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Applying Roe v. Wade's agnosticism to the interrogation memos

After reading this piece in the New York Times ("Banned Techniques Yielded `High Value Information', Memo Says") and this one by Rich Lowry in today's National Review Online ("The Case for the Torture Memos"), it occurred to me that it is very difficult to draw a bright line that would distinguish "heightened interrogation techniques" and "torture."

Here's a suggestion. Why not apply to this question the approach that was applied by Justice Harry Blackmun in Roe v. Wade to the question of when human life begins?. Here's what Justice Blackmun said in Roe:

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.....

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.

Here's how it would apply to the question of torture:

We need not resolve the difficult question of when torture begins. When those trained in the respective disciplines of medicine, philosophy, military ethics, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.

In view of all this, we do not agree that, by adopting one theory of torture, the terrorists may override the safety of the American people that is at stake.

Comments (12)

A better ending would be "In view of all this, we do not agree that, by adopting one theory of torture, the Government may override the rights of the person that is at stake."

After all, we are taking Texas and expanding it to government in general, but at issue in RoeVsWade is the rights of a single individual and so if the decision should be carried forward it should be kept as intact as possible.

Seriously. I'm not sure why, despite a clear scientific answer, it's OK to be agnostic when it comes to when the question of what is the unborn, and then err on the side of killing. The above example indeed exposes the sloppy thinking and Blackmun and other abortion-choicers.

I must confess to not understanding the difficulty in this debate. If everyone agrees that torture is bad but that in the really exceptional cases it produces "good" results, why not agree to a ban on torture and torture-resembling interrogation techniques, a rule which everyone knows will be followed in most cases and broken in a few cases, probably those that Cheney et al. would describe as "really important." We can do the Regina v. Dudley & Stevens thing with the guilty interrogator, and so long as there isn't an exclusionary rule, save all those lives that supposedly would have been lost if the interrogator hadn't done [whatever]. In practice, this is how all our other rules about, well, everything from homicide to police interrogation work---we operate a system that we know will not work at times, also knowing that sometimes we will find the result of lawbreaking at least mildly salutary even if the average infraction has only unfortunate consequences and even if we remain committed to punishing individuals who arrogate to themselves authority they do not possess (e.g. Samuel L. Jackson's character in A Time to Kill). I'm not arguing that the Cheney et al. arguments about the "benefits" of torturing people are true or morally justifiable (consequentialist arguments obviously aren't). I'm also not saying that it's OK to torture people in "important" cases. I'm just saying that some people will still get tortured, even under a per se ban, and so some of what Cheney et al. perceive as benefits will still accrue even under a per se ban, and they ought to know that. Am I completely off the reservation, here, Professor?

Erik:

A better ending would be "In view of all this, we do not agree that, by adopting one theory of torture, the Government may not override the rights of the person that is at stake."
Fixed that for you, Erik. That's a more accurate analogy because the Government is overriding an individual's rights only if "torture is theorized to override rights." *No theory adopted* means *No rights are being violated*. Therefore, in the absence of moral theory, the Government may do what it wishes--just as a woman may do whatever she wishes to her child.

I should have bolded the change: "the Government may not

override the rights of the person that is at stake."

"While we were there a large part of the time we were focused on trying to establish a link between al Qaida and Iraq and we were not being successful in establishing a link between al Qaida and Iraq," Army psychiatrist Maj. Paul Burney is quoted in the Senate report as saying about Guantánamo. "The more frustrated people got in not being able to establish this link ... there was more and more pressure to resort to measures that might produce more immediate results."

http://www.salon.com/news/feature/2009/04/22/benjamin/

A better ending would be "In view of all this, we do not agree that, by adopting one theory of torture, the Government may override the rights of the person that is at stake."

After all, we are taking Texas and expanding it to government in general, but at issue in RoeVsWade is the rights of a single individual and so if the decision should be carried forward it should be kept as intact as possible.

No, Frank's analogy was the correct one. The logic of Roe was "We don't know when life begins. Therefore, that decision must be left in the hands of those who might wish to take it."

The analogous reasoning in this case is "We don't know when torture begins. Therefore, that decision must be left in the hands of those who might wish to engage in it."

Thanks Albert.

I had copied from the original post and was editing it in my head to read with the "not" in there.

Erik, I suspected as much :)

"The more frustrated people got in not being able to establish this link ... there was more and more pressure to resort to measures that might produce more immediate results."

Yikes!! That doesn't even pretend to be seeking information rather than extracting a confession.

That's an interesting parallel, I hadn't really thought the reasoning of those who defended waterboarding as similar to the Roe decision. However, considering the fact that the US has in the past prosecuted people for torture when they used waterboarding, the legal precedent is far more clear in the torture case.

No, Frank's analogy was the correct one.

Maybe, but the analogy is not precise. In Roe, the woman was given the liberty to kill her baby. A similar decision would give the torturer the liberty to do whatever to a terrorist. The woman's parallel is the torturer; the baby's is the terrorist, for it is those latter two against whom a terrible deed is being contemplated. So Frank's variation upon Blackmun should read: "In view of all this, we do not agree that, by adopting one theory of torture, the government may override the rights of the torturer that are at stake."

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