Jonah Goldberg links to this interesting argument on the use of “torture” in interrogating detainees which strikes me as one of the more reasonable arguments against the practice of “waterboarding” and the like. I must admit some moral hesitation at the idea of state-sanctioned torture. From a strictly moral perspective, torture is always a moral wrong — and Catholic legal theory is quite clear on that. On the other hand, what is being done is torturous, but not something that causes lasting harm. I personally believe that those who are responsible for such atrocities have essentially disavowed themselves of their very humanity — but even I admit that such an argument is on shaky moral grounds, and brings a whole host of moral issues to the table, some of which are dire indeed. However, society’s interests in justice are as always paramount — salus populi suprema lex — and if Khalid Sheikh Mohammad breaks after two and a half minutes of waterboarding and spills the beans about dozens of upcoming terrorist plans — saving thousands of lives in the process, is the greater good being served. I totally disagree with Andrew Sullivan that such a thing is so morally monstrous as to be unconscionable.
However, Noah makes another very interesting point:
Finally, I am appalled that we are even considering legalizing torture while standing resolute in our refusal to apply appropriately targeted screening techniques at points of entry into the United States. This President has been willing to go the people demanding the right to declare anyone an enemy combatant and torture that person, but he is not willing to go the people and say that ethnicity, religion, age and sex should determine who is subject to more aggressive searches before he boards an airline. I can find no good excuse, and no good moral justification, for his preference in this regard.
Now there’s an interesting moral quandary. We’re asked to accept that the state has the power to torture terrorist suspects by techniques such as waterboarding, stress positions, sleep depravation, exposure to heat and cold, but that we can’t take actions which might “target” specific ethic groups or nationalities. Is there a double standard here? We’re apparently willing to utterly destroy the rights of one person, but not restrict the rights of a whole class of people in a relatively minor way, even though there’s more than enough objective reason to do so.
I think that as a rule we’re less concerned with narrow actions that target only very certain people than establishing a general rule that seems to equate all Arabs or Muslims with terrorists. However, it’s worth questioning whether the logic of that assertion really holds though. If given a choice between aggressive profiling and torture, which one would be the greater infringement upon civil liberties to someone like Andrew Sullivan or Senator McCain? Is it better to infringe upon the human rights of a terrorism suspect but not the civil liberties of an entire class of people? Would those who oppose torture have the moral grounds to simultaneously call for more aggressive profiling at airports? It’s certainly a question worth asking.
I’d be lying if I said that my support for the aggressive treatment of terrorist suspects came without any moral reservations. I think that those who worry about the Detainee Treatment Act being a back-door way of suspending habeas corpus have a good amount of justification for doing so, and I think that we have to consider the fact that a grant of government power in this regard does open a door that could lead to greater problems down the road.
At the same time, we are facing an intractable enemy who blends in with the civilian population and plans devastating attacks against innocent civilians. In a sense, no one in America is a non-combatant anymore — at least not as far as our enemies are concerned. As Justice Jackson wrote in Terminiello v. Chicago “the Constitution is not a suicide pact.” The magnitude of the threat is all too great, and our government has the obligation to do all it can to protect us without betraying its own principles.
The fact that these issues are being aired is healthy for our democracy, but they must be handled in a thoughtful and mature way. It is telling that the most intelligent condemnations of torture come not from the left, but from men like Senator McCain. Ultimately, the force of law is not the final bulwark against true tyranny in this country — we are as the people to whom the government should always be subservient. In considering these issues we have to weight our belief in civil rights with our need to protect ourselves from attack — and anyone who says that balancing act is anything but interpreting shades of gray isn’t taking the issue with sufficient seriousness.