Philosophical Ethics: Can We Uphold A Moral Law And A Principle That We Should Break It?

In a series of posts this semester, I am going to blog all (or almost all) the lecture topics for the two Philosophical Ethics classes I am teaching this semester. Each of these posts will primarily explicate the reading or a theme that dominated class discussion in a way that should be accessible to novices (such as my students are). I will also offer some degree of analysis of the ideas considered and then pose suggested discussion questions. These posts will usually feature more speculation than argumentation from me as I try to stimulate your thinking rather than stake out my own positions. Some of my students will be responding to these short discussion primers in a private forum through the university. I’ve told the students they are free to discuss the blog post versions of these discussion primers as well, so they might show up here. The text we are using and from which all citations will be taken is Ethical Theory: classical and contemporary readings, edited by Louis Pojman. Wadsworth: California, 2007). This post explores the challenges of having an absolutist position on the subject of torture.

Torture opponents quite understandably are inclined to talk in unequivocal terms of the necessity that torture never be employed under any circumstances whatsoever. Yet many of these morally absolutist opponents of torture nonetheless grant that in the most extreme and dire circumstances imaginable, torture would be an acceptable last resort if it could demonstrably be expected to save a significant number of lives and it was our only hope to do so. This is understandable. It makes sense that one can oppose torture (1) as generally ineffective or even counter-productive for gaining good intelligence, (2) as an intrinsically evil violation of human rights, (3) as something that if routinized makes a country automatically a human rights abuser, (4) as something so evil that it is not worth resorting to for the sake of saving a few lives any more than the merely hypothetical chance that illegal searches and seizures could save some lives and catch some criminals justifies the police state tactics by law enforcement, (5) as something which increases the risk of retaliatory torture at the hands of one’s own enemies and therefore even has a prisoner’s dilemma reasoning against it, and, finally (6) as something which if normalized as even hypothetically permissible can quickly be expected to become a slippery slip leading to its morally repugnant abuse for political purposes and/or dangerous state power.

For all of these reasons, anti-torture absolutists do not want to even entertain either the possible morality or the possible legality (or both) of torture even in the most extreme circumstances in which torture just might work and just might be our only last resort to save not just a few people but, say, a city or, say, a whole country even if nuclear weapons were going to be deployed which could wreak devestation in the thousands, hundreds of thousands, millions, hundreds of millions, or, even billions.  In these absolute nightmare “ticking time bomb” scenarios, even the otherwise staunchest opponents of torture will admit the torture would have to be done.  Which is understandable.  What is more problematic is the insistence some of them make that torture is in these circumstances still morally and/or legally impermissible.  I’m next going to extensively quote   some examples of this sort of line of reasoning, you may feel free to skim a bit if you just want to get to my own treatment of the topic.  I just want to include their remarks at length to give their viewpoint a full presentation before countering it and as part of the document which does counter it:

Matt Damon appeals to a former-CIA agent to make the case:

Matt Damon isn’t against torture. He’s just against “codifying” it, which I think means making it legal.

”Look, the best line about torture I’ve heard came from [retired CIA officer turned war-on-terrorism critic] Milt Beardon,” Damon says in the Miami Herald.

“He said, ‘If a guy knows where a dirty bomb is hidden that’s going to go off in a Marriott, put me in a room with him and I’ll find out. But don’t codify that. Just let me break the law.’ ”

He goes on…

“Which I think is right. You can’t legalize torture. But anybody would do it in that situation. You’d do it to me in that situation; you’d pull out my fingernails if you thought I knew something like that.”

Slavoj Zizek writes the following of torture:

The realistic counterargument goes: The war on terrorism is dirty, one is put in situations where the lives of thousands may depend on information we can get from our prisoners, and one must take extreme steps. As Alan Dershowitz of Harvard Law School puts it: “I’m not in favor of torture, but if you’re going to have it, it should damn well have court approval.” Well, if this is “honesty,” I think I’ll stick with hypocrisy.

Yes, most of us can imagine a singular situation in which we might resort to torture — to save a loved one from immediate, unspeakable harm perhaps. I can. In such a case, however, it is crucial that I do not elevate this desperate choice into a universal principle. In the unavoidable brutal urgency of the moment, I should simply do it. But it cannot become an acceptable standard; I must retain the proper sense of the horror of what I did. And when torture becomes just another in the list of counterterrorism techniques, all sense of horror is lost.

In a way, those who refuse to advocate torture outright but still accept it as a legitimate topic of debate are more dangerous than those who explicitly endorse it. Morality is never just a matter of individual conscience. It thrives only if it is sustained by what Hegel called “objective spirit,” the set of unwritten rules that form the background of every individual’s activity, telling us what is acceptable and what is unacceptable.

For example, a clear sign of progress in Western society is that one does not need to argue against rape: it is “dogmatically” clear to everyone that rape is wrong. If someone were to advocate the legitimacy of rape, he would appear so ridiculous as to disqualify himself from any further consideration. And the same should hold for torture.

Are we aware what lies at the end of the road opened up by the normalization of torture? A significant detail of Mr. Mohammed’s confession gives a hint. It was reported that the interrogators submitted to waterboarding and were able to endure it for less than 15 seconds on average before being ready to confess anything and everything. Mr. Mohammed, however, gained their grudging admiration by enduring it for two and a half minutes.

Are we aware that the last time such things were part of public discourse was back in the late Middle Ages, when torture was still a public spectacle, an honorable way to test a captured enemy who might gain the admiration of the crowd if he bore the pain with dignity? Do we really want to return to this kind of primitive warrior ethics?

This is why, in the end, the greatest victims of torture-as-usual are the rest of us, the informed public. A precious part of our collective identity has been irretrievably lost. We are in the middle of a process of moral corruption: those in power are literally trying to break a part of our ethical backbone, to dampen and undo what is arguably our civilization’s greatest achievement, the growth of our spontaneous moral sensitivity.

Andrew Sullivan (with my emphasis):

Look: in the one in ten million, never-happened-in-human-history, infinitesimal chance that we really do have a ticking nuclear bomb and we also know – not just suspect – but know that a detainee knows where it is, no president would not endorse torture as an extraordinary extra-legal emergency measure. Under those circumstances, he and those deputed to do it would also, however, subsequently subject themselves to the criminal process as war-criminals, and if it were retroactively seen as the correct judgment, their sentence might be commuted. Or not. I’ve endorsed this position as well. But what Reynolds and Maguire and others support is the permanent routine use of torture, legally protected, and a cadre of professional CIA torturers trained to do it on a regular basis.

They support any techniques that the president chooses, (that was in the law passed last year). That was the position of all the other candidates bar Paul and McCain. It is light years away from McCain’s position, from George Washington’s position and from the position of every other president in American history. What Bush supports is the legal use of torture whenever “military necessity” requires it, a fantastically broad term which has transformed the morals and moral climate in the US military so that up to a third of soldiers approve its use just in routine interrogation of mere terror suspects in the field. Thousands of guilty – but mainly innocent – people have been tortured by the U.S. these past few years, and scores have been tortured to death. (Yes, 80 percent of those abused and tortured in Abu Ghraib under Rumsfeld’s directives were innocent. According to the Pentagon.) Sorry, Tom. I’m glad you’re discovering a conscience. But this flim-flam won’t do. The extreme, one in ten million exception, that remains extra-legal, is light years from the routine, legal torture of mere terror suspects that you support and that this president has enforced, and that has helped us lose this war you claim to want to win.

Chris Bodenner:

I think the TTB scenario can be ethicallyjustified, not legally justified. Torture should always be illegal, without exception. But in the infinitesimally small chance that someone is put in the situation where he or she is utterly convinced a captured terrorist holds the key to preventing the deaths of countless people, torturing one person would be the lesser of two evils.

Nevertheless, the onus should always be on a person who decides whether or not to cross the bright legal line of torture. He or she should be ready to accept full responsibility for the outcome, whether it be imprisonment or even death. But that risk is not new or unique; military servicemembers for ages have suffered far worse fates on the battlefield. Both scenarios – a TTB, a war – are just different ways to sacrifice for one’s country.

So let’s say an American did decide to torture a terrorist in defiance of the law, and that torture ended up preventing mass murder. No jury would ever punish that person. And even if an absolutist judge did convict, any US president would readily use an executive pardon, fearing no risk of public backlash. On the other hand, if the TTB threat turned out to be false, the torturer, even if acting in good faith, should still face the full brunt of the law. Again, the onus is always on the individual; he or she has to be utterly convinced the threat is real and be willing to face the punishment if mistaken.

So essentially my difference with Krauthammer is that he uses the ethical case for the TTB scenario to justify its legalization; he makes the rare exception the rule. (And with legalization comes bureaucratization, the evils and dangers of which Andrew has exhaustively chronicled on this blog, persuading me at every turn.) But as centuries of civil disobedience have shown us, what is legal is not always ethical, and what is ethical is not always legal. One can be ethically for torture - in the rarest and gravest of circumstances - but still oppose it legally. In fact, I think an ethical case for the TTB scenario actually strengthens the case against Krauthammer and Cheney, because even though torture is illegal, there will always be an American willing to risk death or imprisonment to prevent a major terrorist strike.

The problem that I have with this distinction between the moral and the legal is that the legal cannot be just if it requires punishment of actions which are not only morally permissible but morally necessary. And each Sullivan, Zizek, Boedner, and Damon’s ex-CIA agent clearly concede that in the hypothetical case in which torture could be known to be the one necessary action to undertake in order to save a great many people (however million miles removed from the actual, far less desperately justified torture practices employed by the US this decade this hypothetical is and however little it justifies actions undertaken by the Bush administration) it would be the right thing to do to in this “infinitesimally improbable” scenario to torture.

When each of these torture opponents concedes that this is the ideal course of action for the agent in this exact situation, then they are saying it is moral insofar as it is indeed universalizable for any people who wind up in that exceedingly rare/possibly-never-before-happened-in-human-history scenario.  They are evaluating this course of action in general terms, weighing all the relevant factors and saying that given this full set of circumstances, it would be the thing to do.  Each of them reasons like a rule-utilitarian who thinks that we should have moral rules for the role that they play in society, not for their own sake.  They each recognize that morality can bend even as essential a rule as the one against torture and yet each insists that the rule should be upheld as though it was absolute because of the horrendous consequences of the slippery slope which they fear.

But it’s not clear to me that we should agree with Zizek that hypocrisy is preferable to honesty since I am not convinced that facing the truth that the most extreme circumstances and only the most extreme circumstances would justify the most extreme recourses.  I do not see how that would make us feel less repugnance towards torture.  If we begin to see it as a morally indifferent tool worth routinizing as the Bush administration did, then indeed we have lost sight of every principle of human rights, civil liberty, and dignity that our Bill of Rights and the Geneva Conventions were written to enshrine in our laws and hearts.   But it seems facile to me to say that the only way to prevent this abuse of awareness of exceptions is to employ noble lies about absolute moral imperatives so that people will not slip into barbarism at the first countenance of a truth about the moral ambiguity that desperate circumstances create.

Similarly, it seems to me a disingenuous way to pretend that we can keep our laws perfect to say that we can morally demand someone to violate them and then go ahead and punish them for the sake of our laws.  If our laws are punishing the just, they are not perfect.  On the other hand if our laws are meant to be broken in a circumstance which is specifiable in advance with the understanding that the lawbreakers to be pardoned as a matter of moral necessity, then the pretense to having a law which forbids the action outright is mere pretense.

In short, if we accept that under the ticking time bomb scenario those charged with the security of innocents really should resort to otherwise unconscionable tactics which are provably necessary then we are saying that what they would do in that scenario would be morally necessary.  And whatever is morally necessary must be legal if the law is to be fair in the way that an absolutist presumably wants.  Again, even if it is only under the ticking time bomb scenario and even if the possibility of such a scenario happening and justifying an instance of torture is only 1 in a million, we have to concede the action’s hypothetical morality for that scenario.

But will this coarsen us to torture?  Will it make us see it as morally indifferent and convince us to accept it when our government officials routinize it?  I suggest the opposite is true.  If those who accept that torture would be necessary in the absolutely dire circumstance admit so freely, they take away the absolutist choice that lands the many who think torture is permissible in the most extreme cases in the routinized torture case.  The point is this:  if the average mind is given an either/or choice of routinized torture or no torture even if it means a nuke gets detonated in a city, then the average mind will side with the routinized torturing.  Because the evils of routinized torture will not outweigh in their minds the loss of a city of their country to a nuclear weapon.  If the opponents of torture shed their insistence on pretending that morality and legality can be so absolute and black and white as to allow no flexibility whatsoever, maybe they can promote a reasonable alternative ethical outlook that acknowledges the intuitively clear need to torture if it will save millions (even if not to save just a handful of people) while respecting that it cannot be a routinized practice or something to be trivialized and, say, compared to simple hazing as Rush Limbaugh has inhumanly done.  This sounds like the more mature way to handle a deadly serious moral quandary.  Not respecting people’s just fears and moral concern to save thousands or millions of lives even at the cost of some dirty hands is not the way to civilize them, but the way to deliver them to the barbarians with a bow.

I may have too much confidence in the value of truth, but I feel convinced that even when it’s harder, the truthful approach is always in the long run wiser than a compromised approach—especially where morality is at stake since morality requires complete credibility to elicit people’s obedience.  Lying for morality is a recipe for a backfire.

Finally, facing up to the realities of these hypothetical situations, as long as you stress the high standards which must be met in order to justifiably torture, would not at all necessarily mean that we would lose our sense that we are still doing something disturbing.  It is possible that we call something the moral, universalizable action in a situation and simultaneously say that it is something that should cause a just person anguished feelings.  Whenever one must sacrifice intrinsic goods for the sake of an overriding moral imperative, the rightness of one’s action should not obliterate all proper sorrow at the sacrifice of an intrinsic good.

That’s a sketch of my thoughts.  There are still some problems I can see remain.  Your Thoughts?

About Daniel Fincke

Dr. Daniel Fincke  has his PhD in philosophy from Fordham University and spent 11 years teaching in college classrooms. He wrote his dissertation on Ethics and the philosophy of Friedrich Nietzsche. On Camels With Hammers, the careful philosophy blog he writes for a popular audience, Dan argues for atheism and develops a humanistic ethical theory he calls “Empowerment Ethics”. Dan also teaches affordable, non-matriculated, video-conferencing philosophy classes on ethics, Nietzsche, historical philosophy, and philosophy for atheists that anyone around the world can sign up for. (You can learn more about Dan’s online classes here.) Dan is an APPA  (American Philosophical Practitioners Association) certified philosophical counselor who offers philosophical advice services to help people work through the philosophical aspects of their practical problems or to work out their views on philosophical issues. (You can read examples of Dan’s advice here.) Through his blogging, his online teaching, and his philosophical advice services each, Dan specializes in helping people who have recently left a religious tradition work out their constructive answers to questions of ethics, metaphysics, the meaning of life, etc. as part of their process of radical worldview change.

  • George

    Dan,
    Where do you start on a subject like this? I usually find myself in general agreement with you on every topic we broach, this is going to be the exception. I agree more with Mr. Bodenner in this instance.

    If we codify torture then we must also codify what circumstances should justify torture as a reasonable an legal avenue to gain information. Should it only be used when…
    A million lives are at stake?
    One hundred thousand?
    One thousand?
    One hundred?
    One?
    Potentially five?
    Potentially one?
    I mean, the guy we are torturing, having this horrible information can’t possibly have the same human rights as one potential casualty on a battlefield, right? If your answer is that this gentleman is a criminal, then why not just torture him to get ANY information whatsoever?
    Codifying torture opens up a whole new spectrum of gray areas that we now need to explore.

    I also take issue with your claim that torture is ever just. There is no justice in torture. EVER. The ends achieved may be just and may be morally imperative but the means should never be considered just nor morally necessary. If torture were morally necessary because it had the potential to save lives then living in a police state should also be morally necessary for all the crime it prevents and potential lives it saves. If you are ready to hold people morally accountable for NOT torturing people then any action no matter how reprehensible or contrary to our best judgement NOT done by people to prevent potential evil is judged as morally or even legally wrong. Sometimes ends justify means. SOMETIMES. But we also need to separate the two in order to create a world in which people must prove that a negative action is morally justified by a strong positive result.

    People who decide to break the law because they believe it is the best or only means to do something which is the morally correct course of action MUST be held responsible for that choice. Our justice system allows for trial by a jury of your peers partly for that reason. If laws were meant to be black and white than a trial by judge would suffice, no? Agreed that an unjust law is no law at all, but a law that is only just in a TTB scenario need not be codified. I would gladly put myself in front of a jury if I made a decision like this one, just as I am prepared to accept responsibility any time I make a morally ambiguous decision.

    It is funny how you mention the example of rape in your post. Rape is considered a very useful means of torture and forced sodomy of Muslim detainees has been used by military personnel as a means of torturing prisoners. Perhaps you would like to advocate for the codifying of exceptions to rape laws when THAT act achieves some positive result?

  • GreyMatters

    Thread from facebook:
    I like the way you debunk the claim that legalizing torture would desensitize us to what torture is, nicely done Professor. We can all recognize what pain is involved in torture, just as we can recognize the pain caused by terrorism, and terrorists, who often confess plots and cohorts because of torture.

    Bush was not the first or only president to reside over the practice of torture, nor is he accredited for legalizing it. From that frame I could say Obama supports water-boarding. In any case please read on.

    I am fine with torturing terrorists, not suspected terrorists, but terrorists who are caught plotting or committing crimes against American lives, even for so much as the 1 pecent chance of saving one life. In a non-hypothetical world, such as the one we live in, known terrorists take every opportunity to plot to kill Americans. There is perfect evidence of this, such as the case where a terrorist stabbed a guard in the eye the second he got a chance, killing the inncent, American, family-man. Those who preach love should not distort the fact that terrorists do not abide by the same principles of love and equality as Americans. Their idea of peace and love is for all Americans to die, this is a fair and accurate generalization of terrorist groups like Al-Queda. We have a fundamental right that precedes the morality of torture, this is the right to live. If we talk about torturing terrorists, we should talk about it as it exists in the real world, and under the framework of what is “moral” to do to ones enemy in order to survive. This is the real issue…what steps shouldn’t we take when the enemy is known and presents a threat? And I am speaking of terrorists, who unlike serial killers who express hate by hurting random others, find love in ending lives, specifically American ones.

    I realize this may spark some debate, so to clear up one point I cannot ignore and must adress:
    I do not believe we need to entertain the idea that codifying torture will lead to legalization of all kinds of questionable punishment for criminals…At some point police question the accused, but they don’t question everyone. At some point there is a trial, but not for all accused. At some point a convicted person is sent to jail, and at that time we must reach guilt beyond all reasonable doubt. I cannot deny there are innocent people behind bars, but I do think we need to trust justice systems, specifically systems involved with terrorism, for deeming a person 100% guilty and possibly in possession of valuable information. The obvious opposition presents…it is better to let 1,000 guilty go free than to imprison, or torture in this case, one innocent person.
    I still think in the real world we fall into this belief too quickly, attracted to the glow of possible peace.
    Why is it more important to protect possible criminals than to possibly save innocent lives?
    It is too radical to lose all faith in the justice system, since we deal with too many threats that are often too severe to sit back and watch. That pulsating feeling in our core when we desire to save lives and torture those who can give us information is not injustice, but natural human morality itself.
    Yes torture is terribly painful, and yes we are prone to misuse. But at what point can I ask…when does un-codifying the use of interrogation methods like torture lead to the systematic withdrawal of a desire to save lives, for fear of harming the innocent?
    When do we tether ourselves too tight, and risk being watchers of evil far more than preventers?

  • Daniel Fincke

    George, Grey, I look forward to addressing your positions in a future post. Please forgive the delay in writing that post as I attend to academic concerns and blog only briefly today and tomorrow.

  • George

    Grey,
    I am both of the position that codifying torture is wrong AND that we have faith in the justice system. I don’t think that those ideas are mutually exclusive.
    We have exceptions to murder laws, property rights, assault laws, etc. that allow what is otherwise a good law to be legally broken in extraordinary circumstances. Some of these exceptions MAY be codified, but most exist because of a precedent set during a trial. This is the cornerstone of our justice system and one that I have a great deal of faith in.
    We would not codify the right to murder and then allow precedents to dictate when it is wrong because that would allow many murderers to go unpunished in the process of making precedents. That is exactly what you are asking the system to do. You seem to want to make ALL torture OK unless there is extraordinary circumstances to warrant NON-torture. This is the same reason police powers are in many cases ambiguous so that there is a loophole to exercise extraordinary force/actions in cases where it is necessary. We certainly would not codify the right for police to use physical force EVERY time they felt it necessary and leave the burden of proof that it was not necessary on the victim. This I believe is the exact opposite of the spirit of our justice system, that we codify stomach-churning behavior and then let the courts decide when it crosses the line.

    I will avoid addressing the rest of your remarks, they smack of an emotionalizing, us vs THEM, cowboy justice mentality that I think is neither useful nor accurate. These platitudes only serve to “fire up the troops”, not inspire constructive debate.

  • Grey

    Hello George,

    I see you have a strong emotional attachment to your beliefs. I think it’s important to note the mutually exclusive nature of beliefs and facts. My post was not meant as an attack on your ideas, but I am glad we are now able to engage in a discussion. In any case I would not confuse what you and I believe with what is right and wrong.

    I re-read your first post, where you seemed to be of the position that if someone were to torture a criminal for infortmation, he/she should then be willing to face a jury to defend himself/herself. I disagreed with this because I don’t think someone should have to fear prosecution when they are acting in the interests of their country and fellow citizens, even if they had a good chance of being acquitted. This whole system would be hypocritical and damaging to national values of justice.

    In your next post the “corner-stone” of your argument shifts from the court system to laws of exception.

    I agree with your second post as might be obvious, and we should create as many laws of exception as possible for protecting those who torture criminals for information, under certain circumstances…

    You are incorrect that I would codify torture in all circumstances except for “extroardinary ones that warrant non-torture”. This is an extremely scewed version of what I wrote, and does not make much sense. I outlined clear precedents for when torture would be acceptable; when information is probable, and the burden on possible victims outweighs the chance for that criminals innocence. I think you may have confused my views on criminal torture with those I outlined for terrorists. I don’t know if I am a cowboy, but I am dissapointed you did not wish to address my beliefs on that kind of torture, as I wonder what rationalization there is for protecting terrorists.

    I do, however, believe there should be precedents for when torture can be used. I do not think it is good enough to ask afterwards whether the ends justified the means. Is this what you meant I am asking the justice system to do?

    You believe that torture is always “stomach-chruning behavior”, and I think there are cases where our stomach churns at the possibility of torturing a known criminal for information that could save lives. This is one point you failed to adress. If I am not mistaken, you outline in your second post that there should not be precedents for torture, because a court decision afterwards would not justify “stomach-churning” actions. But then what can we do that we won’t have to fear the courts’ “heavy hand” of justice to strike upon. It is easy to say torture is just plain wrong, but when you are confronted with a serial killer who may know where a girl is buried alive…

  • George

    Grey,
    Thank you for your timely response. I would like to firstly clarify my stance on torture as you seem to believe that I am against torture in ANY circumstance. As I have mentioned before, I feel that there do exist situations where torture has warrant. I do not believe in the codification of torture because I believe laws have a normalising effect on societies. In fact, laws are nothing but the codifying of normative behaviour in society. As such, I don’t feel that torture has a place enshrined in law. My preference, as mentioned before is that torture is seen as an aberration rather than a rule.
    I disagree with your point that having to defend your decision to torture would be hypocritical or damaging to national values. To the contrary; America is a country that values human rights and due process. I fail to see how it is hypocritical to expect people who contravene these values to defend their decision to do so. We have precedent for this within the justice system today, as I touched on in my earlier post. There are exceptions to murder laws, self defence being the most obvious example. There are exceptions to trespass laws, search warrants being an example of this. We extend unto police the authority to use reasonable force given extraordinary circumstances and these authorities are expressly vague so that they must be able to defend their decisions, as they often do.
    Why should torture be any different?
    I believe the answer to that question is that it should not. Your answer, I imagine, is much different and I think tainted by the very emotionalism you accuse me of in your previous post. In your first post you use the word American & America superfluously. 6 times in one paragraph to be exact. How many times in that SAME paragraph did you use the word terrorist? 9.
    This is why I was accusing you of emotionalising the subject. You are right to point out that I was returning the rhetorical favor in my post, but I don’t think that me accusing you of justifying “non-torture” adds any more to the debate than your Republican talking points argument in the second paragraph of the first post.
    If you are asking for my rationalisation for protecting terrorists, I would argue that human rights are non-negotiable. Granted situations exist where those rights must be subverted in the interest of natural justice, but I fear that the subjective label of terrorist is thrown around just a little too easily in the post-9/11 world.
    I will gladly take you to task on your point about serial killers as well. They do in fact “find love” in killing others AND in the case of American serial killers, by near necessity, specifically target American lives. You then use that very serial killer as your example of a good reason to torture in your next post. Serial killers, I would argue, ARE by the strictest definition TERRORISTS. I think perhaps for you the difference lies in that they are AMERICAN terrorists. Us vs. US doesn’t quite stir the same emotions?
    Finally, I don’t feel there is any difference between my opinions that the justice system and precedent law are the heart of jurisprudence. Precedent law and the jury system are both parts of the very same legal system, both designed to protect and normalise the very rights we so deeply disagree upon.
    Let the greatest legal system in the world do what it was designed to do…
    distribute justice, not injustice.

  • Grey

    George,

    No no no no no. Obviously both serial killers and terrorists take American life. The distinction between serial killers and terrorists is that serial killers inherit the possibility of being innocent, imprisoned on false evidence. Whereas the entire definition of a terrorist with known connections to Al-Queda, and yes post 9-11, is that their primary goal is to destroy American lives beyond what they have or have not already. The difference is motive. A serial killer might kill out of anger or spite, but there are known terrorist groups who kill out of love for their religion. It is their Us vs. Them mentality that should spark different standards of defense in ours, and has nothing to do with mine. I also don’t think using the word “terrorist” or even more plainly “America” or “American”, implies anything about my argument, as it was completely relevant if not the theme of that paragraph and possibly some of yours now as well. I don’t think the word terrorist is used loosely because of, or not because of 9-11. Someone who has killed American citizens, or plans to, because they belong to a group that believes this is their duty to enter heaven, may very well be a human, but should enter into a different standard of justice restriction. Many like myself believe this, and many do not, which can be seen in the debate over closing guantanamo.

    I am glad we agree on some points about the USE of torture. If you get the chance can you clear one thing up for me?
    Do you think there should be exceptional laws for torture, where a “torture-warrant” can be granted under the law in a necessary circumstance? Or was your point that torture should be illegal, and anyone using torture should be criminally prosecuted and seek redemption in a trial?
    I agree with the first point, which seems to be your stance. The second is what I find hypocritical. Obviously an accused person is innocent until proven guilty, but I would see hypocracy in spending American tax dollars to prosecute someone who tortured a criminal or terrorist to save lives.

  • George

    Grey,
    Every human being on the planet SHOULD inherit the possibility of being innocent. Granted in the justice systems of many of the countries that “harbor terrorists” this is certainly not the case. This is an important distinction in the justice system of not only America but of justice systems in the western democracies these terrorists so desperatly wish to deconstruct. I don’t want to live in a society that sacrifices the presumption of innocence on the alter of xenophobic protectionism.
    A man standing over a dead body with a smoking gun is afforded the right to a presumtion of innocence and I do not believe that “enemy combatants” should be afforded any less. We don’t get to to, by fiat, suspend the rights of people strictly on a label such as terrorist. The fact that you yourself make the point that a labeled terrorist loses basic rights is illustrative of the problems with anti-terror legislation. Criminals are criminals, and as such are entitled to the same rights or suspention of rights of any one else under law. Your “perfect evidence” in the first post is another example of this. If a drug dealer in prison also stabbed a guard in the eye, killing an innocent American family man, then he is also guilty of plotting to kill an American at the first opportunity. See?…not a “terrorist” in the strict sense; still a criminal. Americans do not get a monopoly on human rights when they kill Americans. Christians, atheists and Jews don’t get special rights when they choose to kill Americans. We don’t get to punish the reason for killing, just the degree of malice.

    As said before I don’t outright condemn torture in all situations. My problem rests in who gets to decide someone should be tortured and how that decision is made. I believe that the court system acts as a safety net when that power is abused. I believe that the priceless nature of human rights outweighs the expenditure of tax dollars in the rare cases where trials are necessary.
    As I said before, there need not be laws made to outline exceptions to a rule. The rule is not to torture; the exceptions should be judged on merit. To claim that a warrant might be issued to torture someone seems to require a legal codification, a subject that I have always argued against. If we wish to codify a law that expands law enforcement powers to intervene with reasonable and justifiable measures when natural justice would be contravened to do otherwise, then I suppose in theory I could support that, but laws with too many modifiers seem to me to be of little substance.
    Many of the prisoners at Guantanamo Bay were held there without trial, without charge, and on questionable evidence or intelligence.
    I do not think that that is a great starting point with which to frame a debate on torture.
    I think that perhaps you and I have the same hopes for how our system should deal with torture, just differ on who should bear the burden of proof. I honestly question many of tortures proponents true motives. The language they use is dehumanizing, the tone is angry, and the rhetoric is vitriolic. So starting from that frame of reference…LET THE TORTURE BEGIN!?

  • Grey

    George,

    I would not wish to see a servant of justice waiting behind a bench over whether he will spend time in prison or not, after torturing for information. I think that would be an unfair punishment on the innocent.
    I would argue that we place too much value on the innocence of criminals.
    I understand the complaint that no one should decide when torture is permissible, since torture is not as unforgivable as incorrectly imprisoning someone, and we are prone to error.
    I still think imprisoning someone in solitude is a form of mental and physical torture that we DO use. So it makes me wonder why we can’t use similiar measures to gather information that could save lives, not just punish. The focus of torture should be to gain information, not to punish, and there should be codified allowances and limitations on its use. Im surprised more libertarians don’t support allowing torture, as they are typically against dis-allowing or making certain practices illegal i.e. abortion. But don’t hang me up on that issue because i’m conservative; I do think abortion should be legal.

    In any case I strongly support the last line of your thread :)

  • George

    Grey,
    I do not beleive that every person who commits torture would be left at the mercy of the justice system. Precident law and good prosecutorial judgement would likly prevail. Although I strongly disagree with your statement that we place too much value on the presumption of innocence, I do think that you and I share common concearns and a desire for similar ends. The only area of disagreement is around the means to that end. I don’t believe most Conservatives OR Liberals have malevolent motives in their differences in policy. They both want a better America, they just frame that want with a slightly different value set.
    If the end goal is the same, then surely there must be room for constructive debate on those issues that divide us. I wish all conservatives and liberals could have an honest debate on the issues as we have, and I’m sure that given time some reasonable consensus can be found.
    As I have said, my concearns with codified torture have nothing to do with a militant view that ALL torture is wrong. No more than your view is that we should use torture with reckless abandon. My concearn rests in what legal torture says about our society, and whether a torture law might be misused by those afforded that power.


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