Hank
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Poster: Hank @ Tue May 12, 2009 10:28 pm
Oren Gross main points from "Prohibition on Torture and the Limits of Law" :
-"Pragmatic absolutism" and "Official Disobedience" characterize Gross' view
-The torture debate is often viewed in absolutist terms; that torture is immoral (due to the debasement of the tortured and the depraving of the torturer; or else due to the corrupting effects on society) and therefore inexcusable regardless of the consequences of not torturing
-Arguments for the permissibility of torture are generally from a 'consequentialist' viewpoint, which is a cost/benefit perspective - "ticking bomb" logic, etc, supports a 'conditional prohibition
-Variations include "orders of magnitude' approach, which considers only threats of massive scale to outweigh long-term bad effects of torture
-Absolute prohibition is morally untenable when viewed in cases of imminent catastrophe -- suggests an absolute legal ban on torture that actors may circumvent by extralegal actions for which they'll be called to account ex post
-Crucial to distinguish between 'truly catastrophic' cases and 'artificial cases'; general policy vs. special cases
-Crucial to uphold the symbolism of the inviolability of human dignity and the human body -- cries of national security, etc, do not trump fundamental rights
-Absolute legal ban 'resists the less-inevitable but more-dangerous' - that is, it cannot prevent the extralegal use of torture in catastrophic cases, but checks against the spread of torture to less-catastrophic cases, etc
-Absolute legal ban rejects cost/benefit and avoids slippery slopes
-Torture will be used ("official disobedience") in extreme ticking-bomb cases, legal or not, so the question becomes what legal and other consequences result from its use
-In a constitutional society, extralegal acts will be done wit trepidation and will have to be accounted for (justified or condemned) ex post ('ex post ratification') -- these factors are powerfully limiting -- responsibility to 'moral judgments of history,' also international legal consequences for actor and state
-Extralegal actions, unlike bent laws, are unlikely to create dangerous legal or even moral precedents
-Also, the extralegal actor is an 'autonomous moral agent,' not an an agent of an institution -- this curbs institutional violence
Alan Dershowitz key points from "Tortured Reasoning" :
-Torture is currently in widespread use with no accountability -- this is not acceptable; use will expand without accountability -- 'pervasive torture with deniability'
-it is better to legalize torture in certain warranted cases than to de facto permit it in all by avoiding the issue -- as in current 'don't ask, don't tell' situation
-'necessity' arguments result in too much elasticity -- Abu Ghraib proves this
-The risk of ex post ratification or condemnation should rest with a judge called upon to issue a 'torture warrant,' not with the interrogator
-Since the courts' function is to finely balance liberty and security, it's appropriate that they do so in the case of catastrophic situations as regards torture
-If a democratic nation is to undertake any action, then that action must be subject to the rule of law.
-The core debate isn't about whether torture can be justified, it's about accountability in the case that it is used in fact
-Requiring warrants adds an unfortunate degree of legitimation, but provides accountability
-Cool judicial heads > hot interrogator heads
-We want torture to be used if it'll save millions of lives, and we should never want our agents to do anything we deem wrong or illegal
-'Tragic decisions should be made at the top whenever feasible,' not by individual operators 00 cf decision on whether or not to shoot down passenger jets
-Judicial review / warrants would prevent another Abu Ghraib by eliminating deniability and 'necessity' arguments
Elaine Scarry key points from "Five Errors in the Reasoning of Alan Dershowitz" :
-The argument that those who argue for an absolute ban on torture are morally impaired or hypocritical is false
-Just because an act is necessary does not mean that it is no longer wrong and punishable; a 'savior of the city' is unlikely to be deterred by the spectre of possible legal culpability
-The act of torturing requires no courage if warranted, but much courage if possible consequences must be borne by torturer -- soldiers regularly give their lives to save others, so it's unclear why legal impunity is needed for the torturer (who might have to give up his liberty to save others)
-Warrants eliminate the 'how certain am I that this subject has the knowledge I need which would justify torture?" test
-Vast number of current detainees make it seem unlikely that, in the event of a 'ticking bomb,' we'd have only one person to interrogate - it'd be more like 5,000; it's ludicrous to suggest after our myriad intelligence failures that we can recognize the ticking bomb accomplice
-These assumptions -- lack of courage, that test is not necessary, intelligence omniscience -- make ticking bomb 'threshold' the inappropriate one through which to enter the torture debate
-The assumption that the judicial or executive officer confronted with a ticking-bomb warrant request will be able to effectively distinguish between appropriate and inappropriate scenarios is false
-Example : FISA has only declined one warrant request out of 25,000
-Warrants may actually limit legal review, as is the case with search warrants -- once the warrant is obtained, the requestor is free from further review
-Dershowitz repudiates, then employs, concepts that he admits are monstrous ('torture lite,' necessity') by giving them different names later ('nonlethal torture,' 'exceptional circumstance warrants') and making them into formal legal procedure
(46,722)
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