Torture Chamber

The panel debate between Boalt Law Professor (and former Bush administration lawyer) John Yoo and Jeremy Waldron on the acceptability of torture has sparked a spectacular discussion amongst the bloggers at Ex Post. See here for the first shot by Publius, then here for the dissent and riposte by T. More, and finally here for a defense again by Publius. Marty Lederman also wades into the fray over at Balkinization.

The Ex Post debate ranges over so many topics and is so well developed I feel embarrassed even trying to chime in. But I do feel compelled to raise at least a few points.

One of the points discussed was the age old question, "what if there was a nuclear bomb and only by torturing a terrorist could we find it and defuse it?" Waldron said the torture still would not be justified, to which Publius replied:

I think the President not only doesn't have a moral obligation in such a situation to avoid the torture, but has a moral obligation to do precisely the opposite. I can't believe that anyone finds this sensible. How is he going to explain to the 8 million peoples' families that he didn't think it was "right" to torture the terrorist to save their husbands/wives/children/parents? This, I think, is silliness.

More responded that

Prof. Waldron's "ivory tower" point was also that some things are so wrong that no countervailing threat could justify them. His point was to deny the applicability of utilitarianism in this context. Your astonishment at that answer could only be justified by a certainty that we must be utilitarians in such situations. Fine: How many infants would you rape, as a defender of the hypothetical, in order to stop the detonation of the bomb? If you answer "none" or close to it, then you are no utilitarian worthy of the name (except for some strained and silly "rule utilitarian" which is always a dodge, as it abandons the notion of actually calculating utils or anything of the like, and simply mimics deontological or categorical reasoning in hard cases). If you would in fact be willing to rape wives, daughters, or mothers of terrorists in order to prevent such a bomb exploding, then you would have to answer to the law and to most traditional forms of morality. Or you could simply assert: "Hey, governments have to do ugly things sometimes. Do you want a Government of Waldrons?"

And Publius rejoins:

To be sure, I have no answer to the rape examples. I, admittedly, hadn't thought of this before yesterday. I would distinguish them from my hypothetical because these people are innocent, have not placed themselves outside the rule of law. So I have a significantly harder time with that, maybe even prohibitively harder. To be sure, I think the question gets hard even when its terrorists, not civilians. Expand the hypothetical to include 100 terrorists, and only one of them knows. Can you torture all 100? Dunno. I think the argument gets interesting, but Waldron won't discuss it.

I'm inclined to agree with both, to an extent. I think that yes, there is a theoretical threshold point at which we can't reasonably assert that the moral evil of torture outweighs the moral evil of millions of innocent deaths. However, there are alot of caveats I'd place even on that. If we know that this one guy knows the information, and if he won't give up the information willingly, and if the threat is imminent, and if all other remedies have been exhausted, then MAYBE I'd be okay with torture as a dead last resort. But even there, if one recasts the question to "how many terrorists would you rape to stop the bomb," I'd be given pause. Worse yet, what about the families of terrorists who aided and abetted their relatives? They, too, have placed themselves "outside the law," as Publius' puts it; can we rape them? Of course, I'm okay with situational ethics, but for others, this is an even more difficult question that it is for me (and it is very tough for me!) because it means shattering given rules because the outcome is displeasing, which is what moral standards are supposed to prevent.

However, to some extent this point is moot, because it has nothing to do with what Yoo actually advocates. As Lederman points out:

And, in response to a question about the broad assertions in the OLC memos of the President's alleged authority as Commander-in-Chief to ignore statutory limitations--such as the argument in the August 2002 torture opinion (which I discuss briefly here) that Congress is powerless to restrict the President's decisions concerning "what methods to use to best prevail against the enemy"--Professor Yoo explains that Congress cannot criminalize any "legitimate exercise" of conduct that "falls within" the President's Commander-in-Chief power. What Professor Yoo apparently means by this is that if the President may engage in particular conduct in the absence of statutory limitation, Congress is foreclosed from restricting that conduct by statute. Thus, for example, Professor Yoo shockingly asserts that Congress could not enact a law prohibiting the President from ordering the use of nuclear weapons or from sending troops to Europe.

In otherwords, Yoo doesn't advocate torture in limited circumstances within carefully crafted legislative exceptions. Rather, he views torture as a tool in the Executive's toolbox, to be whipped out whenever the President deems it to be the best way to "prevail against the enemy." And furthermore, upon such a determination, Yoo believes that this action is utterly unreviewable and subject to no external check. At the point, we are well beyond nuclear apocalypse, and into Abu Gharib--so long as the President deems it necessary, it automatically becomes constitutional. This strikes me as an immense perversion of constitutional dogma.

Publius also asserts that terrorists, because they act unlawfully, are thus not contained within the scope of legal protections:

But these are people that have placed themselves outside the rule of law, and are shaking the very foundations of the system. These are people, (as some people argue murders are, and should get the death penalty) that do not respond to "law" and either must be dealt with in a way that helps preserve law for us, or we must "take the hit" so that we extend our law to even them. That's exactly what terrorists do--they try and destroy the foundations of law. And I do not think that the "law" that you and your friend Jeremy are saying we should stick to will keep them from accomplishing this. Those that place themselves outside the legal system lose "rights."

This is true, you say. Anyone who disobeys the law loses rights: you get locked up, you get money taken from you, etc. But some things should never be taken away.

My response is that the rights that are taken depend on the danger of the person's actions to the legal system. I, who in regular circumstances strongly oppose the death penalty, think you can kill terrorists. Send missiles into the caves in Afghanistan. These people pose too great a threat to our system of law.

This is patently absurd. The 4th, 5th, 6th, and 8th amendments all deal with those accused of being "beyond the law," and at least the 8th amendment (and at times 5 and 6 too) deal with those who already have been convicted of violating laws. These facets of our constitution would become meaningless if they did not apply to criminals or those who otherwise do not respect the legal system. That doesn't mean we can't do anything to terrorists, but it does mean that our system (in both the legal and military sense) has standards and methods for dealing with them that need to be held to, we can't just throw them out because the "threat" is too great. From a moral perspective, furthermore, it is unfathomable to hold the moral standards cease to exist when one is combating "evil" (or those who don't subscribe to moral limitations). As I blogged before:

I suppose one might argue that since al-Qaeda won't abide by any of the above rules, we are under no obligation to abide by them either. That's a very dangerous position to hold. The US, being a liberal democratic state, agrees to abide by certain standards. It has moral legitimacy because it will not utilize any tactic to achieve its ends. Just because al-Qaeda flies planes into our buildings does not mean we can do the same to them. Just because they deliberately target civilians in an attempt to shatter our morale does not mean we can do likewise. Morality often means fighting with one hand tied behind your back, but that disability also is why our fight is worth fighting in the first place.

Law continues despite the presence of unlawfulness, indeed, it is designed to account for it. The whole reason we pass laws in times of sanity is that we know that trying times lead to emotional decisions we'll regret later (see: Internment, Japanese). That isn't a "pre-9/11 mentality," that's a realistic assessment of human psychology that needs to be factored in.

The point isn't to argue that we can't address terrorism at all. Rather, it is the acknowledgment that a) we live in a nation of laws and standards and b) those standards restrict us from undertaking some "effective" responses to problems. It might be annoying, it might be inconvenient, it might even be unfortunate, in a sense. It might also, I'd assert, be American.