Eugene Volokh says he’s not going to comment about the torture memo, which has already been discussed in detail by a number of well-known law bloggers. Eugene says he doesn’t want to talk about it partly because it’s outside his main areas of legal expertise, but mostly because he finds the topic
not just difficult but also sickening. Torture is disgusting. … Does the need to save people’s lives justify torturing suspects? How many lives? Would it take hundreds of thousands (as in the hidden nuclear bomb scenario)? Thousands? Dozens? A couple? I don’t know the answers, and while I have no doubt about the importance of the questions, I don’t enjoy thinking about them. The whole topic is sad and horrible, whatever the right answer is. … It’s not a rational reaction; it’s a visceral one. I’m not proud of my squeamishness, but there it is. I know that just because something is sickening doesn’t mean we shouldn’t do it. Sometimes people need to do disgusting things to avoid greater harms. … But if I had a choice in how to invest my scarce time, I’d rather not invest it here.
I was surprised to read this, for two reasons.
First, Eugene is well known for his willingness to consider pretty much anything with a cheerful open mind and a bunch of snappy hypos. Remember the big discussion about the legality of consensual incest from around the time of the Great Rick Santorum debate? I still get two or three hits a week on my blog for that search term because I wrote a short post about it, and I don’t think those people are looking for legal information. Similarly, he’s been happy to engage in extremely detailed arguments with nutbar theorists about the supposed equivalence of Income Tax Payers and Slaves. In the past this has led me to wonder whether there was anything his sanguine and judicious personality would find beyond the pale. Now I know.
The other reason for my surprise, though, was that I remembered Eugene has blogged about torture in the past—two years ago he had a couple of posts about it, here and in more detail here. Back then, the idea of the U.S. government authorizing the torture of suspects was just a matter of hypothetical speculation and he went at it with characteristic thoroughness but rather less enthusiasm than usual. Saying his thoughts were “_very tentative_” he ran down through the potential benefits of torturing suspects and tried to balance them against the many “good arguments against the use of torture, even in extraordinary circumstances.” His conclusion was that “that torture can indeed be effective, if properly done, in some circumstances” but that his reasoning left him “Sad, unsatisfied, and afraid.”
I’m afraid of the government acquiring the power to torture even the worst of the worst, since historically such powers have often been broadened and abused. At the same time, I’m obviously afraid of the terrorists—and more broadly I’m afraid that we might need to be tough, to the point of brutality, in order to save our lives and the lives of our compatriots. I have no answer, though I hope that some of these observations may help others to arrive at one.
I think that Eugene’s post from 2002 shows, in outline, what the torture memo might have looked like had it been written by government lawyers who were genuinely concerned with the question at hand rather than with writing a brief on how the President could circumvent the law. Although it doesn’t examine the constitutionality of torture and the limits of executive authority to authorize it in a time of war, it honestly explores the utilitarian calculus of torture without indulging what Mark Kleiman has called “the human capacity for courage in the face of pain felt by strangers.”
It’s a lot easier to speculate about the pros and cons of torture in the abstract than when it’s clear to all that your government has actually been torturing people to no great purpose and its legal staff has been looking for ways to rationalize its actions. While “ticking bomb cases” are all very well for uncovering your own moral intuitions about torture, they have essentially nothing to say about the institutionalization of torture within the machinery of the state.
At the end of the day, Eugene doesn’t have to write about anything he doesn’t want to. He doesn’t have to take the trouble to publicly explain his decisions, either. And although he says he’s “not proud of [his] squeamishness” I think there is no shame in being viscerally repelled by the prospect of state-sponsored torture, even when—hypothetically—there might be utilitarian benefits to be gained from it. But I can’t help feeling disappointed that we’re not going to hear from him—probably the most prominent and smartest right-leaning lawyer with a weblog—on this, a case where we have an actual effort to legally justify torture by the U.S. state in real circumstances. The right blogosphere has been a bit quiet about this issue in general, though again I acknowledge that people are free to choose their own topics, especially when it comes to blogs run as hobbies. It’s just that some commentary from the lawyers at the Volokh Conspiracy would probably have been more worthwhile than what we’ve heard from some other prominent right-leaning law bloggers, who have have restricted themselves—on the topic of the Abu Ghraib torture —to the argument that Saddam Hussein, the Palestinians and the French torture people too.
fn1. Harley and most recently Tacitus are honorable exceptions. So is Andrew Sullivan, to be fair to him, though between the Texas Gop platform at home and torture abroad, I’m wondering what it’ll take to make him finally leave the Republican party. I’m not holding my breath.
fn2. Reynolds has been on vacation since the torture memo was published, and has blogged about a few things but not that.