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First Person Personal

My personal views on a variety of matters ranging from popular culture to quantum physics to religion to politics to history to bushido to ... well, whatever I feel like, really. Warning: we all have agendas. Trust no one totally, myself most specifically included. Email me at wbrerwolf at gmail.com

Wednesday, March 08, 2006

IN FAVOR OF TORTURE

I am starting this post off with some useful reference material.

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

AMENDMENT XIV
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States of America.

He who fights with monsters might take care lest he thereby become a monster. And if you gaze for long into an abyss, the abyss gazes also into you. Friedrich Nietzsche, Beyond Good and Evil, Aphorism 146
http://www.quotationspage.com/quotes/Friedrich_Nietzsche/

As I said in my last post, I do not believe that torture is an acceptable option. However, not everyone agrees with me.

To my mind, Alan Dershowitz presents a compelling argument for legalizing torture in Chapter 4 of his book WHY TERRORISM WORKS (R. R. Donnelley & Sons Co., Inc, 2002) which I will summarize below and give reference pages:

Firstly, Dershowitz makes the point that the word “torture” covers a vast range of activities which “can range from the most unmitigated cruelty as a prelude to death to the most antiseptic, nonlethal and even nonphysical mind games” (Dershowitz, 124). He then goes on to argue that in extreme cases torture can be used by a democracy against a suspect in order to attempt to prevent one or more innocent people from coming to harm.

Dershowitz also discusses the implications if torture was incorporated into our legal system. For example he argues that the Fifth Amendment prohibits compelled self- incrimination so evidence obtained by torture could not be used against the person who was tortured. However, if a subject is given immunity and then tortured, anything he says could be used but only against others. This torture does not count as cruel and unusual punishment: the subject is not being punished, he is being interrogated. The only constitutional bars to legalized torture, Dershowitz continues, are the due process provisions of the Fifth and Fourteenth Amendments, which, he argues, can be gotten around by requiring the torturers to be able to prove probable cause to a judge (Dershowitz, 135).

Dershowitz believes the fact that we are signatories to the Geneva Convention Against Torture is a far more significant bar to legalized torture than the Constitution is. However, there is a loophole: we agreed to be bound by the Convention only as long as it was consistent with the Eighth Amendment. And various courts in our country have already suggested that the Eighth Amendment would not stand in the way of using torture to save lives, especially if the torture left no lasting injuries. For instance, our courts according to Dershowitz already routinely overlook psychological torture in many cases. Thus we could use torture and still technically be in accord with the Geneva Convention (Dershowitz, 135-136).

Now, as regards the accuracy of information obtained by torture: Dershowitz does not deny that much of the information obtained by torture is invalid; he contends instead that sometimes torture works and that it can and has saved lives (Dershowitz, 137). This, he says, is why torture continues to exist everywhere in the world. Even our own country farms out suspected terrorists to friendly countries such as Egypt and Jordan who torture them and pass the information back to us in violation of the Geneva Convention. (http://www.cbsnews.com/stories/2005/03/04/60minutes/main678155.shtml ). Dershowitz (138) maintains that we would be far better served by directly confronting this fact and either eliminating torture altogether or by placing it inside our legal structure as an extreme option reserved for extreme circumstances and requiring judicial approval. This would, he believes, reduce torture to the irreducible minimum, a level that he believes would be considerably under what we now actually practice (as opposed to what we admit to) (Dershowitz, 141).

Dershowitz (146-149) then addresses the issue of the “slippery slope”. This is the argument that once torture is legalized for any reason, it will inevitably be legalized for much less serious cases. He cites two major classes: case utilitarianism and rule utilitarianism. With case utilitarianism, the argument is that in a particular case, the benefits of torture outweigh its costs. Rule utilitarianism takes a more strategic viewpoint: it considers the implications of establishing a precedent that would inevitably be expanded, i.e. the “slippery slope” mentioned above. As Dershowitz says, you can justify any excess provided that the ultimate results outweigh the costs. Such a belief in ultimate good results led the Soviets to kill millions of people, mass murder that they justified as necessary to benefit all future generations (finite cost versus infinite gains: a no-brainer). Dershowitz seems to believe that the solution to this problem is to build in a “principled break” into the legal structure, that, say, only convicted terrorists who had knowledge of future terrorist activities and who refused to provide information even after being granted immunity should be tortured. Unfortunately, he does not make clear how this “principled break” should be maintained in the future and I personally see no way that it would endure.

He makes several good logical arguments in his attempt to justify legalizing torture:
· Comparing torture to imprisonment (imprisonment can be used to coerce testimony: prison is unpleasant, often physically painful and potentially life threatening, so why not use careful, non-lethal torture to produce a positive goal?)
· The execution of murderers (if you kill someone (permanent, extreme damage) who can’t reasonably be expected to harm anyone ever again, why not torture someone (temporary pain, no permanent physical damage) to prevent mass murders?)
· We endorse the use of lethal force against suspects fleeing the scene of a major crime. They are not currently a threat to the officer, they have not been convicted of any crime, they are, in fact, only suspects. So why not use nonlethal force against people who are already convicted to prevent future crimes?
· Our own government has attempted to coerce other nations through the use of saturation bombing, or trade blockades that cause immense suffering to the general population of a country while not greatly affecting their leaders. Recently, we have practiced simple invasion and occupation that produces considerable collateral damage for very little gain. Why is the suffering of one guilty person worse than the suffering of a thousand innocents who live far, far away? Dershowitz says that it is because we are aware of the one person suffering while the thousand innocents are hidden from our view

Dershowitz (150) says that there are four basic approaches to the use of torture by various security or police organizations:
1. Consider such things to be in a “gray area”, outside of normal law.
2. Ignore the practice of torture and publicly proclaim our virtuous stance on the subject of torture (see, for instance Vice-President Cheney and Secretary of State Rice’s recent statements on the subject. Dershowitz quotes an Israeli commission on torture as calling this “the way of the hypocrites,” which is certainly an apt description.).
3. Bring torture inside the legal structure and regulate it carefully.
4. Completely forbid torture under any circumstances whatsoever.

As best I can determine, Dershowitz considers the first two options to be too dangerous – in both options, torture can be conducted essentially on whim, and that the greater populace of the nation (indeed, the government itself) has no way of restraining the inevitable excesses. Thus, the only real options are three and four. He believes (I think correctly) that the fourth option would immediately be overruled in a democracy such as our own after any sort of September 11th attack and so the only truly practical option is option three.

Dershowitz goes on (151-154) to describe the values at war on the question of torture. Firstly, there is the need to keep the citizens of your country as safe as possible, to prevent them from being harmed by extremists. This value argues that no matter what, the population must be kept safe. Secondly, the question of preserving civil liberties and human rights cannot be neglected. This value argues that no matter what, torture cannot be permitted. Thirdly, no matter what, we must have open accountability and visibility. If we do not know of an action, we can neither approve nor disapprove of it and such unmonitored actions can go horribly out of control.

So: which no matter what is the most important? The safety of our citizens? Civil liberties and human rights? The open oversight of our government’s activities? No matter what we do, it appears inevitable that at least one of these values must be violated.

Dershowitz argues that the practice of torture should be put into law, that it should require judicial oversight, that torture be reserved for the most extreme cases of public safety and, I believe, that the records of torture be available for later review. He presents the argument that we are doing it anyway, “under the radar” and that public oversight can only serve to reduce the amount of torture committed below the levels that we currently sanction.

I don’t pretend to be as smart as Dershowitz. I am most certainly not one of the foremost defense attorneys currently alive. I do have a good enough education that I can appreciate his logic that it is better that one guilty man suffer pain and humiliation than any innocents should perish.

However, like Senator McCain, I am very uncomfortable with the idea of accepting torture, even as carefully regulated a form of torture as Dershowitz proposes. It is, I think, not just wrong, it is actively un-American. I see it as a betrayal of our ideals, an admission that everything comes down to brute force, that logic, reason, justice (as opposed to law) and morality should be discarded whenever the price becomes too high. It would mean that we Americans would have to abandon or at least seriously modify our belief that we are “the good guys”. There are some things that “good guys” just do not do, and torture is one of them.

How many lives is too high a price for maintaining our moral superiority? I don’t know, and I must admit that I am glad that I am not one of those who have to decide that question. If the choice was up to me, I think that I would have to reluctantly opt to legalize torture only under the extreme circumstances that Dershowitz cites. I would also argue for even more strict controls than Dershowitz suggests. For example, perhaps we should require that the authorization of torture should be subject to later review and that if the torture is shown to be unjustified the official requesting the torture should be sentenced to 5 to 10 years in a federal prison. Or possibly we should require that the official requesting the torture should be tortured in tandem with the prisoner. After all, it is better that two people suffer than that we should allow many people to die.

I want everyone involved to be sure that there is no other way.

Dershowitz makes a very compelling case for legalizing torture. But that is what lawyers do: make compelling cases. Just because something is logically argued does not make it right. You can make a good case for:

· legalizing incest (the royal families of Europe and a couple of the old Egyptian dynasties come to mind: it concentrated power and wealth in certain families)
· exterminating or sterilizing the mentally ill (not just a Nazi practice: they had legal forcible sterilizing of mentally retarded people here in the U.S of A as well)
· contributing to the ecosystem by converting dead humans into animal (or even people) food (it seems to work fine for ants)
· torturing, imprisoning and killing people because of their beliefs (such as happened during the Inquisition as well as during McCarthy’s Red Scare and the purges in the early Soviet Union)

As a species, we are not truly logical creatures. For most of us, logic is a tool, not a driving force. We must be very careful when examining a logical argument, for such arguments almost always serve someone else’s agenda. Instinct matters for a lot, especially to semi-intelligent apes like us.

In the martial arts, we are trained to listen to our instincts, to override them only if we know what rang our alarms.

And the idea of legalizing torture sets off my alarms big time.

I have spent some time thinking about why this should alarm me so, and I think that Dershowitz glosses over a lot of the details: how, for instance, will we train our torturers? These specialists are supposed to be able to inflict excruciating pain without inflicting permanent damage: how are they to learn these skills without practicing on humans? Conceivably, they will practice on each other. Perhaps they should use pre-law students instead. However, this is a practical objection, and doubtless can be overcome in some way, perhaps by using computer-controlled manikins such as are used in some first aid classes; this cannot be the core reason for my uneasiness. More important would be the effect on the torturers. How many of them would take their work home with them, perhaps growing to enjoy torturing people more than they wish to get useful information? Would we be training the next generation of serial killers?

Dershowitz seems to believe that pain is temporary, that once the body heals, the mind heals as well. I must disagree: I have endured considerable pain in my life and my mind was distorted by the experience long after the pain itself stopped (see Post-Traumatic Stress Disorder). Still, this is a quibble: the entire point of Dershowitz’s argument is that it is better for one person to suffer than for many to die; the fact that the subject’s mind may be distorted by his suffering seems to be largely irrelevant.

What happens to the rest of the world if we incorporate torture into our legal system? It certainly seems likely that human rights everywhere would take a huge step backwards and that many countries would follow our lead and incorporate torture into their own culture as both interrogation and punishment. Further, many countries would use torture in ways that we would find to be distasteful: to crush political dissent, to intimidate religious or political minorities or just for fun. Still, that is not our problem. Our problem is how to keep our people safe. If torture does this, perhaps we should consider incorporating it into our system, regardless of how other nations are influenced by our choices.

But if we choose to incorporate torture into our system, there will be a terrible cost: not just the physical suffering of the people being tortured but to our view of ourselves and the world’s view of us. The cultural cost to us would be enormous and one that we cannot exactly predict. This is a question that needs serious debate before the next major terrorist assault drives us to legalize torture without any safeguards whatsoever: and we are, with the exception of Dershowitz and a few others, not talking about it seriously. We are instead either saying nothing or posturing for the cameras.

Business as usual.

Other references

LRB | Slavoj Zizek : Are we in a war? Do we have an enemy? - A detailed argument against torture
Pentagon Report Set Framework For Use of Torture - Published on Monday, June 7, 2004 by the Wall Street Journal

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