Morning Report – Toll Brothers reports home price appreciation is moderating 12/10/14

Markets are weaker this morning as oil (and oil stocks) continue to fall. WTI is trading at $62.20 after OPEC revised its 2015 forecast. Bonds and MBS are flat.

Mortgage Applications rose 7.3% last week. Purchases were up 1.3% while refis were up 13.2%. Don’t bust out the champagne quite yet, we are still basically bumping along the bottom.

Luxury builder Toll Brothers reported 4th quarter and full year results this morning. Deliveries rose 29% in dollars and 22% in units, but it looks like the torrid increase in average selling prices has passed and they are beginning to moderate. ASPs rose 6% YOY to $747k. Price appreciation for signed contracts was even less – around 3.6%. Backlog was up 3% in dollars and flat in units.

Robert Toll, CEO of Toll Brothers made a point I have been making for a long time – housing starts are still way below historical averages: “We believe the housing recovery has many years to run. Housing starts, through ups and downs from 1970-2007, have averaged about 1.6 million annually. According to Harvard University’s Joint Center for Housing Studies, ‘Despite the rebound in the last two years, home sales and starts are still nowhere near normal levels. This was the sixth consecutive year that starts failed to hit the one million mark, [which was] unprecedented before 2008 in records dating back to 1959.”

Obviously the recovery to normalcy depends on the first time homebuyer. Consistent rental inflation is pushing them to consider home ownership as an alternative. The NAHB is praising Fannie and Freddie for re-introducing the 3% downpayment loans.

88 Responses

  1. Happy Hump Day!

    Frist.

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  2. Sceond

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  3. oh, check the last thread for a discussion on that story.

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  4. Sorry… did not notice it on last thread…

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  5. Really good analysis on how the Boston restaurant owner prison raped the Harvard Prof. If he doesn’t have tenure he ain’t getting it now.

    http://www.boston.com/food-dining/restaurants/2014/12/09/harvard-business-school-professor-goes-war-over-worth-chinese-food/KfMaEhab6uUY1COCnTbrXP/story.html#comments

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  6. I don’t think you have to be a Harvard Professor to be petty, petulant or even pedantic. Check out any small town newspaper’s online forum for more of the same. People continue to amaze me!

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  7. Yes, Scott. You found it first. Love the end: “Oh and the food? Edelman admitted: “It was delicious.””

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  8. Scott, I tried to link to a follow on report how the Harvard douche fucked up negotiating but somehow re linked the original. Sorry.

    For the record I only ignore you about 1/2 the time.

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  9. Brent, the real estate market is so-o-o localized. Austin pricing is reaching non-Texan levels. Meanwhile, although San Antonio is growing at a healthy pace, its pricing remains stable, while rents rise. As a result, ROI for prospective residental landlords in S.A. is super compared with Austin.

    All, I have posted a timely new quote supposedly from the actual transcript of Joan of Arc’s Inquisition.

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    • Mark:

      All, I have posted a timely new quote supposedly from the actual transcript of Joan of Arc’s Inquisition.

      I think there is a pretty basic difference between torturing someone in order to get them to profess a personal belief, and torturing someone in order to get them to reveal verifiable information.

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      • Scott, assuming a qualitative difference between torturing a suspected witch and torturing a suspected terrorist, would you agree that the scale is one that goes from “very bad” to “bad”?

        I know we have discussed this before but I do not recall the general sentiments of the various persons in this group.

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        • Mark:

          Scott, assuming a qualitative difference between torturing a suspected witch and torturing a suspected terrorist, would you agree that the scale is one that goes from “very bad” to “bad”?

          Ignoring for the moment just what constitutes torture, no, not necessarily. I think there are conceivable circumstances in which torture in order to elicit otherwise unobtainable information can be justified. I don’t think there are conceivable circumstances in which torture in order to compel a professed belief in something can be justified.

          But beyond that my point about your quote was simply that a professed belief can never actually be independently verified beyond the statements of the alleged believer, so what Joan of Arc said makes sense in the context of the inquisition. You can make me say I believe something, but that doesn’t make it true, and I will deny it once you stop making me say it, which defeats the purpose of the torture. But in the context of terrorist interrogations in which verifiable facts, not professions of belief, are at issue, the quote is relatively meaningless. If a terrorist is tortured into revealing where the bomb is hidden, whether or not he retracts what he said post-interrogation is irrelevant. What matters is whether or not the bomb is really there, which will be verified regardless of what he says later.

          Again, with regard to the quote, there is a significant difference between torture used to elicit verifiable information and torture used to compel a professed belief.

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  10. It was a comment in the original story, here it is.

    “So, Edelman ate Duan’s dinner, but Duan ate Edelman’s lunch.

    Okay, so let’s start with the fact that Edelman is a Harvard B-School professor who teaches in the Negotiations, Organizations and Markets Division. Negotiations? Hah! That’s hilarious because Edelman got absolutely SCHOOLED in a negotiation by a small town restaurant owner who wasn’t even born here. Double immigrant hah!

    At the beginning of the exchange, Edelman had leverage in three areas: (1) the restaurant’s desire for customer satisfaction; (2) Edelman’s superior knowledge of the law; and (3) the potential threat of punishment.

    What ensued was a systematic pissing away of every advantage that Edelman had. First, he started with a demand for triple the discrepancy. By expressing his demand in terms of the statute, he removed himself from the equation. He wasn’t asking Duan to make a CUSTOMER happy. He was asking Duan to make the LAW happy. That’s fundamentally different. Customer satisfaction died in that email. It didn’t help that the demand was unreasonable AND petty.

    Duan mistakenly offered $3 instead of $4. But, Edelman’s response was again expressed in legal terms and served to make it even LESS about customer satisfaction. He basically turned it into a “private attorney general” action where Edelman was supposedly acting on behalf of the community as a whole.

    But, Edelman made two other mistakes in that email, too. He basically spilled his guts on the law, and he said that the authorities were notified.

    That removed every remaining bit of leverage that Edelman had. Duan knew the legal basis, the argument and that the authorities would be following up. At that point, why deal with Edelman? The whole “I’m acting on behalf of the community” bit goes out the window when you actually notify the community authorities.

    Duan picked up on this immediately, and said that he would defer to the authorities and pay whatever fine, penalty or refund that they recommended.

    The trap springs two emails later. Duan writes:

    “I have told you exactly how I am going to resolve this situation and have already acted by fixing our website and by honoring the website prices, unfortunately that wasn’t good enough and you notified the authorities so this is out of my hands now. I can only wait for them to see how we can get this resolved.”

    At that point, Edelman is hosed. He is entirely without any leverage, and Duan responds with a complete defection. (Game theory term.)

    Edelman must have known that because he completely changed his strategy and switched to a request for a reward (not a penalty) for helping the restaurant fix a problem. Essentially, he is trying to manufacture an entirely new form of leverage after giving away whatever leverage he had to begin with.

    Truly, that was awesome! Mr. HBS got rocked by a guy whose main skillset involves stir-fry.

    And, let’s not forget that Duan managed to get a Boston.com article published where an unreasonable and pissed off customer still has to admit that the food was delicious. About the only thing Mr. Duan could’ve done better would be to tell the reporter that any customer who mentions the article will receive $1 off each entree, limit four entrees per order.

    That would make it perfect.”

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    • About the only thing Mr. Duan could’ve done better would be to tell the reporter that any customer who mentions the article will receive $1 off each entree, limit four entrees per order.

      Now that is a great idea.

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  11. What about torturing someone because of a personal belief? As a person in this group (I used to be anyway), I believe that torture is torture and there are only small, barely discernible differences between coercing ostensibly reliable information and coercing an admission of guilt by association.

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    • Lulu, we had this “conversation” pre-2008 at “The Fix”. McCain, Graham, and several military JAG officers said we were condoning torture and that it was wrong. The subsequent “debate” as to whether it was “useful” was to McCain and JAG and Graham an attempt to derail the conversation. Eventually Congress explicitly changed the Army’s Code of Conduct toward prisoners [I have it saved on another computer] but never formally changed the CIA’s policies by Congressional action.

      Surely some of you recall this.

      I too think reducing the debate to one about “effectiveness” misses the point.

      You may recall the Marine JAG who was grilled by a hostile Congressional committee as to whether he would ever commit torture in a “Jack Bauer” scenario. He answered that he might, and if it resulted in saving Chicago from a nuclear backpack weapon [the hypothetical question he was asked included this example] he would beg for leniency at his court martial sentencing. I consider this a proper response.

      Torture is always wrong, and always a crime. There may be circumstances where leniency or clemency toward a torturer, himself under duress, is justified.

      That’s the most human response to this matter, as far as I am concerned.

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      • Mark:

        Torture is always wrong, and always a crime.

        Is killing another human being always wrong, and always a crime? Or does context matter? And if context matters for killing, why wouldn’t it also matter for actions that are short of killing?

        To me it seems an odd morality and legal framework that would condone a policeman, say, shooting dead a terrorist who was carrying a nuclear backpack weapon and about to pull the pin, but would call it indisputably wrong and a crime to take steps short of killing, like waterboarding, that same terrorist in an attempt find out where he had hidden that same nuclear backpack weapon that was set to go off on a timer.

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    • lms:

      I believe that torture is torture…

      Surely that tautology is true, but is waterboarding torture? Is sleep deprivation torture? Is instilling a sense of fear in someone torture? Are all of these, or any of these, equivalent to pulling out someone’s fingernails, or twisting arms out of sockets, or using the rack?

      It strikes me that killing is killing, too, but surely most of us agree that killing can, in fact, be justified in certain circumstances. If killing can possibly be justified by circumstances, then taking steps short of killing can also be justified by circumstances.

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  12. Mark

    Torture is always wrong, and always a crime. There may be circumstances where leniency or clemency toward a torturer, himself under duress, is justified.

    Exactly the point I made with QB and others at the PL years ago!

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  13. I still go for Alan Dershowitz’s argument of setting up a process for an interrogation/torture warrant.

    http://www.sfgate.com/opinion/openforum/article/Want-to-torture-Get-a-warrant-2880547.php

    What it looks like is going to be the consensus though is to outsource it through extraordinary rendition to other countries and have them do it for the US.

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    • jnc:

      Latest on the Rolling Stone UVA story.

      I don’t think Erdely can ever work again as a journalist. Probably the RS editor, too. A total abandonment of journalistic standards and responsibility.

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      • I don’t think Erdely can ever work again as a journalist.

        Perhaps not for a pure objective news outlet but she can become an advocate or public relations type. Don’t discount that she will be regarded as a martyr in some corners.

        Today’s WaPo article does have the kind of fact-checking and reporting that was so lacking in the original RS story. I read the RS article right as the pushback started and is very clear in the way “Jackie’s” entire incident was described solely for her perspective with no corroboration of any details. Even basic ones such as who the guy was and whether he even went to UVA.

        From the WaPo story:

        In interviews, some of Jackie’s closest friends said they believe she suffered a horrific trauma during her freshman year, but others have expressed doubts about the account.

        Something happened to her but we may never know what.

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        • yello:

          Something happened to her but we may never know what.

          After reading the most recent WaPo piece, I get the sense that it is increasingly possible that nothing happened to her, and she invented both the guy and subsequent events in an attempt to get the attention of “Randall”, who had apparently rejected her attempts to have something more than just a friendship.

          By choosing this story as her hook, I don’t think Erdely could have done more damage to the cause she was advocating for if she had been trying to do it deliberately.

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  14. Corked. I saw that the Harvard professor was dickering over a Groupon. A Groupon. That is a genuinely dick move. I hope he’s a good tipper but something makes me suspect not.

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  15. Are all of these, or any of these, equivalent to pulling out someone’s fingernails, or twisting arms out of sockets, or using the rack?

    What is torture is a very valid question. Many defenders of the ‘enhanced interrogation’ procedures draw the line at permanent physical injury. That’s why all good torturers switched to rubber hoses decades ago. Soft tissue damage is somehow seen as less damaging, or at least less detectible, than broken bones and torn fingernails. All the defenses of the EI program tout the medical supervisions although subjects did still die, so clearly there was risk of the most obvious threshold of torture, killing someone.

    The Golden Rule test is the basis of the Geneva Convention and most rules about treating prisoners. How would we want our forces treated if they were captured and interrogated?

    There are a lot of goals torture can be used for. Interrogation is the one used as our rationale. But the goal can also be to elicit false confessions for propaganda purposes as the North Koreans and Viet Cong did. Or it can be purely punitive either towards the subject or as an example to others. I cannot discount vengeance as being an underlying motivation, particularly in the case of KSM who was subjected to some of the most graphic and ruthless methods.

    If killing can possibly be justified by circumstances, then taking steps short of killing can also be justified by circumstances.

    You are begging the question (and I do think I’m using the term correctly) by using the premise that killing can be justified. Many opponents of torture won’t agree with that premise. It also opens up a whole raft of side issues about acceptable behavior in war, in justice, and in undeclared conflict.

    I recently saw the movie Rosewater about a British Iranian-born journalist who was held for over six months by the Iranian secret police. The interrogation methods shown in the movie and presumably described in his memoir included sleep deprivation, physical isolation, and light physical violence including shoving, punching, and being slammed against a wall. Nothing remotely approaching techniques described in the Senate CIA report yet they still seemed horrific.

    Maziar Bahari eventually ‘broke’ and told them ridiculous and prurient tales of Western depravity because that is what they wanted to hear. He saw it as a survival technique. I oppose torture of even the mildest variety on moral and humanitarian grounds but there is a strong case to be made that torture is an ineffective interrogation technique and should be avoided on that basis alone.

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    • yello:

      You are begging the question (and I do think I’m using the term correctly) by using the premise that killing can be justified.

      No, I am not begging the question. The question before us is whether torture can ever be justified, or if it is always and everywhere wrong regardless of circumstances, and I am not assuming the answer to that question in my premise. I said that if killing can be justified by circumstances, then action short of killing, like torture, can also be justified by circumstances. My premise is that most of us do agree that killing can be justified in certain situations, and my argument is that therefore those who argue that torture can never be justified while also believing that killing can be justified are being inconsistent.

      If one believes that killing can never be justified, then one could consistently argue that torture, too, can never be justified. But most commonly held moral codes, and certainly our own legal code, hold that killing can be justified in various circumstances (most notably in self-defense). And so within the context of those moral codes and legal framework, a declaration that torture is always and everywhere unjustified makes no sense to me.

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    • yello:

      The Golden Rule test is the basis of the Geneva Convention and most rules about treating prisoners. How would we want our forces treated if they were captured and interrogated?

      The Geneva Convention is very specific about applying to recognizable, uniformed soldiers operating under the auspices of a nation, not just anyone who picks up a gun and starts shooting people. It makes a clear distinction between soldiers and terrorists, one that you apparently don’t make.

      Under this Golden Rule test, as applied by you without distinction between actors, we shouldn’t imprison criminals either if we wouldn’t want ourselves to be imprisoned.

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  16. But most commonly held moral codes, and certainly our own legal code, hold that killing can be justified in various circumstances (most notably in self-defense).

    So we can torture in self-defense? That makes no sense except in bizarre ticking-bomb situation. And capital punishment is punishment. Torture as punishment falls into the constitutionally prohibited ‘cruel and unusual’ category. I would say that torture is less ethically dependable than killing.

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    • yello:

      So we can torture in self-defense?

      I certainly think so.

      That makes no sense except in bizarre ticking-bomb situation.

      So there is, then, at least one circumstance in which you agree. Which means it is incorrect to declare it unequivocally unjustified.

      Torture as punishment falls into the constitutionally prohibited ‘cruel and unusual’ category.

      I agree that punishment for crimes is not a legitimate justification for torture.

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  17. Under this Golden Rule test, as applied by you without distinction between actors, we shouldn’t imprison criminals either if we wouldn’t want ourselves to be imprisoned.

    No. The criteria is how I feel I should be treated if I were imprisoned. I would expect nutritious food, safe housing, protection from violence, high speed internet access, etc.

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    • yello:

      The criteria is how I feel I should be treated if I were imprisoned.

      No. You drew an equivalency between US soldiers and terrorists, essentially saying that if captured US soldiers should never be tortured, then captured terrorists should never be tortured. You apparently think the distinction between soldiers and terrorists is either irrelevant or non-existent. If we shouldn’t do X to soldiers, we also shouldn’t do X to terrorists.

      Applying this logic with regard to imprisoning criminals, we would draw an equivalency between criminals and non-criminals, under the belief that the difference is either irrelevant or non-existent. If we shouldn’t do X to non-criminals, then we shouldn’t do X to criminals. We shouldn’t imprison non-criminals, therefore we shouldn’t imprison criminals.

      Again, your mistake is the failure to recognize a distinction between professional soldiers and terrorists, a distinction that the Geneva Conventions most definitely does recognize.

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  18. By choosing this story as her hook, I don’t think Erdely could have done more damage to the cause she was advocating for if she had been trying to do it deliberately.

    Agreed to a point. The main point of the story is how capricious and lightly the UVA administration treats reports of sexual assault. Perhaps all would have been better off if ‘Jackie’ had been encouraged to make a formal report and the incident could have been disproved and dismissed then rather than now.

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    • yello:

      The main point of the story is how capricious and lightly the UVA administration treats reports of sexual assault. Perhaps all would have been better off if ‘Jackie’ had been encouraged to make a formal report and the incident could have been disproved and dismissed then rather than now.

      Given the revelations of the WaPo reporting, I think we have to consider the possibility, if not probability, that rather than treating her report capriciously, the UVA administration was trying to help and indulge a troubled girl who was fabricating a literally unbelievable story. Personally I find it inconceivable that Nicole Eramo, head of UVA’s Sexual Misconduct Board and the administrator to whom “Jackie” allegedly told her story, would have casually dismissed the claims if they were even remotely credible. (Just as I find it inconceivable that her friends would have debated whether or not to report such a horrific attack based on the possible repercussions to their social life.) I think the most plausible explanation of the admin’s reaction to her story (if indeed she told them the same one, which is not at all certain) is that they didn’t believe her, and were trying to indulge her without explicitly accusing her of making it up.

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  19. So there is, then, at least one circumstance in which you agree. Which means it is incorrect to declare it unequivocally unjustified.

    Yes, there is a chance.

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  20. Again, your mistake is the failure to recognize a distinction between professional soldiers and terrorists, a distinction that the Geneva Conventions most definitely does recognize.

    Back in middle school my friends and I had a pact that someday we would train to become paramilitary partisans who would infiltrate the Soviet Union and foment rebellion. We spent a lot of time studying the Geneva Convention and the history of other rebellions to determine what level of professionalism and discipline we’d have to maintain to be treated as soldiers rather than criminals. It was a pretty futile case of hair splitting and still is. One man’s freedom fighter and all that.

    The problem in Iraq and elsewhere is that we weren’t treating detainees as soldiers or as criminals but this neither fish-nor-fowl category of ‘enemy combatants’ which seemingly had the rights of neither. Between that phrase and ‘enhanced interrogation’, the English language took a lot of torturous abuse in trying to redefine things as they weren’t.

    The New York Times agrees that their namby-pambying around calling things torture when they clearly were went on for far too long.

    Whether to use the term torture as opposed to, for example, harsh interrogation techniques, is now pretty obvious. The Times’s stance on this has evolved. Two of my predecessors as public editor called for the change, and I wrote in 2012 about language use, including torture, as well as terms such as detainee, and urged The Times to do some soul-searching about it. And earlier this year, the executive editor, Dean Baquet, made a policy change, authorizing the use of the term. Clearly now, that judgment — while it should have come sooner — was right.

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    • yello:

      It was a pretty futile case of hair splitting and still is.

      I imagine it can be in some circumstances, although I don’t think this is one of them. I think there is a easily seen distinction between Khalid Sheikh Mohammed and Dwight Eisenhower.

      The New York Times agrees…

      I don’t find the NYT to be a credible authority on much of anything. Besides which, the substance of the discussion is really over whether certain actions – like waterboarding someone – can be ever be justified. A debate over whether to characterize a particular action as torture or not is relatively unimportant, and only takes on significance if/when it is presumed up front that anything called torture is automatically and necessarily unjustified. I don’t make that presumption.

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    • yello (I meant to comment on this earlier):

      The problem in Iraq and elsewhere is that we weren’t treating detainees as soldiers or as criminals but this neither fish-nor-fowl category of ‘enemy combatants’ which seemingly had the rights of neither.

      The real problem wasn’t that we didn’t treat them as either soldiers or criminals, but was rather that they actually aren’t either soldiers or criminals. It is fair enough, I suppose, to criticize the way captured Al Qaeda members were dealt with, but I think it is folly not to at least acknowledge that what we were/are dealing with is a category that does not readily fit into the traditional understanding of either soldiers or common criminals.

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  21. @yellojkt: “The main point of the story is how capricious and lightly the UVA administration treats reports of sexual assault.”

    Arguably, in this case, it would only indicate how capricious and lightly the UVA treats false and possibly malicious accusations of sexual assault.

    Also, what’s happening here does the real victims of actual sexual assaults no favors.

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  22. @yellojkt: “but there is a strong case to be made that torture is an ineffective interrogation technique and should be avoided on that basis alone.”

    Actually, it’s going to be very effective when verifiable truth will quickly stop the torture. There is a lot of confusion on the “torture is bad” side (which, ultimately, I agree with, and would prefer little or no torture as a tactic for interrogation) that conflates torturing out confessions with torturing out data. The fact is, torture works as a compulsion, and if that compulsion is to confess to things you did not do, that’s what you do, to stop the torture. If the torture is to force you to disclose verifiable data, you will do that, to stop the torture. Often the threat alone is effective. But the person has to know something.

    There are reasons not to torture, but it’s ability to gather data is not really one of them. The examples given of why torture doesn’t work are uniformly ones where the person was not being tortured for the purpose of acquiring verifiable data. Saying “torture doesn’t work” is like saying “mugging doesn’t work”. If your goal is to get a fellow’s wallet, mugging works fine. Doesn’t make mugging a good thing, but it is functional.

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  23. @yellojkt: “You are begging the question (and I do think I’m using the term correctly) by using the premise that killing can be justified.”

    What about assisted suicide? Removing life support?

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  24. Scott

    Surely that tautology is true, but is waterboarding torture?

    It is, yes!

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  25. Scott, whether we decide that waterboarding terrorists is justified or not, I don’t think it is but that’s only my opinion, we can’t ever deny that waterboarding is indeed torture. I guess that’s really my point.

    If killing can possibly be justified by circumstances, then taking steps short of killing can also be justified by circumstances.

    Not sure I agree with this because it’s just too vague. What circumstances?

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    • lms:

      Scott, whether we decide that waterboarding terrorists is justified or not, I don’t think it is but that’s only my opinion, we can’t ever deny that waterboarding is indeed torture. I guess that’s really my point.

      To me the issue of whether or not it can be justified in a particular instance is far and away more important than whether to characterize it as torture. How it is characterized is pretty much irrelevant.

      Not sure I agree with this because it’s just too vague. What circumstances?

      Self defense is a pretty obvious one. Are you not sure whether killing can ever be justified, or just water boarding?

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  26. Scott

    To me the issue of whether or not it can be justified in a particular instance is far and away more important than whether to characterize it as torture.

    I completely disagree with that. It’s like saying the end justifies the means. We either have limits of what we’re willing to do or we don’t, and I think we should have limits. Waterboarding is either wrong or it isn’t. I don’t believe there are any circumstances where it is justified…………..period…………….full stop!

    Are you not sure whether killing can ever be justified

    Self defense is obvious of course, and so is war, as in the heat of the battle. I’m not actually a fan of capital punishment, although I get it sometimes, I think it’s tough to justify still. I’m not a particularly religious person but for some weird reason I do believe that judgement may be delayed and as my grandson would say …….”karma”.

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    • lms:

      I completely disagree with that. It’s like saying the end justifies the means.

      I think you misunderstood. My point was that it isn’t the label “torture” that causes something to be unjust. If waterboarding is always wrong no matter what the context, then it is so regardless of whether we label it “torture” or something else. And if it can be justified in certain situations, then it is also so even if we call it torture. The important question, to me at least, is whether it is justified or not, not whether it is called “torture”. We may disagree about whether it can ever be justified, but we ought to be able to agree that the label “torture” is irrelevant to that question.

      Self defense is obvious of course…

      If self defense can justify killing someone, then why can’t it also justify waterboarding someone, which is actually less extreme than killing them?

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  27. Scott

    The important question, to me at least, is whether it is justified or not, not whether it is called “torture”. We may disagree about whether it can ever be justified, but we ought to be able to agree that the label “torture” is irrelevant to that question.

    I don’t agree that the label “torture” is irrelevant. I don’t think you can call it anything else. I certainly don’t consider waterboarding self-defense or information gathering.

    In a war, on terror or any other kind of war, when we have been attacked, there are still rules and torture is one thing that civilized countries abhor, at least that’s what I thought. There are rules for how prisoners are expected to be treated. I understand that many people don’t think terrorists deserve that same kind of treatment but it’s my opinion that it’s even more important to follow certain standards in this situation.

    I don’t particularly like the idea of shipping these prisoners off to other parts of the world to do our dirty work either, as Jnc suggested is happening.

    I think waterboarding is a real blight on America’s standing in the world. We shouldn’t have done it and we shouldn’t have tried to justify doing it.

    If self defense can justify killing someone, then why can’t it also justify waterboarding someone, which is actually less extreme than killing them?

    Killing an enemy combatant in a war has always been acceptable, but torturing prisoners has not. Perhaps there are worse things than death and they actually are considered cruel and unusual.

    Edited to add that if anything less extreme than death is acceptable to you then any form of torture must also be acceptable to you. Pulling out teeth or fingernails, breaking bones, electrocution, starvation, whatever I guess, as long as the prisoner doesn’t die?

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    • lms:

      I don’t agree that the label “torture” is irrelevant. I don’t think you can call it anything else.

      I find it strange to think that the word used to label an action is more important than whether or not the action itself, regardless of how it is labelled, is justifiable or not.

      I certainly don’t consider waterboarding self-defense or information gathering.

      What was the motivation for having done it, then? You may not consider it necessary for self-defense or information gathering, but unless you think the people doing it (and the people who authorized it) are literally sadists who did it because they enjoyed it, I can’t imagine what besides gathering information to defend the nation would have compelled them to do it.

      In a war, on terror or any other kind of war, when we have been attacked, there are still rules and torture is one thing that civilized countries abhor, at least that’s what I thought.

      War, probably more than any other kind of human interaction, produces all kinds of moral dilemmas and ambiguities. To declare that, out of all the horrible things that happen during a war, the use of coercive interrogation methods is the single thing that, everywhere and always regardless of the context, can never be justified just doesn’t make any sense to me.

      There are rules for how prisoners are expected to be treated.

      If you are talking about the Geneva Convention, yes, and those rules are specifically written to apply to certain kinds of prisoners. Certain others are deliberately written out of those rules, precisely in order to discourage certain kinds of war-making activity. By declaring that all combatants should be treated the same regardless of whether they follow the rules, you are defeating the purpose of them.

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  28. @lmsinca: “Waterboarding is either wrong or it isn’t.”

    I’m not sure this is true. That’s like saying a hammer is either good or it isn’t. The fact is, it’s great for hammering nails, but not so good for accessing the internet or picking your teeth.

    Waterboarding as a form of interrogation for terrorists, for example, might be a good thing or might not. Clearly, water boarding a toddler as a form of discipline would be wrong.

    Is “waterboarding” military recruits as a form of preparation for what they might undergo if captured and interrogated wrong? I don’t think that it is, myself.

    Waterboarding is specifically designed to be a form of torture that prompts the brain to think your are about to die when you aren’t. This can create a complete realignment of priorities on the part of the victim without causing real physical damage. Ultimately, any form of interrogation designed to get information out of a recalcitrant subject will cause some discomfort somehow, otherwise the subject would never give up any actual information.

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  29. Waterboarding is not used on recruits. It’s used at two very specific training courses.

    Waterboarding as a form of interrogation is torture, and the US has no business torturing people.

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    • Also, waterboarding is used to train elite forces how to WITHSTAND torture if they are caught. The ‘we waterboard our forces so it can’t be torture’ defense has the argument exactly backwards. We train them to resist it exactly because it is torture.

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    • Mich:

      Waterboarding as a form of interrogation is torture, and the US has no business torturing people.

      If it is necessary to defend American lives, why not?

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  30. Once again, Scott begs the question. It’s not necessary to defend American lives.

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    • yello/Mich:

      Once again, Scott begs the question. It’s not necessary to defend American lives.

      No, I am not begging the question. I am not even making an argument. I just posed a question.

      If it is necessary to protect American lives, is it justifiable? (Note the use of the question mark at the end there.) You guys seem to be claiming that under no circumstances whatsoever could it ever be justified. If that is true, then the simple answer to my question is no, it isn’t justified even if it is necessary to save American lives. If that is what you think, just be honest and say so explicitly. Even saving American lives cannot justify waterboarding someone.

      Only if you accept as a proposition that it being necessary to save American lives could justify it does the question of whether it actually was/is necessary in a specific instance become relevant. I have not made a claim about whether or not it was necessary to save lives in a particular instance. That question doesn’t arise if you insist that even in the hypothetical event of it being necessary to save American lives it can never be justified.

      So is that what you are saying or not?

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      • Interesting article: One Thing The Left Can Learn from Ayn Rand

        http://thefederalist.com/2014/12/12/the-one-thing-the-left-can-learn-from-ayn-rand/

        That’s a little glimpse of what it’s like out here where there are no politically correct dogmas on which your self-esteem depends. The next time you find yourself reeling from some “outrageous” argument made by someone on the right, it might help to have Francisco’s voice somewhere in the back of your head, saying “There are no evil thoughts except one: the refusal to think.”

        If you listen to that voice, perhaps some day you’ll join us. Life is a lot more fun when it is not a sin to doubt.

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        • Jonah Goldberg makes the ‘how about just the tip?’ arguments in defending the use of torture:

          It’s true that torture is to some extent in the eye of the beholder. Everyone can agree that hot pokers, the rack, and the iron maiden qualify. But loud music, sleep deprivation, and even waterboarding? At first, maybe not. But over time, yes. Torture can be a lot like poison: The dosage matters.

          I guess waterboarding someone just a little doesn’t matter. Never mind that KSM was waterboarded 57 times. He also says that torture is sometimes okay if it’s in a good cause.

          I can respect that, because I think the taboo against torture is important and honorable, just like the taboos against killing. And just like the taboos against killing, sometimes the real world gets a veto.

          Very ends justify the means of him. He also makes vengeance an extenuating circumstance:

          KSM was not some innocent subjected to torture to satisfy the grotesque desires of some sadists. He is an unlawful combatant responsible for murdering thousands of innocent Americans.

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        • yello:

          Jonah Goldberg makes the ‘how about just the tip?’ arguments in defending the use of torture:

          I’m still curious about what you (and Mich) think. If waterboarding a terrorist was necessary to save American lives, would/could it be justifiable?

          (Again, note that I am not suggesting it was/is necessary in a particular, known instance. I am just asking the hypothetical.)

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        • To use an apocryphal Abraham Lincoln story: If you called a tail a leg, how many legs would a dog have?

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        • yello:

          To use an apocryphal Abraham Lincoln story: If you called a tail a leg, how many legs would a dog have?

          Nope, not applicable in the slightest. A tail and a leg are two different things, the point being that assuming a thing is something other than what it is doesn’t change what it is.

          But I am not asking you to assume that a thing is something other than what it is. I am asking you to assume a circumstance – any circumstance you can imagine – in which waterboarding someone will result in lives being saved, in order to test the principle that you seem to espouse but which are reluctant to make explicit. If you are literally incapable of imagining such a circumstance, however unlikely, I recommend that you watch one of the Saw movies.

          (Queue up evasive and sarcastic riposte.)

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        • (Queue up evasive and sarcastic riposte.)

          I’m just glad to see that the ATiM tradition that when one doesn’t get the answer they want to ask it over and over again is still alive.

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  31. Yello beat me to it.

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  32. Scott, I’ll try to respond later…………….busy morning!

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  33. As is the tradition of evading uncomfortable questions.

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  34. @Michigoose: “Waterboarding is not used on recruits. It’s used at two very specific training courses.”

    I realize it’s not used on every recruit, just not familiar with the details of the training courses in question. But is it bad in those cases and should it be stopped?

    @yellojkt: “Also, waterboarding is used to train elite forces how to WITHSTAND torture if they are caught. The ‘we waterboard our forces so it can’t be torture’ defense has the argument exactly backwards.”

    Although I have something else to say about that, that’s not an argument I’m making, to be clear. The assertion was that “water boarding is either wrong or it isn’t”, and clearly that’s not true, unless it’s also wrong in using it to train elite troops to withstand or at least have some familiarity with what they might expect. And, if it is always wrong, then it should probably be stopped.

    But back to the thing about water boarding being used to train elite force to withstand torture, doesn’t that suggest that there are gradations to torture or enhanced interrogation? That is, we don’t pull our troops teeth or fingernails (elite or otherwise) or intentionally break their bones or use a hot poker on them or any of the other potential methods of torture one can conceive of. We do expose an elite group to water boarding, and there are private and university studies of such things as the effective of repetitive stimulus (like loud music) or sleep deprivation, so if we consider those things torture, clearly they are gentler and kinder forms of torture than branding, nail-pulling, and the rack.

    One does wonder if there is a metric by which, if given only the option of some form of torture (water boarding or worse) to possibly (no guarantee!) find out how to stop a ticking bomb, and save hundreds or thousands of innocent lives, we can say it’s acceptable, or do we choose not to save those people in order to taint our souls? Arguably, the ticking time bomb situation requiring torture (and without better options) will be very, very rare, but I expect it does happen.

    Mostly, torture has been used in the War on Terror to get actionable intelligence to disrupt terrorists networks, not stop known ticking time bombs, am I correct?

    That being said, I just tortured myself by putting my elbow on my desk in an odd way that either pinched a nerve or pressed wrong on my funny bone or I don’t know but I almost cried out in pain. Holy crap that hurt. Stupid funny bone. It’s not funny at all!

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  35. @yellojkt: “I’m just glad to see that the ATiM tradition that when one doesn’t get the answer they want”

    I would say I don’t think the question being asked has been answered, so it’s not a matter of getting the answer they want, just an answer to the question actually asked. Admittedly, you can reject the premise but if it’s just a thought experiment, I don’t see why you wouldn’t answer the question being asked. Well, I do see why, because I do it a lot, but I mean, it is possible to answer a question whose premise you reject.

    If there was no other way to save numerous innocent lives, would the torture of a known terrorist be justifiable? If not, why not?

    I think the answer to that question is “yes, it would”. On the other hand, do I think that’s a situation that would occur? The answer to that is, “probably not”. In most cases, there will be other ways to save innocent lives that don’t involve torturing anybody. And in most cases, there won’t be a torture option, as you won’t have anybody in custody who knows what’s going to happen that you can get actionable intelligence from before the event occurs. Generally, spying and wiretaps and “see something, say something” are the kinds of questionable things that will prevent imminent terrorist attacks, not information obtained through torture.

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  36. Kevin:

    Maybe I should ask you: what do you mean by “recruit”? In military terms, it is used to describe someone who has not yet graduated from basic training.

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  37. No. Torture is never justified.

    Arguably, the ticking time bomb situation requiring torture (and without better options) will be very, very rare, but I expect it does happen.

    A complete mare’s nest which has never happened. Frequently used by torture apologists to try to justify the use of torture.

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    • I think the example I gave is valid for all circumstances – that is, torture is always wrong, but under some imaginable circumstances it is relatively excusable. As the Marine JAG testified to Congress if he saved Chicago he would want that considered at the punishment stage of his Court Martial. I would vote for 30 days reduction of pay in that case, myself.

      When I was a prosecutor I did know of a kidnapping case where the kidnapper was caught but would not reveal where the child was hidden until the police beat him badly. Fear that the child would die of exposure or of thirst or worse made that beating relatively excusable. It did not make it “right”.

      I suspect that we could have negotiated, in an hour or two, the result the police obtained in 20 minutes, but that is an unprovable counterfactual. The child was safe and the case against the kidnapper was not prejudiced and the kidnapper healed. The case against his witting accomplice whom he was “protecting” was utterly shredded, of course. But what those cops did, while wrong, was subject to not much more than a wrist slap.

      Something that colors this discussion darkly is the appearance that many persons were randomly selected for degrading punishment; some of this stuff even as reported by alarmed FBI agents in 2002, looked like malevolent children torturing frogs. Within days after capture, none of these detainees knew anything about future plans of anyone other than other detainees; the nature of guerrilla warfare, piracy, and terrorism being ad hoc. Knowlege of past conduct is relatively easily interrogated for and verifiable. Dark prisons and Gitmo and torture all smelled to high heaven and we should not deceive ourselves about it.

      As a former Naval Intelligence officer told me, methods we have used “spy-against-spy” that will never see the light of day because every spy agency expects and uses them – it is the covert game – had no place in these situations where we were capturing combatants and holding them for an unlimited time. He considered the spy game situations “necessary evils”.

      Again, torture is always wrong but there can be situations where the torturer himself deserves leniency. The gamut of condemnation runs from obscenely evil to very bad to bad. It’s never a “good”. Also, the type of abuse runs from horrible to pretty miserable. It is never merely pretty.

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      • Mark:

        I think the example I gave is valid for all circumstances – that is, torture is always wrong, but under some imaginable circumstances it is relatively excusable.

        Do you also think that killing is always wrong, but relatively excusable under some imaginable circumstances? If so, is the legal term “justifiable homicide” just a nonsensical oxymoron, and the policeman or citizen who shoots a terrorist just before he sets off a bomb on a crowded city street should be punished (albeit perhaps relatively mildly)? If it is not always wrong, then how is it that the above policeman/citizen might conceivably be justified in killing the bomber and preventing innocent deaths, but he could never under any circumstances be justified in taking the less extreme measure of waterboarding the bomber in order to find out where the bomb is and accomplish the exact same task?

        I would vote for 30 days reduction of pay in that case, myself.

        I would vote for a promotion and a backdated pay raise. I think that anyone who claims it is morally preferable to allow the city of Chicago and all of its inhabitants to be incinerated than to prevent that incineration by waterboarding the guy who planted the bomb has a seriously perverted moral system.

        When I was a prosecutor I did know of a kidnapping case where the kidnapper was caught but would not reveal where the child was hidden until the police beat him badly.

        So much for the argument that torture never works.

        But what those cops did, while wrong, was subject to not much more than a wrist slap.

        It makes no sense at all to me that you would advocate for only a wrist slap if you truly believe what they did was wrong and unjustified. One of the primary points of establishing punishments for objectionable behavior is to discourage the behavior. In order for the punishment to achieve that objective, it must be seen by potential perpetrators as having a greater cost than the benefit to be gained from the behavior itself. I think few if any policemen would ever be discouraged from engaging in behavior that they believe is necessary to achieve the unmitigated good of saving a kidnap victim simply because the behavior might get them a “wrist slap”. A wrist slap simply sends the message that we want to keep up the appearance that the behavior is objectionable, while actually approving of it as justified.

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  38. @Michigoose: “Maybe I should ask you: what do you mean by “recruit”? In military terms, it is used to describe someone who has not yet graduated from basic training.”

    I was just searching, obvious poorly, for a term to distinguish the military personnel who might undergo such training. I’m not a military person, at all: my apologies for the mangled use of terminology. Would not be the first time. 😉

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  39. @Michgoose: “A complete mare’s nest which has never happened. Frequently used by torture apologists to try to justify the use of torture.”

    See Mark’s post above. Also, I’m not trying to justify the use of torture. It stretches the bounds of credulity to me to imagine the “ticking time bomb” scenario, even if we’re just talking one kidnap victim in a box with limited air, for example, is something that never has and can never happen.

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    • Kevin:

      It stretches the bounds of credulity to me to imagine the “ticking time bomb” scenario, even if we’re just talking one kidnap victim in a box with limited air, for example, is something that never has and can never happen.

      Of course it has and can happen. I’m tempted to suggest that those who deny it are terror apologists, but that probably wouldn’t be fair. 😉

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      • Scott, there are gradations of bad behavior. Both intent and consequences matter. We have degrees of homicide that are not justifiable: murder with malice aforethought, or premeditated or first degree murder; murder without malice aforethought, or spontaneoues or second degree murder; manslaughter or reckless homicide, and negligent homicide. We have classes of homicide that are judged by consequences, as well: mass murder, serial murder, and murder of a firefighter in the course of fighting a fire are examples.

        Then we have classes of justifiable homicide: defense of one’s self, defense of another’s life, etc.

        You want to analogize some level of torture to justifiable homicide. I don’t. We disagree. In a material respect homicide as an action is different from torture. Torture is always carried out over a period of time that requires premeditation, while homicide can be an instantaneous reaction to a feared lethal situation. This qualitative difference permits us to gauge torture with more precision when we think about determining accountability. We do not have to account for mere recklessness, heat of passion, or negligence.

        We remain free to accept a demonstration that a particular torture event proved to have saved lives and that the result was the torturer’s intent and that the torturer thought he had no other viable alternative, without at the same time justifying torture. We can minimize punishment in this exceptional case, and most of us would do so.

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        • Mark:

          In a material respect homicide as an action is different from torture. Torture is always carried out over a period of time that requires premeditation, while homicide can be an instantaneous reaction to a feared lethal situation. This qualitative difference permits us to gauge torture with more precision when we think about determining accountability.

          So you believe that the lack premeditation is a necessary precondition for a killing to be justified? I very much disagree. For example, if Operation Valkyrie, which required a huge amount of premeditation and planning, had been successful in killing Hitler, that most definitely would have qualified as a justifiable killing to me. So if the existence of premeditation does not automatically disqualify a killing from being justifiable, why does it automatically disqualify an instance of water boarding?

          We remain free to accept a demonstration that a particular torture event proved to have saved lives and that the result was the torturer’s intent and that the torturer thought he had no other viable alternative, without at the same time justifying torture.

          Yes, you remain free to maintain that the act was not justified, but the question I am asking you is why you do so? If it is true that an act of waterboarding has proved to save lives, and that was indeed the waterboarder’s intent, and he had no other viable alternative, why isn’t it justified? Would you really have preferred that those lives have been lost as long as no one got waterboarded, because to say that the act is unjustified is to pretty much say exactly that.

          Circumstances and context matter all the time when making moral judgements about actions. Pushing little old ladies around is wrong. But if you push a little old lady out of the way of a coming bus, that changes things and it becomes justified. Killing someone is wrong, but if you are preventing him from killing other people, that changes things and it becomes justified. Context always matters when determining whether a specific act is justified or not. Why not with regard to water boarding?

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  40. my apologies for the mangled use of terminology

    And my apologies for snipping at you. This is a subject that I just really shouldn’t discuss, as it is too much of a hot button for me. I’m bowing back out now.

    Like

  41. Could the citizens of Chicago who did not die in the prevented terrorist attack award this MONSTER some level of hero status or must they punish him as well?

    If they chose to honor him for saving their lives should they be punished Federally, by withholding Federal funding?

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    • George – yes, and no.

      Scott – you are rehashing an ends justify the means argument. You believe that waterboarding is conditionally OK. You believe that because it might work. If you permit it because it might work, then you in fact would permit it. If I do not permit it, but can recognize after the fact that a circumstance was “special”, I can temper the penalty for the waterboarder.

      We have no business lowering our standards to those of the barbarians we face. We aim for a system that does not permit state terrorism. We did not destroy the Gestapo in order to become them.

      That we are imperfect and that we live in a dangerous world can be recognized without lowering our standards. But now I too repeat myself.

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      • MarK:

        Scott – you are rehashing an ends justify the means argument.

        I am simply pointing out the reasons through which all kinds of ostensibly wrong/immoral acts, including killing, might be deemed – even by you, I believe – to be justified. And I am wondering what is that is exclusively particular about, say, waterboarding that renders these reasons to be irrelevant. And what I am hearing from you is that it is so because, well, just because.

        You believe that waterboarding is conditionally OK. You believe that because it might work.

        You yourself have provided us evidence that it can work. But in fact I believe it is conditionally justifiable not just because it can work, but because I believe there are far worse evils than waterboarding someone, and if those evils can be prevented by doing so, then doing is therefore justified.

        If I do not permit it, but can recognize after the fact that a circumstance was “special”, I can temper the penalty for the water boarder.

        What does that mean, “special”? To me it means that the evil avoided is greater than the evil perpetrated, which justifies the action. I think your wink and a nod “tempered” punishment advocacy suggests that deep down even you recognize it as ultimately justifiable. Like I said yesterday, if you are not actually trying to prevent the action by making the punishment cost more to the perpetrator than the benefit he gets from taking the action, then you aren’t really serious about the act being “wrong”.

        We did not destroy the Gestapo in order to become them.

        Storming the beaches of Normandy didn’t mean we’ve become the invading Nazis. Imposing the death penalty on murderers doesn’t mean we’ve become the SS. And waterboarding a terrorist in order to prevent a terror attack doesn’t mean we’ve become the Gestapo. There are distinctions to be made that are relevant to how we might characterize each of these examples. No doubt you acknowledge them in the former two cases. Why it is that you steadfastly refuse to explicitly admit the possibility in the latter case (even as you do so implicitly) remains, I confess, baffling to me.

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      • Mark:

        BTW, I am quite interested in how you reconcile your claim that waterboarding is always and everywhere unjustified regardless of circumstance with your earlier claim that you are “quite clearly a moral relativist” and your disparagement of moral certainty as “an exercise that unlike plain geometry will lead to incongruity.”

        In any event, I am at least pleased that, in this most recent discussion, all three of you, yello, and Mich, have validated my objections to the arguments the you all were forwarding in that conversation a year and a half ago. Obviously all of you really do believe in and accept the existence of an objective, universal morality, despite what you all claimed back then.

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        • Your lenses are certainly colored, Scott.

          If I believed in objective universal moral certainty it would not be subject to my personal opinion. The very fact that I believe in gradations of evil, with punishment to fit the offense, make me a relativist. How I would personally weigh the offense makes me a relativist. That I would desire a system that lets a jury of peers choose from a wide range of penalties from probation to long term incarceration for a person found guilty of a definitional offense makes me a relativist.

          It is purely my opinion, although strongly held, that a society that condemns torture is better than one that permits it. It is purely my opinion, although strongly held, that the Army has made a good working definition of torture. It is purely my opinion, although strongly held, that justice demands weighing, and that leniency granted is not winking at justice, by definition.

          It is also my opinion that no system is perfect, as all systems are designed by humans who are imperfect, in times and circumstances that change. We do what we can. And I accept the definition of waterboarding as torture and refuse to condone it.

          YMMV.

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        • Mark:

          If I believed in objective universal moral certainty it would not be subject to my personal opinion.

          I’m pretty sure that you don’t think the morality of torture is subject to your personal opinion about it. Having an opinion about whether X is true does not mean that X is dependent upon your personal opinion.

          Your entire argument about torture never being justified is that it is not even subject to circumstance, much less personal opinion. You claim that it is necessarily wrong, even if the perpetrator, indeed even if a majority of the rest of society, thinks it isn’t. That is, you think that anyone who disagrees with you is incorrect. That can only be the case if there is an objective morality that exists independently of the thinker.

          The very fact that I believe in gradations of evil, with punishment to fit the offense, make me a relativist.

          No, that is not what moral relativism generally refers to. Moral relativism means that one thinks there is no “truth” value to moral claims.

          It is purely my opinion, although strongly held, that a society that condemns torture is better than one that permits it.

          You pose a false choice. A society can condemn torture while permitting certain forms of it in certain “special” (your word) circumstances, exactly as we condemn killing while permitting it in certain “special” circumstances.

          Besides, even if we ignore that the choice you pose is false, in your own hypothetical about Chicago, your opinion is manifestly incorrect. The society of Chicago would have ceased to exist if it disallowed it. I doubt that it is really your position that an incinerated Chicago would be a better society than a Chicago that allowed torture in order to prevent that incineration.

          Nor do I think that you really believe a society that would allow a kidnap victim to die rather than allow the police to beat a confession out of the kidnapper would be a better society than one that would allow the police to beat the kidnapper in order to save the kidnap victim.

          YMMV

          Sorry, I don’t know what that means.

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  42. @Michigoose: ” This is a subject that I just really shouldn’t discuss, as it is too much of a hot button for me.”

    And I tend towards the pedantic (which means I’m completely sympathetic with your objections to my misuse of the term “recruit”), so I tend to make pedantic points that maybe sound like I’m arguing for something when I’m discussing the language or the logic, as I see it.

    I do tend to think most people would find some of at least the lesser forms of torture perfectly acceptable, though they would normally object, if they were a parent trying to find out what had happened to a kidnapped child, for example. Because context always matters. That is not to say that we should, as a country and a government, endorse the use of torture as an arbitrary tactic for gaining useful information. Just that absolutes tend to be less than useful in the real world, as, again, context matters. IMO, anyway. At least that’s been my observation.

    Like

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