Steve Benen mocks a conservative writer for comparing torture to civil disobedience. But I think he's being unfair. Civil disobedience, I think, is a good way to conceptualize that ever-theoretically-present "ticking time bomb" scenario, where, we're told, we have to torture somebody. We can argue that the event is unlikely (it is), and that even in that situation, torture may not be the most effective strategy for getting the information we need. But granting there might be the possibility of such a convergence of events so that torture is necessary to save New York, I think civil disobedience is the right way to frame it.
Why? Because civil disobedience concedes that the conduct is illegal, and, more importantly, accepts that the actor will be punished for his conduct. In addition to maintaining the position of torture as a categorical moral wrong, it also provides a check against torture running wild: if people know that they will be prosecuted for torture, they won't do it unless they're prepared to accept the possibility of 15-20 years in prison -- which only likely will happen in grave cases of national security. Of course, that possibility is not an inevitability -- juries can nullify, or pardons can be issued. But the point is, the person has to be willing to face the judgment of society after the act. This is the precise opposite of the way the Bush administration has cast its torture policies -- shielded from public accountability or the arm of the law.
While the conservative in question (Chuck Colson) seems to overstate the nobility of torture in the hypothetical case (a necessary evil remains evil), civil disobedience is, I think, a beneficial framework for the issue insofar as it cuts off -- indeed, inverts -- the argument that we need to provide a legal shield for torturers. If George W. Bush really thinks we need to torture X accused al-Qaeda terrorist, then he should be willing to face the consequences of that act.
The correct analogy is self-defense. People are allowed to use deadly force when they are in mortal danger. They are not brought before the bar of justice in the US (as they would be in the UK or Europe) in as much as the circumstances demanded the use of deadly force.
ReplyDeleteThus torture should be in a similar category.
And if torture is used inappropriately (as deadly force in self-defense can be - e.g. shooting someone for looking at you funny) then it should be prosecuted.
Except many people who use force when they perceive themselves to be in mortal danger, but that perception turns out to be erroneous, are prosecuted for homicide. Many are acquitted if the jury sympathizes with their perception (as in the case of the homeowner who killed a Japanese exchange student, who had mistakenly rung his doorbell while looking for a Halloween party), but they still are "brought before the bar of justice."
ReplyDeleteI agree with David that the analogy to civil disobedience -- with the clear understanding that one's act, though morally justified, will nonetheless be punished under the law -- is the better one.
This actually comes up a lot in ethics; I took a class in college in which we read about someone in a previous war (can't remember which) who took an action that was seen as practically necessary yet morally wrong. The person who did it wasn't convicted of a crime, but received no advancement in the military, etc.