Can anyone cite me a totally verifiable instance of a ticking time-bomb scenario? Not Alan Dershowitz’ version of it, that requires that you’ve got a super-secret special Israeli source who assures you that it’s totally true but you know, can’t verify it because it’s secret.
Adam Ashforth wrote an interesting book on “official discourse” in South Africa that was primarily about the performative character of commissions of inquiry, but in an aside, he compared commissions of inquiry to torture. The point of both, he observed, is for states to theatrically demonstrate the power to coercively produce information, not the information itself, which in both cases is something that the state usually already knows or in a few cases, doesn’t really want to know that it knows. Dershowitz jaw-droppingly cites the Nazi torture of French Resistance fighters to get the names of other members of their cells as a good example of the effectiveness of torture, but even in that case, part of the point is that for the Nazis, any names were good enough, because they didn’t particularly care if they were the right names. The same is true under a lot of totalitarian regimes: if a person under torture names friends, colleagues, strangers as guilty, it doesn’t matter to the regime whether the charges are true or not. Just send them all to the gulag, because in some measure, everyone’s guilty of opposing the regime.
Whereas the ticking time-bomb scenario, when mentioned by its enthusiasts, depends very precisely for its justification on being absolutely right. Those who cite this hypothetical fiction to justify torture do so precisely because they claim it is an extraordinary case that justifies an extraordinary breach of ethics.
Dershowitz offers that there could be a special provision that allowed the President of the United States to issue a finding justifying a ticking time-bomb torture. I might even find that an interesting idea if two other things followed on it: that the finding would have to be made immediately public (not public later) and if there was no ticking time-bomb, the President would automatically be indicted for committing a crime and subsequently impeached. No matter how much reason he or she had to think that there was just cause for the order. Get it wrong, and you’re gone: that’s matching up the high ethical stakes at both ends.
It’s striking how much people in this Administration want to be personally, legally protected from the consequences of their actions. Shouldn’t people who are taking drastic measures that violate both laws and high principles, actions that they deem necessary even so, have to run the same risks of personal ruin that a soldier has to run when he’s deployed? Why should soldiers be exposed to maiming and death when officials won’t take comparable risks in pursuit of the same cause?
It also turns my stomach to see anyone, of any political faction, seeking special statutory provision for what is basically a fictional or hypothetical scenario. Again, this is the whole point of the Constitution: a prior constraint on the power of government, a firm specification of what it can do and cannot do. The moment you start tacking on a zillion highly specific, largely or wholly hypothetical instances in which the executive has nearly unlimited authority or no constraint, I guarantee you that the executive will find plenty of instances to use that authority. If we’re going to start doing this, let’s add special statutory provisions for what the President is empowered to do in case of attack by extraterrestrials, in the case that supervillains seize NORAD, or in the case that intelligent Nazi gorillas armed with ray guns swarm out of the sewers in major American cities. Also we should have a provision for the temporary transference of executive power to Chuck Norris or Bruce Willis if they are ever riding on a train with cartoonishly-exaggerated terrorists. Because it’s better if the President kicks their ass.
“Itâ€™s striking how much people in this Administration want to be personally, legally protected from the consequences of their actions. Shouldnâ€™t people who are taking drastic measures that violate both laws and high principles, actions that they deem necessary even so, have to run the same risks of personal ruin that a soldier has to run when heâ€™s deployed? Why should soldiers be exposed to maiming and death when officials wonâ€™t take comparable risks in pursuit of the same cause?”
This is almost true. It isn’t as if this>/I> administration is unusual. They are just the current ones who seek to be protected from the consequences of their actions. Not the first and, sadly, not likely the last, especially with such a spineless congress. In a better world they would expect and require that they face prosecution for breaking laws written and implied, even if it saved the world. They would feel guilt and regret that they couldn’t find a better way to deal. High office is supposed to be dangerous. Assassins are just for starters.
“in the case that intelligent Nazi gorillas armed with ray guns swarm out of the sewers in major American cities.”
This already happened didn’t it?
“Also we should have a provision for the temporary transference of executive power to Chuck Norris or Bruce Willis if they are ever riding on a train with cartoonishly-exaggerated terrorists.”
No, no. Will Smith is your man.
oops. tag defects.
The point of restricting governmental power is also based on hypotheticals–to wit, “The moment you start tacking on a zillion highly specific, largely or wholly hypothetical instances in which the executive has nearly unlimited authority or no constraint, I guarantee you that the executive will find plenty of instances to use that authority.” To construct a law based on the thought-example of a ticking-bomb is an exercise just as hypothetical as constructing a law with a power-abusive executive in mind.
I suppose one should look at a day-by-day account of the Battle of Algiers, to see if there are any time-bomb scenarios there.
Right. There are no empirical examples of executive power becoming tyrannical when unconstrained. The entire Constitution, by that standard, is a hypothetical, rather than (as I see it) being substantially based on the actual experience of Europeans in the era of absolutism and the insights that followed from it.
Good luck on looking at the Battle of Algiers: the French certainly didn’t contaminate that data set with their indiscriminate use of torture, no sir.
I agree with you about the problem of creating laws that will control the executive branch without unduly llimiting its ability to protect the nation. And you are correct in saying “Again, this is the whole point of the Constitution: a prior constraint on the power of government, a firm specification of what it can do and cannot do.” The Framers worried about this a lot and we still worry today.
But the problem, in my opinion, can easily be handled by making changes in the selection, size, and duration of the chief executive office. To randomly select several people, say 2000, and by limiting their time in office to four years with 25% being replaced each year would be a good start. Requiring a majority of 2000 citizens to vote for torture makes it very unlikely ever to happen. That is, so long as we as a nation are against torture.
The Framers considered direct democracy but rejected it almost immediately because of the size of our nation. But they did not have the technologies we have today and they did not yet understand the value of random selection. My approach is a hybrid of direct democracy and public opinion polling. I think this approach gives a chief executive office that will mirror the Will of the People and yet can be controlled by clear laws about the limits of power that office can exercise without first asking the people.
I believe that office will reflect the Will of the People and that is the best we can hope for. I do not believe that the current branches of our federal government reflect the Will of the People, especially when we focus on specific issues.
Corny as it sounds I am a firm believer that the American people, given the power to decide something important, will do the right thing. But I am not at all confident that an American citizen, chosen by the abomination we call elections, will do the right thing. On situations wherein our Constitutional rights might be trampled and wherein the decision is in the hands of a single person, then I estimate that that person will make an unamerican decision 4% of the time.
So the key to controlling government is more people, chosen ramdomly, for shorter time in office. This applies to all branches of our federal government.
Tim: precisely; the entire Constitution is an exercise on disallowing hypothetical particulars. This is not mutually exclusive with basis upon the experience of other actual particulars. Experience and hypotheticals, it seems to me, are different aspects of particularity.
And to follow up: There are presumably examples where an excessively constricted executive has led to terrorists successfully killing innocents. (Arguably 9/11.) To follow from an example of the costs of executive inhibition to a rule of executive power covering numerous hypotheticals is parallel to following from an example of abuse of executive power to a rule restricting executive power covering numerous hypotheticals. To argue against Dershowitz on this “hypotheticals” line without likewise arguing against the logic of the Constitution, therefore, is not compelling.
WW is of course wrong. The difference between Dershowitz’s “hypotheticals” and the Constitution’s goal of preventing abuse of office is vast.
Dershowitz’s “hypothetical” is very specific. Several things have to happen in a way that makes it possible, maybe, for some good to be done by using torture. But analyzing the specifics shows that Dershowitz is nuts. By assigning probabilities to each of the circumstances that would give rise to such a situation shows that it ain’t ever gonna happen.
The Constitution, on the other hand, offers no specific “hypotheticals.” This fact keeps the Supreme Court in business. The Constitution was deliberately general because it was impossible for the few Framers to develop a laundry list of specific “hypotheticals” that they wanted to guard against. In fact, in our early history, the Declaration of Independence is the only document that has such a list, and the common remedy for them was independence and its midwife, war.
So Dershowits begins at the specific “hypothetical” much like a movie plot. The Constitution starts at a very general and very high level and leaves the specifics to us, and guys like Dershowitz.
As an old math teacher I can say that this kind of confusion is common. There is a difference, and it ain’t hypothetical, between proceeding from the general to the specific and starting with a specific and trying to generalize it. It can be done and mathematicians do it all the time, but they are not playing political “gotcha” while they work.
The Constitution is the end-point of a consideration of hypotheticals; Dershowitz the starting point. At one point one considers specific hyptheticals; at another one constructs universal laws, in the usual vain attempt to consider all future hypotheticals.
I’m glad Hestal mentioned the Supreme Court–I’d wondered whether to bring that in. But, yes, note how Supreme Court procedure also consists very much of engaging in thought-experiments about hypotheticals, grilling lawyers on how the interpretation of a law would play out in any number of particular hypotheticals. Should one assume wildly different thought processes for constitution-makers and judges? Not so, I think. Both are considering how a consistent rule–law, or interpretation thereof–will play out in an infinity of unforseeable hyptheticals, and both are considering particular hypotheticals as part of the process by which they arrive at the universal law or interpretation.
Itâ€™s striking how much people in this Administration want to be personally, legally protected from the consequences of their actions. Shouldnâ€™t people who are taking drastic measures that violate both laws and high principles, actions that they deem necessary even so, have to run the same risks of personal ruin…
Yes. I’ve often thought this.
Meanwhile, I find myself feeling troubled by the notion that the primary obligation of the executive (or government in general) is to “defend the nation” as opposed to the Constitution, or the people who make up “the nation.” And, what, exactly, is the “threat” to the nation, against which they must defend? Given that a “nation” is a political fiction, an expression of the collective values of the people who belong to it, it feels strange and creepy to have people claiming to “defend” it by arguing that they need not be bound by those collective values, that, in fact, they must kill the nation in order to save it.
Wow, withywindle – a double-hitter. First, you admit that Tim is correct that the Constitution derived from empirical experience, then you want to continue to discuss hypotheticals. Then you say that the SCOTUS debates hypotheticals, but in fact the largest part of their discussion is precedent.
If you want to keep your conservative creds, you should perhaps follow George Will’s lead, as he tries to insulate himself from neo-con failures. I read that others of the right-wing ‘community’ are now trying to label GW Bush as a liberal, after all. That might work for you, too.
Tim – would you mind if I cross-thread this piece to another blog?
To repeat: Empirical evidence and hypotheticals are not a dichotomy. They are one side of a coin, where abstract principle, categorically imperative, is the other.
I have no particular interest in spending time saying that “such-and-such isn’t a conservative.” (Although I think one is justified in raising one’s eyebrows at the claims of Andrew Sullivan.) It is more interesting–and empirical, forsooth–to consider the different varieties of conservatives, and the (creative) tensions among their views. Pres. Bush is one sort of conservative. His views and actions contribute to the definition of conservatism, but neither define the abstraction nor can be defined out of it.
Crossthreading is always fine, that’s why this stuff is out there.
Tim – thanks for the clarification.
ww – OK for the distinction concerning conservatives. I shouldn’t sic GWB on you in any case, as I am sure that you are your own brand.
I don’t agree with your coin metaphor; how about a chain? Facts and experience are abstracted and generalized into a rule or categorical observation. These inductive products, when motivated by sufficient need or want, become the basis of discussion for policy. Policy discussion bounces around among rule and policy suggestion and hypothetical outcomes of policy implementation, with the debate occasionally illustrated by facts and experiences.
Either way – coin or chain – the Constitution was instigated by experience, however much hypotheticals played a part in the debates. And SCOTUS works primarily from precedent. In fact their hypotheticals generally start from a specific citation of law or of prior legal decision.
As to the original article – Tim’s remark about the efficacy of the Nazi torture techniques obliterates Dershowitz’ argument. The Nazis were looking to make “examples”; accuracy was incidental. You may know that “we” occasionally dropped suspected Viet Cong from transport helicopters, until the remaining captives had something to say. You can probably remember how that worked out.
Tim’s snark at the end of his piece is nicely done, but I suggest that it masks the rage that we all should feel when elected representatives perform anti-Constitutional acts in our name. The Unitary President concept, as promulgated by the current administration, ignores the “prior constraint[s] on the power of government” and is anti-, not extra-, Constitutional.
Paul Spencer’s closing remark about “anti-” and “extra-” Constitutional caused me to think about Religions and Political Parties.
Religions obviously predated the Constitution and were deliberately sheltered, by the Constitution, against interference from the Constitution. This was a mistake.
The Framers granted protection to organizations that are inherently “anti-” Constitution. For example Religions are free to exclude women, non-whites, and homosexuals from membership, from worship services, from employment, from leadership, etc. But other American institutions who do not have this protection from the Constitution cannot discriminate in these ways.
The practices of Religions clearly are “anti-Constitutional,” and this conflict will always exist, as a matter of permanent principle. I say “anti-” because Religions do not want, and will not accept, any requirement that says they cannot discriminate against certain groups of their fellow Americans. So we have a democracy surrounded by many theocracies and we have many citizens who claim dual citizenship, and we have many citizens who are unfairly discriminated against — and that discrimination, because of dual citizenship, has slopped over into democracy from the theocracies. Bigotry is permitted only under Holy Scripture, not under the Constitution.
On the other hand, it seems to me that Political Parties, are “extra-” Constitutional. They were not mentioned in the original Constitution and they grew up outside it. We are led to believe that they operate in accord with the principles of the Constitution, but I have never really believed that myself. One need only look at the Compromise of 1877 and the subsequent decades of Jim Crow laws to know that the Democrats ignored the Constitution year after terrible year. And of course, George W. Bush certainly is “anti-Constitution.”
So Mr. Bush, a religious man, was selected for office by five justices who were acting in an “anti-Constitutional” manner, and who proclaimed that precedent, the Supreme Court’s main reason for being, should not be taken from their decision, which makes the decision “extra-Constitutional” I suppose. Mr. Bush has used his religious beliefs to drive his policies and acted in many anti-Consitutional ways, yet he represents a Political Party that grew up as “extra-Constitutional.”
I don’t know what this all means. I often confuse myself when I visit here. But I do long for the day, should it ever come again, when the Constitution rules America. But that day is unlikely. Religions and Political Parties are not likely to change of their own free will, or of God’s will either (just read His book), and no one, not even God (because many Religions, in my view, are “extra-God”), can make them change.