Month: January 2005

I heard a short entertainment brief just the other day about how David Letterman was being sent the occassional joke by late-night legend Johnny Carson. It was one of those odd non-news vignettes that reminds you how long the subject has been out of the public eye, and it struck me that his folks most likely sent out this press release to soften the coming blow. And so it is. Johnny Carson has died at the age of 79.

Anyone too young to remember the elegantly simple charm of Jay Leno’s predecessor missed a true master of the art.

The boyish-looking Nebraska native with the disarming grin, who survived every attempt to topple him from his late-night talk show throne, was a star who managed never to distance himself from his audience.

His wealth, the adoration of his guests — particularly the many young comics whose careers he launched — the wry tales of multiple divorces: Carson’s air of modesty made it all serve to enhance his bedtime intimacy with viewers.

"Heeeeere’s Johnny!" was the booming announcement from sidekick Ed McMahon that ushered Carson out to the stage. Then the formula: the topical monologue, the guests, the broadly played skits such as "Carnac the Magnificent."

But America never tired of him; Carson went out on top when he retired in May 1992.

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When people ask why impoverished countries haven’t improved their condition recently, opinions sometimes break down along the following lines: some people point out that the terms of trade are stacked in favor of rich countries, which impedes their efforts to trade their way to increased prosperity, and others point out that many of those countries are very badly governed, which produces the same result. (Myself, I think that both claims are obviously true.) One of the reasons people insist on one or the other point is, I think, that the first implies that rich countries are at least partially responsible for the continued immiseration of poor countries, while the second seems to imply that it’s those countries’ own fault. (Not the fault of their entire population, obviously, since often those bad governments seize control in coups, but at any rate not something we can do anything about.)

I want to call this last assumption into question, and argue that the fact that poor countries often have disastrous governments is in part the result of an international legal framework that we have put in place, and that we are in a much better position than poor countries to change. But, to be clear at the outset: I am not trying to argue that this is wholly our fault, or anything. Obviously, it’s not. The nature of international legal arrangements is, I think, much more the doing of rich countries than of poor ones, but I have no idea how large these arrangements’ contribution to bad governance in poor countries is. I am just trying to argue that since it’s unlikely that these arrangements don’t contribute at all to bad governance in the developing world, changes in international legal principles could lessen the number of thugs who take over poor countries; and thus that when a poor country is taken over by a thug, that’s not something we have no responsibility whatsoever for, as if it were a random natural catastrophe.

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On January 7, 2005, I issued a challenge for a blogger to step forward to defend the following position:

Resolved: in fighting the war on terror, there are circumstances in which a U.S. government agent should be able to torture a prisoner without risking criminal or civil liability.

(Or one like it.)  I offered the take the other side — the anti-torture side — in the debate.

I’ve yet had no takers.  James Donald sent the following hypothetical by e-mail, however, which I publish with his permission:

You intercept a car bomber who was about to blow up a mosque full of innocents. His handlers are trying to provoke civil war by committing enormous atrocities.

You know the average suicide bomber is none too bright and none too sane – that his handler is somewhere nearby attempting, not very successfully, to guide him to the desired target. So you ask him. "Who is your handler? Who supplied you with all these explosives, who installed the detonator? Where did the explosives come from? He does not answer. What you gonna do?

I know what I would do, whether or not I am employed by the US government. What would you do?

The question misses the point.  The issue is not what one should do in a given case.  The issue is what rules should generally apply.   

There are situations in which I would torture a captured, powerless foe.  There are situations in which I’d want my government to torture a seeming innocent in my name.  And, as I mentioned in my original post, I can even dream up exceptional situations in which I would happily agree to torture a seven year old child to a slow death.  (So can you, I bet.)

But if we’re going to discuss legitimizing torture, we need to start with the rules that will generally apply.  We can’t start with the exceptions. 

It’s therefore telling whenever a person wants to argue that torture should be legitimized, they rarely argue a rule.  They nearly always argue an exception.  Or they resort to a generalized, "I wouldn’t take anything off the table."  (See, e.g., this old den Beste post.)

They do this because they don’t have a rule to argue.  They don’t have standards to apply.  They don’t want to make an affirmative case.  They want to rely on an ad hoc assembly of examples.  A generalized fear.  A broad concern.  It is because their position is fundamentally weak.  They need to conceal its weakness. 

Well, my position isn’t weak.  So here’s my rule.  Torture is prohibited.  If you torture, you assume the risk of your act — of being prosecuted and of being convicted. 

There is no immunity because you are working for the government or because you believe it’s for he greater good.  A thousand roads have been laid with some variation of such words, and they each lead to a Godwin’s law violation.  There is good reason not to lay another.

Will this mean that every torturer will be punished?  Probably not.  Indeed, in a truly exceptional case no prosecutor would indict and no jury would convict.  But, as I mentioned, the rules are not designed for exceptional cases. 

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Still, to answer Mr. Donald’s question:  I frankly don’t know what I would do — I mean, other than interrogating the guy to the nines and (ultimately) tossing him in jail.  Would I enhance my interrogation by pulling out his fingernails?  Breaking his fingers with a wrench?  Punching him a couple times in the balls?  Slowly bleeding him to death?  Sodomizing him with a toilet plunger?  Loosing (or threatening to loose) an attack dog on him?  Plunging his face into water?  Threatening to kill his wife, his son, and his month old baby girl?  Actually killing them?

Would any of these things would improve the intelligence that I received from a "none too bright and none too sane" suicide bomber?

And what are the stakes?  If I don’t torture the bomber, I may not be able to locate the leadership of the insurgent group?  Wouldn’t that same standard potentially apply to every insurgent fighter — legitimizing torture against the entire enemy force? 

Is that the rule that I should apply?

UPDATE:  Contrapositive notes some less-than encouraging comments from (now) Secretary Rice at hearing regarding this very subject.  Maybe, if Sens. Boxer and Kerry hadn’t made asses of themselves yesterday, these comments would have gotten more play.  (For the record, I support elavating Rice to State, and thus am having difficulty getting too worked up about this.)

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