On Torture [Rev.]

Torture is one of those issues whose morality is easily decided in the philosophical and the abstract. It is so cruel, so barbaric, so inhuman, and so overly repugnant to the senses that it cannot possibly be justified or condoned. No democratic nation that claims to respect and protect the sanctity of human life could sanction it and still deserve the name. It is a brutal and abominable relic of civilized man’s violent past, and it should remain there. We have long since evolved and (hopefully) left the institutions of such a nature long behind. This much we can all be certain of.

Our law reflects that sentiment. Title X, §1003 of the Detainee Treatment Act of 2005 mandates that "No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment."1 That is clear as glass. No individual detained by the United States of America can be tortured by any official or officer of the United States of America in any place, at any time, under any circumstances.

But there is a problem with this, or at least an issue that the text of the statute does not address. Senator John McCain, one of the chief sponsors and proponents of the Act, raised it in an essay for Newsweek in 2005. While torture is unquestionably awful, "[w]hat do we do if we capture a terrorist who we have sounds reasons to believe possesses specific knowledge of an imminent terrorist attack?"2 Is it possible that it would be morally justifiable to torture that terrorist if it allows us to thwart that terrorist attack? At the very least, this conundrum challenges the legal and moral absolute our republic has constructed regarding torture in the form of the Detainee Treatment Act.

Western civilization as a whole, but the United States specifically and most prominently, faces an existential threat from extremist Islamic terrorism. This terrorism seeks to kill as many innocent lives as possible, to inflict as much physical destruction as possible, and to incubate maximum suffering. That those who endeavor to perpetrate it have no regard for their own life in the pursuit, and seem to glorify their own death, presents a unique and daunting challenge to any society who must protect themselves from it.

It is in these circumstances that we are compelled to revisit and reconsider the question of torture and the policy we have created regarding it. I argue that the Detainee Treatment Act’s absolute proscription of torture, though generally prudent and admirable, is overly and unnecessarily broad. We should proscribe torture generally, but not in all circumstances.

It is certainly hard to disagree with Andrew Sullivan: "By endorsing torture–on anyone, anywhere, for any reason–we obliterate the very values we are trying to promote."3 But is it not possible that in extreme circumstances torture might be the lesser evil? That is, if the other evil is the death of scores of innocent lives in a terrorist attack? As the columnist Charles Krauthammer has pointed out, "However rare the cases, there are circumstances in which, by any rational moral calculus, torture not only would be permissible but would be required (to acquire life-saving information)."4

We have all heard the hypothetical, or some variation of it. A weapon of mass destruction has been planted in a major American city and in a short period of time it will be detonated. A terrorist with knowledge of the bomb—where it will be detonated, who will detonate it, when it will be detonated—is incarcerated at the American military base at Guantanamo Bay, Cuba. He is not talking, and has no intention of doing so. None of the legal, acceptable, and humane interrogation techniques are working, nor will work. The weapon could be detonated at any minute. Whole streets stand in impending danger of being destroyed. Millions of dollars stand to be lost. Worst of all, thousands of innocent people, simply going about in the routine of their daily lives, are likely to be killed or maimed. Their deaths will have a devastating effect on the secondary victims of the attack as well, the friends and family members of those lost.

In circumstances such as these, can we truly say, in good conscience, that torture is always impermissible, as we do in the Detainee Treatment Act of 2005? Does this not confirm that, though it is morally impermissible most of the time, it is not so all of the time. If that interrogator can ascertain needed life-saving intelligence from the obstinate terrorist through torture, should he not do so? Can it possibly be morally repugnant to torture a terrorist with knowledge when doing so can help save innocent human life?

I cannot hold that it is. And I think that most people, confronted with this same scenario, would so concur. In such a situation, to not do everything possible to save those lives, in my view, would be the immoral wrong, not torture.

The question we must debate and resolve is not only whether torture is permissible in extremely rare circumstances, but also what circumstances those are.

Given the obviously cruel nature of it—or as Mr. Krauthammer has termed it, "the monstrous evil that is any form of torture"5—and its oppressively heavy moral implications, those circumstances must be strictly defined and strictly enforced.

I would limit torture to be only permissible in "ticking time bomb" scenarios. Granted, it is hard to give an exact definition for what circumstances would qualify as such a scenario. However I would adopt the formula crafted by the supreme court of Israel, as described by Harvard Law professor Alan Dershowitz. Torture may be defensible "if an interrogator honestly and reasonably believe[s] that the only way to prevent an attack was to apply moderate physical pressure."6

I am not advocating a lethal form of torture in such circumstances, for such would defeat the purpose of torturing the individual in the first place, which is to compel him to divulge intelligence that would allow the U.S. to prevent a terrorist attack and save innocent life.

The "moderate physical pressure" spoken of by the Israel court also seems vague and open to interpretation, manipulation and abuse to me. What I mean by torture permissible in these circumstances are procedures such as waterboarding, sleep deprivation, climate and conditional manipulation, injection of truth serum, etc. Non-lethal practices, but ones which place the detainee in a state of pronounced duress.

But to reiterate, these would only be justifiable in the scenario quoted above. The attack has to be impending, beyond the planning stage and into the execution stage, where all the plans have been made and all that is left is to carry out the attack. Then, and only then, would I find the torture of a terrorist justifiable. Torture is the absolute last resort, after all other available means have been attempted and have failed.

I believe the Detainee Treatment Act should be amended to this effect. Senator McCain, who does acknowledge the possibility of the scenario and the justifiability of torture in it, does not. Instead of changing the law to allow for torture in a "ticking time bomb" scenario, he would leave an absolute proscription of torture in place. "To carve out legal exemptions to this basic principle of human rights risks opening the door to abuse as a matter of course," he argues, "rather than a standard violated truly in extremis. It is far better to embrace a standard that might be violated in extraordinary circumstances than to lower our standards to accommodate a remote contingency, confusing personnel in the field and sending precisely the wrong message abroad about America’s purposes and practices."7

This is certainly a reasonable argument, but I would nevertheless reject it. There is no question that carving out a codified exception to the Detainee Treatment Act’s blanket ban might open the door to abuse, but I believe this is outweighed by the deleterious consequences neglecting to do so might incur. With the specter of a possible prosecution and imprisonment looming over them, an interrogator may decline to act in an attempt to cover themselves from any risk of future prosecution, even where torture is self-evidently justified and required. As self-evident as it may be to the interrogator, it is never guaranteed that an overly zealous prosecutor or a judge and jury will see it that way after the fact.

Professor Dershowitz’s approach, and the approach he quotes from President Clinton, would be the one I would adopt. Instead of carving out no legal exception to the Detainee Treatment Act’s complete proscription and relying upon the individual interrogator to take the law into their own hands when they deem it to be necessary, with only the possibility "authorities and the public [will]...take this into account when judging his actions and recognize the extremely dire situation which he confronted," interrogators should be given legal protection, not fleeting possibilities. Codification is needed. Whenever torture is to be used, or any interrogatory technique approaching it, there ought to be "explicit approval from the president...such a ‘torture warrant’ approach would force the president to specify precisely what is allowed and what is not."8

This route is the only one which insures accountability. As Professor Dershowitz also points out, "some forms of torture have been, are being and will continue to be used by democracies in extreme situations, regardless of what we say or what the law provides."9 By compelling the issue of a warrant by the president, it helps insure that it will only be used in those truly extreme "ticking time bomb" cases because the president and the president alone will be held to answer for and justify the decision to issue the warrant, not only politically but legally as well if we adopt the proposal advanced by President Clinton, which I endorse. He "would permit the president to make a finding in a case [such as the ‘ticking time-bomb’ scenario], and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court."10 A warrant based on a presidential finding and judgment along with a post facto judicial review insure both accountability and independent review.

*****

The concerns with and objections to codifying an exception to Title X §1003 of the Detainee Treatment Act of 2005, as outlined by Senator McCain, are valid. They are outweighed, however, by the benefits of doing so. Mandating that the President issue an individual warrant, enumerating which specific procedures are to be used, with a post facto review by the FISA Court has the advantage of insuring that torture or excessive interrogation tactics such as waterboarding are limited to only the most extreme "ticking time-bomb" scenarios and that those who are conducting the interrogation are given the legal justification to do so.

As Professor Dershowitz acknowledges, torture is likely to be carried out in at least rare circumstances anyway. By amending the Detainee Treatment Act of 2005 to codify certain instances where it is permissible, we would help insure that it is done so in concurrence with a legal process and not in a surreptitious, winked at manner outside of the law.

1. Detainee Treatment Act, 10 U.S.C. §§ 1001-1006 (2005).
2. Sen. John McCain, Torture’s Terrible Toll, Newsweek, Nov. 21, 2005, at p. 34.
3. Andrew Sullivan, The Abolition of Torture, New Republic, December 19, 2005, at 19.
4. Charles Krauthammer, The Truth about Torture, The Weekly Standard, December 5, 2005, at 21.
5. See Id.
6. Alan Dershowitz, Stop Winking at Torture and Codify It, Los Angeles Times, June 13, 2004, at M5.
7. McCain, supra
8. See Id.
9. Alan Dershowitz, Commentary, Torture and Accountability: ‘Torture Warrants’ are a necessary evil–even Bill Clinton Agrees with Me Now, Los Angeles Times, October 17, 2006, at B. 13.
10. See Id.

The Blindly Loyal Executive

In its April 2, 2007 issue, National Review provides a comprehensive critique of President Bush’s executive and management abilities. The subject is addressed through disparate prisms in the form of specific issues—the Libby case, the firing of the eight U.S. attorneys, Iraq, etc.—but the focal, summary piece is authored by editor Rich Lowry.

He asserts that the President’s excessive "reflex to stand by his man points to a key weakness in his management style." This thesis is correct, if not a little insufficient. The tendency he speaks of is not only a "key weakness" of the President’s, it is his one, inherent, and possibly fatal flaw.

The President is endowed with virtually all qualities good presidents have. He is far-sighted. He thinks big. He is optimistic. He has an intrinsic sense of moral conviction and has the courage of that conviction. He leads, which in its most salient definition means going down a path that is the right one, but not necessarily the one of least resistance.

But the President betrays these attributes through his blind, extravagant sense of loyalty, possibly crippling those causes he otherwise so faithfully and courageously pursues.

Loyalty certainly is not a bad thing in itself, in politics and in general. After all, any man who can be said to be loyal has at least one virtue. But loyalty cannot be given without qualification. By supporting subordinates who are not performing, loyalty becomes tantamount to an acceptance and personal assumption of failure. Accountability then becomes non-existent and performance stagnates. Witness President Bush’s over-extended support of George Tenet, Mike Brown, and Donald Rumsfeld. Unyielding support led to massive intelligence failure, bureaucratic failure, and anti-insurgent failure.

An absence or inadequate presence of accountability is all the more crippling in the executive style and approach the President adopts.

There are two types of executives, those who micro-manage and those who delegate. Ideally, an executive adopts an approach somewhere in between the two, erring towards delegation. President Bush does follow this approach, as is prudent. The most important rule that governs an effective executive, after all, is to do only that which your subordinates cannot.

Yet by its definition, delegating is to entrust a substantial amount of responsibility to subordinates. Accordingly, the executive doing the delegating has to hold those subordinates accountable.

This is a logical inference of the rule. An executive who delegates all to his subordinates except for that which only he can do must assiduously maintain accountability among them, taking care that the work and responsibility they are entrusted with is in fact within their competence. If the executive is not going to do the work than his overriding responsibility becomes seeing to it that those he delegated to can do it and do do it. If they cannot, the executive must either then assume that responsibility himself or replace the subordinate with one who can. That is the only way the executive and his organization can be effective.

Extravagant, unbridled loyalty undermines any semblance of accountability and the most important mechanism through which performance is maintained. This is crippling in any administration, but especially one operated by a delegatory executive system. You cannot delegate and not then hold those delegated to accountable and still maintain adequate performance and success.

Such is the President’s failure as an executive. Present is an unbridled loyalty resulting in a diminished standard of accountability among those within the administration, whose individual components are charged with significant delegated work. There cannot be a dearth of accountability in an administration so run without dysfunction, and there isn’t.

The Immigration Deal

The President and the Senate have agreed to a new deal on immigration this afternoon. At this moment, I feel like I would have to oppose it.

I support any comprehensive reform legislation that does not grant amnesty, and have disagreed with many in my party who have argued that previous comprehensive proposals have. But prima facie, this piece of legislation does exactly that. It would grant "probationary" legal status to all illegal immigrants currently in the country immediately upon passage, apparently without any subsequent process through which they would have to go through to become permanently legal.

This is unacceptable. The legislation provides for no punishment whatsoever for immigrants who have come into this country in violation of United States law, a base reward for illegality and an insult to those immigrants who actually went through the extravagant process of becoming naturalized citizens.

Any comprehensive reform meriting passage into law would, at minimum, provide for some sort of penalty for immigrating here illegally—fines, payment of backtaxes, etc.—and a mandatory process through which illegals would have to get in line behind those already there waiting to become legal citizens.

The compromise legislation here provides for none of this. Instead, it grants what is tantamount to a blanket, no strings attached amnesty and reward to those who violated our nation’s laws and took advantage of the benefits of our system and society.

For this reason I would oppose the legislation, despite what appear to be many other positive aspects of it.

The GOP Presidential Primary Debate

I view with heightened skepticism the premise and logic of holding presidential primary debates at this stage of the campaign cycle. Iowans will not be making their way to the state’s caucuses for more than seven months. The campaign has hardly had time to ripen. The issues that will define it are still forming. Most importantly, those for whom a debate is supposed to benefit—the voters trying to make an educated decision—are not, but for the most addicted junkies, paying a bit of attention yet, nor will they be for some time.

Nevertheless, it is still possible to extract some value out of one, assuming it is executed properly.

This was not the case with the Republican debate of last week and probably (I did not watch it) the Democratic one of the week before. Those who planned and executed it did a miserable job and should themselves, I am tempted to say, be executed.

The format was terrible and utterly unhelpful to the singular voter who may have been watching at home. Thirty seconds, at most, was allowed to each candidate per question. That is not nearly enough time to give a meaningful answer. The question would be asked, the candidate would begin their response, and just as they began to delve into the real substance of it Chris Matthews would obnoxiously yell "Time!" All that voters were able to hear were short sound-bites, fragmented thoughts, and gratuitous invocations of President Reagan, whose library played the gracious host and whose spirit the party is in desperate search of.

Understandably, when there are ten candidates on the stage it is practically impossible to give sufficient time to them individually (again calling into question the expositive value and point of having a debate, if it can be called that, at this point). If each and every candidate is to be given equal time then it will be equal to the lowest common denominator, where equal time for all essentially means no time for all.

No shrewdly constructed format can alter this, but one can mitigate it. Question discipline is indispensable. With the quality of the debate being the central prerogative, an abundant quantity of candidates renders imprudent an abundant quantity or diversity of questioning. Discussion concerning those issues of secondary importance have to be discarded, or at least saved for another, more logistically conducive time. That is, questions like "What would you tell a Catholic bishop who refused to serve the Eucharist to pro-choice Catholics?" and "Would it be a good thing to have Bill Clinton in the White House again?" must go unasked and unanswered at the behest of a quality discussion regarding Iraq, Iran, taxes, entitlements, immigration, etc. The former line of questioning would not be relevant even in a format where time is not an issue, let alone in one where it clearly and severely was.

If MSNBC and Politico.com had wanted to extract any value from the debate they would have focused the questioning and the discussion, sacrificing breadth and diversity for quality and substance. Instead of being made to answer a wide-range of questions—some relevant, many not—for only thirty seconds each, the candidates should have been allowed to answer a limited number of questions for at least a minute or minute and a half. Hardly sufficient time, but at least adequate to develop a cogent thought or two.

The exact opposite occurred, and it was this frivolity that rendered the debate utterly useless and a stark waste of time for all involved.

Comment Response: "Gonzales v. Carhart"

You betray your shallowness all too clearly, William. Instead of providing a counter-argument of your own, i.e. demonstrating how the Court’s jurisprudence is reconcilable with the Constitution and how its ruling in Carhart II is not, you simply claim I am "parroting neo-con talking points." That is unavoidably an intellectually substanceless hit-and-run.

But you do not even do that right. In fact you have made it further evident that labeling someone "neo-con" is a description no longer with any meaning. Neo-conservatives are a faction subscribing to a particular approach towards foreign policy. What a school of thought of that nature has to do with a Constitutional discussion you fail to explain, or even try to explain.

As Jonah Goldberg* has pointed out, George Orwell once wrote that "the word fascism has now no meaning except in so far as it signals ‘something not desirable.’" As your comment demonstrates, the same can now be said of neo-conservatism. My piece on the Carhart decision was not vaguely related to neo-conservatism or areas where neo-conservatism would be relevant. It has become just a pejorative label to be slapped on anyone or anything distasteful to liberals.

Or maybe you simply mistakenly mixed up the stereotypical label those on the left like to apply to conservatives and their arguments. Did you mean to call me a parrot of the religious right instead?

*Goldberg, Jonah (2007, April 2). Kill This Word. National Review, LIX(5), 18-22.