Torture and rules

by Steven Poole on July 4, 2006

Writing yesterday in the Independent, Alan Dershowitz makes the familiar case that modern terrorism poses such an unprecedented threat to western society that the law needs to be rewritten. He argues, for example, that “we need rules even for such unpleasant practices” as “waterboarding” – or, to speak plainly, water torture. There are currently plenty of rules on interrogation in general, laid out in places like the UN Convention Against Torture, Geneva, and the extant 1992 edition of the US Army’s own Field Manual FM 34-52 on Intelligence Interrogation; it’s just that the US government doesn’t feel like following them. Dershowitz supposes that this might be moot because people suspected of contemporary terrorism “do not fit into the old, anachronistic categories” such as PoWs, and so it is unclear what it is permissible to do to them. In fact, CAT, UDHR and so on leave no possible category of human being unprotected from torture or other inhumane or degrading treatment.

Alternatively, he appears to suppose that it might be moot on the grounds that “waterboarding” is too newfangled to have been explicitly prohibited. I Am Not A Lawyer, but this seems no better an argument.

Dershowitz describes “waterboarding” as a practice that “produces a near-drowning experience but no physical after-effects”. His peculiar appeal to a lack of physical after-effects is specious, given both that the physical effects of the practice as it is being carried out are horrific, and that CAT and FM 34-52, among others, clearly state that deliberately induced psychological harm may constitute torture.

“Is [“waterboarding”] categorised as torture? I certainly think so, but the United States government apparently does not,” says Dershowitz. To portray the problem as a mere unfortunate disagreement in the absence of specific “rules” may give the impression of vitiating Dershowitz’s statement that he thinks waterboarding is torture.

Naturally, Dershowitz notes in passing that there is an “absolute law against ‘torture’”, although the fact that “torture” is in scare quotes in that phrase might be read as valorizing the Justice Department’s notorious attempted redefinitions of the word. Perhaps, on Dershowitz’s reasoning, you can invent a novel and creative form of torture, and then defend yourself on the grounds that this exact new form of torture is nowhere explicitly described and prohibited by existing law. Hey, there are no rules! It’s a “legal black hole”! Don’t blame me!

Of course, there is nothing wrong with updating rules. What may appear disingenuous is a claim that existing rules do not apply, are outmoded, simply because they do not, as no law can, foresee every detail of every possible concrete situation in which they may be broken. Luckily, Dershowitz’s justificatory hopping-around between the “unprecedented threat”, “not PoWs”, and “no rules” arguments makes it hard to be sure that this is indeed what he is saying.

Also interesting, meanwhile, is the way Dershowitz presents the claim that terrorism poses an unprecedented threat:

The period between the end of the Second World War and now has seen more profound changes in the nature of warfare than occurred from the time of Henry IV to the beginning of the First World War.

The periods are carefully chosen, leaving a lacuna between the first world war and the second (whose matériel was the first, according to the OED’s current draft account, to be christened “weapons of mass destruction”). Stipulating “the beginning of the first world war” carefully rules out tanks, for example. Even so: the second period Dershowitz cites runs from the longbow and rudimentary cannons, on the one hand, to submarines, machine guns and radio on the other. The first runs from the atomic bombs dropped on Japan, to Dershowitz’s speculations about “weapons of mass destruction in the hands of suicide terrorists with no fear of death and no home address”. Is that really a more profound change in the nature of warfare?

{ 110 comments }

1

Ray 07.04.06 at 7:43 am

It’s complete bollocks, is what it is? What are these supposed changes? “Weapons of mass destruction in the hands of suicide terrorists with no fear of death and no home address have rendered useless the deterrent threat of massive retaliation.”
But those terrorists don’t exist outside of Dershowitz’s torture-cheerleading fantasies.

2

Kieran Healy 07.04.06 at 7:58 am

Dershowitz is a disgrace. I “wrote about his arguments”:http://crookedtimber.org/2005/03/15/needles-under-the-nails/ last year, and I don’t see anything in what he says here to make me change my mind.

3

Steven Poole 07.04.06 at 8:02 am

Kieran, thanks for the link. The following in particular has long struck me as one of the most devastating arguments to pro-torture types, and you put it perfectly:

A Harvard law professor is advocating needles under the fingernails, while a West Point officer is arguing that you just can’t justify this stuff under any circumstances. Which do you think has the better understanding of the dangers of state-sponsored violence?

4

constablesavage 07.04.06 at 8:07 am

And I hope it hardly needs saying, but I nearly drowned once, and there are indeed physical after effects – very unpleasant ones

5

Louis Proyect 07.04.06 at 8:08 am

Dershowitz is a bit of a cartoon figure without much credibility nowadays. There are, however, far more authoritative figures who advocate torture, including the disgusting Eric Posner of the U. of Chicago law school. Here’s a useful article on him and other torture advocates:

http://www.thenation.com/doc/20051226/mcelvey2/2

6

Brendan 07.04.06 at 8:09 am

It’s good that people like Dershowitz write in such easily accessible periodicals as the Times. That will make it easier for grad students to find original source material for their work on the ‘Complete Moral Collapse of Intellectuals in the West, 2001-2010’, which will doubtless be a taught, credited course in most Universties in 100 years time.

7

Steven Poole 07.04.06 at 8:10 am

constablesavage: I held back from judgment on that on the grounds that Dershowitz’s argument was bogus even if he was right; but thank you for pointing it out.

8

Randy Paul 07.04.06 at 8:18 am

Dershowitz is also an idiot.Waterboarding is not “newfangled.” In Argentina, Brazil and Chile during their military dictatorships, a technique known as “submarino” was used extensively.

As for “no physical after-effects,” Professor Dershowitz need only cross the Charles River to the Boston University run Boston Center for Refugee Health and Human Rights to see this chart which took me thirty seconds of googling to find. Scroll down to the section regarding asphyxiation and you’ll see the following possible physical acute after-effects listed: seizures, anoxia, hypoxia, aspiration pneumonia, angioedema, burns of the upper airway tract. A chronic after-effect is organic brain damage.

9

Chris Bertram 07.04.06 at 8:27 am

This kind of thing seems to be endemic among law professors of a certain political persuasion. See Daniel’s recent post about David Bernstein:

http://d-squareddigest.blogspot.com/2006_06_25_d-squareddigest_archive.html#115158013711871000

Backword Dave has a particularly appropriate comment to Daniel’s post:

bq. What soldiers do in fear and anger is one thing. Exhorting them to commit atrocities from an air-conditioned lawbook-lined office is another.

10

Seth Finkelstein 07.04.06 at 8:33 am

My small contribution from awhile back:

Alan Dershowitz’s Tortuous Torturous Argument

11

Louis Proyect 07.04.06 at 8:37 am

Just noticed that the Nation Magazine link I provided was to page 2 of the article. Please use this instead:

http://www.thenation.com/doc/20051226/mcelvey2

12

dearieme 07.04.06 at 9:09 am

Dershowitz: this is the chap who was happy about getting O J Simpson off but approves of torture? Are you in the USA familiar with the term “shit bag”?

13

Rob G 07.04.06 at 9:21 am

Interesting bit of history here; Hitchens, in 2001, arguing against pro-torture murmurings (from Dershowitz and Jonathan Alter). Note especially his last sentence.

http://www.guardian.co.uk/waronterror/story/0,1361,593078,00.html

14

Steven Poole 07.04.06 at 9:27 am

Quite, rob g: Hitchens himself is now, unfortunately, a pro-torture murmurer.

15

KCinDC 07.04.06 at 9:30 am

Seth, Dershowitz’s argument from inevitability is even worse than you write. Presumably we’ll never completely irradicate child molestation, for example, so does that mean we should institute child molestation warrants to make sure that when it does happen there’s the proper oversight and nothing illegal takes place?

16

paperwight 07.04.06 at 11:56 am

Waterboarding is not “newfangled.” In Argentina, Brazil and Chile during their military dictatorships, a technique known as “submarino” was used extensively.

Actually, the water torture goes at least as far back as the Inquisition, where it was used to root out Jews.

One might think that Dershowitz might know that. Or maybe he does, and simply wishes retribution.

17

abb1 07.04.06 at 12:11 pm

He also wrote this:

…Israel should announce an immediate unilateral cessation in retaliation against terrorist attacks. This moratorium would be in effect for a short period, say four or five days, to give the Palestinian leadership an opportunity to respond to the new policy. It would also make it clear to the world that Israel is taking an important step in ending what has become a cycle of violence. Following the end of the moratorium, Israel would institute the following new policy if Palestinian terrorism were to resume. It will announce precisely what it will do in response to the next act of terrorism. For example, it could announce the first act of terrorism following the moratorium will result in the destruction of a small village which has been used as a base for terrorist operations. The residents would be given 24 hours to leave, and then troops will come in and bulldoze all of the buildings. The response will be automatic. The order will have been given in advance of the terrorist attacks and there will be no discretion. The point is to make the automatic destruction of the village the fault of the Palestinian terrorists who had advance warnings of the specific consequences of their action. The soldiers would simply be acting as the means for carrying out a previously announced policy of retaliation against a designated target.

You can almost see how that brain is working there day and night, producing more and more new ideas, rejecting them, coming back to pick them up again and change slightly and then – eureka! Of course! The point is to make the automatic destruction of the village the fault of the Palestinian terrorists who had advance warnings of the specific consequences of their action!! Obviously!!!

I think I was a little bit like that when I was about 15.

18

roger 07.04.06 at 12:21 pm

Actually, whenever the Americans go to war, they make the same argument. In Vietnam, the NLF and North Vietnamese prisoners were subjected to the same kinds of tortures, or worse — in fact, the infamous treatment accorded to American pilots in Hotel Hanoi, bemoaned in American mythology ever since, started in retaliation for American mistreatment (clubbing, shooting, shocking, killing) of the prisoners that they took.

Bernard Fall wrote a penetrating article about this in 1965, The Impersonal War, which can be found in the Library of America book of reporting on Vietnam. In 1965, the Americans were again facing ‘terrorists’ (as they called the NLF) and foreign aggressors (as, with remarkable blindness, they called the North Vietnamese):

“… following the logic of the State Department’s assertion that the North Vietnamese were “foreign aggressors”, North Vietnamese regulars caught inside South Vietnam would have to be treated as regular POWs, as were American pilots shot down over Vietnam. … The attitude that this isn’t our war could hold as long as US combat troops were not operating on their own and taking prisoners all by themselves. Now, this is no longer possible, and the Viet Cong are in the position of virtually bulldozing the US into accepting responsibility for what happens to prisoners; they can shoot in reprisal American POWs whom they hold whenever America’s Vietnamese ally executes VC prisoners, as just happened in Danang. Two American servicemen had to pay with their lives for that gratuitous gesture. The September 29 announcement by Hanoi that henceforth, American pilots caught in the North will be treated as “war criminals’ is a direct consequence of Washington’s lack of foresight on the POW problem.”

This time around, American callousness about torturing any ‘foreigner’ it feels like makes American civilians hostages of fortune, as well as soldiers in Iraq. Not that the power structure in D.C. cares, but eventually retaliation will come. To be followed by that invincible American amnesia that falls over all American crimes, and that nourishes the belief that the U.S. is a ‘benign’ power.

19

CKR 07.04.06 at 12:48 pm

But they never seem to argue why torture is now desirable. They use the ticking bomb scenario now and then, but they really have no argument that torture does anything positive in the “war against terror.”

Looks a lot like plain old revenge.

20

Jon H 07.04.06 at 1:26 pm

“Alan Dershowitz makes the familiar case that modern terrorism poses such an unprecedented threat to western society that the law needs to be rewritten.”

Just like when western society was faced with witches who could wield the power of Satan himself.

21

Brett Hendrickson 07.04.06 at 3:24 pm

Well said, kcindc. One would like to think that a Harvard law professor would realize that the lack of regulation or law does not equal legality, much less permission. It is extremely puerile to imagine otherwise. Just because an action is not expressly forbidden in no way justifies the carrying out of that action.

22

anonymous 07.04.06 at 3:52 pm

Besides being happy with getting OJ off
the hook he also wrote a book about the
SCOTUS decision in 2000.

And I’m sure all engaged in debate here,
must also agree he holds the wrong position
on that one too. Since, as dearieme writes,
the man is a “shit bag”.

After all, he calls the 2000 Election ruling
“the single most corrupt decision in Supreme
Court history”.

23

JoseAngel 07.04.06 at 5:06 pm

Even if it’s expressly forbidden, you can just change the name under the new rules. You know, no “prisoners of war”, only “enemy combatants”; and no torture, perhaps only, uh, “calculated pressure”.

24

y81 07.04.06 at 6:55 pm

I mostly don’t agree with Dershowitz, but the nature of war is not determined by technology. The change from war as an activity between “regular” troops, representing nation-states, who operated according to laws of war, and who at least theoretically did not target civilians, to war as a rather different activity involving none of the above, is indeed a dramatic one, described by, inter alia, Van Crevald, who is generally recognized as the foremost theorist in contemporary military studies.

25

Paul 07.04.06 at 7:07 pm

A nitpick:

Modern waterboarding does not involve actual asphyxiation, and is distinct form both ancient water torture and “submarino” in this regard. Accordingly, list of the physical after effects of asphyxiation are also irrelevant.

As such, this:
“Dershowitz is also an idiot”

is probably not justified by the arguments that follow it, and this:

“Actually, the water torture goes at least as far back as the Inquisition, where it was used to root out Jews.

One might think that Dershowitz might know that. Or maybe he does, and simply wishes retribution.”

Is inaccurate and, I think, a little unpleasant.

26

Steven Poole 07.04.06 at 7:20 pm

the nature of war is not determined by technology. The change from war as an activity between “regular” troops, representing nation-states, who operated according to laws of war, and who at least theoretically did not target civilians, to war as a rather different activity involving none of the above, is indeed a dramatic one

“At least theoretically” – well, a great many civilians were targeted during the second world war, before the period Dershowitz names as having seen the most profound change ever in the nature of war, etc.

Is not the dramatic change in “nature” you speak of made possible exactly through technology, viz. airliners, plastic explosives, etc?

27

Randy McDonald 07.04.06 at 9:05 pm

Is inaccurate and, I think, a little unpleasant.

A little unpleasant. I’d also think it not altogether irrelevant considering his recent output.

28

Helen 07.04.06 at 11:32 pm

And then there’s Mirko Bagaric of Deakin Law school in Australia.

29

Backword Dave 07.05.06 at 4:16 am

As the Independent is notorious for linkrot (or hiding older articles behind a firewall) here’s a permanent link for Dershowitz.

24: I take it you’re referring to WWII where civilians were attacked regularly. This seems to me to be a change determined entirely by technology: to wit, the development of the load carrying aeroplace and the siting of munitions factories in cities.

The idea that civilians were never targetted until WWII is ridiculous. Civilians were slaughtered in Troy, and in the Alamo. Laying siege and poisoning wells have been practices in war since god knows when. And since a bomb carrying terrorist appears in Joseph Conrad’s ‘The Secret Agent’ can we drop any pretence that this kind of terrorism is either new or in any way a peculiarity of the Middle East? I don’t see how the IRA, for instance, operated according to “the laws of war.” For laws to obtain, both sides have to agree what they are. Napoleon’s defeat in Russia (brilliantly described by Tolstoy) doesn’t fit your model. The Russians didn’t play fair, and winter has no morals.

Apart from the rather specious argument from authority (by citation is bigger than your citation, nyah), what about piracy? One of the tasks of the British Navy when we had an Empire was fighting pirates. The Navy represented a nation-state; the pirates did not. We don’t have armed forces simply for the task of killing other poor buggers in different uniforms, and we never have. Our wars of conquest in Africa, the Americas etc were unilateral too.

Now can anyone explain why Dershowitz is so sanguine about Soviet nuclear capability?

30

Antipholus Papps 07.05.06 at 4:29 am

Firstly, it amazes me that nobody ever sees fit to point out that the rise of the Third Reich was fuelled by German leaders deliberately stoking hysteria over terrorism. I suppose nobody points this out as it leaves them wide open to ad-hominem attacks and accusations of a penchant for tin-foil hats. Fuck it – Blair, Bush and their cheerleaders for torture and aggressive war are playing exactly the same game the Nazis played. Once again, the word ‘terrorist’ has been so loosely defined in the torrent of recent legislation that it can mean anyone who opposes the government.

Dershowitz is simply using the age-old ‘state of exception’ argument. All tyrants use this argument to rip up the rule book and consolidate their power. And yet, we fall for it again and again.

31

abb1 07.05.06 at 4:39 am

Ooops, sorry that doesn’t belong here, please delete.

32

Antipholus Papps 07.05.06 at 5:04 am

abb1 – are you referring to my post above? If so, apologies for wandering into your debate with an inappropriate response. I thought it was relevant.

33

abb1 07.05.06 at 5:15 am

No, I’m reffering to my post above that you can’t see because it’s ‘awaiting moderation’. It belongs to the Chomsky thread where I posted it too and where it’s awaiting moderation too.

34

abb1 07.05.06 at 5:46 am

Sorry about the mess.

35

ats 07.05.06 at 7:11 am

“Hitchens himself is now, unfortunately, a pro-torture murmurer.”

Whichever way the wind blows, wherever the free sauce is being poured, Hitch will be there. Just another Brit carpet-bagger with his hands out in Georgetown.

As for Dershowitz, what more need be said? He isn’t really writing about the US. He is addressing the tactical needs of his predatory little theocracy in the Middle East. To that end he will square the legal circle no matter what the price to logic and jurisprudence.

36

zdenek 07.05.06 at 8:00 am

Steven– I think there is little bit of a misunderstanding of Dershowitz’ view which is spelled out in greater detail in “why terrorism works ” ( 2003 ). First point to make is that he is arguing for a qualified institutionalization of torture in a sense that it should be restricted to extreme emergency and subjected to appropriate accountability mechanisms . Dershowitz has specifically suggested ‘”torture warrants ” that he immagines would be like telephone interception warrants.

But what is his argument for this proposal ? He appears to be arguing like this : torture is in special cases morally justified ( ticking bomb scenarios ) but if it is morally justified there should be a legal provision consistent with the special circumstances , for it. Hence comprehensively conrolled torture should be instutionalized.

Two questions is it true that tone-off acts of torture are morally justified ? and secondly does it follow that if torture is morally justified then it should be institutionalised ?

37

Antipholus Papps 07.05.06 at 8:08 am

When I was at school in the 1980s, torture was presented as an inhuman aberration that had no place in post-Enlightenment society, unless one were unfortunate enough to live under a dictatorial tyranny. How the climate can change in 20 years!

As far as I’m concerned, if your society relies on torture for its survival it isn’t worth protecting.

38

Steven Poole 07.05.06 at 8:30 am

zdenek, I am aware of the argument of Dershowitz’s that you describe. However, it is not what he is saying in the article I linked to.

39

Steven Poole 07.05.06 at 8:54 am

Or at least if he his, he is doing it in a highly disingenuous way, pretending not to really know what torture is, and saying “we need rules” instead of “torture should be legalized”. Either way, the argument sucks, as pointed out already by articles linked to on this thread.

40

Beryl 07.05.06 at 10:24 am

Just to say that’s it been a long time since I’ve read anything on CT as unpleasant as ATS’s comment #35. The only thing missing, perhaps, was a reference to Hitchens’s grandmother.

41

zdenek 07.05.06 at 10:51 am

Steven– good point but in the Independent D seems to have moved away from his earlier view ( torture warrant idea ) he has been defending earlier ( 2003 ). This has been criticised by for instance Jeremy Waldron ( Columbia Law review 2005 vol 105 ) and others. Instead he is now proposing changing the law so that it becomes clear what is and what is not torture from legal point of view and secondly so that accountability is improved.
The question is once this is made clear and our law is ‘improved’ is D pro torture as this is normally understood ( pain + loss of autonomy )? i.e. has he really dropped the idea he was defending earlier when he thought torture warrants were a good way to go or is this now finally repudiated ?

If the old view is still lurking in the background I dont see anything in what D says to answer his critics ( Waldron, Miller,Luban).

42

Tom Hurka 07.05.06 at 10:56 am

Exercise for CT readers: compare the “Philosophers and the World Cup” thread with the “Torture and Rules” thread.

In the former, the majority of posters think it clearly right, to the point of joking about it, to allow a TV technician to suffer extremely painful electrical shocks if this is necessary for enough other people to watch a World Cup game. In the latter, the majority of posters think it clearly wrong to inflict torture, which might involve the same kind of electrical shocks, even if that could prevent thousands of people from being killed in terrorist attacks. Is this consistent? Is it sensible?

(Yes, in the TV case you’re merely allowing the shocks whereas in the torture case you’re inflicting them. But the TV technician is innocent whereas — and assume you’ve got conclusive evidence for this — the terrorist you could torture is guilty. And what’s at stake for each beneficiary in the torture case is vastly greater: avoiding death vs. missing a football game.)

So, again, are the consensus opinions in these two threads consistent?

43

Steven Poole 07.05.06 at 11:02 am

Instead he is now proposing changing the law so that it becomes clear what is and what is not torture from legal point of view

That’s what he claims he’s doing, zdenek. The problem is that it is already clear what is torture from a legal point of view, notwithstanding the efforts of John Yoo et al. So it is hard not to conclude that Dershowitz simply doesn’t like what the law is, and hence perhaps that he still does think torture should be legalized, although now he makes the argument by insinuation rather than explicitly.

44

Chris Bertram 07.05.06 at 11:16 am

Tom Hurka: Obviously I can’t speak for the people who _commented_ in the “world cup” thread. But the tounge-in-cheek spirit in which I posted it was not one of saying that it would be right to shock the poor guy, but rather that the use of that philosophical example by an American philosophy showed a poor appreciation of how fanatical many soccer fans are.

45

Chris Bertram 07.05.06 at 11:17 am

“philospher”, obviously

46

KCinDC 07.05.06 at 11:20 am

the majority of posters think it clearly right […] to allow a TV technician to suffer extremely painful electrical shocks if this is necessary for enough other people to watch a World Cup game.

Could you point out some of these people? I must have somehow overlooked those comments in the thread, even though you say they make up the majority. Mostly I just see jokes, with few attempts to address the question seriously. I don’t see how you can draw any conclusions about people’s beliefs from that.

47

zdenek 07.05.06 at 11:21 am

Steven– assume for a moment ( not unresonable assumption ) that death involves greater harm than short torture sesion ( say 10 minutes of waterboarding ) . Why is it ok to permit getting a warrant to shoot to kill ( hostage situations etc ) but not a warrant to torture ( warrant would have to be issued by a magisterate or couple of them just fot this special case ). If killing is worse why is it institutionalised but torture ( less harmful ) is not ?

48

Chris Bertram 07.05.06 at 11:25 am

Tom H plainly isn’t a student of Bill Shankly:

“Some people believe that football is a matter of life and death. I am very disappointed with that attitude, it is much, much more important than that!”

49

Randy Paul 07.05.06 at 11:32 am

Modern waterboarding does not involve actual asphyxiation

Proof? When does dunking someone in water to give them the impression that they are drowning not involve asphyxiation to some extent?

In any event, what if the person being “waterboarded” has asthma and has an asthma attack while being waterboarded. What if their panic leads to their difficulty breathing and the corresponding physical after-effects I listed above.

50

Steven Poole 07.05.06 at 11:53 am

zdenek, please introduce me to a real-life “ticking bomb” scenario in which the torturers were as absolutely, 100% certain that the person they wanted to torture was guilty, and that torturing him would actually save lives by some concrete specified method, as you can be certain about the analogous facts during a bank robbery in which the robbers are killing a hostage every half hour. If you can’t supply such an example your question is moot.

51

zdenek 07.05.06 at 12:10 pm

A man steels a car in which 5 small children are asleep on the backseat ( he doesnt know this )while mother is shopping. Hot summer , high temperatures , the incident cought on tape . The thief dumps the car when he sees the kids and is cought 10 minutes later. Refuses to divilge the location , refuses to negotiate children will die in 20 minutes because of the temperature and lack of air.
Should the police have the option to get a warrant entitling them to beat him until he provides the info ?

52

abb1 07.05.06 at 12:11 pm

The question is not necessarily moot – this could be one of those hypothetical scenarios – but the fact that this doesn’t seem to happen regularly in the real life (if at all) means to me that a discussion of institutionalisation of torture is not necessary at this point.

53

Steven Poole 07.05.06 at 12:13 pm

No, zdenek, I meant a scenario that has actually occurred in real life.

Rather than arguing whether torture could ever be justified according to fantasy scenarios, why not ask yourself the simple question: “Does torture actually work”? The vast majority of interrogators and military people conclude that the answer is no. Oops, there goes your only hope of justification for it.

54

abb1 07.05.06 at 12:23 pm

I imagine it might work in many cases. At least that’s what they show you in some TV shows, like 24, NYPD Blue and so on.

55

zdenek 07.05.06 at 12:24 pm

Not really a fantasy scenario ( more like a case study ) I would think but the point is that if you say that there would be a case for changing the law so that such warrants were to become available in these one off cases you are conceding D his main premise.
( btw I am not interested in defending D I am interested whether he is right.)
This is because he does not have to show that torture works , only that it is morally justified in these one-off cases. ( btw the claim that it never works is too strong and if it works only sometime that may be enough for D )

56

Steven Poole 07.05.06 at 12:25 pm

Actually 24 is quite a good illustration of a slippery slope. By the fourth series, Jack practically introduces himself to everyone he meets by torturing them. ;-)

57

zdenek 07.05.06 at 12:30 pm

Actually thats right Steven ( the slippery slope ) once this is a problem but why is it not problem with allowing obtaining warrants to shoot&kill ? why is killing not a problem but beating the guy worries us ?

58

Steven Poole 07.05.06 at 12:31 pm

zdenek, it surely can’t be morally justified if it doesn’t work. Hence D is obliged to show that it works. Until he can show that it works, I don’t see any need even to hold an argument as to whether it is justified in certain fantasy scenarios.

59

zdenek 07.05.06 at 12:32 pm

so if torture became more effective you would go for it ?

60

Tom Hurka 07.05.06 at 12:33 pm

Chris: I read your “as an appeal to commonly-held moral convictions, this one fails” as a serious comment. Maybe it wasn’t intended that way.

And my point was precisely about the jokes. Would people joke about something they thought was clearly wrong? Are there jokes in this thread about torture? And yet the topics of the two threads are essentially the same: whether one person should suffer intense pain for the sake of benefits to others.

61

Steven Poole 07.05.06 at 12:33 pm

Don’t be silly, zdenek.

62

Chris Bertram 07.05.06 at 12:37 pm

Would people joke about something they thought was clearly wrong?

Is that a serious question Tom?

63

KCinDC 07.05.06 at 12:37 pm

Yes, Tom, and when people make dead-lawyer jokes they’re really calling for mass murder of lawyers.

64

zdenek 07.05.06 at 12:39 pm

seriously if we devised a way of tailor made torture that somehow unlocked the momory of the person thus made the torture efective way of obtaining info the objection that you have ” it doesnt work and thats why I am against it ” whold no longer stand up ?

65

engels 07.05.06 at 12:41 pm

If any one wants to read a little about Zdenek’s example, they can look at the SEP page, from which it is cribbed along with, possibly, his obfuscatory references to “Waldron, Miller,Luban”.

From the conclusion of that article:

So Dershowitz is entirely misguided in his advocacy of torture warrants. Indeed, as repeatedly mentioned above, we have the example of Israel’s use, or rather abuse, of this system to provide specific empirical evidence against the introduction of torture warrants.

66

abb1 07.05.06 at 12:43 pm

Well, “slippery slope” and “it doesn’t work” seem like two incompatible arguments. Sounds like you just don’t want to think about it. Which is fair enough, except that it’s your post.

67

Steven Poole 07.05.06 at 12:44 pm

Sure, and if I could be absolutely certain that by eating twenty kittens I would save the inhabitants of Canada from incipient vaporization by an asteroid, hey, I’d probably eat the kittens.

68

Steven Poole 07.05.06 at 12:46 pm

abb1, before you accuse me of not wanting to think, kindly explain how the arguments are incompatible.

69

engels 07.05.06 at 1:00 pm

Would people joke about something they thought was clearly wrong?

Er, yes, people do this all the time. The Onion springs to mind as one, rather extreme, example. It does partly depend on the situation. This thread, for a number of obvious reasons, seemed to have a more serious tone than the other one.

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zdenek 07.05.06 at 1:01 pm

engels- Miller is the author of the encyclopedia entry which is broadly critical of D so I mentioned him together with Waldron and Luban who are also critics . I agree with their criticism of D.

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abb1 07.05.06 at 1:17 pm

Steven, I’m not accusing you of anything, of course.

If it doesn’t work, if there is no reason to torture, why would there be any temptation for a ‘slippery slope’ thing?

‘Slippery slope’ is a situation when some radical remedy – that works – is being used in situations it wasn’t intended for originally. For example, we’re allowed to shoot and kill an armed robber. Shooting and killing armed robbers works. So, one might ask, why aren’t we allowed to shoot pickpockets? It would work too of course. This would be a slippery slope situation.

But if something doesn’t work, where’s the danger of a slippery slope?

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engels 07.05.06 at 2:39 pm

Waldron and Luban who are also critics

They are indeed, Zdenek, but have you actually read them, and Dershowitz (the book you cite, not the newspaper article), or just an encyclopaedia entry which mentions them?

Just to make it clear (as Zdenek does not), Zdenek’s position is apparently that taken by Seamus Miller in his article for the Stanford Encyclopaedia of Philosophy: there might be hypothetical circumstances where torture is morally justified, but this does not give any reason for making it legal.

Thus his pro-torture arguments must have been only meant to address the off-topic question of whether there might be hypothetical, exceptional circumstances under which torture might be morally justified. He agrees with Steven on the topic of the post – whether “the law needs to be re-written” to permit torture – and all his talk about “torture warrants” and such like was just harmless fun.

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abb1 07.05.06 at 3:05 pm

Yes, I completely agree with Engels #72.

Here’s my (unnecessary offensive) analogy: suppose there was a total nuclear war and everybody died, except for one group of siblings, or, say, a mother and a son. Now they need to discuss if incest is permissible or necessary under the circumstances. Fine, under the circumstances it would be a good question, but is there a reason to start issuing incest warrants now?

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engels 07.05.06 at 3:44 pm

abb1’s point leads to another important point.

Similar hypothetical examples to the ones which can be used to show that circumstances exist in which torture might be morally justified, if they succeed, show equally well (or almost as well) that pretty much anything might be justified. All you have to do is think of a sufficiently terrible catastrophe (the human race wiped out by a nuclear holocaust?), choose a crime (incest? rape? cannibalism? boiling to death? gassing a small number of Jews? burning a small number of witches?), and concoct an example whereby the latter has to be committed in order to prevent the former. QED. Proof that crime X is morally justified in “exceptional circumstances”. This has zero bearing on any legal issues, or on current moral questions about the US’ actions.

But this is all completely off topic as Steven’s post was about the legal issue.

For the record, if Tom Hurka’s comment was meant to suggest that people here do not take the abstract ethical discussions about torture sufficiently seriously, I should say that I, for one, enjoy thinking about these issues but (i) not on a thread which is about legal practicalities and (ii) not with people like Zdenek.

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engels 07.05.06 at 3:46 pm

Apologies if I have posted my comment twice but it has not appeared and there is no “moderation” message.

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engels 07.05.06 at 3:48 pm

Strange, that one appears but the one which should be above it seems to have vanished into the ether.

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engels 07.05.06 at 4:07 pm

It has appeared.

I should say that I shouldn’t have made the explicit reference to “gassing”, which is gratuitously unpleasant, and I’m sorry if it offended anyone.

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Barry 07.05.06 at 4:32 pm

“Why is it ok to permit getting a warrant to shoot to kill ( hostage situations etc ) but not a warrant to torture ( warrant would have to be issued by a magisterate or couple of them just fot this special case ). If killing is worse why is it institutionalised but torture ( less harmful ) is not ?”

Posted by zdenek

I’m not sure about in your country, but here in the good ol’ US of A, there is no such thing as a ‘shoot to kill warrant’.

79

Steven Poole 07.05.06 at 4:34 pm

But if something doesn’t work, where’s the danger of a slippery slope?

The danger is that people nonetheless think it works. So when it doesn’t work the first time, they’ll just say to themselves, “Well, that was a bit of bad luck; it’s bound to work next time; maybe we need to widen the net”, and so on.

To reiterate: I’m not saying anything about the question whether, if torture works, it might in some circumstances be justified. Because the current military opinion (of eg veteran military interrogators in Vietnam, etc, and indeed all the way back to Napoleon) that it doesn’t work, we don’t even need to go to the moral-justification argument. The onus is on people like Dershowitz first to prove that it does work.

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Steven Poole 07.05.06 at 4:40 pm

Similar hypothetical examples to the ones which can be used to show that circumstances exist in which torture might be morally justified, if they succeed, show equally well (or almost as well) that pretty much anything might be justified.

Exactly. Hence my frivolous example re kittens and Canadians. This kind of thing is rarely very illuminating on the question of what we should do about law in the real world.

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Firebug 07.05.06 at 6:15 pm

First of all, terrorists are not and never will be an existential threat to the United States. There’s no evidence that any terrorists possess WMDs or the means to obtain them, despite Dershowitz’s sensationalist claims.

Secondly, the “ticking bomb hypothetical” is a crock of shit. How likely is it – really – that we would know everything about the crime EXCEPT for where the bomb is? How do you know with certainty that the person you have in custody knows the location, but you do not know what that location is? What if you have the wrong guy? “Ticking bomb” scenarios are common in action movies and trashy spy novels, but I’ve never heard of one in real life, so let’s stop basing real-world policy on this fantasy.

Thirdly, the real purpose of Dershowitz’s pro-torture advocacy has nothing to do with the US at all. Dershowitz is an extremist Zionist, so all of this is really about justifying Israel’s torture and murder of Palestinians.

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Paul 07.05.06 at 7:12 pm

Randy at #49:

Modern waterboarding does not involve “dunking someone in water to give them the impression that they are drowning”, it involves pouring water over a cloth or plastic sheet spread over their face. It is, by all accounts, an extremely unpleasant and distressing practice and certainly one that qualifies for any reasonable definition of torture, but it is not, it seems, one you understand. Hence my earlier nitpick and gentle suggestion that calling people idiots for not knowing these details might be a bit pot/kettle/black.

Take this as a slightly less gentle suggestion to the same effect.

As to the “if they’re alergic to it it might cause permanent harm” argument, you’re certainly correct, and the same is true, I suppose, of peanuts and cat hair. I’m going to give Dershowitz a pass on not mentioning any of these possibilities though.

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Randy Paul 07.05.06 at 8:03 pm

He’s still an idiot for making a blanket statement that it has no physical after-effects. He doesn’t know that. Perhaps he would like to try it for himself.

No pot-kettle-black there, just a detestation of those who speak in absolutes to make their argument as Dershowitz did. He’s not a doctor and if he believes that there are no physical after-effects, then he’s worse than an idiot: he’s a kool-aid drinker.

Pot/kettle/black indeed.

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YY 07.05.06 at 9:34 pm

“Sure, and if I could be absolutely certain that by eating twenty kittens I would save the inhabitants of Canada from incipient vaporization by an asteroid, hey, I’d probably eat the kittens.”

And you would be twice the hero if eating twenty kittens were (probably is, as well) against the law.
This is not an argument for legalized kitten eating in emergencies as the slippery slope will result in kittens on the menu at the local restaurant.

85

Michael John Keenan 07.06.06 at 1:22 am

Part One

In Jean Amery’s, The Minds Limit, his capture and descent into torture by German Nazi’s, starts by pointing out that his torturers showed no “banality of evil” in their faces. First there is the “laugh” and then the “first blow.” The prisoner then realizes that they are “helpless”. Lost is the “trust in the world.” Certainly there is no “mutual aid in nature.” No. It is time for the “business room.” More commonly referred to as the “Black Room” in today’s parlance.

But before describing his “own” torture the author makes “good on a promise I gave.” Not that they where not specialists in torture, but more so his conviction that “torture was the essence of Nationalist Socialism….more accurately stated, why it was precisely in torture that the Third Reich materialized in all the density of its being.”

I ask you dear Citizens, should we also “codify” that the detainees at Camp X-ray can also be children, as recently reported in the news? Not only does that sound slightly like the rule of anti-man but I do believe – anti-child included. And if that is so then the rule practiced as such has “expressly established it as a principle.” So just what else in “essence” does go on at Camp X-ray? “Tricks?” Plead mercy, pray tell? And now comes Abu Graib.

Refuse Himmlers offer for a Certificate of Maturity in History and stop those jet flights I would suggest, Mr. Cheney and Mr. Rumsfeld. Nay, to forsake the Constitution and be depraved of our humanity would be more painful in the end. Slavery to torture is all you will get. Go tell that to the Marines. And why Mr.Cheney and Mr Rumsfeld haven’t you two already tendered your resignation?

At least Hitler was restrained from jettisoning the Geneva Conventions even with his back against the wall in February of 1945. I smell now the chief prosecutor Jackson’s closing arguments at the Nuremberg trials.

I am Citizen Michael John Keenan

Part Two

Dear Michael Keenan,

Thank you for sending your evocative reflection. The appeal to compassion, clarity and basic human decency is well stated. In re-reading it I was curious if the word “depraved” was intended for a double meaning, or if perhaps “deprived” had been mistyped (3rd to last paragraph). Your point of torture being the essence of the Third Reich was central to Orwell’s “1984,” where O’Brien (?) told Winston (delicious irony there) that the whole point of the State was to exert absolute control over the individual down to the internal thoughtprocesses, and the measure of this control was the ability to inflict pain at will. This is the essence of authoritarianism, and authoritarians require they be worshiped as Gods by their subjects, hence “love your torturers.” Your questions to Cheney and Rumsfeld can only be rhetorical because there is probably no capacity (please forgive me, Buddha) in either of those individuals to appreciate the logic and the essential compassion behind your message. They are blinded by the reflection of their self-images within the confines of their own logic-bubbles blown out of a film of denial.

Kind regards,

XXXXX

(The name of someone giving witness to someone whom was tortured and who responded to my post above under “Were our Fathers this Bad?” after I emailed this post to them.)

Part Three

Dear XXXXX

I am glad you appreciated what I wish more of my fellow citizens would be a little more vociferous about. I hope your first hand account will create an infection to even give a damn and realize that on the whim of one person that this fate possibly waits them too. The Los Angeles Times rebuffed three attempts I made to have it printed with permission. Finally I expressed my concerns directly by email to Mr. Bush’s office. To my surprise he responded in the press a few days later that torture is not a value of this Nation’s “soul” or “being.”

Slowly those in power are transforming the individual, into being treated basically as private property once again. Unfortunately, this includes both the military and civilian alike. The once indentured black man became accepted and considered private property in less than two generations. People from Africa soon got caught up into this and this went on for about thirteen generations. So given Cheney’s proclivity to apartheid and this history of privatizing the individual, I am not surprised to find a growing rejection of the separation between the individual and the state underway in the country I love. And once there is no distinction or separation any longer between the two of them then torture WILL become the “being” of the nation. Under this modern version there will no longer be a distinction as to color. All are eligible for the black room. I have to wonder if this nation’s soul was still born in its conception when I ponder all of this. Or, if we still have any soul yet left to speak of, will it be lost in less than a generation or even worse in less than a night?

Further, Bush never read a single report on the people that were led to the death chamber. So any claim to compassion – to suffer with – went missing when he refused to read even one report. As if with depravity he even dares to laugh in a woman’s face. Deprived of life this woman now has more soul in death than this man will ever have in life.

The questions, asked of Cheney after a speech he gave at a Davo’s, Switzerland get-together, I found to borderline on outright ridicule. The isolation of Cheney by the Davos body, and in effect the United States was quite palpable. Your version of the bubble I agree does appear to exist. I found these questions on his own web page right under his nose by scrolling down. So I am sure he does not even see it as you pointed out.

What else will I be called to bear witness too by those who claim falsely to be my fellow citizens and who accept torture as a second nature? Do they not know that the word citizen or the word individual allows for no definition, which accepts the philosophy of anti-man nor anti-women? That by accepting torture, any definition of torture, that this country’s history is then removed in one fell swoop. Gone is the cry of Peoples Sovereignty born of the English Civil War. And gone too is the claim that people after the U.S. Civil War will never again be considered as just some owners private property in this nations economy. And what in their place now reigns but the concept of the Corporation as a person? Banished is the so-called Constitution of the United States. So why not now that the Articles of the Confederation are back in vogue and unimpeded by any Bill of Rights. This will work just fine. Ultimately, the dead corpse of a Corporation is venerated over the flesh and blood of the living.

Welcome all to Corporate Feudalism where all shall love and worship the new State Torturer who rules the World Supreme.

You bear your witness well my friend. I hope, as God is my Fuhrer, to bear my witness just as well should they decide to ever come for this human being.

Happy Trails, Michael Keenan

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Roy Belmont 07.06.06 at 1:40 am

Talking about whether torture works or doesn’t work carries the implication of some agreed-upon outcome by which that’s going to be judged.
Getting information from reluctant subjects.
But getting information is only the stated goal.
Freedom and democracy for the Iraqi people were the stated goals of the American invasion and occupation of Iraq.
And protecting its citizens from terror is the stated goal of the Israeli state’s war crimes against the Palestinians.
Torture also has the – possibly – desirable goal of breaking and demoralizing the enemy.
Somewhat like decimation once had for the Romans.
And catharsis, let’s not forget catharsis.
And revenge, which Dershowitz would no doubt put high on the list of allowed motives.
Torture as an expression of dominance is really what he’s arguing for.

87

zdenek 07.06.06 at 3:30 am

engels– re “this ( discusion of ticking bomb scenarios )has zero bearing on any legal issues ” .
Well actually it has a great deal to do with it if one is looking at Dershovitz because his argument is precisely that since there is ( so he thinks ) a moral justification for torture in special circumstances the law should accomodate it i.e. a provision should be made within the law for torture. In other words the idea that the rule against torture is absolute is wrong ( D says ) *because* torture can be morally justified.

Of course maybe D is wrong ( because of the sorts of reasons Waldron advances yes I have his paper ) about this but not obviously so especially if you consider that he has a reply to slippery slope arguments that people including you seem to think clinch the issue agaist D.

One needs to block the move from ‘it is morally justified ‘ to ‘ there should be legal provision for it ‘ if one dissagrees with D but slippery slope arguments are insufficient for the job.

88

Planeshift 07.06.06 at 6:07 am

Re: 86

The stated goal of the invasion and occupation of Iraq was to disarm Iraq of its WMD, not to spread democracy. The latter goal only appeared after it became obvious the WMD sham was rubbish and it was thus necessary to re-write history.

Re: Torture.

It is important to recognise that torture has an effect beyond the person it is being used on – it effects the entire community and is often used to create fear (eg: Uzbekistan) and deter dissent. If the US adopts it as matter of policy (and some would argue it already has) pretty soon every state will regard it as acceptable and the people they will torture will not be the “baddies” but political dissidents, intellectuals and ethnic/cultural minorities.

There is also an element of race involved here; Dershowitz can advocate torture knowing he or his family are unlikely to ever be a victim of it (nobody advocates torturing Harvard academics on the grounds the unabomber may still have an acomplice there). The main victims will be minorities swept up in crackdowns. I’d actually be far more impressed if someone from a community likely to be targeted by law enforcement would advocate it knowing he or his family may end up as an innocent victim of it.

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Steven Poole 07.06.06 at 6:44 am

getting information is only the stated goal
Yes, and D’s argument that there is some difference if you are torturing someone to gain a confession or to get other “information” looks suspiciously like another coded appeal to a “ticking bomb” argument.

I wonder why he no longer wants to make his “torture warrants” argument explicitly, but resorts to this kind of winking and hinting?

90

zdenek 07.06.06 at 7:39 am

Steven– D doesnt seem to have a reply to the following observation people have made : torture could be introduced into our law but its introduction would be incompatible with the spirit of our laws ( any laws ? ) where the ‘spirit of the law’ is something like that law is not brutal and does not rule through fear and terror i.e. even when the law is at its most forceful the respect for human dignity is preserved.( Waldron p 1727 .2005 )

This seems like an atractive way of arguing for secular understanding of absoluteness of the rule against torture ( no funny metaphysics in play ).

Btw I understand that torture warrants were issued under Elizabeth I and James I. But issuing was often resisted roughly on the grounds that people are objecting to D’s proposal.

91

Steven Poole 07.06.06 at 8:18 am

even when the law is at its most forceful the respect for human dignity is preserved

Unfortunately that argument seems to fail if it is supposed to be true of a country that executes people.

92

rcriii 07.06.06 at 6:18 pm

There is a whole argument against the idea of torture warrants that I’ve never heard anyone make. That is that the more rare we make torture, the more unlikely it is that anyone will know how to extract information using torture. Thus in order to make torture warrants ‘effective’, we would need to issue lots of them. Conversley, if we issued them sparingly, there would be no-one with the experience to carry them out.

But Dershowitz and other apologists want us to think that they would only be issued in extreme situations (which is also BS given the recent record of the US goverment). Or do they expect us to actually teach some people to be torturers, in which case we could spend the exact same resources figuring out how to get information without resorting to torture, and use that knowledge much more often.

93

Farrold 07.06.06 at 6:29 pm

Much of the discussion above revolves around the distinction between right vs. wrong and what should be legal vs. illegal. I regard attempts to make “bad” and “illegal” correspond too closely as a major source of bad law, and suggest this as worthy topic in itself — but not here

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engels 07.06.06 at 11:04 pm

engels—re “this ( discusion of ticking bomb scenarios )has zero bearing on any legal issues ”

But I didn’t say that, did I, Zdenek? I said that the mere proof of the possibility of exceptional circumstances wherein torture might be justified does not give us any reason for re-thinking its prohibition in law. Indeed, if it did so, it would also provide grounds for re-thinking the prohibitions on rape, boiling to death or small-scale genocide. (BTW this is not a “slippery slope argument”.)

To spell it out in words of one syllable: the “ticking bomb scenario” could be relevant, but only if you can show not just that it is conceivable but that it is realistic. You haven’t done this. And even if you had, it would not follow that the law ought to be changed, simply because law and morality are different things. In other words

One needs to block the move from ‘it is morally justified ’ to ’ there should be legal provision for it ’ if one dissagrees with D[ershowitz]

is another load of rubbish, because there is no general presumption that such an inference may be drawn.

Seamas Miller explains all of this very nicely in his article, as you would know if you could be bothered read it, rather than just trying to mine it for what you think are anti-liberal factoids.

95

abb1 07.07.06 at 2:05 am

…which is also BS given the recent record of the US goverment…

This is a good point, actually, and this could explain why he changed the tune.

In his original article Dershowitz argued along the lines of ‘if guns are banned only criminals will have guns’; saying, IIRC, that torture is performed anyway as cops often beat the living crap out of suspects to extract the confession.

So, he argued, it only makes sense to introduce judicial oversight (‘torture warrants’), which would allow to limit the scope of application and introduce more ‘civilized’ methods.

But we now know that the cops (the Bushies) don’t need no stinkin’ warrants anyway, so at this point Dershowitz’s original argument collapses and he has to come up with different kind of apologetics.

96

zdenek 07.07.06 at 2:22 am

re morality/law connection–

” even if you had , it would not follow that law ought to be changed, simply because law and morality are different things.”

This is wrong and it is easy to show that there is a connection between morality and law that actually shifts the burden of proof to people who oppose D : consider racist laws South Africa had on statute books or Nazi law that criminalized hiring of jewish teachers or slaving laws and so on. In all these cases the pattern is that you take a law and you argue that it is incompatible with moral considerations and the force of that is sufficient to change the law so that it is consistent with morality .
These sorts of considerations are enough to show :

1) that there is a presumption in favour of thinking that if a given law is incompatible with moral intuitions it ought to be changed ( so S. Miller is wrong ).

2) It is the critics of D who have to come up with an argument to show that moral permisability of torture does not lead to legal provision for it ( that this is roughly right is reflected in the amount of space Waldron and others devote to showing that the move should not be made )

3) slippery slope arguments become important to block the move D is making ( problem is as I said D has a reply to such tactics ).

Re slippery slope arguments : to argue that if you legalized torture then you would be led to legalising rape and then legalising boiling to death ( because once you permit one there is no principled way to draw the line between acceptable and unacceptable practices ) is a slippery slope argument.

97

zdenek 07.07.06 at 3:08 am

torture and the Left – on what bases can left object to torture ? That it is illegal is irrelevant because mabe the law is wrong and mabe it should be changed ( anyway law is made by the rich etc. ) . Because torture is morally wrong ? well can left consistently argue this way ? :

1) hard left sees law and morality as mask for class interest so hard left has no resources to consistently argue against torture .

2)post modern left sees law and morality as social constructs that reflect our culture and hence brohibition of torture is just contingent fact reflecting our culture . Torture may be ok in a different culturel setting. Again no principled way to be opposed to torture.

3) decent left :(i) consequentialist left : problem here is that torture may be requred
(i) deontological left ( Kant,Rawls ): this is the best hope for resisting Dershovitz type argument but the problem is that this is just enlightenment outlook and we are back to relativism.( so popular with CR ).

So what is the principled left position against torture ?

98

lurker, again 07.07.06 at 3:37 am

“But if something doesn’t work, where’s the danger of a slippery slope?”
Well, this is too late to be read by anyone.
But the thing is, it might work, only not the way its proponents claim it works.
I was surprized to learn recently that the Spanish Inquisition did not burn many witches, because they had rules of evidence that did not allow them to produce the snowball effect of people denouncing one another just to get the torture to stop.
The SI did not regard denunciations by people already charged with witchcraft as probable cause to charge anyone else and they did not allow anonymous accusations either.
Hance no snowballing like in most protestant countries (who lacked a professional body like the Inquisition).
And zdenek et al who keep referring to the hidden bomb hypothetical (not a single case of which has ever been recorded anywhere) might consider the alternative, very very common hypothetical case in which authorities pressed for results round up all suspicious darkies and the police then torture them until someone cracks and starts naming names.
The case of P.C. Blakelock’s murder in the UK might be a good real life case. The real killers are apparently known, but since the initial investigation framed a group of innocent men the authorities refuse to charge them as it would undermine their credibility.
Better that murderers should go free than that the police should have to admit that they knowingly tortured and framed innocent people.

99

abb1 07.07.06 at 3:41 am

Torture is incompatible with our culture. This is a principled position against torture. Dershowitz’s position (assuming that he’s a part of the same culture) is unprincipled expediency.

100

zdenek 07.07.06 at 4:30 am

if the following principle is true P1 :’a practice is justified or not justified just by virtue of it being compatible or incompatible with our culture’ then the following is the case :

1) enequality is morally justified and when we try to bring about greater justice we are doing something immoral ( this follows from P1)

2) slavary was justified and when it was abolished we did something morally wrong

3)discrimination against homosexuals was/is justified and when we abolished it we did something morally wrong.

4) exploitation of workers was/is morally justified…

And so on the point is that if the principle is true it rules out criticism of injustices and this is incompatible with the left commitment to bringing about juster/better world ( we have incoherence ).

101

abb1 07.07.06 at 6:12 am

First of all, I don’t think this has anything to do with left and right.

Now, slavery isn’t and wasn’t justified as far as our modern culture is concerned, but it was justified as far as the slave-owning cultures were concerned.

If slavery is practiced somewhere on earth now, it’s wrong as far as our culture is concerned, but if the people practicing slavery have enough authonomy, then there isn’t much we can do about it (other than refusing to cooperate) as we don’t have the jurisdiction there. That is unfortunate, but the good news is that they can’t impose their culture on us either.

102

zdenek 07.07.06 at 8:07 am

abb1– gender discrimination is endemic and part of our culture as are other forms of inequality but why do you regard it as wrong ? If your line in# 99 is the way to go then when you raise objection against say gender discrimination it should be enough – to silence you- to just point out to you that that is our cultural practice . But we do not think it is enough do we why ?

103

abb1 07.07.06 at 8:57 am

It was our cultural practice, but it isn’t anymore as the culture’s evolved. It’s still present in our culture here and there, but some decades from now it’ll be as alien as slavery.

If it really was our current cultural practice as you say, then we wouldn’t know that it’s wrong, we wouldn’t even notice it.

It’s like, say, the fact that some people don’t have internet access in their houses. Is it ‘wrong’? No, we don’t think about it as ‘wrong’ in the same sense as discrimination of women. It’s normal, natural. Then, say, 50 years from now some people may be saying that it’s wrong and immoral, but a majority will think it’s Okay. And 80 years from now maybe everyone will feel that it’s as wrong as torturing people. Evolution.

104

zdenek 07.07.06 at 10:23 am

I must say I am pleased to hear ( if somewhat supprised ) that the left now thinks that inequality is morally justified ( Robert Nozick would be very pleased with this outcome were he alive ) and that torture might soon become morally acceptable.

105

Uncle Kvetch 07.07.06 at 11:44 am

I must say I am pleased to hear ( if somewhat supprised ) that the left now thinks that inequality is morally justified

Wait…when did abb1 become The Left? Somebody alert the authorities!

106

abb1 07.07.06 at 11:56 am

What’dI do now?? She told me she was 18.

107

engels 07.07.06 at 1:38 pm

It’s like, say, the fact that some people don’t have internet access in their houses.

Zdenek, on the other hand, does have internet access in his house, so he has access to the free online version of Waldron’s “Torture and Positive Law”. This presumably is what he means when he says

( because of the sorts of reasons Waldron advances yes I have his paper )

but it doesn’t answer my original question. Does he have access to, or, better still, has he read, the books and papers which he has been citing when, for example, he admonishes Steven Poole for misunderstanding

Dershowitz’ view which is spelled out in greater detail in “why terrorism works ” ( 2003

Does this mean he has read either Dershowitz or Waldron? Unlikely, as the only argument he is able to extract from them is the rather pathetic “argument from the number of pages Waldron devotes to X”, which is not, need I say it, a good one.

Since Zdenek doesn’t understand these things I will spell them out. Waldron devotes many pages to this issue because he is responding to arguments that might be made for legalising torture. Zdenek has so far failed to make any such arguments, and so noone needs to devote a similar amount of space to responding to him.

Misstating what people have said up thread is not an argument. Misstating the views of well known philosophers, which one hasn’t read but has looked up in an online encyclopaedia, is also not an argument. Making phony citations, complete with publication dates and journal names, to books or articles one hasn’t read is also not an argument.

For an example of the first, I argued above that there is no presumption that because an action is morally permitted (in exceptional circumstances) it ought to be legally permitted (“law and morality are different things”). Zdenek chooses not to reply to this claim, but instead addresses the claim that “there is no connection between law and morality”, which I did not advance, and which does not have to be advanced by someone who believes that torture most remain absolutely prohibited in law.

Without wishing put myself under any implied obligation to respond the rest of Zdenek’s voluminous crap in any detail, I will only say that it is amusing that the most well known advocate of the type of position abb1 is trying to defend, and which Zdenek finds to be so utterly without merit that he is driven to troll every other thread on this blog denouncing it in a largely incoherent way, and which is not, as has been frequently pointed out by readers of this blog, common among them or The Left in general, is Michael Walzer, who is now, sadly, a card carrying member of the “Decent Left”. So Zdenek’s dichotomy of

“Decent Left” = deontologist/consequentialist

v.

Everyone else on “The Left” = relativist/postmodernist/determinist

is revisionist, to put it politely. To put it impolitely, it is stupid and pretentious.

108

zdenek 07.08.06 at 5:21 am

engels- you are making a good point and a weak point. The good point is to point out that Walzer is not a universalist when it comes to political values( and hence will disagree with early Rawls but less clearly with later Rawls ). This of course raises interesting question about whether W can consistently embrace core Eustonite values( for this you get B+ ).
The weak point is your now trademark move that because a person is dishonest their argument must be unsound. ( for this I give you C- sorry ) .

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Tom Doyle 07.08.06 at 7:46 pm

“Torture is incompatible with our culture. This is a principled position against torture. Dershowitz’s position (assuming that he’s a part of the same culture) is unprincipled expediency.”

I had assumed “[t]orture is incompatible with our [US] culture.” But if so this shit wouldn’t have happened at all I would think. Or the Abu G. revealtions would have created such a shitstorm that bush and his lot would have resigned in disgrace, and trials would be underway.

Instead 2 years later, the situation is pretty much the same.

How would you attempt to prove that “Torture is incompatible with our culture?

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abb1 07.09.06 at 4:36 am

Tom, all kinds of shit happen, even cannibalism.

And there was a shitstorm, there were congress hearings and so on and the government survived by blaming bad low level individuals, as you know. They won’t openly come out and admit using torture, even though in this case I’m sure unprincipled expediency would have at least some support. I think this is a good proof.

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