Part of the reason that torture and other brutalities have not been greeted with the outrage that they deserve has been the response of some intellectuals who have helped make the case that torture is not so bad. In fact, they argue that it might even be a good thing in selected cases.

Take Charles Krauthammer. He writes: “A terrorist is by profession, indeed by definition, an unlawful combatant: He lives outside the laws of war because he does not wear a uniform, he hides among civilians, and he deliberately targets innocents. He is entitled to no protections whatsoever.”

He goes on ” Breaking the laws of war and abusing civilians are what, to understate the matter vastly, terrorists do for a living. They are entitled, therefore, to nothing. Anyone who blows up a car bomb in a market deserves to spend the rest of his life roasting on a spit over an open fire.”

Interestingly, he seems to want to have it both ways. After writing with unnecessarily graphic imagery (“roasting on a spit over an open fire”?) that seems to betoken an almost wistful longing, he then tries to redeem his sense of his own humanity. “But we don’t do that because we do not descend to the level of our enemy. We don’t do that because, unlike him, we are civilized. Even though terrorists are entitled to no humane treatment, we give it to them because it is in our nature as a moral and humane people.”

Actually, to say that another living thing is “entitled to no humane treatment” has already, in my opinion, put him outside the realm of civilized human beings.

But then he gets to the point which all advocates of torture eventually get to, which is the “ticking time bomb” hypothetical scenario.

A terrorist has planted a nuclear bomb in New York City. It will go off in one hour. A million people will die. You capture the terrorist. He knows where it is. He’s not talking.

Question: If you have the slightest belief that hanging this man by his thumbs will get you the information to save a million people, are you permitted to do it?

Now, on most issues regarding torture, I confess tentativeness and uncertainty. But on this issue, there can be no uncertainty: Not only is it permissible to hang this miscreant by his thumbs. It is a moral duty.

Krauthammer then goes to the position already occupied by Harvard law professor Alan Dershowitz, that torture is going to be necessary and will happen anyway, so we might as well regulate it by legislation requiring warrants, making rules, etc. so that we have controlled torture. What he and Dershowitz want, essentially, is to make complicit in their torture activities a whole phalanx of doctors, lawyers, judges, politicians, soldiers, and assorted bureaucrats, because this is what will happen when you try to set up a “regulated” torture program and lay out all the rules under which it will operate.

Or take the case of Eugene Volokh. In March 2005, the Iranian government publicly executed a serial killer in a slow and brutal manner by first flogging him 100 times and then hanging him from a crane, all before a large crowd, and even allowed a relative of one of the victims to stab him during the execution and the mother of another victim to put the noose around his neck. By almost any measure, it was a savage display.

But Eugene Volokh approved of it, writing:

I particularly like the involvement of the victims’ relatives in the killing of the monster; I think that if he’d killed one of my relatives, I would have wanted to play a role in killing him. Also, though for many instances I would prefer less painful forms of execution, I am especially pleased that the killing – and, yes, I am happy to call it a killing, a perfectly proper term for a perfectly proper act – was a slow throttling, and was preceded by a flogging. The one thing that troubles me (besides the fact that the murderer could only be killed once) is that the accomplice was sentenced to only 15 years in prison, but perhaps there’s a good explanation.

I am being perfectly serious, by the way. I like civilization, but some forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness. I think it slights the burning injustice of the murders, and the pain of the families, to react in any other way.

Who is this Eugene Volokh who, like Krauthammer, writes with such relish about seeing people die in excruciating agony? He is a professor of constitutional law at UCLA and one of the principal authors of a popular law blog called The Volokh Conspiracy. The fact that someone who has presumably thought deeply about the law and constitutional issues can pen such words is a sign that the so-called war on terror has undermined all the values that we should hold dear.

Volokh received a lot of criticism for his posting and started to backtrack, but on practical rather than moral grounds. Initially, he said that such types of punishments would violate the US constitution. But his solution to that problem was to recommend changes in the constitution removing that barrier.

UPDATE: I should mention that such a punishment would probably violate the Cruel and Unusual Punishment Clause. I’m not an expert on the history of the clause, but my point is that the punishment is proper because it’s cruel (i.e., because it involves the deliberate infliction of pain as part of the punishment), so it may well be unconstitutional. I would therefore endorse amending the Cruel and Unusual Punishment Clause to expressly exclude punishment for some sorts of mass murders.

Naturally, I don’t expect this to happen any time soon; my point is about what should be the rule, not about what is the rule, or even what is the constitutionally permissible rule. I think the Bill of Rights is generally a great idea, but I don’t think it’s holy writ handed down from on high. Certain amendments to it may well be proper, though again I freely acknowledge that they’d be highly unlikely.

In any event, there’s nothing unconstitutional about letting victims’ relatives participate in the execution; it’s only the use of cruel means that would require an amendment.

He then backtracked some more, but again because of practical questions, because even if the amendment to the constitution he advocated were adopted, the actual implementation difficulties would be huge:

What I found most persuasive about Mark’s argument was his points about institutions: about how hard it would be for a jury system to operate when this punishment was available, and how its availability would affect gubernatorial elections, legislative elections, and who knows what else. Even if enough people vote to authorize these punishments constitutionally and legislatively (which I’ve conceded all along is highly unlikely), there would be such broad, deep, and fervent opposition to them – much broader, deeper, and more fervent than the opposition to the death penalty – that attempts to impose the punishments would logjam the criminal justice system and the political system.

And this would be true even when the punishments are sought only for the most heinous of murderers. It’s not just that you couldn’t find 12 people to convict; it’s that the process of trying to find these people, and then execute the judgment they render, will impose huge costs on the legal system (for a few examples, see Mark’s post). Whatever one’s abstract judgments about the proper severity of punishments, this is a punishment that will not fit with our legal and political culture.

So Krauthammer, Dershowitz, and Volokh all approve of such cruelty in principle but are only concerned, if at all, about the practical problems of implementation. If such influential opinion shapers have these views, is it any surprise that there is so little outrage at the things that are currently being done by the US?

Apart from the actual torturing of prisoners at military prisons like Abu Ghraib in Iraq, Bagram base in Afghanistan, and Guantanamo in Cuba, the website Jesus’ General listed the way that the US military is taking hostages in Iraq and Afghanistan. They are kidnapping and holding the wives and children of people hostage, either to force fugitives to give themselves up, or if they are already in custody, to make them talk. We have sunk to the level of those people who kidnapped journalist Jill Carroll and the Christian Peacemaker Team in Iraq and are holding them hostage, using them as bargaining chips.

People like Krauthammer always finely tune their arguments for self-serving purposes. For example, he says that for the ordinary soldier caught on the field of battle “There is no question that he is entitled to humane treatment. Indeed, we have no right to disturb a hair on his head.” Clearly he carefully situating himself so that his approval of torture is not used for the torturing of captured US soldiers, with blame falling on him. But this kind of careful legal tap-dancing is worthless because it assumes that everyone will agree to operate according to rules set by one side.

But the point is that once you allow the torturing of anyone under any circumstances, all bets are off. People who capture US soldiers will be unimpressed by Krauthammer’s delicate distinctions. They will argue that just because the US soldiers have nice uniforms and know how to march in formation does not mean that they should receive better treatment than the irregulars who fight guerilla wars. Allowing torture is like a kick in boxing. Once you allow that, you are in a different kind of fight and the Marquis of Queensbury rules don’t apply anymore. Now anything goes.

This kind of escalation is similar what happened with the Muslim cartoons that caused offense. (See here for my earlier posts on this topic.) When an Iranian paper said that they were, in response, seeking Jewish holocaust cartoons to test the depth of the commitment of western newspapers to the freedom of the press argument that they used for publishing the cartoons, some people said that this was going over the line of acceptability, that they should have stopped with cartoons involving Jesus or something. But with such issues, the unresolved point always is “Who gets to draw the line?”

While there is a (admittedly small) chance that we can all agree that torture should be unconditionally outlawed, once we allow exceptions there is almost no chance that we will all agree on what those exceptions should be. This is because the act of torture is so extreme, and the varieties of ways in which it can be practiced so numerous, that the people at the receiving end will not accept restrictions on how they can respond.

It is absurd to think that people are going to agree to have international monitors to see if torturers are following some set of rules.

To be continued…

POST SCRIPT: Gordon Parks

Gordon Parks (photojournalist, cinematographer, movie director, novelist, poet, music and ballet composer) died earlier this week at the age of 93. In an earlier posting I had quoted him on his 88th birthday in 2000 saying:

I think most people can do a whole awful lot more if they just try. They just don’t have the confidence that they can write a novel or they can write poetry or they can take pictures or paint or whatever, and so they don’t do it, and they leave the planet dissatisfied with themselves.

I used to tell the first year students in my physics classes this quote to encourage them to think big and to explore the many facets of their own interests and personalities and not to be intimidated from trying something just because they felt they were not good enough.

After all, Parks tried and did many things even though he was a black man growing up at a time when many doors were not open to him because of his skin color. As he said in his autobiography “Nothing came easy. . .I was just born with a need to explore every tool shop of my mind, and with long searching and hard work. I became devoted to my restlessness.”