Torture and moral authority

Why will Americans tolerate torture?

At the dinner with Adam Michnik mentioned here last week, talk turned to torture. Michnik, definitely a terrorism “hawk,” expressed puzzlement about why the American public seemed so much more willing than the European public to embrace, or at least tolerate, the use of torture. After all, it’s not as if Europe hasn’t faced long and bloody terror campaigns.

Clare Bakota, a UCLA public policy student who has lived in Chile for several years, offered what seemed to be the best theory: Europeans, like Latin Americans, know people who have been tortured. For them (and for her), it’s a visceral issue, and anyone playing verbal games about whether waterboarding is “torture” is treated with well-merited contempt.

As to the other discussion at dinner – about who has moral authority in America – one group that has great moral authority with me consists of the lawyers who represented the Gitmo detainees, and the lawyers in JAG and the DoD General Counsel’s office who resisted the use of torture. Naturally, the American right, which has utterly lost whatever moral compass it used to have, is now accusing the men and women who upheld the highest standards of their profession and the noblest traditions of our country against Dick Cheney and his vertical barbarians of disloyalty, and of sympathy with terror.

Will any Republican stand up to these thugs – no just Liz Cheney, but the ever-contemptible Chuck Grassley? So far, the answer is “no.” After all, the pro-torture position is a political winner: indeed the only Republican position that voters prefer to the President’s position. (Of course, there was a serious shortage of Republicans standing up to McCarthy, until he went after Eisenhower; his “twenty years of treason” speech was fine with them, until it became “twenty-one years” in 1953.)

Anytime anyone – I’m looking at you, Jonathan – tries to tell you that there’s no morally significant difference between the parties, just consider the contrast between the President who allowed those lawyers to be hired by the Department of Justice, and his opponents who are slandering them.

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:

12 thoughts on “Torture and moral authority”

  1. Attacking the lawyers who have defended the Gitmo prisoners would be bad enough if "at least 93 percent of the 779 men and boys imprisoned … were [not] either completely innocent people, seized as a result of dubious intelligence or sold for bounty payments, or Taliban foot soldiers, recruited to fight an inter-Muslim civil war that began long before the terrorist attacks of September 11, 2001, and that had nothing to do with al-Qaeda, Osama bin Laden or international terrorism."….

    Yet, even in today's Los Angeles Times, these prisoners are referred to as "enemy combatants."…. And let's stop calling them "detainees." The police "detain" a driver to give him a ticket. To being imprisoned for eight years is not to be "detained." Congress should feeling a deep sense of shame for having allowed Bush and Obama to keep these men imprisoned, but instead is outraged about the prisoners' being defended by lawyers or about the possibility of their being released into the United States. We not only ought to release those we know are innocent into the United States (if they wish to live in a country that has harmed them so); we ought to compensate them generously — say, $1 million per year — for each year of their imprisonment.

  2. Who hired those lawyers?

    We're primarily talking about commissioned officers of the US military, mostly Navy. I suspect their career path is ROTC in college, then serving as a reserve officer during law school.

    I don't think these fine lawyers exemplary work can be attributed to any administration. Rather it speaks to the quality of JAG leadership, leadership that resisted Cheney and Rumsfeld and did the right thing. Exactly when and how that leadership developed is again outside of any one administration, and it seems likely to me that the top brass received their commissions during Reagan or GHW Bush. Perhaps some credit is due to Clinton for promotion policies.

  3. What Western Europeans know people who have been tortured? Remember that anyone alive and aware under German occupation is now in their 70s. I suspect that a more important distinction between Europeans and United Statesians is that in this country, torture has long been part of the toolkit for keeping the unruly (i.e., primarily people of African descent) in line.

  4. In France, the memory of the systematic torture practised by the French Army in Algeria in its war with the equallly ruthless FLN (starting with the paratroopers in the Battle of Algiers in 1957) is two decades more recent than the Gestapo, and involved much larger numbers of Frenchmen as participants or witnesses. But that experience was unique to France. For my money, it´s not generally for Europeans a matter of personl acquaintanceship, but a collective memory of either Fascism or Communism or, in the case of Poland, Czechoslovakia and Hungary, both. Torture is a natural product and symptom of totalitarianism.

  5. Maybe torture is related to the arrogance of Americans — the "greatest country on earth," the best health care system, "home of the brave and land of the free," etc.

  6. WMD, there are two different groups of lawyers involved, and the post failed to clearly distinguish between the groups. There were the JAG and DoD General Counsel lawyers, who were mostly career folks except for William Howard Taft IV, who might make me change my mind about hereditary politicians and who was in fact a GWB appointee. But the Obama Administration has hired several lawyers who did pro bono work on behalf of detainees for positions in the Justice Department, and Grassley & Co. are now attacking the President for doing so while accusing the lawyers of disloyalty.

  7. To Mark's comment at 9:55 I would add a little more detail. The prisoners indicted in the military commissions — something like 20 out of the 780 men who have been imprisoned at GTMO — get appointed military officers to represent them. They often also have civilian volunteer lawyers (such as former Georgetown Law prof Neal Katyal) because of the limited nature of the military lawyers' appointment.

    The vast bulk of the prisoners have never been and will never be charged with anything. Many petitioned for writs of habeas corpus — that is, if there isn't evidence to justify detention under law, the prisoner must be released — in the civil courts. They've been represented by volunteer lawyers or, in many cases, by federal public defenders. The defenders have done terrific work — a great sample of which that is readily available online is the Oregon defenders' amicus brief in the Kiyemba case. Volunteer lawyers come from big firms — AG Holder's former firm, for example — small firms, and some are sole practitioners. There have also been NGOs — Human Rights Watch (former employer of Jennifer Daskal), for example, did great work documenting the conditions faced by returning prisoners in Tunisia. It also filed amicus briefs detailing the human rights aspects to the litigation. A number of retired judges, and retired military officers, filed amicus briefs on various legal points. As have law professors.

  8. I have a feeling that it's WWII and the Soviet occupation of Eastern Europe for 40-odd years. Most people's grandparents lived under regimes which freely tortured and killed people. Many people in their 40's lived as adults under a regime which might have been careful about *mass* murder, but which would casually imprison and torture people.

  9. I think a test for this would be to see how a sample of people from, say, argentina or guatemala think about torture.

  10. I'd forgotten that former Solicitor General and 9/11 widower Ted Olson weighed in on the issue a few years ago. That's some moral authority. Not that his opponent in Rasul v. Bush, WWII vet and former Chief Judge of the Third Circuit John Gibbons is any slouch in that department.

  11. If waterboarding is not torture, but simply an enhanced interrogation technique, then surely Belzec, Majdanek, Sobibor, Treblinka, and Auschwitz-Birkenau were simply one-star hotels and not extermination camps.

    War is peace and love is hate.

    Torture fans, like Cheney and Yoo, are bringing the principles of Orwell's tome to life, as are a large percentage of conservative pundits and politicians, by imposing tendentiously false meanings to the terms used in debating issues of national importance, such as torture, and the purpose couldn't be more clear: convince Americans that their evil is good and thus achieve power through the deceitful manipulation of language.

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