A year ago March, before torture had become the hot issue it is today, but after evidence emerged that torture was being used against some al-Qaeda suspects, I posted some thoughts on the topic. Kieran Healy did me the favor of reminding me of that post — which I had long since forgotten — by quoting from it.
Rereading that old post, I found myself nodding in agreement: indeed, completely won over by myself to my own viewpoint. My only regret was the title, which confusingly referred to “World War III” rather than “World War IV” in discussing the current conflict between radical political Islam and the liberal world order.
Since self-linking is regarded as vulgar, and since I have nothing to say right now nearly as well worth reading as that old post, I’m reposting it verbatim.
This isn’t World War IV
In the ongoing debate about the use of torture against al-Qaeda captives, proponents of torture (most recently Stuart Taylor in National Journal) like to invoke the slogan “The Constitution is not a suicide pact.” That seems to me a complete misunderstanding of what Justice Jackson’s dictum means and of the situation in which we currently find ourselves vis-a-vis terrorism. We are simply not under the kind of threat that Justice Jackson imagined in his Terminiello dissent, or that really obtained during the Civil War, World War II, and the Cold War.
Justice Jackson, like Lincoln before him, was thinking about a situation in which upholding the letter of our Constitutional liberties might lead to a complete collapse of the Constitutional order. Lincoln’s defense of his suspension of habeas corpus in the face of serious Copperhead subversion, supporting an active rebellion whose troops threatened the capital city — “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” — finds its echo in Jackson’s dissent, following a description of the near-riot between Fascist and Communist mobs incited by Terminiello’s speech:
This was not an isolated, spontaneous and unintended collision of political, racial or ideological adversaries. It was a local manifestation of a world-wide and standing conflict between two organized groups of revolutionary fanatics, each of which has imported to this country the strong-arm technique developed in the struggle by which their kind has devastated Europe. Increasingly, American cities have to cope with it. One faction organizes a mass meeting, the other organizes pickets to harass it; each organizes squads to counteract the other’s pickets; parade is met with counterparade. Each of these mass demonstrations has the potentiality, and more than a few the purpose, of disorder and violence. This technique appeals not to reason but to fears and mob spirit; each is a show of force designed to bully adversaries and to overawe the indifferent. We need not resort to speculation as to the purposes for which these tactics are calculated nor as to their consequences. Recent European history demonstrates both.
Hitler summed up the strategy of the mass demonstration as used by both fascism and communism: ‘We should not work in secret conventicles but in mighty mass demonstrations, and it is not by dagger and poison or pistol that the road can be cleared for the movement but by the conquest of the streets. We must teach the Marxists that the future master of the streets is National Socialism, just as it will some day be the master of the state.’ First laughed at as an extravagant figure of speech, the battle for the streets became a tragic reality when an organized Sturmabterlung began to give practical effect to its slogan that ‘possession of the streets is the key to power in he state.’
The present obstacle to mastery of the streets by either radical or reactionary mob movements is not the opposing minority. It is the authority of local governments which represent the free choice of democratic and law-abiding elements, of all shades of opinion but who, whatever their differences, submit them to free elections which register the results of their free discussion. The fascist and communist groups, on the contrary, resort to these terror tactics to confuse, bully and discredit those freely chosen governments. Violent and noisy shows of strength discourage participation of moderates in discussions so fraught with violence and real discussion dries up and disappears. And people lose faith in the democratic process when they see public authority flouted and impotent and begin to think the time has come when they must choose sides in a false and terrible dilemma such as was posed as being at hand by the call for the Terminiello meeting: ‘Christian Nationalism or World Communism-Which?’
This drive by totalitarian groups to undermine the prestige and effectiveness of local democratic governments is advanced whenever either of them can win from this Court a ruling which paralyzes the power of these officials. This is such a case. The group of which Terminiello is a part claims that his behavior, because it involved a speech, is above the reach of local authorities. If the mild action those authorities have taken is forbidden, it is plain that hereafter there is nothing effective left that they can do. If they can do nothing as to him, they are equally powerless as to rival totalitarian groups. Terminiello’s victory today certainly fulfills the most extravagant hopes of both right and left totalitarian groups, who want nothing so much as to paralyze and discredit the only democratic authority and can curb them in their battle for the streets.
It is possible for us now to look back on Justice Jackson’s opinion and find it to have been misguided. After all, his opinion was a dissent; Justice Douglas’s more libertarian view became the controlling law. Yet there was no outbreak of political street violence as a result.
But, looking back at the then-recent history of the Weimar Republic, it wasn’t unreasonable for Justice Jackson to worry about the same sort of thing happening here, or to think that somewhat extending the bounds of the “fighting words” doctrine might be an acceptable solution to a sufficiently grave threat.
That is not our current situation. Al-Qaeda and the terrorist groups it typifies represent absolutely no threat to the continuity of our government, our way of life, or our Constitution, except through their capacity to empower those who for other reasons are enemies of liberty and friends of tyranny and who might use the al-Qaeda attacks, as they previously used Communism, as a convenient excuse for shredding the Bill of Rights. That the Chief Justice and the Attorney General both seem rather inclined to favor the tyrannical side is not an encouraging fact, but even so there is no actual threat to basic liberty or Constitutional government, and will not be even if the terrorist problem gets worse.
The best one-line summary I’ve ever heard of a free way of life is the proclamation that used to be (as far as I know still is) made to Jews arriving in Israel under the Law of Return: “You are now citizens, free to vote and criticize the government.” A generation from now, we will be having elections whose results are both uncertain and important, and Americans will be able to say that their President is a fool and a scoundrel whether that is true or not, regardless of whether al-Qaeda or one of its competitors succeed in mounting another 9-11-type attack, or even a series of them.
Taylor and others interpret Justice Jackson’s dictum to mean that whenever there is an active threat that many people will die unless torture is used, the clear bars to using it created by the Constitution and international law must magically disappear. All Taylor asks to suspend the rules is “a reasonable chance of eliciting information that might help foil future attacks.” He rather callously adds, “It’s a good bet that Khalid Shaikh Mohammed has felt some pain. And if that’s the best chance of making him talk, it’s OK by me.”
No doubt it is. The human capacity for courage in the face of pain felt by strangers is always pretty impressive, and fear and hatred can make that capacity virtually boundless. Taylor disapproves of “actual torture,” for example breaking bones or tearing out fingernails, but even then makes a reservation for what he calls “extreme circumstances.”
We faced truly extreme circumstances in 1861, and again in 1941, and again until 1989. We do not face them now. The threat of terrorism is a real threat, but it is not a threat of such gravity that it forces us to chip away at the Constitution to preserve the Constitution itself. The terrorists can’t conquer us or overthrow our government. The worst they can do is kill some of us, and we’re all going to die some day anyhow.
Lest someone attribute to me the same sort of callousness of which I accuse Taylor, let me bring this down to a personal level. About 3000 people died on 9-11, out of 300 million Americans. If the next attack were as successful, and its risks were spread evenly over the population, each of us would face a risk of 1 in 100,000 of dying in that attack. (If the risks of ordinary homicide and of automobile accidents were evenly spread, each of us would have about 1 chance in 15,000 of being murdered this year and about 1 chance in 7500 of being killed by a car.)
Imagine, then, that torturing the next al-Qaeda suspect has one chance in ten of preventing a disaster that great, and thus one chance in a million of saving you, personally, from being killed by that terrorist act.
Would you choose to be a citizen of a country that practices torture to avoid one chance in a million of dying suddenly? I wouldn’t.
If at first you don’t succeed, try, try again. Having attracted almost zero attention when first posted, this item has now picked up links from Matt Yglesias (largely agreeing), Jane Galt (raising a related question), and Glenn Reynolds (adding an argument I’d missed).
Jane Galt notes that my argument about the actual risks of terrorism directed at the United States and whether those risks actually justify extreme measures such as torture, that people don’t in fact respond to risks of mass murder for political ends as they respond to risks of ordinary murder, nor to the risks of ordinary murder to risks of inintentional injury.
That’s right, and they’re right to respond differently. “Even a dog,” said Justice Holmes, “knows the difference between being stumbled over and being kicked.” But I think that leaves my initial point standing: We’re not dealing with the sort of truly society-threatening risk that might justify, or at least profoundly tempt, a violation of the rule “Do not torture.”
Glenn Reynolds makes a point of central importance, one that is well illustrated by the revelations now coming out of Abu Ghraib and Guantanamo:
I find it hard to respond to these things in terms of cost-benefit. My law school mentor Charles Black once said that of course you can come up with scenarios — the classic ticking-nuclear-bomb example — where torture might be justified. And you can be sure that, in those cases, if people think it’ll work they’ll use it no matter what the rules are. But there’s a real value to pretending that there’s an absolute rule against it even if we know people will break it in extraordinary circumstances, because it ensures that people won’t mistake an ordinary remedy for an extraordinary one.
The White House, DoJ, and DoD torture memos are all designed to do precisely the reverse.
So now we have a choice, as voters: Are we going to ratify the decision to make torture (described in various weaselly ways) part of the policy of the United States, or are we going to reject it by replacing those responsible?