a bulwark against this kind of abuse. Politicians will always be opportunists, and the low-level ranks will always contain psychopaths. But the mid-level people can keep both in check, if they have the motivation.

Twenty years from now, when a president asks "is there anything else we can do to this guy?", the answer from the CIA director should be "no, or I'll be prosecuted". The answer from the DOJ should be "no, or we'll be disbarred". The answer from the military should be "we'll resign before following that order, because it will get us sent to the Hague".

Prosecuting people for human rights abuses is not the same as criminalizing politics. It doesn't matter if they thought it was legal or even if it actually was legal.

Nazi's had very similar logic to yours.

And Justice Douglass (from the US supreme court) agreed with that: "I thought at the time and still think that the Nuremberg trials were unprincipled, Law was created ex post facto to suit the passion and clamor of the time." [1]

Ex post facto is also explicitly forbidden by the US consitution (Article 1, sections 9, 10) [2], and by the UN's Universal Declaration of Human Rights (Article 11, section 2) [3].

On a technical level, you can argue that torture was already illegal under US law, however the torturers were advised by agents of the State that what they were doing was legal, so ex-post-facto could very reasonably apply. There may be people high up on the chain of command who can be prosecuted under US law, but for the most part prosecutions would have to go through international law.

[1] http://en.wikipedia.org/wiki/Nuremberg_trials#cite_ref-reapp... [2] http://www.archives.gov/exhibits/charters/constitution_trans... [3] http://www.un.org/en/documents/udhr/

So you're saying that anything done by the state should be legal, and if you have a problem then you should apply diplomatic (ultimately military) pressure? Sounds like a recipe for atrocities and then war (like in nazi Germany). It's unfortunate that the high level sociopaths will probably get away with it, but we should still prosecute the lower level sociopaths who did the torturing. This will make it hard to order people to do this in the future.

Ask yourself two questions:

Is it ok to kidnap someone, lock them in your basement, beat them and rape them?

Does some shit written on a piece of paper make it ok?

I am saying that if the state said something is legal, it should not then prosecute people for having done it while the state was saying it is legal. If you have a problem with what another state is doing (and you are a state), then you should apply diplomatic/military pressure; I do not know what other recourse you have.

In this case, what was done is illegal under international law, and was illegal under international law at the time it was done, so people can be tried in international court without ex post facto concerns.

I am one of those people who disagree with the Nuremberg trials. If something atrocious happened, but was legal, then we should make it illegal and accept the fact that some people got away with doing horrible things.

Aaaaand here's exhibit #1393 for "why political articles on HN should be flagged out of existence".

It's a valid and appropriate comparison, given that the OP is essentially promoting the Nuremberg defense.

Any article and ensuing discussion that degrades into who is or is not behaving like Nazis in less than 2 hours is one that should be removed ASAP.

Edit: I don't give a shit who is "right". My point is that any discussion that degrades this badly should not be here. Go somewhere else to discuss this stuff.

As we are discussing the immoral actions of a government and its agents, most notably imprisonment without trial in military-run camps, in which inmates are tortured based on instructions from the top of the hierarchy - this has clear parallels with some of the actions of Nazi Germany.

To compare this behaviour is not 'degrading' the conversation at all, on the contrary it's quite relevant to compare and contrast.

> As we are discussing the immoral actions of a government and its agents

And that's exactly why it's off topic. It's politics.

Government agents kidnapped, rape, beat, tortured, and killed innocent people. This is pretty similar to what the nazis did and it is a fair comparison.

Apologies. I'd delete my comment, but there's too many responses by now.

A lot of times we disagree, but this is not one of them. If we're off in Nazi territory, there's no constructive conversation to be had.

I knew it'd be sensitive, but I had no idea.

Are Nazi analogies to be rejected out of hand, even when grounded in fact? How does this hurt the conversation, in your view?

Politics are off topic here:

https://news.ycombinator.com/newsguidelines.html

https://news.ycombinator.com/item?id=6120530

You have the whole internet to talk about politics - do you really need to wreck this site with this stuff?

Also, haven't you people ever heard of Godwin's law?

The guidelines don't unequivocally support your position, IMHO. Your comment, though, makes a good case for it. I'll stop now, since this is getting off-topic, but I appreciate you taking the time to clarify your stand.

EDIT: I think everyone on HN has heard of Godwin's Law. It's useful, but can also be a lazy way to quash meaningful discussion.

Honest question: on average, how much "meaningful discussion" happens after you make a Nazi comparison, even if you happen to be correct?

On average? Not a lot, I'd imagine. But it occasionally will. This tangent we've gone on off on, for example, though I'm not sure you'd agree. I think @hemantv's assertion would have served the discussion better had it been framed as a question:

"Isn't this a lot like the Nuremberg defense?", for example.

It was going fine here until you started whining about someone mentioning the Nazis. This went off topic because of you, not him.

That link is about appropriate submissions, not the comments below the submissions.

As this article has already been upvoted over 200 times (implying some interest from hackers), trying to stifle further discussion is rather a lost cause.

The problem in the system is not the layers of obfuscation and flimflammery. The problem is that too few people are willing to not only question authority, or even just peer pressure, but also to defy it outright.

As long as dilution of responsibility exists, that problem will remain intractable. When someone follows an unlawful order, both the person that issued it and the person that obeyed it need to bear the responsibility. And to support that, then when someone refuses an unlawful order, that person has to be shielded from retribution and retaliation.

And if someone tries to blow the whistle on unethical behavior, they shouldn't be imprisoned for life or be forced to flee to Russia.

You're not going to cultivate a culture of individual responsibility by pardoning everyone who should have plonking known better than to kidnap and torture people while thumbing their nose at due process.

All gov't workers take an oath to uphold the Constitution. When a law is clearly unconstitutional they have the obligation to work against it, not abide by it. So we can definitely declare that torture was illegal retroactively.

indeed, the rule of law and rule by law are not the same thing. just because something is legal doesn't mean it's just.

i think it's important to continue fighting for justice and for people to show that they don't want to live under a legal regime that accepts these kinds of things.

Torture is not politics.

I don't necessarily agree that prosecutions would be a bad idea, but I do agree that for reasons given by plenty of other people in this discussion, they're not going to happen.

So you're right: we should turn our efforts to fixing the system.

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