Jonah Goldberg on the torture debate

Jonah Goldberg at NRO comments on the torture/interrogation practices/detainee debate, here. He later comments at The Corner at NRO on a form of conflation that frequently afflicts the torture debate:

The argument about "legalizing torture" misses an important point: that's not what the legalizers think they are doing. Their point is that they do not want to torture and therefore they want a definition of what counts as torture and what does not, so they know where the bright line is.

It steals a base to say that the Bush Administration wants to legalize torture because you first have to demonstrate that what they want to do is torture. I think it is a perfectly defensible and honorable position to claim that waterboarding, sleep deprivation etc. amount to torture. I don't think I agree with that view. But I certainly believe it is made in good faith. But the good faith ends when the same people then issue blanket and sweeping assertions that the people who want to legalize those actions are simply pro-torture. If the legalizers were simply pro-torture they would favor hot pokers, iron maidens, finger-nail-yanking and the rest. And the people supporting the use of waterboarding (in a tiny number of cases) aren't doing that. Not only do they think they're not in favor of torture but they objectively oppose things they consider to be torture. So even on the "anti-torture" crowds' own terms, the worst that could legitimately be said is that Bush wants to legalize "some torture" while banning most kinds of torture.

I understand this all sounds like hair-splitting, but part of the point of my column was that we don't have a good terminology to discuss this stuff clearly. So one is forced to take a razor to the clumsy language we do have.

Goldberg is right in saying that the detainee debate has kicked the can down the road in refusing to say what is and is not permitted.

As I have been remarking for some time on this blog and elsewhere, when you have general agreement on a principle - no torture -but broad and deep disagreement as to what it means in particular cases, then the only decent way to proceed in a democracy is casuistically, case by case - water boarding, sleep deprivation, etc. - and through the democratic process to reach a conclusion. Where the disagreement over substance is profound, then the fall back position in a democracy is to resolve it through democratic processes. It is not resolved, however, if it does not answer particular cases. So let everyone raise their hands and vote - let the legislature, our elected representatives, vote. Let everyone know where our Congress stands, person by person, on these morally fraught questions, and let it be known precisely and unmistakably where we draw the lines between legal and illegal.

Make no mistake - I am no fan of the Democratic alternatives here (if there is one besides believing that the nation's existential problem is not terrorism, but Bush), and think that the compromise between the White House and McCain was on balance - with some ringing exceptions - better than expected. Still, speaking as a small-d democrat interested in seeing our legislature do some work in all this - well, our democratic process largely flopped precisely when it got to brass tacks that really mattered - what specific practices applied to whom by whom constitute torture? - preferring to paper over the ambiguities and difficult questions. We will pay for the failure to address the problem squarely, down the road, at compound social interest.

(I said this in short form in an opinion piece in the New York Times Magazine over Labor Day weekend that not too many people read, alas, but is available here, and will be saying so in longer form in the upcoming issue of Policy Review.)

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I'm moving a comment into the main post - it is from Alan G. Kaufman, a Navy lawyer, LOAC expert among other things, and I'm especially pleased to say former Harvard Law School student of mine:

Alan G. Kaufman said...

I am not so sure that the debate is (or ought to be, at this point) over exactly what kinds of coercive interrogation techniques or acts constitute "torture," and which of those coercive acts or techniques we should or should not accept, as it is over what coercive interrogation acts or techniques, not constituting torture, nevertheless do amount to cruel, inhuman and degrading treatment, or outrages upon dignity, and should or should not therefore be prohibited.

Isn't the real objective here, from the administration point of view, to create a lacunae -- or leverage the lacunae I describe above -- to permit executive branch interpretation of law of war to permit coercive interrogation techniques that some would view as illegal because they are cruel, inhuman, and/or degrading?

Alan is right - I was focused on torture because it is what Goldberg was writing about. But certainly it applies with equal force to all the other controversial interrogation techniques. Whether you are talking about torture, degrading treatment, any of these categories, I won't be happy unless they are connected precisely and without euphemism to concrete practices. And I agree that the administration is seeking to exploit lacunae in the legislation to permit, as Alan says, executive branch discretion in this. Indeed, I would say it goes one step further - it wants to have its cake and eat it, too, in having discretion to interpret, but at the same time announce that there is sufficient specificity to protect US officials.

I don't actually think it can have it both ways here - if there is to be sufficient specificity about what coercive interrogation is legal, it will be sufficiently specific only if it effectively removes the executive's discretion. Otherwise, well, I at least would have a lot of concerns as a US official about what might happen down the road. My view is that people are seriously divided as to these things per torture, but also per coercive interrogations - I would guess, perhaps, that Alan and I would differ on some of these things - and in that case, legislation is not very useful if it does not get down to specific cases. The current legislation does not do that, and it will, in my current estimation, not pass muster with the Supreme Court, which will find it too clever by half. Nor does it really do what legislation on a deep moral disagreement within the populace has to do - require that legislators make clear where they stand. This still does not do that. I want to know where every member of Congress and the Senate stands on each of these things. I don't want lacunae. I want legislators to vote and everyone to know how they voted. I also think that is what the Court wants - a plain unvarnished statement from the legislature that engages in no papering over of differences.

I realize that I have not addressed the substance, but here I am more concerned about the process by which a democracy resolves issues on whose substance its members are deeply divided.