# Harriet Miers? **URL:** \ **Category:** Great Debates\ **Created:** [October 3, 2005, 12:14pm UTC](https://boards.straightdope.com/t/harriet-miers/324556 "2005-10-03T12:14:06Z")\ **Posts on this page:** 20\ **Page:** 12
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [October 7, 2005, 12:19am UTC](https://boards.straightdope.com/t/harriet-miers/324556/221 "2005-10-07T00:19:08Z")
> [@rjung](#): > > Am I the only person who finds it a sad state of affairs when we have Americans honestly looking for loopholes to allow us to torture people, instead of simply drawing a (figurative) line in the sand and saying “Hell no, this is _not_ what our country is about”? Where, pray tell, do you see me or **Bricker** “honestly looking for loopholes to allow us to torture people”? All Bricker has done in this hijack, and all I have done in the previous threads on this well-work topic, is to point out that _the Geneva Conventions_ are not a source of such law for these particular prisoners. So if you’re looking for _legal_ prohibition on torture, you need to look elsewhere. If you’re looking for _moral_ prohibition on torture, that’s a different question entirely. ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [October 7, 2005, 12:19am UTC](https://boards.straightdope.com/t/harriet-miers/324556/222 "2005-10-07T00:19:57Z")
> [@rjung](#): > > Am I the only person who finds it a sad state of affairs when we have Americans honestly looking for loopholes to allow us to torture people, instead of simply drawing a (figurative) line in the sand and saying “Hell no, this is _not_ what our country is about”? No, you’re not the only one. I do not see why torturing this person is OK, but torturing that person is not. It is equally against all civilized behavior no matter who the target is. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 7, 2005, 1:12am UTC](https://boards.straightdope.com/t/harriet-miers/324556/223 "2005-10-07T01:12:33Z")
> [@Hamlet](#): > > What, pray tell, is the point of this rambling? It seems to me that torturing and killing inmates, even if those inmates are not “prisoners” under the Geneva convention, goes under the “bad” column. Why the idiotic speculation into the basis for the morality of not torturing or murdering prisoners? Hey, if all you’re looking for is “Torture = bad,” then I can easily accomodate you. I agree. But when someone comes along and claims their version of morality creates a presumption we should all agree with, I get curious. It so happens that for this particular issue, I agree with that moral stance. But what do we two who are in agreement say to a third person, who DOESN’T share that moral view and accuses us of trying to foist our morals on him? In this country, we live by rule of law. That means that merely asserting that such-and-so act is immoral is insufficient to condemn it. Note that it is not I responsible for that state of affairs. I would be perfectly happy with rules of conduct informed by generally-understood morality. It is people on the other side of the political aisle that have consistently rejected such codes, screaming about how we cannot or should not legislate morality. Fine. Absent morality, we must legislate appropriate behavior. It is thus very relevant to ask, “What particular legal code proscribes this conduct?” ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [October 7, 2005, 2:21am UTC](https://boards.straightdope.com/t/harriet-miers/324556/224 "2005-10-07T02:21:22Z")
> [@Bricker](#): > > Yes, the Geneva Convention is BINDING on us. The question is whether, using the Geneva Convention, the detainees are “prisoners of war” under the Covention’s own definitions. > > Answer: no. C’mon, **Bricker** , you can do better than that. There’s a pile of Geneva just up the thread, and it sure seems to say the detainees, if not prisoners of war, are required to be treated as if they were. Which is the issue between us, if I’m not mistaken: my claim is that the GCs forbid us to torture them. I’m open to the possibility that I’ve misread the stuff I’ve cited, or overlooked something elsewhere in the text that would change its meaning. It’s _very_ possible I’ve done so; the Geneva Conventions are far from my usual beat. But you can’t just say my ways are in error; you’ve got to show me the error of my ways. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [October 7, 2005, 2:29am UTC](https://boards.straightdope.com/t/harriet-miers/324556/225 "2005-10-07T02:29:27Z")
> [@Bricker](#): > > Hey, if all you’re looking for is “Torture = bad,” then I can easily accomodate you. I agree. > > But when someone comes along and claims their version of morality creates a presumption we should all agree with, I get curious. It so happens that for this particular issue, I agree with that moral stance. But what do we two who are in agreement say to a third person, who DOESN’T share that moral view and accuses us of trying to foist our morals on him? > > In this country, we live by rule of law. That means that merely asserting that such-and-so act is immoral is insufficient to condemn it. > > Note that it is not I responsible for that state of affairs. I would be perfectly happy with rules of conduct informed by generally-understood morality. It is people on the other side of the political aisle that have consistently rejected such codes, screaming about how we cannot or should not legislate morality. > > Fine. Absent morality, we must legislate appropriate behavior. > > It is thus very relevant to ask, “What particular legal code proscribes this conduct?” Sure, but “legal code” isn’t the end all be all. It’s simplistic, and idiotic, to raise an issue of the relativity of morality in this case. You made your point that the detentions may not violate the Geneva convention, but, apparently not being satisfied with that, you raise this senseless point about the flexibility of “morality”. It made no sense, it added nothing, and was simple rambling. Since we’re all one big happy family in condemning torture and murder of prisoners, as is a vast majority of the world, I see no point in your attempt to cloud the argument. But it’s your argument, you make it any way you wish. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [October 7, 2005, 3:09am UTC](https://boards.straightdope.com/t/harriet-miers/324556/226 "2005-10-07T03:09:54Z")
> [@RTFirefly](#): > > There’s a pile of Geneva just up the thread, and it sure seems to say the detainees, if not prisoners of war, are required to be treated as if they were. If you would be so kind as to start A DIFFERENT THREAD THAN THIS ONE THAT HAPPENS TO BE ABOUT A COMPLETELY SEPARATE SUBJECT, I would be more than happy to laboriously explain why you are mistaken. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [October 7, 2005, 3:25am UTC](https://boards.straightdope.com/t/harriet-miers/324556/227 "2005-10-07T03:25:49Z")
> [@minty green](#): > > If you would be so kind as to start A DIFFERENT THREAD THAN THIS ONE THAT HAPPENS TO BE ABOUT A COMPLETELY SEPARATE SUBJECT, I would be more than happy to laboriously explain why you are mistaken. “He say, ‘he can shout, don’t hear you.’” – F. Scott Firesign ---
**Author:** ![Spavined\_Gelding](https://avatars.discourse-cdn.com/v4/letter/s/958977/32.png) [@Spavined\_Gelding](https://boards.straightdope.com/u/Spavined_Gelding)\ **Post date:** [October 7, 2005, 3:44am UTC](https://boards.straightdope.com/t/harriet-miers/324556/228 "2005-10-07T03:44:53Z")
Let me suggest that the foregoing page of dogmatic posturing about the systematic torture and abuse of prisoners in the hands of an occupying power serves only to demonstrate my off hand and throw away comment that our friend **Bricker** , as learned and erudite as he/she might be, would be a poor choice for the US Sup Ct. As far as Harriet Miers is concerned, the jury is still out. As for me, I’m going on vacation to see the leaves turn color in New England. We will see if this thread is back on topic when I come back on the 17th. May God protect this honorable court and the United States of America in the meantime. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [October 7, 2005, 4:10am UTC](https://boards.straightdope.com/t/harriet-miers/324556/229 "2005-10-07T04:10:19Z")
> [@RTFirefly](#): > > “He say, ‘he can shout, don’t hear you.’” > – F. Scott Firesign As we learn three new words in Turkish…coffee…towel…enema… ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 7, 2005, 5:22am UTC](https://boards.straightdope.com/t/harriet-miers/324556/230 "2005-10-07T05:22:51Z")
> [@ElvisL1ves](#): > > And yet the Geneva Conventions, being ratified treaties, are the law of the land - even more supreme than the Constitution. There is nothing to decide about their applicability. Can’t let this one slide. Treaties are not “more supreme than the Constitution”. If a court finds that a treaty conflicts with the constitution, the treaty gets thrown out, not the constitution. Same with statutory law. Legislation passed by Congress is also “supreme law of the land”, but we all know what happens when legislation conflicts with the constitution. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 7, 2005, 1:08pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/231 "2005-10-07T13:08:57Z")
> [@Bricker](#): > > The question is whether, using the Geneva Convention, the detainees are “prisoners of war” under the Covention’s own definitions. > > Answer: no. **RTFirefly** already quoted it. For your easy reference: > [@](#): > > Art. 45. Protection of persons who have taken part in hostilities > > 1. A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status of prisoner of war, or if he appears to be entitled to such status, or if the Party on which he depends claims such status on his behalf by notification to the detaining Power or to the Protecting Power. Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal. Are you telling us it doesn’t say what it says? Or suggesting that Gonzales’ pro-torture argument that the Conventions don’t apply because they’re “quaint” and “obsolete” is not the best argument he could have made? I have to agree with **SG** on this one. If this position were argued by a Justice, it would look like one proposed by Scalia - someone skilled at hypertechnicality and diversion into cul-de-sacs in the cause of rationalizing a predetermined conclusion; one with deep knowledge of the letter of the law but no feeling or respect for its spirit; one who would use that technical skill to impose rule of men over rule of law while insisting the opposite to be true. > [@minty green](#): > > you damn sure can’t override the Constitution by treaty Really? A law can be nullified by a court ruling that it’s unconstitutional. The Constitution can be amended. Both of those are internal matters for this government alone. A treaty can be cancelled or amended only by agreement with the other foreign power(s), unless terms for its amendment or cancellation are part of its text. The country can abrogate a treaty voluntarily, if that’s what you mean, but only by executive and/or legislative (not judicial) action, and not without serious negative consequences. The constitutionality of the things a treaty requires of the government does not affect it otherwise. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [October 7, 2005, 2:14pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/232 "2005-10-07T14:14:06Z")
**Elvis** : Let’s cut to the chase of your claim that a treaty can trump the Constitution. Say that George W. Bush, tired of being criticized, enters into a treaty with North Korea providing that each government can jail dissenters based on the content of their speech. The Congress, being a lapdog to the American Dear Leader, approves said treaty. Is the First Amendment now inoperative? As for Article 45, you should note that it doesn’t say any person taken prisoner in hostilities is entitled to presumptive POW status forever and ever, amen. It says they get POW status if any of three situations: (1) the prisoner claims POW status, (2) he appears to be entitled to POW status, or (3) the Party he’s affiliated with claims he’s entitled to POW status. Items (2) and (3) are clearly inapplicable to the situation at hand, as Al Qaeda ain’t no Party to the Conventions and their members don’t appear to be entitled to POW status under the Conventions. That leaves only item (1), and I rather doubt any of these guys are sophisticated enough to claim that they are prisoners of war under the Geneva Conventions. If they make such a claim, or if they claim facts that would make them appear to be entitled to POW status, then they get POW treatment until a competent tribunal determines their status. Wanna guess how that competent tribunal is likely to rule when it’s run by the detaining Party, i.e., the U.S. military? Now, can we please either start another damn thread on this topic or declare the Harriet Miers discussion officially dead? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 7, 2005, 2:20pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/233 "2005-10-07T14:20:00Z")
> [@ElvisL1ves](#): > > **RTFirefly** already quoted it. For your easy reference:Are you telling us it doesn’t say what it says? Or suggesting that Gonzales’ pro-torture argument that the Conventions don’t apply because they’re “quaint” and “obsolete” is not the best argument he could have made? I’m telling you that you haven’t done your homework. A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status of prisoner of war… _Every single person committing a violent crime in a foreign country_ can claim that he or she is a prisoner of war. Yes? Or no? If no, why not? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 7, 2005, 2:22pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/234 "2005-10-07T14:22:42Z")
> [@minty green](#): > > Say that George W. Bush, tired of being criticized, enters into a treaty with North Korea providing that each government can jail dissenters based on the content of their speech. The Congress, being a lapdog to the American Dear Leader, approves said treaty. Is the First Amendment now inoperative? We’d have worse problems than that, but the unfortunate answer would seem to be Yes. > [@](#): > > As for Article 45, you should note that it doesn’t say any person taken prisoner in hostilities is entitled to presumptive POW status forever and ever, amen. No, only that he’s entitled to it until determined otherwise. Hasn’t happened yet, despite the administration’s careful use of the word “detainee” instead. > [@](#): > > he appears to be entitled to POW status,…[that is] clearly inapplicable to the situation at hand, as Al Qaeda ain’t no Party to the Conventions and their members don’t appear to be entitled to POW status under the Conventions. The Conventions don’t apply only to POW’s of signatory members. They are binding on the \*holders \* of those prisoners, wherever they may come from. The rest is a jump of faith at best. Even looks like assuming the answer, to this ignorant layman’s eye. > [@](#): > > Now, can we please either start another damn thread on this topic or declare the Harriet Miers discussion officially dead? Yep, until somebody finds some actual information about Miers, there isn’t much left to say. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 7, 2005, 2:26pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/235 "2005-10-07T14:26:30Z")
> [@Bricker](#): > > _Every single person committing a violent crime in a foreign country_ can claim that he or she is a prisoner of war. Yes? Or no? If no, why not? Anybody can claim anything. As to _your_ homework, this part answers it: > [@](#): > > Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal. Where do you find that the holders of POW’s are allowed to declare their own tribunals (and make their own rulings about their own conduct), for one? For another, if you insist the answer is Yes, after 3 years, isn’t about time we start to hold those tribunals? There is no authority to hold POW’s or “detainees” permanently without one, yet that is what we seem to be doing, innit? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 7, 2005, 2:38pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/236 "2005-10-07T14:38:45Z")
> [@ElvisL1ves](#): > > We’d have worse problems than that, but the unfortunate answer would seem to be Yes. So, there actually is a third way to amend the constitution (besides a vote in Congres and the states or calling a Constitutional Convention). A treaty can be signed with a foreign power that requires the US to do “X”, even if “X” violates the current constitution. “X” then _becomes_ part of the constitution, for all intents and purposes. You really, honestly, believe that? Can you cite the case law that has determined that position? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 7, 2005, 2:43pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/237 "2005-10-07T14:43:28Z")
A treaty does require ratification by the Senate, presumably representing the people, and presumably aware of its obligations, though certainly their sense of responsibility cannot be enforced (by popular vote) in time to matter. No, I cannot cite an actual case; can you cite one to the contrary? Where a treaty’s requirements’ constitutionality has been ruled upon by the US Supreme Court without the foreign power’s participation? What was the effect of a negative ruling - abrogation of the treaty in whole or in part? What short of that would fix the problem? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 7, 2005, 2:56pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/238 "2005-10-07T14:56:12Z")
> [@ElvisL1ves](#): > > Anybody can claim anything. As to _your_ homework, this part answers it:Where do you find that the holders of POW’s are allowed to declare their own tribunals (and make their own rulings about their own conduct), for one? For another, if you insist the answer is Yes, after 3 years, isn’t about time we start to hold those tribunals? There is no authority to hold POW’s or “detainees” permanently without one, yet that is what we seem to be doing, innit? Where do you find a definition of “competent tribunal” otherwise? We are perfectly entitled to hold our own tribunals. But you raise a good point. To the extent that we are holding people without even a tribunal, AND in a case where there is doubt about their status, then we are in violation of the Geneva Convention. Are we doing that? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [October 7, 2005, 3:20pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/239 "2005-10-07T15:20:14Z")
> [@ElvisL1ves](#): > > We’d have worse problems than that, but the unfortunate answer would seem to be Yes. [No.](http://caselaw.lp.findlaw.com/data/constitution/article02/10.html#13) Read the annotation, then read the cases. You’re quite wrong. > [@](#): > > No, only that he’s entitled to it until determined otherwise. Hasn’t happened yet, despite the administration’s careful use of the word “detainee” instead. No. Wrong. Really. Read Article 45 again. It plainly states that the presumption of POW status only applies if one or more of items (1) through (3) apply. Further, it plainly states that tribunal determination is only required “should doubt arise” as to the prisoner’s status under the relevant definitions of who is and who ain’t a “Prisoner of War” as defined by the Conventions. > [@](#): > > The Conventions don’t apply only to POW’s of signatory members. They are binding on the \*holders \* of those prisoners, wherever they may come from. No. Wrong. Flat-out, entirely, 100 percent incorrect. Article 4 of [the GC](http://www.unhchr.ch/html/menu3/b/91.htm) clearly defines who is entitled to POW status, with much of the remainder of the document spelling out what obligations the detaining Party has when it holds persons who are entitled to POW status. The obvious, patently obvious, plain as friggin’ daylight corollary of that is that if you ain’t a POW as defined by the CG, you ain’t entitled to POW treatment. Nowhere does the GC state that a Party must treat everybody in accordance with the standards for POWs. Otherwise, there would be no need for any definition of who is and who ain’t a POW in the first place. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 7, 2005, 3:31pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/240 "2005-10-07T15:31:41Z")
> [@Spavined Gelding](#): > > Let me suggest that the foregoing page of dogmatic posturing about the systematic torture and abuse of prisoners in the hands of an occupying power serves only to demonstrate my off hand and throw away comment that our friend **Bricker** , as learned and erudite as he/she might be, would be a poor choice for the US Sup Ct. As far as Harriet Miers is concerned, the jury is still out. Are you seriously in favor of a Court that would say, “Well, we’re not going to review the applicable law on this issue, because we have taken a vote, and the acts under consideration by this Court today offend the morality and conscience of at least five members of this Court. The Court therefore holds that the acts in question are forbidden.” That’s a pretty poor way to judge, in my view. Discovering and laying out what the applicable law IS, and then applying that law to the facts, is the job of a judge, be he in small claims court or SCOTUS. The judge should never allow his personal sense of morality to dictate a decision contrary to the existing law. For this reason, I would be a fine Justice – I do not resolve the issue of torture of prisoners based on my judgement that it’s immoral. I resolve it based on the law. I am not acting as a philosopher-king, but as a judge of the law that others have made. [Previous page](https://boards.straightdope.com/t/harriet-miers/324556.md?page=11) [Next page](https://boards.straightdope.com/t/harriet-miers/324556.md?page=13)