This isn’t World War III

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; and no actual outbreak of massive political street violence swept the country 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.

Earlier post here.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: