T. More, fair points. In response:
I still don't understand what positive law Waldron thinks the severe punishment violates. How any GC provision applies to a non-signatory is a mystery. And when domestic law adopts the "torture" provisions but not the "severe punishment" provisions, I don't see how that is prohibited either.
And in any event, I agree with Yoo that some things in this area are constitutionally-commited to the president. Call them "war powers" or "political questions,"but these are areas where the President has vast powers. That means (s)he is both entitled to deference in either reasonable interpretations of treaties, or treaties that don't conflict with earlier executive interpretations. I'm not sure exactly where I stand on it, but these, you will remember, are Marbury issues--these decisions are constitutionally-committed to the President and are not subject to independent review.
If that's the case, then whatever law there is--be it treaties or domestic statutes--can, in fact, be undone by the President because the Constitution says so. To be sure, with this position it becomes hard to draw lines of what is and isn't constitutionally-committed to the Executive, but I feel safe in the ticking time bomb hypothetical that it is.
So, 1) I don't think severe punishment against al Qaeda members violates any positive law and 2) there are areas and situations where the law is whatever the President says it is. Protecting the country from terrorists is one of those areas where, I think, situations can arise where this deference is due.
Note how Waldron never answered Yoo's question to define torture in any meaningful way. I really wanted to know whether Waldron's sacrificing 8 million people to avoid torturing one person would extend to things like sleep deprivation or physical exertion--things that he never showed violated any positive law. Waldron wants to draw a line and absolutely preclude torture in absolutely every circumstance. To me, it seemed that he would draw that line at speech--you can yell, lie, deceive--but no physical abuse. But anyone with any consequential/utilitarian sense would laugh at the idea of not being able to slap a terrorist for information about an attack.
2. On Structure:
I'm not sure where this structural argument is coming from. I fail to see the distinction between an argument here based on a "structure" of morality and one based only on morality. I may not be getting at what you mean here, so do feel free to respond and clarify your position.
I'm guessing this is based on Waldron's position on the "compromise" view of natural law--that rather than natural law being actual "law," it explains the need for human law, and its underlying values. I agree. So we respect life, abhor torture, and from that springs all this positive law, and one should respect these values from which the law comes. Sort of a legislative intent/purposivism argument.
That's fine, and I agree. But these are people that have placed themselvs outside the rule of law, and are shaking the very foundations of the system. These are people, (as some people argue murders are, and should get the death penalty) that do not respond to "law" and either must be dealt with in a way that helps preserve law for us, or we must "take the hit" so that we extend our law to even them. That's exactly what terrorists do--they try and destroy the foundations of law. And I do not think that the "law" that you and your friend Jeremy are saying we should stick to will keep them from accomplishing this. Those that place themselves outside the legal system lose "rights."
This is true, you say. Anyone who disobeys the law loses rights: you get locked up, you get money taken from you, etc. But some things should never be taken away.
My response is that the rights that are taken depend on the danger of the person's actions to the legal system. I, who in regular circumstances strongly oppose the death penalty, think you can kill terrorists. Send missles into the caves in Afghanistan. These people pose too great a threat to our system of law.
3: On Kantians in Government:
The only thing that imposes absolute restraints on government is the Constitution. Statutes can be repealed, treaties can be terminated--this is all permitted, and required under the Constitution. The Constitution can even be amended. The law has to change to adopt to new circumstances, and there is no reason why the government should abide by outdated legislation. Our present government cannot "bind" any future government.
Your argument is that we should pass laws when we're sensible, and not break them based on emotion or temptation. But you and Waldron are operating in a "September 10th world" (it's cliche, I know). Passing statutes of what to do to terrorists on September 10th is not a well-reasoned decision of how to deal with terrorists on September 12th. The "ticking time bomb" hypothetical was completely far-fetched before we discovered a terrorist network whose purpose is to undermine our entire structure of civilization.
So don't tell me that we are "bound" by these outdated structures and relationships. Again, I still don't see where the positive law forbids severe punishment, but even if it did, we need to reevaluate it. No argument is being made by you or Waldron that such a ticking time bomb authorization to use torture would not pass Congress. I have no question that it would. So whatever the desireability of a government full of Waldrons, such is not even remotely the case. Those who are passing laws to "bind" us to certain actions in our "weak moments" would not bind a soldier from severely punishing, even torturing a terrorist to get information of a bomb.
And on who I want to make up the government, I'm not saying I would take a government full of Yoos. I don't want a government full of anybody. I trust some people to make decisions regarding the protection of the government, some people to make decisions regarding the way the law should function for the vast majority of people who abide by it. But one thing I'm sure of is that I don't want Waldron anywhere near the military.
4. On Morality:
Obviously these are moral questions. I still don't see what that has to do with articulating the law. Are you arguing that Yoo should have told the President differently what the law was, or that he should have gone beyond what the law is and given the president his moral take on the issue? I think the President should be able to be told exactly what the law is, and this requires drawing lines and finding the borders.
Yoo said on numerous occasions that he does not think the state should use "torture." He wanted to engage Waldron on these severe punishments, but Waldron would not answer the question. So don't tell me that Yoo did not have sufficient moral arguments for the use of torture, because he was never advocating it. And I still have no idea whether Waldron's position extends to severe punishment, and whether that changes the issue at all.
Yoo is not a philosopher, nor does he pretend to be. He is, or was, in the business of advising the President on the legality of his actions regarding the protection of this country. He was not here to provide a moral defense of the implications of his memo. He wanted to talk about its merits, real conversation about the nature of the Conventions, but Waldron wanted to talk about morality. So don't be disappointed when the two are answering different questions.
Yoo's defense of his position is based on pragmatics, from people (the vast vast majority of the country) who do not have absolute moral prohibitions on these things regardless of the cost.
You close by getting into utilitarian arguments, which you and Waldron are not allowed to do. Don't talk to me about the "unreality of that hypothetical." You do not think that torture is only impermissible because of what it accomplishes; you think it is absolutely prohibited. I'm willing to engage in the pragmatics, am not sold on any particular use of torture. But I cannot believe this absolute prohibition.
I'm even interested in these "military culture" arguments--that the more permissible torture is, even if it's not authorized, it gets to places like Abu Ghraib. But I'm not interested in an argument that asks me to respect the life of a terrorist over 8 million civilians.
To be sure, I have no answer to the rape examples. I, admittedly, hadn't thought of this before yesterday. I would distinguish them from my hypothetical because these people are innocent, have not placed themselves outside the rule of law. So I have a significantly harder time with that, maybe even prohibitively harder. To be sure, I think the question gets hard even when its terrorists, not civilians. Expand the hypothetical to include 100 terrorists, and only one of them knows. Can you torture all 100? Dunno. I think the argument gets interesting, but Waldron won't discuss it.
I think I should be clear here that I agree with the vast majority of the pragmatic critiques of torture that have been offered, and agree that it is subject to abuse, that it is not going to issue these kind of "ticking time bomb" pieces of information. I think it's likely that nowhere near such a drastic example has happened. But the hypothetical possibility, and the moral obligation I think the President would have to protect the 8 million lives, makes me unable to accept this absolute prohibition.
I am interested in the severe punishment line of thinking. I have no problem with things like sleep deprivation and physical exertion to get information out of the #3 al Qaeda leader. I don't know if these things would work, whether we could even get any information from them, but this is what I would like to discuss. If you could save any life, 10 lives, just by keeping the al Qaeda leader awake for a week until he breaks, I am 100% for it.
In any event, I appreciate the dissent, and hope to continue the debate.