25 September 2009

Law. And. Order?

I actually watched part of a TV show this evening. I had it on some reliable authority that Law and Order, the popular cop-lawyer drama, was tackling the question of the torture debate and its legality. I caught the latter half of it. Given that I'm not accustomed to time and when to watch TV shows (if I miss the Daily Show/Colbert hour it's only going to be on about 4 times a day, plus appear online in a few hours for example), the fact that I missed some of it wasn't that annoying. For the most part the arguments being advanced were not that complicated, either through the pro-torture John Yoo character (it was patently obvious that's who it was, nobody else has advanced the idea that the President can legally permit someone to torture a child, or the parent of that child, by crushing their testicles), or the anti-torture DA concerned with the actual ethics.

What bothered me was that this was framed in an ethics versus the law sort of debate. My reading of the Geneva Convention and resulting case laws from Supreme Court cases dealing with the "war on terror" is that the law is pretty firmly against allowing torture, or at least, that the laws that were in place should have applied. This sort of frames the debate, as my new favorite blogger has placed it, as a fight between the sort of civil liberty hippy and the intelligence community (or the government in general) over the ways to best insure our safety while at the same time retaining a moral high ground, and tosses out the eternal questions of "rule of law". It is a debate, like a debate over "are cops/right-wing commentators racist", that the side that "should" triumph will nearly always lose because it fights on their terms, resorting to emotional appeals of the will, rather than the more forceful terms of logic and reason.

It also seems to dismiss the fact that we didn't bother to carefully examine whether this was 1) necessary and 2) legal. We just sort of said we needed to do it and that therefore it must be legal. I was pleased they had an Ali Soufan type expert testify, and who was even firmly against even the goofy '24' style torture example always held up in defence of torture (if there's a terrorist with a dirty bomb about to go off... shouldn't we use every possible method of extracting information from him?...blah, blah, blah...) And that this guy also laughed off the "well it's not torture, but rather enhanced or harsh interrogation" argument, as "I don't need a law to tell me that something is torture". Perhaps if the "it doesn't work" example is enough to convince a few people of how this works, we might be better off. But of course "it doesn't work" doesn't address the questions of why it was illegal in the first place. Because as the expert explicitly stated, it was in fact torture which is illegal under multiple codes of international law and US statutes. Just as we have tried to use legal language to conceal the identity of our prisoners as "noncombatant detainees" or "persons of interest" or some such, or that the laws of our country do not apply to our military during its deployments around the globe (much less international laws on humanity and articles of war which have also ratified and signed), the idea that we can explain away torture as instead something as basic as "enhanced interrogation" ought to sicken people with the perverse circumlocutions involved to advance that argument. Much less the idea that we were not simply using these on people who "deserved it", much less the idea that some of them DIED. Yes. We killed prisoners through an extralegal method (and not the approved methods of capital punishment or war itself). Americans have committed war crimes. And apparently nobody is to be held accountable. Not the little fish who supposedly exceeded their authority. And not the big fish who gave them the free reign to bypass the law in the first place. This isn't just a Bush problem. And I was pleased the episode dared to question the stance of the Obama administration thus far (outside of Eric Holder). We want to look forward just won't work. There are real crimes involved for which people should demand justice. Many do.

There are some crucial reasons put forward not to want to carry forward prosecutions. One of them is the idea that people would get off and that this might damage our ability to prevent such acts in the future. This was a consideration leading up to the Nuremberg War Crimes Tribunals as well. I don't think it is a sufficient detraction. Simply because we can pass a law making murder illegal doesn't prevent murders from happening or from murderers getting off on technicalities of the law or never being prosecuted and punished in the first place. But it does allow us to try to penalize the people who commit them and hence try to offer some discouragement for bad and harmful behaviors. Like torturing prisoners for supposedly interrogation purposes. Another is the idea that these tactics "worked" and saved people, and we should forgive the people who had to carry them out or allowed them to go forward because many American lives were spared by severe and inhumane actions of a few. I think the CIA's IG report put that one to bed. They might have provided information, but it's not at all clear that they "worked", or that American lives were spared. Much less that it somehow discourages future terrorists or "gives aid and comfort to our enemies" to prosecute people over this issue.

What bothers me more than anything out of this is when the support and breakdowns of who supports these decisions come out. I think it would be obvious by now I have no love for religions or organised faith of any kind. But I'm always curious as to how many people use them flexibly to justify their preconceived positions of intolerance and injustice. The basic structural argument in favor of torture is not "it works" but rather "it makes us feel better about ourselves and our pain and suffering". This is one of the more common arguments in favor of the death penalty as well, "it gives the victim's family closure", an argument which I am somewhat sympathetic toward, but think is totally stupid from a societal point of view given the costs and the distraction of resources involved in trying to kill criminals off rather than to try to prevent them from existing in the first place. The same logic applies to torture. It costs more than it benefits. Even for the people who have suffered and lost greatly. They do not gain something for the knowledge that the people responsible (supposedly, since these are people who are held without trial and without public evidence in many cases, and many have been released as innocent) will be made to suffer for their transgressions. For whatever reason, these are arguments advanced by people steeped in religious faith. The Bush administration was commonly invoking it. Death penalty statutes, or the active use of them, are more common in the more religious Southern and Midwestern states as well (of course Ohio has managed to botch a few lately to give this state some fun publicity in the topic). As are stronger sentencing programs generally. Polling data I've seen tend to push Catholics or Evangelicals, both of whom will tend to use more literal Biblical traditions, to the head of the torture class. I'm not sure where they get their religious teachings from, but it doesn't seem to me like they've read their own books. Or rather, they seem to be employing a concept of justice that predates it: the eye for an eye code of Hammurabi. More or less, it seemed to me that the Christian ideal for justice was to leave such matters to their god and that human justice was an impossibility owing to the doctrines of original sin (man is fallen, "let he who is without..."). You were not supposed to apply these things outside the framework of state laws by taking the "law" into your own hands and casting judgments along with demanding their penalties in an exacting fashion upon your enemies or the people who wrong you, nor to use the power of a sovereign state to do anything you wanted to people. So it's difficult for me to examine uncritically the people who are clothing themselves in the sort of values revolution then to turn around and say that we must use illegal, even unethical, methods to protect ourselves. And that they will extract some degree of pleasure in exacting this suffering on others, because they plainly do want to taste the feeling of vengeance for themselves, rather than to rely on the sometimes tedious processes of human written laws of conduct and ethics, or even their expressed faith in some higher authority still than that for the application of justice to occur.

The Thomas More example (I think a powerful one for both secularists or the religious, it's basically the same case as Socrates or Gandhi or any number of other real world examples) is that our laws are here to protect us. Not just against the evils of the world, the murderers, rapists, or the terrorists. But against ourselves. The line from Watchmen that appears several times is "Who watches the watchers" or "Quis custodiet ipsos custodes" as I quoted it a few weeks ago. In a society without authoritative principles to guide its laws (principles which can be equally well found from reason or perhaps through religion, but never through the sophistry implied in the Yoo character in this TV show episode), nobody does. If the law can be violated by the sovereign power and authority of a state whenever it wants, then of what use is the law, or for that matter, of the state itself? In the end, the only way this has a happy ending for the state, for the people of it, and for the principle of rule of law, is for somebody to catch the heat and ideally to be penalized for going outside the laws we use to govern ourselves.

I can only hope that seeing something like a case made to do so, something like a case made against the supposed efficacy of torture, and something like a case made against the unchecked power of a sovereign state or its executive branch (and the associated war powers), would be enough to start that ball rolling.
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