Torture

[Volokh, Eugene]

                Actually, I think that this thread has been mostly quite
closely focused on the constitutional question.  We seem to have a
constitutional rule -- no torture.  The question is whether courts should
conclude that there are limits or exceptions to this rule that would allow
certain forms of torture.  This question is necessarily tied to general
political morality issues, but it is also very much a question of
constitutional law.

                One exception to the legal focus may have been Dan Levin's
question and my response as to whether people would be personally willing to
engage in torture -- but that too was in some measure tied to the
constitutional question.  I take it that Dan's question's purpose was to
show that, since all of us feel such strong moral revulsion to torture, even
of the guilty, it follows that courts ought to share in that revulsion and
keep firm on the no-torture rule (perhaps under the "shock the conscience"
test).  My response's purpose was to show that actually not all of us feel
such revulsion, and that in fact maybe such conduct shouldn't shock courts'
conscience.  (It was also, in part, to make clear that I was not defending
[and, I should stress again, defending quite tentatively] the implementation
of a rule that I myself would balk at implementing.)

                Again, I acknowledge that here the constitutional law
questions and the political morality questions are closely intertwined, as
they often are.  But I think the discussion has properly focused, and should
continue to focus, on the constitutional issue, bringing in with it what
political morality issues are necessarily implicated by it.

                Eugene

> Some observations about this thread, which echo and expand on  some
> comments by others:
>
> 1.  Isn't this thread concerned far more with discussing the issue as a
> matter of general political morality than as an issue of law?  Eugene
> has been quite protective of the line between political morality and law
> in other contexts, and yet seems quite willing to engage in a discussion
> of political morality here.  Is the reason that there just is less law
> here than elsewhere, or that his legalistic inclinations are overcome by
> the felt pressure (felt by him, that is) of the substance of the issue?
> If the latter, might not it be appropriate for him as moderator to
> reconsider his administration of the line between political morality and
> law in other contexts?
>
> 2.  There are a lot of questions a lawyer might ask before getting to
> the question of political morality.  Assume first a problem arising in a
> purely domestic context (Timothy McVeigh, for example).  Does the (mere)
> existence of an underlying criminal offense that might be forestalled
> authorize police officers to engage in "torture," however defined?  If
> not (in general), are there specific offenses the forestalling of which
> might authorize them to do so?  If so, is the (mere) existence of such
> offenses sufficient authorization?  If not, it would seem that the
> practice would be legal (if at all) only if specifically authorized by
> legislation (subject to a qualification noted below).  How specific must
> the authorization be (beyond, of course, the general authority given to
> police officers to enforce the law)?  And, in the present context, is
> there anything on the statute books that could count as such an
> authorization?
>
> Incidentally, on another point of list-relevance, Jeffrey Segal and
> Frank Cross mentioned the Israeli experience.  Here's how comparative
> constitutional law might illuminate our discussions:  The Israeli
> Supreme Court held that "moderate physical pressure" (including, I
> believe, sleep-deprivation, mild physical assaults, and things like the
> forward-sloping chair) was illegal under the statutes then existing, but
> might be permissible if specifically authorized by law.  (I believe, but
> am not sure, that the parliament then enacted a statute authorizing the
> practice, with, (again) I believe, a variety of constraints that might
> not have been followed in the original exercises by the executive
> officials of "moderate physical pressure.")
>
> 3.  In the federal context, does the president have inherent power to
> authorize subordinate officials to engage in the practice?  From the
> Take Care Clause (with respect, presumably, to enforcing laws that
> *might* be violated by others rather than with respect to laws the
> subject violated)?  With respect to which offenses?  Similarly, with
> respect to what activities might the president have inherent power as
> Commander in Chief?  How specific must the president's delegation of
> authority to subordinates be?  Must the president authorize torture or
> like practices with respect to specific, named individuals?  Has there
> been any delegation specifically authorizing torture or like practices
> from the president?
>
> It seems to me that, before we can get a coherent handle on the issue of
> political morality, it would be necessary to figure out what we thought
> about questions like these (and, certainly, more). << File: Card for Mark
> Tushnet >>
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