# 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:** 13
**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, 3:32pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/241 "2005-10-07T15:32:17Z")
> [@Bricker](#): > > We are perfectly entitled to hold our own tribunals. Then the power whose actions are in question is entitled to judge its own actions. Right. > [@](#): > > 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? Gawdamighty. :rolleyes: **minty** , interesting reading, thanks. This part is instructive: > [@](#): > > It does not appear that the Court has ever held a treaty unconstitutional IOW we haven’t seen the fireworks that would be set off if they did. I trust we aren’t looking to declare the Geneva Conventions unconstitutional, just find ways to ignore them on the grounds of their quaintness and obsoleteness. As for the applicability of the GC, I do wish you would address what I said about whose behavior is bound by it, instead of that strawman about who may not be a POW and is therefore beyond the pale of the law. As I said, you do appear to be assuming the answer. ---
**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, 3:34pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/242 "2005-10-07T15:34:51Z")
> [@ElvisL1ves](#): > > 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? \*\*Minty \*\*beat me to it, but we’ve been over this many times before in other threads. ---
**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, 4:19pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/243 "2005-10-07T16:19:53Z")
> [@ElvisL1ves](#): > > Then the power whose actions are in question is entitled to judge its own actions. Right. Yes. Right you are. That’s it exactly! ---
**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, 6:22pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/244 "2005-10-07T18:22:32Z")
> [@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? I imagine they all can _claim_ it; presumably one of the functions of those competent tribunals is to evaluate the validity of such claims. But isn’t that moot in Iraq? We’re not pretending to be doing general law enforcement; we’re not there to lock up burglars, rapists, and whatnot. _Everyone we take captive, we presumably do so on suspicion that they’re part of the insurgency._ Am I right, or am I right? ISTM such a person would “appear to be entitled to such status” of POW due to the fact that you’re rounding them up as part of the armed opposition. If the competent tribunal says they don’t qualify, or if my ‘ISTM’ statement is wrong, such person is still protected by Article 44, sec. 4, and Article 75, Sec. 2. They’ve taken part in hostilities, they’re an illegal combatant, whatever. They’re still protected, just not necessarily as a POW. The treaty says we can’t torture them. If it turns out that they’re not illegal combatants because they’re not combatants at all, then they’re part of the civilian population, and IIRC it’s the Fourth Geneva Convention that protects them in that case. Is there a case I’m skipping past? I don’t see where a US captive over there magically falls into some “we can torture them” loophole in the Geneva Conventions. { **minty** , if you want to start that other thread, I’ll follow you there. But I’m squeezing this post in here, so it may be a few hours, so I don’t feel I should start it.) ---
**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, 6:55pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/245 "2005-10-07T18:55:20Z")
> [@Bricker](#): > > Yes. Right you are. That’s it exactly! There is no possible way that that can have been the “original intent” in the Geneva Conventions, nor is it in accordance with their spirit. Got a cite, chum? ---
**Author:** ![rjung](https://avatars.discourse-cdn.com/v4/letter/r/45deac/32.png) [@rjung](https://boards.straightdope.com/u/rjung)\ **Post date:** [October 7, 2005, 7:02pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/246 "2005-10-07T19:02:13Z")
> [@minty green](#): > > Where, pray tell, do you see me or **Bricker** “honestly looking for loopholes to allow us to torture people”? The fact that you and **Bricker** have been spending all this time hair-splitting over the Geneva Convetions – instead of simply saying “Convention schumvention, torture is _not what America stands for,_ and we shouldn’t condone it” – speaks volumes. ---
**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, 7:11pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/247 "2005-10-07T19:11:09Z")
> [@ElvisL1ves](#): > > There is no possible way that that can have been the “original intent” in the Geneva Conventions, nor is it in accordance with their spirit. Got a cite, chum? Of course. My cite is the Geneva Convention itself. There is no place in the Geneva Convention that defines any sort of format, makeup, or procedure for the sort of tribunal we’re discussing here. It’s utterly silent on the issue. It’s left for the implementing country to define for itself. If there were any sort of requirement that such tribunals be made up of some other party, undoubtedly the document calling for tribunals would have specified such a requirement. You can’t just claim that a requirement is there when it doesn’t exist. In support of this, you’ll see that countries have made up their own regulations to guide their own conduct: [Cite. And [url=“http://www.usapa.army.mil/pdffiles/r190\_8.pdf”]Cite.](http://laws.justice.gc.ca/en/G-3/SOR-91-134/128118.html) In none of these case do their regulations call for anything but that country’s own tribunal. Now, what’s your evidence to the contrary? ---
**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, 7:12pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/248 "2005-10-07T19:12:27Z")
Try again: In support of this, you’ll see that countries have made up their own regulations to guide their own conduct: [Cite.](http://laws.justice.gc.ca/en/G-3/SOR-91-134/128118.html) And [Cite.](http://www.usapa.army.mil/pdffiles/r190_8.pdf) In none of these case do their regulations call for anything but that country’s own tribunal. Now, what’s your evidence to the contrary? ---
**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, 7:13pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/249 "2005-10-07T19:13:46Z")
Torture is not what America stands for, and we should not condone or tolerate it. Period. Happy? Good. Now don’t go around misrepresenting what the Geneva Convention does and does not require. Because if someone misrepresents the law, I’m going to call them on it. Period. Sheesh. ---
**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, 7:16pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/250 "2005-10-07T19:16:10Z")
> [@rjung](#): > > The fact that you and **Bricker** have been spending all this time hair-splitting over the Geneva Convetions – instead of simply saying “Convention schumvention, torture is _not what America stands for,_ and we shouldn’t condone it” – speaks volumes. Have I said, anywhere in this thread, that I did not support torture - that we shouldn’t condine it. In fact, haven’t I said exactly that? I continue to argue over the Geneva Convention because there are still people that are claiming they apply. If someone claimed that the city of Spokane, Washington, had a municipal regulation that prohibited torture of the detainees in Cuba, I would just as vigorously dispute that point. Because it, too, is wrong. Does that mean I support torture? Does that “speak volumes?” ---
**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, 7:22pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/251 "2005-10-07T19:22:31Z")
I think I see the problem here. There are some people that regard the law with a childlike simplicity: it is monolithic, and a bulwark of Rightness. The details of the law are unimportant: it simply exists to effect Justice. When someone comes along and argues a point like this Geneva Convetion business, it’s viewed as an assault on what’s Just and Right. Never mind the details of what the law might actually say: it’s wrong, and dangerous, to delve into such things. It’s better to simply say that the end result is not Good and Right and Just; therefore, by definition, the law must prohibit it, and if you have the temerity to argue that the law does not work in that way, why, you must be arguing against Goodness and Rightness and Justice. Maybe I’m wrong. Maybe that’s a strawman view. I’d certainly welcome another explanation of the wilful blindness seen here. ---
**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, 8:30pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/252 "2005-10-07T20:30:11Z")
> [@minty green](#): > > Torture is not what America stands for, and we should not condone or tolerate it. Period. Yet for some reason, it’s necessary to [pass legislation to enforce it](http://www.latimes.com/news/opinion/editorials/la-ed-bush07oct07,0,1128228.story?coll=la-news-comment-editorials), against Bush’s threatened veto (he’s been saving up his first one for 5 years now). **Bricker** , yes, that’s a strawman, but one that’s just too silly to be offended by. Perhaps the problem is what appears to be your consistent reluctance to acknowledge the concept of “the spirit of the law”. ---
**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, 8:51pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/253 "2005-10-07T20:51:58Z")
> [@ElvisL1ves](#): > > **Bricker** , yes, that’s a strawman, but one that’s just too silly to be offended by. Perhaps the problem is what appears to be your consistent reluctance to acknowledge the concept of “the spirit of the law”. I’ve given you cites for countries that have promulgated regulations for the creation of tribunals themselves, without involving any third party. If these are contrary to the spirit of the law, would you care to provide some counterexamples - any country that has used “competent tribunals” to determine the status of detainees where the tribunal was NOT drawn strictly from their own country? Or, if it’s never happened, perhaps you could provide some regulations where a country has determined that it WILL do that, if ever it finds itself in such a position? If you cannot, then I’d say you’re wrong about the “spirit of the law” being against such tribunals, since NO PARTY TO THE AGREEMENT INTERPRETS IT THAT WAY. ---
**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, 9:10pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/254 "2005-10-07T21:10:28Z")
I do so love the way you pat your opponents on the head, with avuncular indulgence for our failure to understand the intricacies and convolutions of Da Law. “Don’t worry your pretty little head about it, leave it to us grownups who aren’t hindered by naive notions of decency.” I don’t care one whit whether or not you can prove that the Geneva Convention is or is not being violated. My sense of decency is being violated, a sense of decency I dare think is common to personkind. We know torture is wrong the same way we know that stuffing kittens into a blender is wrong. If local ordinances regarding cruelty to animals were to be suddenly found irrelevent by a team of highly regarded lawyers, it wouldn’t change a thing. Common decency. As to the suggestion that having scruples weakens us in the face of savage and brutal enemies… Perhaps. Justice, democracy and decency are not for sissies. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [October 7, 2005, 9:25pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/255 "2005-10-07T21:25:58Z")
> [@elucidator](#): > > I do so love the way you pat your opponents on the head, with avuncular indulgence for our failure to understand the intricacies and convolutions of Da Law. “Don’t worry your pretty little head about it, leave it to us grownups who aren’t hindered by naive notions of decency.” > > I don’t care one whit whether or not you can prove that the Geneva Convention is or is not being violated. My sense of decency is being violated, a sense of decency I dare think is common to personkind. We know torture is wrong the same way we know that stuffing kittens into a blender is wrong. If local ordinances regarding cruelty to animals were to be suddenly found irrelevent by a team of highly regarded lawyers, it wouldn’t change a thing. Common decency. You may avoid this problem as follows: If you are not arguing the legality of something, then _don’t argue the legality of that thing_. If someone say that your particular argument in opposing something is incorrect, _don’t assume they are in favor of that thing._ Lucy, this is such crap. The fact of the matter is that there are only certain valid ways in which a goal can be achieved. If your goal is to stop torture of “enemy combatants” by agents of the US government, seeking relief via application of the Geneva Convention will not achieve that goal, as both **Minty** and **Bricker** have demonstrated. And pointing out that your argument is incorrect does not mean that either lack notions of decency. It means that you should think of another argument. Sua ---
**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, 9:26pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/256 "2005-10-07T21:26:21Z")
> [@elucidator](#): > > II don’t care one whit whether or not you can prove that the Geneva Convention is or is not being violated. My sense of decency is being violated, I agree with you. I’ve said as much several times. So has **minty**. Why some readers persist in acting as though we hadn’t said these things is what’s so mysterious to me. > [@](#): > > a sense of decency I dare think is common to personkind. We know torture is wrong the same way we know that stuffing kittens into a blender is wrong. Here’s where I think more commentary is in order. Yes, I think it should be common to all people too, to realize that torture is simply wrong. But I’m historically aware enough to know that just isn’t so. Throughout much of mankind’s history, large swatches of mankind have had no problem whatsoever with torture. Our personal horror at torture is not something that comes with every set of human chromosones. It’s a product of an informed conscience. And here’s what bugs the crap out of me: you insist that everyone should act in accord with our moral beliefs. You’re perfectly willing to demand that the force of law swoop in to enforce morality… but only YOUR morality. On this issue, I guess it’s OUR morality… but the moment yours and my moral compasses diverge, you insist that yours be the one that controls. I take a different approach. Since my morality has been rejected by you on other issues, I do not look to it here as the principle by which I can enforce anything. Instead, I look to the law. The law is something we have all agreed to follow. It’s something we all share in making; each of us votes for leaders that will make and enforce the law. > [@](#): > > If local ordinances regarding cruelty to animals were to be suddenly found irrelevent by a team of highly regarded lawyers, it wouldn’t change a thing. Common decency. Just as I feel that the mere fact that highly regarded legislators and judges have found abortion to be permissible doesn’t make it so. BUT - I realize that the process is sound. I abhor the result, and I work to change it. I don’t blindly claim that abortionists should be stopped, no matter what the law says. You see my point? Sure, I agree with you about the morality of this issue. I strongly DISagree with your apparent belief that merely labeling this act immoral is sufficient. ---
**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, 9:30pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/257 "2005-10-07T21:30:59Z")
> [@elucidator](#): > > We know torture is wrong the same way we know that stuffing kittens into a blender is wrong. Fine. But don’t try to tell me that the Geneva Convention prohibits anyone from putting Fluffy in the Cuisinart. ---
**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, 9:35pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/258 "2005-10-07T21:35:49Z")
And by the way, just how damn hard is it to find a U.S. treaty that actually **does** [prohibit torture](http://www.unhchr.ch/html/menu3/b/h_cat39.htm)? ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [October 7, 2005, 9:38pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/259 "2005-10-07T21:38:33Z")
> [@minty green](#): > > And by the way, just how damn hard is it to find a U.S. treaty that actually **does** [prohibit torture](http://www.unhchr.ch/html/menu3/b/h_cat39.htm)? Sheesh, **minty**. We all grew up on Hogan’s Heros, and Colonel Hogan specifically instructed us that torture and mistreatment of prisoners violates the Geneva Convention. Are you defying the words of Colonel Hogan?! :mad: ---
**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, 11:45pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/260 "2005-10-07T23:45:57Z")
> [@SuaSponte](#): > > Lucy, this is such crap… Is not! > [@](#): > > …If your goal is to stop torture of “enemy combatants” by agents of the US government, seeking relief via application of the Geneva Convention will not achieve that goal, as both **Minty** and **Bricker** have demonstrated… I haven’t had much to argue about the relative legality and “bindingness” (OK, there’s a correct legal term and I don’t know it. So sue…er, forget that last part…) of the Geneva Convention. There are opinions on both sides, learned opinions, in my limited estimation. Are all legal experts in unanimous agreement? I think not. But I share **Elvis** concern with the “spirit of the law”. The Geneva Convention was a halting and inadequate attempt to bring some humanity to the most bestial of human activity: war. Fundamental to that spirit: prisoners are not warriors, they are wholly dependent on the humanity and decency of their captors. The responsibility to uphold that decency falls upon them, in this instance, us. This is the “spirit of the law”, whispered into our unworthy ears by the better angels of our nature. To pick apart that intention with semantic skullduggery and legalistic parsing is repugnant. If it is wrong to lust after thy neighbor’s maidservant, it doesn’t get any better just because you might be able to prove that said maidservant is a transvestite. We are bending and weakening the GC because it suits our temporary purpose, it is an obstruction to be put aside so that we can have our way. If we ought to be ashamed to make the argument, how then can we be proud to win it? [Previous page](https://boards.straightdope.com/t/harriet-miers/324556.md?page=12) [Next page](https://boards.straightdope.com/t/harriet-miers/324556.md?page=14)