Another Way to Consider Torture

One of the flip responses I sometime make about whether or not I’m in favor of capital punishment is that I am, if I can choose who gets it.

There is a serious idea behind the flippancy: Most people can think of someone they’d like to see receive the ultimate punishment — Hitler, say. But this is a slippery logic. If you can imagine it fits for one person, the idea is sound, and only the application is subject to debate. And, akin to that logical notion is a constitutional theory that some liberal thinkers ascribe to: that civil liberties protections are designed to protect deplorable people — good citizens rarely need such protection.

Most folks believe in the constitutional ideas, but not specific applications of the ideas. So the ACLU lost subscribers when it supported neo-Nazis wanting to march on public streets in Skokee, Ill. Civil rights lawyers were hassled and threatened when they represented alleged communists during the McCarthy era. The First (speech and association) and Fifth (self-incrimination) amendments, along with the Eighth (cruel and unusual punishment), then protect only classy citizens, not these bad people, it seemed. We want to apply the Constitution selectively, idiosyncratically, and that is bad jurisprudence.

And that circuitous route leads to the debate about torturing terrorists in order to deter future acts of terrorism. Advocates want to pick those subjects who don’t deserve our general moral restraints about torture. What if your family were in life-threatening danger? Would you be against using thumb screws and waterboards? Who would be? If so, the only argument, again, is when to do it and upon whom — not whether to do it at all. And who cares what happens to some strange, frightening character? That’s the same fallacious reasoning as in the capital punishment debate.

Government action is either right or wrong. Not wrong, except when we despise the subject of the action. Public policies should not be based on extreme or personal situations. Public policies must make sense as a general rule, even if they are hard to follow in provocative situations.

This is the fourth in a continuing series of commentary on the subject of torture.


Visit www.RonaldGoldfarb.com.