Exploration Through Example

Example-driven development, Agile testing, context-driven testing, Agile programming, Ruby, and other things of interest to Brian Marick
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Thu, 28 Sep 2006

Off the rails

I'm too sick to write what I should be writing, and I can't sleep, so I decided to collect my thoughts and references about a current political topic I've been studying as I have time. The normal sort of posts will return shortly, but for the moment I'll use whatever reputation I have for careful-but-sympathetic thought to push back against an all-but-inevitable failure.

My understanding is that habeas corpus is a method by which prisoners can challenge their imprisonment before a judge. The idea has worked pretty well for 700 years. It fits with John Adam's phrase "a government of laws, not men": no one has exclusive power; everyone is subject to being checked and balanced.

It is now due to be removed in a hastily-considered bill. Despite what some say, the idea of habeas is not to "give terrorists rights"; it is to preserve the rights of those wrongly accused as terrorists or unlawful combatants. There have been many such people already. Sometimes people are just detained; some are sent to Syria and tortured.

The bill allows for review of detentions by military commissions, but to date only ten have been held. People can be held forever without any recourse. (Some people have continued to be held even after review found them innocent, though a large number have been released.) In newer versions of the bill, "people" can include US citizens. Unlike the military's current definition of unlawful combatant, which covers only "those who engage in acts against the United States or its coalition partners in violation of the laws of war and customs of war during an armed conflict," the new one covers anyone who "has engaged in hostilities or who has purposefully and materially supported hostilities against the United States" or its military allies. Who are our allies? What does "material support" mean? I guess some of us might just find out.

During detention, what? It is simply not the case, as the President stated, that Geneva Convention Common Article 3 is impossibly vague about the treatment of prisoners. Ironically, on the same day as that statement, the US military released its new procedures, which explicitly conform to the Geneva Conventions. It's not surprising that, in over fifty years, we've been able to come to agreement about what the Conventions require. But now we're going to replace them with new language that will have to be freshly interpreted. Everyone, save the people who'll actually be making the decisions—who refuse to commit themselves—is running around saying "waterboarding is allowable" or "waterboarding is not allowable", but that's silly. In the absence of court review, what's allowable is whatever's done. The legal principle is that "there is no right without a remedy."

(Stories about what's being done will leak, I suppose, as they always do. That could lead to some sort of remedy. I wonder if leaking, receiving, or reporting leaks counts as "material support"?)

The pros apparently don't think torture is effective:

I am absolutely convinced [that] no good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tell us that. . . . Moreover, any piece of intelligence which is obtained under duress, through the use of abusive techniques, would be of questionable credibility, and additionally it would do more harm than good when it inevitably became known that abusive practices were used. And we can't afford to go there.

Some of our most significant successes on the battlefield have been -- in fact, I would say all of them, almost categorically all of them, have accrued from expert interrogators using mixtures of authorized humane interrogation practices in clever ways, that you would hope Americans would use them, to push the envelope within the bookends of legal, moral and ethical, now as further refined by this field manual.

We don't need abusive practices in there. Nothing good will come from them.

(From the announcement of the new procedures, above.)

But there's no institutional check on the non-professionals or the rogue professionals. We'll just have to rely on the moral character of everyone involved. That's of course entirely opposed to the American tradition of rule by laws, not men, but <sarcasm> apparently we face a threat more grave than the 45,000 nuclear warheads the Soviet Union had at its peak and a struggle more threatening than World War II, and so cannot afford the traditions that have worked for more than two hundred years </sarcasm>.

We certainly face threats—always have, always will—but I don't see any reason to give into the "this time it's different" fallacy.

All this matters to me because my parents grew up in Nazi Germany. I grew up knowing that cultures can descend into madness, and that it can happen without the majority ever really explicitly willing it or being really conscious of it. No, I'm not saying that America is just like Nazi Germany; I'm saying that men like my grandfather—not politically involved, just trying to live their lives—somehow, through fear or anger or depression or just passivity, let decency slip out of their grasp.

It also matters because I grew up knowing that the Americans were the good guys. My father (in the German Navy) was captured near Marseille. He didn't mind; he and his fellows didn't fight back. They wanted out of the war, and they wanted to surrender to the safest force: the Americans. Prisoner of war camp (American and French) was no picnic—my father weighed 130 pounds when he got out—and there was abuse, but it was not institutionalized (except in one camp, for a short time). He got what he expected, and he believes he has no cause for complaint.

In contrast, my Uncle Paul was captured by the Soviets on the eastern front. I imagine he fought harder than my father to avoid capture, because everyone knew what happened to Russian prisoners. And it did happen: it was 1950 before he even knew the war was over, and he came home broken for life.

There's practical value to being seen as the good guys, the just guys, the humane guys. That's not just true when fighting Germans; it works in the middle east, too.

Out of fear or anger or depression or just passivity, we're letting our elected representatives—our employees—reinforce hysteria to no effective end. If that bothers you, here is your Senator's contact information, and here is your Representative's.

Although this bill is being pushed by Republicans, I believe it should not be a partisan issue. The bill does not square with the conservative tradition of Chesterton's gate. It's being rushed through because what being a Republican politician today means is all about winning at domestic politics. (Just as being a Democratic politician appears to be all about not losing.) I can echo the the author of this fantastic essay: I miss Republicans. I miss Eisenhower; he'd surprise you.

## Posted at 00:09 in category /misc [permalink] [top]

About Brian Marick
I consult mainly on Agile software development, with a special focus on how testing fits in.

Contact me here: marick@exampler.com.




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