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I was more than a little surprised when what I thought was a reasonably uncontroversial item in yesterday’s Missing Link elicited a heated response from frequent Troppo commenter and erudite legal eagle Patrick Fitzgerald. The item concerned arch-conservative US Supreme Court Justice Antonin Scalia, high priest of “originalism” in constitutional interpretation and a seemingly enthusiastic Dershowitz-style supporter of the virtues of torture as an instrument of US policy. Here’s the item that drew Patrick’s restrained ire:
For those (like me – KP) who once marvelled at the occasionally bizarre logic of (now retired) arch-conservative High Court Justice Ian Callinan, this note from Hilzoy may give you cause to see him as a veritable beacon of Enlightenment Rationalism by comparison with US Supreme Court Justice Antonin Scalia.
Hilzoy’s post commented on a press interview Justice Scalia recently gave where he commented on torture in apparently approving terms. However, Patrick asserted, Scalia was merely explaining uncontroversial “settled law” that torture for purposes of interrogation (as opposed to as part of a sentence imposed after a finding of criminal guilt) could not be “cruel and unusual punishment” for the purpose of the Eighth Amendment to the US Constitution.
It was news to me but, not claiming an encyclopedic knowledge of American constitutional law, I thought I’d better check before responding. In fact, as far as I can see there has never been a US Supreme Court decision holding that torture of a suspect during interrogation cannot be “cruel and unusual punishment” for constitutional purposes. The closest precedent is a 1976 5/4 majority decision in Ingraham v Wright, which held that corporal punishment administered to school students could not be “cruel and unusual punishment”. Quite a long way from torture of terrorism suspects in lawful US custody one might think, and on the face of it readily distinguishable if a subsequent Supreme Court bench was so minded.
Nevertheless, at least the wide (and fairly widely accepted) version of the majority ratio decidendi provides support for Patrick’s position:
1he Court explained that the cruel and unusual punishments clause ”circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes; second, it proscribes punishment grossly disproportionate to the severity of the crime; and third, it imposes substantive limits on what can be made criminal and punished as such.”
However, the 4 Minority Justices noted that this was inconsistent with a series of earlier Supreme Court decisions holding that conduct associated with the criminal justice system but not itself constituting the sentence (or formally imposed “punishment”) could nevertheless be “cruel and unusual punishment” for constitutional purposes:
In Estelle v. Gamble, 429 U.S. 97 (1976), a case decided this Term, the Court held that “deliberate indifference to the medical needs of prisoners” by prison officials constitutes cruel and unusual punishment prohibited by the Eighth Amendment. Such deliberate indifference to a prisoner’s medical needs clearly is not punishment inflicted for the commission of a crime; it is merely misconduct by a prison official. Similarly, the Eighth Circuit has held that whipping a prisoner with a strap in order to maintain discipline is prohibited by the Eighth Amendment. Jackson v. Bishop, 404 F.2d 571 (1968) (Blackmun, J.). See also Knecht v. Gillman, 488 F.2d 1136, 1139-1140 (CA8 1973) (injection of vomit-inducing drugs as part of aversion therapy held to be cruel and unusual); Vann v. Scott, 467 F.2d 1235, 1241241 (CA7 1972) (Stevens, J.) (Eighth Amendment protects runaway children against cruel and inhumane treatment, regardless of whether such treatment is labeled “rehabilitation” or “punishment”).
Despite the apparent breadth of expression of the majority’s ratio, and although I would certainly advise any client that the Ingraham majority position would more than likely be upheld at least by the current conservative SCOTUS majority, there is clearly scope for a future ruling that torture for purposes of interrogation is “cruel and unusual punishment” even if corporal punishment at school isn’t. As the 4 minority Justices in Ingraham argued:
The Eighth Amendment places a flat prohibition against the infliction of “cruel and unusual punishments.” This reflects a societal judgment that there are some punishments that are so barbaric and inhumane that we will not permit them to be imposed on anyone, no matter how opprobrious the offense. See Robinson v. California, 370 U.S. 660, 676 (1962) (Douglas, J., concurring). If there are some punishments that are so barbaric that they may not be imposed for the commission of crimes, designated by our social system as the most thoroughly reprehensible acts an individual can commit, then, a fortiori, similar punishments may not be imposed on persons for less culpable acts, such as breaches of school discipline. Thus, if it is constitutionally impermissible to cut off someone’s ear for the commission of murder, it must be unconstitutional to cut off a child’s ear for being late to class. Although there were no ears cut off in this case, the record reveals beatings so severe that, if they were inflicted on a hardened criminal for the commission of a serious crime, they might not pass constitutional muster.
Nevertheless, the majority holds that the Eighth Amendment “was designed to protect 2 those convicted of crimes,” ante at 664, relying on a vague and inconclusive recitation of the history of the Amendment. Yet the constitutional prohibition is against cruel and unusual punishments; nowhere is that prohibition limited or modified by the language of the Constitution. Certainly, the fact that the Framers did not choose to insert the word “criminal” into the language of the Eighth Amendment is strong evidence that the Amendment was designed to prohibit all inhumane or barbaric punishments, no matter what the nature of the offense for which the punishment is imposed.
No one can deny that spanking of school children is “punishment” under any reasonable reading of the word, for the similarities between spanking in public schools and other forms of punishment are too obvious to ignore. Like other forms of punishment, spanking of school children involves an institutionalized response to the violation of some official rule or regulation proscribing certain conduct and is imposed for the purpose of rehabilitating the offender, deterring the offender and others like him from committing the violation in the future, and inflicting some measure of social retribution for the harm that has been done.
A fortiori with interrogatory torture. Torture bears both punitive and interrogatory facets. Prisoners are tortured not only to extract information or a confession (in fact it’s a notoriously unreliable method of doing so) but as a punishment for refusing to answer previous questions. Moreover, torture is much more intimately bound up with the criminal justice process than is corporal punishment of school children. Almost by definition a victim of torture by US authorities will be in lawful custody under suspicion of commission of a crime. There is no less reason to extend the protection of the Eighth Amendment to cover pre-conviction torture during interrogation than there is to extend it to post-conviction “deliberate indifference to the medical needs of prisoners” by prison officials.
Moreover, not only is the Ingraham majority’s textual support for its claim that “punishment” encompasses only the elements of criminal sentencing rather weak (as the minority noted, the Eighth Amendment does not qualify “punishment” by “criminal”), but the historical evidence for such a restricted meaning, so supposedly sacred to the “originalist” Scalia, also appears distinctly dubious As the minority Justices note, the majority rely on “a vague and inconclusive recitation of the history of the Amendment”. They assert that the Eighth Amendment was copied from the UK Bill of Rights 1689 (as it clearly was), that the British only intended to cover judicially imposed criminal punishments and that therefore the US provision should be regarded as having a similarly limited meaning. While two modern historians are cited as authority for this proposition, the historical events mentioned as justification for the majority view are highly selective.
As “Gummo Trotsky” noted in a comment in response to Patrick, Justice Scalia’s “originalism” is an extremely artificial species of constructivism, buttressing the subjective preferences of judges with selective appeals to history designed to give them a spurious aura of unchallengeability. The Ingraham majority’s recitation of relevant historical events makes no mention, for example, of the fact that a central concern of the drafters of the Bill of Rights 1689 was the danger of nefarious acts by “Popish princes”. Freedom of religious worship (at least for Protestants) was a primary motivation. Moreover, the British in 1689 remained obsessed by the (somewhat exaggerated) horrors of the Spanish Inquisition and its torture of Protestants:
In order to interrogate the accused, the Inquisition made use of torture, but not in a systematic way. It was applied mainly against those suspected of Judaism and Protestantism, beginning in the 16th century. For example, Lea estimates that between 1575 and 1610 the court of Toledo tortured approximately a third of those processed for heresy. In other periods, the proportions varied remarkably. Torture was always a means to obtain the confession of the accused, not a punishment itself. It was applied without distinction of sex or age, including children and the aged.
The methods of torture most used by the Inquisition were garrucha, toca and the potro. The application of the garrucha, also known as the strappado, consisted of suspending the criminal from the ceiling by a pulley with weights tied to the ankles, with a series of lifts and drops, during which arms and legs suffered violent pulls and were sometimes dislocated. The toca, also called tortura del agua, consisted of introducing a cloth into the mouth of the victim, and forcing them to ingest water spilled from a jar so that they had impression of drowning (see: waterboarding).
Given that the Bill of Rights 1689 was a product of the fears and concerns of 16th century Protestants, it isn’t entirely implausible that their fears about an imagined Catholic propensity towards torture might have at least partly informed the deliberately vague reference to “cruel and unusual punishment”.
No-one can really be certain in the absence of clear explanations from those who actually wrote and enacted the Bill. And that’s almost always the problem with constitutional “originalism”. Although it is certainly an influential approach to constitutional interpretation, especially under Scalia’s patronage, it is also frequently a dubiously reliable guide to meaning. Indeed the most influential approach to interpretation generally has been legal realism:
Those who are realists about law, and more particularly, courts, think that the kinds of “legal reasons”–appeals to doctrine, precedent, statutory text, and the reasoning by analogy, by which courts bring the doctrine etc. in to contact with the facts of a case–that judges offer in their opinions largely obscure the actual grounds of decision. Legal reasons don’t really explain the decisions; legal reasons are often indeterminate, and equally good legal arguments can be given for very different outcomes. What really explains the decision is the judge’s commitment to non-legal norms (moral, political, economic).
My colleague Lucas A. (Scot) Powe, Jr. has a pithy way of expressing the idea. He likes to say: “Anyone teaching constitutional law who discusses only the doctrine is guilty of educational malpractice.” (For a detailed case in support of this view, see his book on The Warren Court and American Politics 3.) Why malpractice? Because such a teacher will not equip his or her students to advise clients intelligently about constitutional law issues, since what courts do with these issues, on the realist view, has far more to do with extra-legal political and related considerations than with doctrine.
As a recently professed enthusiast for the virtues of officially sanctioned torture in interrogation, it is difficult to believe that Scalia’s political and ethical views do not strongly colour his assertions about the scope of “cruel and unusual punishment”. Justice Scalia is a clever judicial bully who does not merit Patrick’s deference.
Nicely argued Ken, but surely I’m not the only one struck by the sheer absurdity of needing to second guess the exact intentions of the authors of some 217 year old document in order to determine that torture has no place in an advanced 21st century civilisation. If there’s the slightest doubt about whether torture is unconstitutional (which clearly there is), then pretty clearly it’s the constitution that needs to the change.
My ears are burning! And deservedly so, it seems. I admit that I took Hilzoy’s correction at face value, and I overstated my case, especially with settled law. I should have called Scalias position the better view.
And I admit that didn’t know this:
Which might have made me more skeptical, although, fair enough, I shouldnt need such a prompt.
But even so, a fortiori‘? Morally, yes, the reasoning applies a fortiori to torture, but logically, the minority are still discussing punishment?
Also my comments about the bill of rights, which your analysis seems to support, were only in response to Gummo’s dissection of the conjunctive use of ‘cruel’ and ‘unusual’.
So I’m suitably chastised and I’ll express myself less dogmatically next time.
~ ~ ~
NPOV, I agree, although I didn’t a few years ago.
I said a fortiori because the majority Justices assert that “punishment” for 8th Amendment purposes “should not be extended outside the criminal process”. Thus the problem with corporal punishment in schools is that it’s wholly outside the criminal justice process. Torture for interrogation purposes, bu comparison, is almost always inflicted on criminal suspects in the custody of law enforcement or military officials i.e. it is part of the criminal justice process and therefore represents less of an extension of the principles the majority Justices devined in Ingraham.
I also used the a fortiori label to signal shorthand another argument that I didn’t discuss (because the post was already too long). The argument that the majority Justices stressed just as strongly as the constitutional boundaries of “punishment” was that corporal punishment of children could not be regarded as unusual, whether or not it might be cruel in a given case:
Community consensus concerning a particular type of punishment is an element in SCOTUS jurisprudence on “cruel and unusual”, an element that come into sharp focus in relation to the death penalty. There is no such consensus in relation to corporal punishment of children. That problem doesn’t exist for torture, which has always been almost universally condemned (except by people like Scalia) and is currently unlawful in any event both under international and US law.
It’s interesting to speculate in that light as to why Scalia might be prognosticating about all this. Although torturing suspects is unlawful in the US (and Australia), the Bush administration has in the very recent past asserted a right to inflict treatment that just about all other countries define as torture but that it has otherwise defined (the Yoo memo etc). The broad definition that judges like Scalia have taken of Presidential power under the US Constitution might conceivably enable a President to get away with defining torture out of existence for legislative purposes, but it would be much more difficult for even Scalia to do so if SCOTUS holds that torture is proscribed by the Eighth Amednment to the Constitution. Perhaps he’s staking out territory and poisoning the well pre-emptively in anticipation of some such case one day being argued (peculiar as such judicial conduct looks to Australian lawyers – even Kirby J wouldn’t do that).
All somebody needs to ask Scalia is “how would you feel if the police arrested you on suspicion of having information about terrorists, and tortured you in an attempt to get that information out, even though you had none?”
Scalia can only hold the position he does because he’s not the least bit concerned about ever being arrested on such basis. Which shows a rather blinkered view of history.
Well, that now goes to about the most thorough setting-straight I’ve had in a long long while!
~ ~ ~
Ironic in light of your comments about the derivation the phrase ‘cruel and unusual’ that the SCOTUS bench is now majority Catholic! But since both Scalia and Brennan are(were) Catholics, it might be as much a statement about how far Catholicism has come rather than anything else.
I can’t imagine why Scalia was prognosticating – I assumed he was just responding the the questions posed by the interviewer. But reading it, it suggests that he was putting the comments out, albeit in the context of essentially a long-running wide-ranging discussion of his views (of the kind that probably only Kirby J here would ever contemplate).
It isn’t a bad read, in fact. I agree wholeheartedly, for example, with this comment:
And even his comments on torture, well, the opening line is this:
Not so unreasonably expressed! And note he actually raises your point about its actual illegality.
And I was intrigued by his final line – that he imagined, when he started at 50, knowing that he would retire on a full salary, that he would so so at 65. But he hasn’t, and doesn’t plan to – he claims because he can’t imagine anything so interesting and satisfying – I wonder how many other judges started out that way?
Surely it would be better to say a constitution is meant to ensure that change happens for the right reasons. What’s the benefit of something simply “impeding change”?
With all due respect Mr Parish, I must take issue with your criticism of Judge Scalia.
Prisoners are tortured not only to extract information or a confession (in fact its a notoriously unreliable method of doing so) but as a punishment for refusing to answer previous questions.
Whatever might actually happen down there in the dungeon no one can claim as a fact that prisoners are tortured as punishment for failing to answer the previous question. When the chap in the leather jerkin is about insert the hose pipe into the suspects mouth because there has been no answer to the last question, but at the last instant is suddenly informed that an observant policeman has discovered the ticking bomb, then he has no motive to continue with what he was about to do. Thus no punishment for the last question.
Suspects are only tortured as an inducement to answer the next question and an inducement, nasty as it may be, is not punishment. Inducement comes before and punishment always comes after.
a central concern of the drafters of the Bill of Rights 1689 was the danger of nefarious acts by Popish princes.
If that was really the case, why did they not add or torture to the eighth. Its only two extra words. Perhaps because back in 1789 they might not have had ticking bombs but they still would have had slow fuse bombs.
(in fact its [torture] a notoriously unreliable method of doing so)
I dont necessarily see why. You pour a gallon of water down the torturees throat and then ask where the arms cache is. He gives you an address and you stop torturing. Fifteen minutes later when you receive word that there is nothing at the address, you turn the tap back on. He gives another address and has another break. After another false lead you continue again with the torture. Pretty soon he is going to appreciate that he is not enjoying all these near death experiences (as the history of torture has shown is the case) and he decides next time to actually give the correct address.
The morality of such action is ancillary. It does give results and is legal when supported by executive order.
Justice Scalia is a clever and honourable judicial interpreter and defender of the constitution.
I tend to agree that in most cases torture isn’t intended as a form of ‘punishment’ for not answering a question, but the reality is that there is always the strong possibility this becomes part of the motivation of the torturer.
If he stops because other information comes to light, it’s because there’s something more urgent to attend to, and the likelihood that the suspect was innocent after all. It certainly doesn’t prove that punishment wasn’t part of the motivation.
Nice try, Mr Carson. You don’t put the pipe down the guy’s throat if he already told you where the WMD are. You only torture him if he has already refused to tell you. But even if your argument weren’t odd, the pipe down the throat in your own example would still be a punishment: pre-emptively, if you like, a taste of the punishment you will get if you don’t answer the next question. “Take that for not answering the last question; and if you don’t want more of that drowning feeling you’d better answer the next question.
Torture can be a punishment for being bad generally. The Inquisitors felt justified in torturing apostates because they were evil and their souls deserved the punishment. You wouldn’t assert, surely, that the infamous torture meted out to the Iraqis in Abu Ghraib wasn’t “punishment”. But for what? They weren’t even being questioned, and Lynndie England wouldn’t have understood what they were saying anyway. They were just being punished for being … well, just for being there, for being Iraqis. If they were being “softened up” for later questioning, then it was punishment for being too tough and resilient. Similarly, in the case of the Guantánamo inmates, they are assumed to be evil-doers who require punishment without trial. Deputy Assistant Secretary of Defense for Guant
I’d just like to get in front of the upcoming wave of praise for Edward Carson’s marvelous bit of Swiftian satire above.
Where do I begin?
Perhaps with this deft Pythonic misunderstanding of the goals of torture?
“Whatever might actually happen down there in the dungeon no one can claim as a fact that prisoners are tortured as punishment for failing to answer the previous question.”
Of course not! It’s not a punishment, it’s an inducement.
W: ONLY STRING?! It’s everything! It’s…it’s waterproof!
S: No it isn’t!
W: All right, it’s water resistant then!
S: It isn’t!
W: All right, it’s water absorbent! It’s…Super Absorbent String!
Or with this deliberately unprovable hypothetical.
“Pretty soon he is going to appreciate that he is not enjoying all these near death experiences (as the history of torture has shown is the case) and he decides next time to actually give the correct address.”
The “…as the history of torture has shown is the case” is the punchline. A superb parody of pub bull session sophistry.
And just to show he knows how deliver a final payoff, Ed comes up with this wicked closing one liner.
“It does give results and is legal when supported by executive order.”
A beautifully falsely framed and carefully amateurish a priori assumption unsupported by any evidence that’s also used to justify the rule of the executive over the rule of law and over representively elected legislative bodies.
I dips me lid to you Ed. That was one wickedly satirical extrapolation on the standard Internet Tough Guy “I’ll make ’em squeal to save the lives of you liberal pussies” riff.
And your choice of namesake is the icing on the cake. Imagine Lord Carson in the hands of Special Branch v. keen to find out about German arms shipments to the Ulster Voluntary Force on the eve of war between Great Britain and Germany.
“I must caution you Lord Privy Councillor that unless you answer all our questions with complete frankness and veracity, we may resort to serving you lukewarm tea with tinned milk.”
Another point worth making in discussions about torture is to ask if its advocates would ever personally do any torturing in what they perceive to be the national interest?
I’m a firm believer that whenever someone starts talking about dirty and dangerous deeds in order to protect their community, society or way or life, they should be be prepared to walk the talk themselves.
I’m pretty confident that the overwhelming majority of folks, across the political spectrum, hanging around Club Troppo would cheerfully volunteer to do whatever they could to resist a genuine force of arms invasion of their homelands. Well yes the more comfortably built and aged here like Ken or I would probably be hived off into Intelligence, Pysops or the Office of Economic Warfare (Trust the seppos to think of that one – and a very good idea it was too).
But if you’re not personally willing or able to carefully and deliberately turn another human into a screaming, traumatised and bowel-voiding mess in controlled conditions while looking into their eyes, then I suggest you stop proposing other people to do it for you.
Nabokov who knows his British history,
Perhaps I could have worded it better. torture is legal when supported by executive order and not prevented by any current legislation or, as shown, the constitution.
..as the history of torture has shown I think any research on the subject would show that detainees dont like torture and do anything to have it stopped. Even though some heroes die, the great majority eventually succumb. Even that well known American war hero Senator John McCain eventually broke and signed a confession.
Give the Nazis, Soviets, North Koreans and North Vietnamese their due; they do know how to get people to agree to their requests.
Also,
I dont know if that is generally a rational argument about not asking someone else to do what you cant do yourself. If everyone, before dinner, had to personally look in the eye and kill their own cute and cuddly lamb, chicken, piggy-wiggy or bunny rabbit then half the population would become vegetarians. That certainly doesnt prove that they should be vegetarians.
By nature homo sapiens arent always capable of committing anti-personal actions that they might have to, even if to preserve their own lives. Read research on the matter http://en.wikipedia.org/wiki/Dave_Grossman_%28author%29
Yes, I would certainly be asking someone else to adorn the black hood.
“That certainly doesnt prove that they should be vegetarians.”
Really? I think it does.
(I am a meat-eater and experienced killer of things, before you ask.)
With pictures of bunny rabbits and lolcatz, no doubt.
Tell me, Mr Ed, if waterboarding persuades John McCain to confess to giggling like a little girl when he wears Lederhosen, has the torture been:
a) effective;
b) ineffective; or
c) hard to tell – were they proper leather or ersatz?
I’d agree that anyone who would refuse outright to ever kill an animal for its meat should be a vegetarian.
I am a pretty qualm-free killer of animals and lover of meat, but I don’t for a second think that someone who is not is not entitled to eat meat. In fact I think that is a really really crap argument.
Would you be willing to be a brickie? Are you physically able to be? If not, do you deserve a house?
Ditto a trial lawyer – if you couldn’t really hack the 18 hour days and obsessive compulsive behaviour, do you deserve one to do it on your behalf?
What about truckie? Could you hack it? Do you deserve trucked goods?
Agricultural labourer?
What about policeman/soldier? Are you sure you could kill someone? Do you deserve to be defended?
Fireman? Absolutely certain your courage wouldn’t desert you? Positive that you deserve theirs?
Patrick, there’s a huge difference between not being able to do a job because your physically incapable rather than not being able to do a job because you would find it morally reprehensible.
So, no it’s not a crap argument – it *is* wrong to get somebody to do a job that you couldn’t ethically bring yourself to do (assuming you were physically capable).
Indeed they will – they’ll even make obviously false confessions or tell obvious lies about their associates:
NPOV, How is ‘guts’,which is what this is about, different from physical or mental capacity?
It has SFA to do with ethics. My dad is a good lefty in a million ways (well compared to me at least) but he grew up in a different time and so has no qualms about the deaths of animals. My mother, from a different family, never actually killed an animal and would probably have a strong resistance to the idea and might even describe herself as unable to do so beyond near-starvation, although she would undoubtedly have the physical capacity.
I’m sorry, I genuinely believe that an argument which seeks to define your ‘moral’ ‘right’ to eat meat largely in terms of how you happened to grow up is inane.
As it happens, I don’t think the argument gets much stronger in the case of torture. What is different in the case of torture is the risk to the torturer of psychological harm – which is something different to weigh up, but goes in a different basket, along with the risk of social harm from the practice of torture and necessary dehumanisation. Note that Gummow is arguing about a different basket altogether, being that of the risk of false or useless information.
I didn’t make it about guts. I’m purely arguing from an ethical point of view.
If you eat meat, then you should accept that you feel it would be ethical for you yourself to kill an animal for its meat. Indeed, for any animal product you consume, you should feel that were you physically capable, you would be ethically prepared to raise and kill the animals yourself in the exact manner that they were actually raised and kills. Hence it would be unethical for me to eat battery-cage eggs, as I would not be able to ethically bring myself to raise chickens in the manner that battery chickens are raised.
And I’ll fully admit I’m somewhat hypocritical here, as I simply don’t stop to check that every egg I eat has come from a chicken raised humanely. In my “at the moment” calculation, the fuss caused by doing so is too much trouble. Which is one reason I strongly support regulation that outlaws the raising of animals in inhumane conditions (though it can be supported simply on the grounds that all animals, including humans, are deserving of humane treatment simply by virtue of being conscious lifeforms). And yes, it will make some foods more expensive, which would unfairly affect the poor – but this can be compensated for by more progressive wealth redistribution.
If you can’t bring yourself to kill an animal for its meat because you’re a) physically not strong enough or b) overcome with nausea by the sight of blood and entrails then that’s understandable, but if you couldn’t bring yourself to kill an animal because you think you have no ethical right to do so, then you really shouldn’t be paying others to kill animals on your behalf.
…but this can be compensated for by more progressive wealth redistribution.
Practically everything always comes back to dont worry, well just rip off the rich bastards to pay for it.
But despite that snide comment, you are right in your main message NPOV: you should not profit from an action unless you are ethically prepared to support that action, even if not physically support the action at the coal face.
Thats why I support the torture of those who, on the balance of probabilities, with the best judgement one can manage considering the urgency of time, and with the authorisation of someone quite high on the food chain, has been shown to have association with criminal elements/ activities and information which may lead to saving the life of one or more innocents.
Of course Igor cant start until I have left the room and well out of earshot.
Well Edward, I’d fully expect to be one of the “rich bastards ripped off”. I am more than happy for my tax bill to be increased to ensure that the poor can afford any increases in food prices caused by additional regulation.
Fine example of the Dirk Diggler argument in 21, Ed:
I see my #11 comment started something here.
I also notice some of the responses ignored my qualifiers like “national interest” and “to protect their community, society or way or life”
NPOV I think brought it home with:
“but if you couldnt bring yourself to kill an animal because you think you have no ethical right to do so, then you really shouldnt be paying others to kill animals on your behalf.”
So therefore if you think torture is ethically justifiable under certain conditions, then you should be willing and able to personally make someone scream their guts out as you send an electric current through their testicles, shove a broken bottle up one of their orifices or just chain them in stress positions for days and days and days.
And speaking of “certain conditions” and “stress positions”…
“..the torture of those who, on the balance of probabilities, with the best judgement one can manage considering the urgency of time, and with the authorisation of someone quite high on the food chain, has been shown to have association with criminal elements/ activities and information which may lead to saving the life of one or more innocents.”
Talk about tying yourself in knots instead of them.
Look Lord Ed, given both your now heavily hedged definition of what is ethically justifiable torture and your previous comments like “It does give results…” and ..as the history of torture has shown, then perhaps you can provide us with some actually documented examples of what you’re talking about.
Until you do so, I’ll just content myself with the observation that every significant country over the past 100 years that practiced state-sanctioned torture either lost every war where this happened and/or no longer has the regime in question in power.
No doubt I’ll end up explaining in the tones of a kindergarten teacher to certain commentators what “significant” and “state-sanctioned” actually mean. Followed by providing a working definition of “pissant nitpickers”.
Ill just content myself with the observation that every significant country over the past 100 years that practiced state-sanctioned torture either lost every war where this happened and/or no longer has the regime in question in power.
Significant in a way. Vietnam. Proof? The GOP nomination to the prez. He can’t straighten his arms as a result
You think the Allies didn’t practice torture in WW2? A friends father- an American- once told me that he would load Japanese prisoners on a plane to Oz from NG. they would load up say 10 and 3 would arrive at the other end. 7 were somehow lost in flight.
I’m not sure why we bring effectiveness into it.
Let’s say that a method of torture whereby you bring the suspect’s family members into the room and kill them one by one until the suspect confesses proves to be 100% successful, and repeatedly saves thousands of lives.
Does that make it ethically defensible?
Having said that I might accept that some type of torture could be (barely) ethically justifiable, whereby:
a) the process was “humane” as possible – e.g. gradually increasing the dosage of a intravenously supplied drug that caused pain, with careful medical supervision to assure no risk of permanent damage or death, and no risk that the torturer stepped out of bounds
b) there was a requirement of thoroughly determined “possession of knowledge” beforehand (in the same way we now determine guilt “beyond reasonable doubt” before jailing criminals)
c) the method was determined to be a highly effective method of extracting life-saving information, when all other avenues had been exhausted
I still wouldn’t vote in favour of such a proposal, but I wouldn’t strenously object to it either, as long the checks and balances were shown to be working.
“No doubt Ill end up explaining in the tones of a kindergarten teacher to certain commentators what significant and state-sanctioned actually mean. Followed by providing a working definition of pissant nitpickers.”
Exhibit A.
NPOV,
Re your three qualifiers.
A. the process must be as humane as possible Hello! Youre torturing people. Thats about as ridiculous as those against the death penalty who claim it should be prohibited owing to it being cruel due to what specifically might happen on the day or the trauma of the accused in the days building up to the big event. If you have rationalised to torture or kill someone nasty, it is hypocritical to be concerned about their peripheral comforts during the act.
B. thoroughly determined possession of knowledge just like in court. Court cases often take up to a year of even longer. I think the ticking bomb might have run its cycle by then.
C. the method was determined to be a highly effective method of extracting life-saving information, when all other avenues had been exhausted You mean the torture needed to save a life is different to that needed for extracting the pin code to someones bank account?
But the best is saved for last: I still wouldnt vote in favour of such a proposal, but I wouldnt strenuously object to it either, as long as the checks and balances were shown to be working.
So you wont dirty your hands by helping the little red hen make the loaf of bread, but you will help her eat it.
I’m simply saying that if we must allow torture, then these are the sorts of conditions I’d want to see put on it, to prevent it simply becoming an outlet for human cruelty.
I would argue against torture being used in the ticking time-bomb scenario precisely because there’s too great a chance of picking a suspect who doesn’t actually possess any useful knowledge.