Steve Gey's scenario

[Volokh, Eugene]

        Dan Levin's most recent post makes some excellent points, and
strikes me as much more persuasive.  I wonder, though, how much we can get
out of pointing out that torture was abused in various regimes, Communist,
Nazi, fascist, authoritarian, or what have you.  *All* crime-fighting tools
were abused in those regimes -- imprisonment, searches, and so on.

        Likewise, of course no-one can "really be sure that torture would be
confined to the 'legitimate' purpose of extracting information from a
terorrist to prevent a future attack."  But we can't really be sure that
anything would be confined to its legitimate purposes; in fact, we can
positive that all tools -- again, including imprisonment, searches, and so
on -- have been, are being, and will be misused by someone.

        This does remind us, of course, that we should worry, and worry a
lot, about the slippery slope.  But again, the maintenance of prisons,
police departments, and a criminal justice system more generally is a step
onto the slippery slope towards a police state; and quite a few nations have
slipped down that slope.  But we maintain police departments (which can be
and have been used to oppress) because we must; we maintain courts and
prisons (even though we're guaranteed that *some* innocent people will be
wrongly convicted) because we must; we arm police officers (even though we
know that this sometimes leads police officers to kill innocent people)
because we must; we maintain armies (even though we know that all wars kill
some innocent people) because we must.

        People on this list know that I take slippery slope concerns
seriously.  But I'm not sure that the risk of a slippery slope, by itself,
without some explanation for why this particular slippery slope is
particularly likely, demonstrates that torture can never be used even in the
hidden bomb scenarios.

        Eugene

Dan Levin writes:

> -- First, how can the government ever really be sure that the
> terrorist has the information that the govt is seeking, if he denies
> having that information?  Do the govt agents beat him for awhile just
> to see?  If he keeps denying that he knows anything, how long should
> they keep at it?  Until he's dead?
>
> -- Second, the 19 hijackers on sept 11 were willing to fly airplanes
> filled with fuel and people into the World Trade Center, thus
> assuring the hijackers' violent deaths (along with innocent
> passengers and WTC employees), in order to...well, I'm not actually
> sure what their purpose was.  Make some kind of a statement about
> American capitalistic world domination and the oppression of Islamic
> people?  Change American foreign policy w/respect to Israel and
> Islamic governments?  Get Israelis to abandon Israel?  Who knows.  So
> how can anyone be so sure that Islamic terrorists would respond to
> torture by answering questions about future attacks?  Is it possible
> such terrorists might think torture is just another step to getting
> rewarded in the Islamic afterlife?
>
> -- I've heard interviews with Palestinian parents on NPR who say they
> would be PROUD if their child became a suicide bomber and killed
> Israelis at a pizza parlor.  Would someone like that necessarily care
> if his or her child were subjected to torture by Americans?
>
> -- I think we need to remember that torture has been used in the past
> in many cases NOT to extract information about impending crimes, but
> for such purposes as:
>
> a) protecting power, wealth and privilege; basically excluding
> competition for these scarce resources (eg, certain south american
> and other fascist and communist governments)
>
> b) suppressing dissent by punishing past dissent and discouraging
> future dissent
> (eg, German Nazi party, Italy under Mussolini, Stalin's USSR)
>
> c) propping up fascist or totalitarian governments and keeping
> democracy at bay (eg, German Nazi party, Italy under Mussolini,
> Stalin's USSR)
>
> d) encouraging someone to pay a debt (e.g., loan sharks)
>
> e) causing pleasure in people who are so twisted and sick that they
> enjoy inflicting pain on people perceived as different from them or
> inferior to them, or who they perceive as having victimized them
>
> Clearly these purposes are not mutually exclusive; many of these
> purposes operate simultaneously.  And all of these purposes must be
> deemed completely illegitimate and criminal in any civilized society.
> Doesn't this represent the vast majority of cases in world history?
>
> I would venture to say that there are Americans right now who would
> be willing to round up every Islamic person in America, citizen or
> not, and execute him or her just to reduce the risk that America
> would be subjected to another terrorist attack.
>
> If torture were legalized to extract info about future terrorist
> attacks, how can we be sure that SOME of the illegitimate purposes
> listed above wouldn't work their way into an American system of
> anti-terrorism?  Can anyone really be sure that torture would be
> confined to the "legitimate" purpose of extracting info from a
> terrorist to prevent a future attack?
>
> Dan Levin
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