Is torture unconstitutional?

[Tobias Wolff]

Once again, we seriously debate the merits of torture on this list.
How disturbing.  Let me suggest another type of consideration from
those already offered.

If a situation arises in which U.S. officials believe that torture is the
only tool that will permit them to avert an imminent doomsday
disaster (like the detonation of a nuclear device), I think it quite likely
that they will utilize that tool, regardless of what the Constitution
says..  As a matter of moral philosophy, it may even be justifiable.  I
would suggest, however, that the use of torture in such a situation
ought to be unconstitutional nonetheless.

Sometimes, the function of a Constitution is to exemplify certain
norms and, more precisely, to offer a robust articulation of the costs
associated with violating those norms.  Even if we accept that torture
is likely in the doomsday scenario, and even if we accept that it is
morally justifiable, it is nonetheless profoundly costly on a societal
level.  In such a situation, perhaps the Constitution should embody --
and enforce -- those costs.

Thus, a government official ought to have to pay the personal price of
becoming a lawbreaker if he exercises the choice of torture.  A Head
of State ought to be in derogation of his constitutional duty if he
orders torture.  The doomsday scenario is one for which there is no
"right" solution.  Rather than attempting to craft constitutional rules
that will embody such a nonexistent solution, perhaps the doomsday
scenario calls for the Constitution to exemplify principles with the
expectation that those principles may be violated, and to enforce,
rather then erasing, the societal cost of such a violation.  We should
resist and mourn, rather than embrace and trumpet, the possibility
that we might resort to torture, and our Constitution should, perhaps,
reflect that moral orientation.

Thus, the debate, it seems to me, should center not on whether
torture should be used in the ultimate doomsday scenario, but how
the Constitution should seek to express and enforce the costs of
such a use of torture.

-- Tobias


>         I sympathize with many criticisms of torture, but I think the
> argument below is just too abstract to carry the day.
>
>         Moral high grounds are all well and good, and all else being
equal
> of course we'd like to have them.  But lots of very sensible and
decent
> people argue that sometimes we need to sacrifice the moral high
ground in
> order to, well, save the lives of thousands (or more) of people --
and that
> maybe a moral high ground that strips us of the power to do this
isn't so
> moral after all.  Simple appeals to "keeping the moral high ground"
just
> don't effectively respond to this important argument.
>
>         Likewise, the argument that "Once we start using torture as a
means
> to an end, are we any better than al Qaeda?" strikes me as
fundamentally
> misplaced.  You bet we'd be better than al Qaeda; while means are
important,
> ends are important, too.  Using torture to save the lives of
innocents, even
> if it's morally flawed, is surely better than killing thousands of
innocents
> in order to install purer Islam in the Middle East.
>
>         To take one analogy, lots of people have criticized the
firebombing
> of Dresden and the nuclear bombing of Hiroshima and Nagasaki,
on the grounds
> that we shouldn't have deliberately targeted urban populations in
order to
> cow the enemy into submission.  I'm not sure that this criticism is
right,
> but it's certainly plausible.  But the answer to "Once we start
deliberately
> killing civilian populations as a means to an end, are we any better
than
> Hitler?" is "Of course we are."  Whatever the right or wrong of the
matter
> may be, it can't be decided simply by claiming that ends are
irrelevant and
> that means are all that matter.
>
>         As I said, there are powerful arguments against torture, for
> instance the risk that allowing torture in the most extaordinary
cases will
> lead to allowing it in the merely extraordinary cases and then in
fairly
> ordinary cases.  But it seems to me that abstract arguments like
the one
> below do more to weaken the argument against torture than to
strengthen it.
>
>         Eugene
>
> > If torture is not a violation the U.S. Constitution, or any
> > Constitution, something is very wrong.  It seems to me that the
U.S.
> > claims to have the "moral high ground" in the world.  If the U.S.
> > starts using torture to get information, any American claim to
having
> > the moral high ground will be lost, and immediately.  In my view,
> > torture is fundamentally wrong; not merely "malum prohibitum,"
but
> > "malum in se."  It degrades the torturer as well as inflicts pain on
> > the victim.  Once we start using torture as a means to an end, are
we
> > any better than al Quaeda?  This is a very slippery slope.  We
must
> > beware of legalistic arguments in support of behavior that is
utterly
> > wrong.  Let's not burn our most fundamental principles in an
effort
> > to defend them.
> >
> > It's easy for ideals to lead to the most grievous crimes.  Nietzche
> > said, in effect, that "when you are fighting a monster, you better be
> > careful, so that you don't become a monster yourself."  There are
> > monsters out there and always have been...al Quaeda is one of
them.
> > In our battle against monsters, let's not become monsters
ourselves.
> >
> > Dan Levin
>