Torture, law-breaking, and the American way

The debate over torture and the many other instances of law-breaking that have become the modus operandi of the Bush administration’s War on Terrorism has been distorted from the start. The liberals and libertarians who opposed warrantless wiretapping, torture, extraordinary rendition, and other legal, but questionable, tactics used by the Bush administration were – from the start – painted as giving “aid and comfort to the enemy.” The Republicans continue to say: “We just want to make America safe.” This is usually paired with an explicit or implicit message that, “Those who oppose us are weak.”

Liberals and libertarians have yet to find an effective way to respond to this argument – at least on a national level. I think the best approach is to point out that the Republican “strategy” is to preemptively surrender American liberties and the primacy of the rule of law out of fear. Acting out of fear is weak. This line of attack puts us back on the path to the argument we should be having – about the balance that needs to be struck between liberty and security.

It has become an aphorism that in order for a government to succeed in the fight against terrorism, it must win 100% of the time; but for a terrorist to succeed, they only need a single victory. Any counter-terrorism expert will concede that it is impossible to prevent terrorism 100% of the time. In trying to determine the balance we need between liberty and security, this must be a factor. For if we decide to give up certain rights temporarily to prevent terrorism – when there is another attack, it will be presumed that the government will need to go yet another step in taking rights to prevent the next attack. It is a cycle that leads – inevitably – to totalitarian government.

This is why for the good of the American experiment, for our way of life, we need to ensure that arguments over national security do not devolve into questions of “Who is passively supporting terrorism?” The Republicans – by launching this line of attack – are paving the road to serfdom in a way that any true conservative knows we must avoid. By framing the issue in this way – presumably merely for temporary political gain – they are preparing the American people to accept further deteriorations of liberties.

If one is to view the Republican’s position without context – as they defend the near indefensible – you can see how it is effective. By focusing on our worst fears, morality becomes skewed. But the Republican line of attack – even without proper context – inevitably raises tough questions: Would torture be moral if it was done to prevent a nuclear disaster? Would assassination? Would murdering an infant? If the stakes are so high – morality and legality become irrelevant.

By applying the “one percent doctrine” of acting as if one’s worst fears were imminent when there is an infinitesimal chance of these fears being realized, the Bush administration has taken the most extreme circumstances that might justify an exception and made them into normal policy. The Bush administration’s policy reflects fear rather than due consideration.

Republican commenters always bring up the “ticking time-bomb scenario” to justify torture. They say: under these circumstances, if your family and tens of thousands of others would die if you didn’t torture this man, wouldn’t you torture him?  ((I am trying here to view the argument in favor of torture as sympathetically as possible.  I know – and have written before – about how torture has generally been used to get confessions rather than to ascertain the truth. I doubt the efficacy of torture; psychologically, it makes little sense that it would cause individuals to “tell the truth”.  I have yet to see any significant studies of the effects of torture to wring the truth out of individuals – although I can see how it would be a difficult field to study.  You can’t very well torture people in a scientific study.))

I would.

And if the President of the United States believes that tens of thousands would die if he or she did not order the torture of an individual, would you expect the president to follow the law and refrain from torturing?

No – I would expect the president to order the person to be tortured.

But though Republicans make this argument to show that torture should be legal, it proves no such thing. Under either of the two above circumstances, the individual who made the decision to break the law should be held accountable to the law. If the president has ordered that a man be tortured because he thought it was necessary, he should go before the American people – and a duly constituted court of law – and explain what he did, and why he did it. If he does not do so, then until this is corrected, we cannot be considered a constitutional democracy – a nation where laws are above all individuals, no matter their position.

The biggest problem with the Republican arguments is that they are trying to make the exceptional circumstances the policy of the American government. What we must strive for instead is a balance between liberty and security.