Announcing Sanford Levinson's Torture: A Collection

In the midst of the increasing revelations on US interrogation practices in the war on terror, the essays in Professor Sanford Levinson's edited volume, Torture: A Collection, take on enormous importance. Professor Levinson, the very distinguished constitutional law scholar at the University of Texas Law School, has performed a critical service in being willing to talk openly about the questions of what constitutes acceptable interrogation, what does not, and what is torture.

It is not comfortable reading. But it is one of the very few discussions of this subject that is willing to step beyond rights-absolutist platitudes that leave no room to discuss what is actually okay in interrogation and what is not, and under what circumstances. It is in part the inability to talk publicly about what is okay, what is not okay, and what practices concretely constitute torture that has led the US to the situation today. It has unfortunately been unacceptable even to raise the question of tradeoffs between the security of potentially large numbers of people and what is determined to be individual rights. However, if open discussion is impermissible because it is politically incorrect even to raise the question, then the question of concrete practices - which are acceptable and which are not - will be determined in closed police, military, and intelligence bureaucracies. The results are and will be ugly.

I am not going to discuss concrete practices that have been appearing in the press at this point, even though ultimately these questions come down to line-drawing about concrete practices - this is okay, this is not. Sure, if you are Human Rights Watch or Amnesty International or the ICRC, then none of this matters, or anyway is all wickedness, because you think that any time the US has custody of someone, they must somehow be protected as a prisoner of war under the Third Geneva Convention and, in any case, that the only thing one may do is politely ask the equivalent of "name, rank, serial number." But most people don't think that, and certainly I don't. A public discussion that is frozen in this kind of rights-absolutism, while living in a time of justified fears of terrorism, however, will only guarantee that the discussion is held in private, without broad public discussion and input. And that, quite obviously, is what has happened. (For that matter, we must also fear what happens when, as happened in the 1970s intelligence reforms, any interrogation is ruled out of bounds, and bureaucrats in law enforcement, the military, and intelligence rationally conclude anything beyond what the human rights NGOs think is okay will invite a trip to jail, and it is better not to seek the intelligence necessary to prevent terrorist attacks). Some of the methods described in the newspapers are obviously unacceptable, some acceptable, and some might fit the legal definition of torture - I want to wait and see more documentation that is not just the press description before discussing particular cases here. My point now is that we have got where we are in part by an unwillingness to discuss the issue in public fora, because even to discuss it violates certain canons of polite discourse.

Which is why Professor Levinson and his contributors have done such an enormous public service by breaking the silence around this issue. I add, too, that it could only be done by a constitutional scholar of Professor Levinson's acknowledged integrity and unapologetic liberalism. I'll give it a review here in a future post.