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Wednesday, April 27, 2005

Context cuts both ways

T. More,

Of course you are right that we need to be concerned with the context in which our laws were created to be good positivists or even good natural lawyers. However, the moral context leaning against torture is not the only one supporting the Geneva Convention and domestic torture legislation. ALL our laws, national and international, are created with the specific understanding that they can be abridged if necessary to defend the very existence of the Nation.

The Constitution speaks of suspension of habeas corpus in times of rebellion only in the powers of the legislative branch, yet President Lincoln was deemed, under the extraordinarily dangerous circumstances of the Civil War, to have powers to suspend the rights of detainees in wartime. The Vienna Convention on treaty interpretation specifically allows violation of treaty norms if violation is required for self defense.

Put more broadly, one might say that the entire institution of war shows that the applicability of law must be understood in a context of protecting the nation first and foremost. In normal times, a people are not permitted to march with automatic weapons, and gun down people from another country. If arrested in that other country, they would be tried and jailed. However, in wartime, the peoples of the Earth accept that the protection of individual countries allows for temporary suspension in the set of laws which normally govern interpersonal conduct.

The nuclear hypothetical, while perhaps unlikely, poses an even more extreme example of danger to the Republic. The hypothetical could be simply phrased as a question as to the applicability of torture laws in the face of unprecedented domestic catastrophe to human lives, the economy, and the environment all in one.

With war, when the normal veil of law is pierced, the Geneva Convention has given us a level of lawfulness to fall back on. This is perfectly sensible, since in most situations, the presence of war does not really spell imminent risk of national doom. In the normal scenario, loss at war will produce a loss of independence perhaps, or serious economic catastrophe. But historically, loss at war has been unlikely to decimate the civilian population.

The nuclear hypothetical, though, poses another layer of catastrophe. And just as the laws of civilian conduct are breached by the realities of war, the laws of war should be breached by the realities of nuclear cataclysm. The same context which reveals a moral abhorrence to torture reveals a general legal norm that preservation of the state rises above any law.

T. More and J. Waldron are correct for pointing out that even this utilitarian game rises to extreme dimensions (with infants, rape, and murder all in play) very quickly. This gives rise to the point that Prof. Yoo made, which Waldron never fully responded to, which convinced T. More that Prof. Yoo should be writing wills in exurbia. What we do in extreme circumstances may be justified by the context of law, but we will still have to live with ourselves. In the case of the United States, that means the ultimate law a president faces is the political process for him and his party and his policies. So while the torture of a suspect's wife may be justified by extreme circumstances by LAW, it might not be justified to the polity.

Trickery? Evasion? Not at all. The point of the torture memo was to explain to the president of the United States what acts of interrogation would lead to criminal prosecution. The extreme measures of torture justified by utilitarianism probably, if the context justified them, not lead to criminal prosecution. But they would lead to popular rebuke and a powerful statement of our collective moral stances. Then again, if the danger was grave enough, the votes might come down the other way (as they did last November, after the opposition party tried to rally the public around their opposition to Prof. Woo's memo).

The last lesson of all this is that we too, in our time and our circumstances, are entitled to have a moral view of the world that differs from the views of the authors of the Geneva Convention 55 years ago. The act of ratification of the Geneva Convention cannot be said to forever bind the United States to one moral view. It is either moral in absolute terms (in which case, the act of ratification is irrelevant, it would have been morally binding for the millennia before the treaty), or it is bound up in the moral views of one place and time, subject to rethininking by future generations who encounter different experiences informing their own imperfect moral views of the world.

As a parting note, in writing this it strikes me as very curious that the same liberal left which refuses to acknowledge a static morality on any issue (marriage, abortion, drugs, sex, taxes, freedom of contract, etc.) has decided that the views of the Senate in the last century on the topic of torture are etched in stone, never to be subjected to re-examination in new lights and circumstances.

6 Comments:

Anonymous Anonymous said...

If ratification of the Geneva Convention did NOT bind the United States to the moral view stated in that document, what did it do? What purpose does ratification of a treaty ever have? Now, our government does have the power to leave the treaty, right, but so long as the U.S. remains I signator I believe it to remain bound by morals stated in that document.

10:34 AM  
Blogger Lord Coke said...

Ratification of the treaty bound the United States legally to the Geneva Convention, except that all international binds come with the understanding that they no longer bind if a country needs to defend itself, and certainly do not bind if the country's very existence is at risk. You cannot bind yourself to a moral view. A moral viewpoint either is correct in objective terms in which case ratification is meaningless, or is correct subjectively, in which case it must be subject to updates as new experiences and circumstances arise.

The point is, the act of self binding has nothing to do with an understanding of morality.

10:44 AM  
Anonymous JMcKay said...

As a parting note, in writing this it strikes me as very curious that the same liberal left which refuses to acknowledge a static morality on any issue (marriage, abortion, drugs, sex, taxes, freedom of contract, etc.) has decided that the views of the Senate in the last century on the topic of torture are etched in stone, never to be subjected to re-examination in new lights and circumstances.

I do not accept your assertions, on mulitiple grounds (f:ex, taxes has an inherent "static moral" quality? This is expressed how?)

Nevertheless, I too have a parting note. It strikes me as amoral that the same conservative right which flaunts commitment to morality at most every opportunity, not the least of which claims "personal responsability" as both a virtue/measuring stick (eg: "we have it") and a weapon (eg: "liberals don't"), simeoultaneously proffers multiple reasonings to...

* find a torture exception reasonable within GC and Anti Torture treaties, which clearly state it's illegal. All this in the midst of a whacko debate w/conservative evangelicals ranting about liberal defiance of "rule of law".
* publicly claim they do not allow or sanction torture, refusing to acknowledge they've actually done it despite massive evidence to the contrary, and all this in the midst of a "tortuous" explanation why it ok for them to do so.
* attempts, through implication, to associate terrorists with large numbers of Iraqi citizens imprisoned (without due cause and entirely without accounting or notification to family/authority etc.)who apparently fall under Yoo's blanket presidential perogative.
* There were no WMDs, there was no Al Quada association... both assertions made with certainty and central to this same president's invasion exercised by his perogative.

I recall the right wing crowd having waged jahad against "liberals" for some time now, condemning their wishy washy "situational ethics". Go figure... huh? AFAIC, up is now down: there remains few discernable guiding principles from the totality of current conservative government's actions. God help us if you find morality in this madness: there is none.

4:28 PM  
Blogger Anderson said...

Perhaps Lord Coke has something backward. If the President ordered a prisoner tortured to disclose details of a nuclear plot, his act would be a crime, but public opinion would almost certainly support him, overwhelmingly I suspect. If this latter part seems empirically shaky to you, then you haven't been in America since 9/11.

And considered by itself, that is perhaps as it should be. But there is no "by itself" on these matters of policy. Who knows whether any given terrorist *might* have facts that would save many lives, if only he were tortured into divulging them? Who knows whether a given suspect might be a terrorist with such facts in his head, facts which will only be useful if we torture him *now* and don't wait for his identity to be confirmed?

And lo! we've legitimized the routine use of torture. What next? An argument that, because inquisitions under torture aren't "punishment" per se, they're not prohibited under the 8th Amendment?

On Prof. Yoo's logic, and I'm sorry to say Publius's and Coke's as well, we could wake up monsters and *never even know it,* so smooth was the transition. People who are insensitive to such a concern are not people I want my government paying to interpret the laws for the President.

5:09 PM  
Anonymous Anonymous said...

"Ratification of the treaty bound the United States legally to the Geneva Convention, except that all international binds come with the understanding that they no longer bind if a country needs to defend itself"

Considering that Afghanistan didn't attack us (and certainly Iraq didn't attack us, but leave that for another day), that Al Queda never committed itself to the overt act of killing all Americans or conquesting them, if the Geneva Convention does not apply to Guantanamo under THIS theory, then the Geneva Convention does not exist.

Now, to me Waldron's point doesn't seem quite as non-evasive as others found it. So I'm not entirely sure I'm going to be agreeing or disagreeing with Waldron here, but here's my view:

Look, torture is bad, and it's going to be bad no matter what the stakes are. Now, of course, letting 10 million people die is also going to be bad no matter what. And yes, at some point, you may have to choose between bads. But the government, particularly in this case, are *very* bad at respecting the actual utilitarian balance and choosing correctly. The slope tends to be very slippery, and we go quickly from torture "when it will assuredly stop a nuclear attack that will assuredly happen otherwise" to torture "might assist in stopping a threat that may or may not exist but could be really tragic." What Waldron was certainly saying in the 2nd half of his comment is that once you say "torture is okay...sometimes", torture's going to be okay sometimes on a regular basis, even though its initial justification is an absurd hypothetical. To Waldron, and to me, the utilitarian argument is not there that we should allow a culture that is open to torture so that in the odds that the nuclear hypothetical comes to pass, we don't miss it and we effectively torture the information out.

But given that we're in *24* and the target's gonna hit in 10 minutes and we've got a knife in the guy's legs, my guess is most terrorists will scream out "City Hall" before they scream out "Secretary Heller".

10:41 PM  
Blogger Anne said...

As a parting note, in writing this it strikes me as very curious that the same liberal left which refuses to acknowledge a static morality on any issue (marriage, abortion, drugs, sex, taxes, freedom of contract, etc.) has decided that the views of the Senate in the last century on the topic of torture are etched in stone, never to be subjected to re-examination in new lights and circumstances.

One must want to understand the difference between ackowledging a morality behind a statute or a convention and not having the same moral conviction.

Yoo argued that it is not up to the laywer to look at the moral reasoning behind a statute of a convention. Liberals who insist that gays should be able to get married do agree that there is a moral dimension but tend to think that that it is wrong to deny gays the right to marry. Where do you see a lack of moral views sir Cooke?

8:00 AM  

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