November 30, 2005

The weakness of evil men, or the evil of weak men?

John Cole at Balloon Juice addresses the ongoing debate about the use of torture by American forces and agents thusly. While it appears that Mr. Cole and I might not agree on much (I'm not sure, this is on a quick scan) we're shoulder to shoulder on this one. This is one reason I enjoy the net; finding people's opinions to read and mull over - especially people who I don't agree with about everything. It makes our points of agreement much more thought-provoking.

In any case, the argument he is attacking (and which has shown up in the comments to that post) is really just outrageous. I responded to it there, but I felt the need to reiterate my position here.

The 'pro-torture' camp (Cheney on down) appear to be fixated on two primary arguments: the 'ticking time bomb' scenario and the 'limiting options' argument. The first posits that there may come a time when in order to thwart an imminent Bad Event, your only option may be to employ torture to extract information which will allow you to prevent it. The second argument seems to state that by categorically denying yourself the option of torture, you offer your enemies more 'freedom of action' or 'embolden' them because they know they won't be forced to give up information when captured.

These are, IMNSHO, complete and utter bullshit.

The first problem is that they're being argued at entirely the wrong level. These are both arguments related to the efficacy or expediency of torture. That's the problem. Many opponents of torture continue to fight the measure by arguing (with merit) that torture doesn't even work, which is a completely valid approach and offers some traction. But it misses the point. Arguing that allows the pro-torture crew to set the battleground for this fight, and if the battleground is placed in the 'expediency' field, then the battle is already lost.

Whether or not to use torture, as the United States of America, is not an issue of expediency or efficacy. It's a question of principles. Those principles are what make us the United States of America. They are embodied in the Constitution and its Amendments. Which, far from representing expediency, are philosophy embodied - as far from expediency as you can get. That's what makes this country different, and makes it great. It's a place where the purity of an ideal is being applied to a polity - not through the flawed prism of human minds serving as a 'live' conduit, but through a rigorously and transparently recorded and interpreted set of codified philosophy.

If you begin to argue about whether or not torture (which is something that doesn't fit anywhere into that Constitution, thank you very much) should be utilized because it may or may not work, then you've already given up arguing about whether it should be used.

And you've thrown the ideals which that Constitution stands for in the trash bin.

President Bush speaks of 'spreading Democracy' through the Middle East and the world. We can only assume he speaks of spreading Democracy on the American model - a Constitutional democracy, based on principles. If this is the case, then we must not act to throw away those very principles in the name of expediency, not even to spread that democracy or even to topple regimes - but simply as a 'just in case' because we 'might be threatened!' To reserve to ourselves the right to not apply those principles to anyone we choose because they are less than us!

ALL MEN ARE CREATED EQUAL. Nowhere does it say 'but some men are created less equal than others.'

If men declare themselves the enemy of the United States and the Constitution, then yes, it is our duty to defeat them. To kill them, if necessary. However, it is also our duty to continue to obey our own laws. As our own president says, "We do not torture." Fine. Then we don't need exemptions from laws against torture. If we have captured an enemy, they themselves cannot actively do us harm. That means we are enjoined from causing them unreasonable suffering. If they have committed crimes which they can be tried for, which carry a capital punishment, then it is our right to submit them to a court of law which has the ability to impose that punishment in open deliberation. But that's it.

Anything else loses us the war, as it loses us what makes us Americans. Don't let the pro-torture camp draw the debate onto the wrong battleground. This isn't about being 'soft on terrorists' or 'un-American' or anything else. They are 'un-American.' This is about the very ideals which make us American.

Posted by jbz at November 30, 2005 12:09 PM | TrackBack


A thoughtful post, but I have to call you on some points (I'm a lawyer, it's my job):

First, the Constitution does not say "All Men are created Equal." That's the Declaration of Independence. The original Constitution actually openly declares that certain people (like you and me) are only worth 3/5ths as much as others. As amended the inequalities have been smoothed out, but certainly some remain -- the whole doctrine of Constitutional discrimination law concerns itself with "what types of inequalities matter?" E.g., it remains "Constitutional" for the military to exclude women from certain roles.

Second, I think you over simplify things by claiming it is all a matter of "principle". A big part of the debate has to revolve around "what is the definition of torture?" Is it torture to make someone stand in one spot for 8 hours? 12 hours? 24 hours? To give a 6'6" 250lb man only 1800 calories per day? To beat someone with a belt? with a cane? etc. etc.

Originalists (like Antonin Scalia claims to be) would say that the founding fathers had no problems with things like public pillory, floggings, the stocks, or even drawing-and-quartering. So, to the authors at least, certain things that we might call "torture" were not outside of their understanding of what the Constitution allowed. That's why the Originalists are full of shit: the Constitution is a living document that only has meaning in the context of the present times: the entire debate is therefore not one of principle vs. non-principle, but rather "your/our principles vs. Dick Cheney's alleged principles".

To me, the correct approach for this argument is to examine it as one concerning the relationship of the individual to the state. The torture question, as they have set it up, is particularly tricky because there are two different individuals at issue: there is you, the American citizen/tax payer, in whose name the government acts, and then there is the "terrorist" against whom the government is acting. I believe you have touched on this before in your posts, but the key issue is "do we feel comfortable as Americans cedeing to the government the power to do something that we ourselves would not do even if we were able?" I.e., I have no problem with a police officer shooting someone in self-defense or to protect someone else, because if there was no government I would probably take that same action myself. But, if there was no government, would/could I bring myself to yank out someone's fingernails? I don't know: probably not. And I certainly wouldn't want an unknown government official making the decision of "necessity" in my name.

Final point, back to the Constitution. It isn't entirely true that the Constitution doesn't allow for expediency. In fact, there are all sorts of explicit and implicit expediency clauses in the document. The most notable, of course, is in Article II, Section 3 which says that the President may recommend to Congress for consideration "such measures as he shall judge necessary and expedient;" More recently, during WWI, Judge Oliver Wendell Holmes interpreted the First Amendment to give way in cases where there is a "clear and present danger" to the nation. Similarly, the 4th Amendment originally prohibited almost any government search without a warrant, but over time (and particularly since the "war on drugs" began) that has been chipped away until the exceptions alomst swallow the rule: now, the vast majority of government searches are warantless under doctrines with catchy names like "plain view", "imminent danger" etc. And, the process of getting a warrant has become so automated (at the state level) that it is pretty rare for the police to be turned down for one. So, again, the Constitution, as it currently reads, allows all sorts of exceptions for expediency. Following that type of logic, it is not difficult to say that the ban on "Cruel and Unusual Punishment" (which isn't actually at issue here, since torture is not being used as "punishment") gives way when there is a ticking bomb etc.

The more focused issue is "what is the trigger for expediency, and who gets to make that determination?" That's a process question, not a principle question. I'm biased (of course), but to me the most frightening thing that the administration has tried to do is to limit access to the federal courts -- both by playing shell games, keeping prisoners in Cuba or handing them to other governments, or by directly claiming restrictions on the right to Habeas Corpus. The Rhenquist Court, as conservative as it was, nevertheless held that the imminent danger of terrorism wasn't imminent enough to shut the courts out of the process entirely. When you think of the mechanisms that were put in place during the cold war to allow the President to respond to a nuclear first strike (i.e., always-on communications to key Congressional leaders, standing orders etc. etc.) it seems clear that we can plan for expediency and design systems that balance speed with good sense. Is there really a valid reason that no one from the Legislative or Judicial branches can't be involved in the "ticking bomb" case? How hard would it be to get a judge on the phone and argue the need? The administration's worst sin (in my mind) is not that they want to do "bad" things (i.e., torture), but that they want the ability to do them unilaterally, without any oversight.

Posted by: Tobias at December 2, 2005 2:48 PM
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