June 21, 2006

Bainbridge and Sullivan

They're both right on this one, of course. Bainbridge is right that Islamic terrorists, very obviously, would keep on beheading and/or mutilating U.S. forces (or whomever) whether or not Abu Ghraib, Guantanamo and all the rest of it had happened. They are nihilistic fanatics and thugs, and they couldn't care less whether we abide by the Geneva Conventions or not. But that's not really the point, is it? Sullivan obviously agrees with the above, but makes a far more important point, in the process standing up for America's bedrock values (in the face of heaping doses of blogospheric diarrhea hurled at him by myriad juveniles, I feel compelled to add, although I am certainly not speaking of Bainbridge here, whose talents as a blogger I respect). As Sullivan writes about the aftermath of the apparent odious death by torture of the two U.S. soldiers: "What was once a difference in kind between us and our enemy is now a difference in degree. That fact profoundly weakens our moral standing in the world, the power of our cause, and impedes the long-run success in the war of ideas that the war on terror involves." Indeed. And no, it doesn't matter how big a difference in degree. You either torture, or you don't torture. As the English Law Lords have previously written:

That word honour, the deep note which Blackstone strikes twice in one sentence, is what underlies the legal technicalities of this appeal. The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it. When judicial torture was routine all over Europe, its rejection by the common law was a source of national pride and the admiration of enlightened foreign writers such as Voltaire and Beccaria. In our own century, many people in the United States, heirs to that common law tradition, have felt their country dishonoured by its use of torture outside the jurisdiction and its practice of extra-legal "rendition" of suspects to countries where they would be tortured: see Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House 105 Columbia Law Review 1681-1750 (October, 2005)

83. Just as the writ of habeas corpus is not only a special (and nowadays infrequent) remedy for challenging unlawful detention but also carries a symbolic significance as a touchstone of English liberty which influences the rest of our law, so the rejection of torture by the common law has a special iconic importance as the touchstone of a humane and civilised legal system. Not only that: the abolition of torture, which was used by the state in Elizabethan and Jacobean times to obtain evidence admitted in trials before the court of Star Chamber, was achieved as part of the great constitutional struggle and civil war which made the government subject to the law. Its rejection has a constitutional resonance for the English people which cannot be overestimated...

...The law will not lend its support to the use of torture for any purpose whatever. It has no place in the defence of freedom and democracy, whose very existence depends on the denial of the use of such methods to the executive.

113. Once torture has become acclimatised in a legal system it spreads like an infectious disease, hardening and brutalising those who have become accustomed to its use: Holdsworth, A History of English Law, vol v, p 194. As Jackson J in his dissenting opinion in Korematsu v United States, 323 US 214 (1944), 246 declared, once judicial approval is given to such conduct, it lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. A single instance, if approved to meet the threat of international terrorism, would establish a principle with the power to grow and expand so that everything that falls within it would be regarded as acceptable. [emphasis added]

It's just that simple, no matter the dangerously misguided new paradigmists (Yoo, Krauthammer etc) who would have us discard centuries of Enlightenment values for one KSM waterboarding hypo. As many Democrats appear to be largely mute on this issue, perhaps John McCain is our only real hope to right the blight that Bush has wrought on torture policy in the next Administration, though I'm open to hearing about Hillary's passionate advocacy on the subject, or such.

All this aside, and in the face of the horrific fate our two men in uniform just suffered in Iraq, we'd all do better to not use their ghastly deaths as fodder for blog debates on torture policy--at least not the very day their deaths are confirmed. But that would be fighting well against the tide of this medium, wouldn't it? We'd be acting with dignity, and the blogosphere, which is many things, is not a medium that has often distinguished itself by its dignity, I dare say.