In teaching constitutional law, a theme I develop throughout the course is whether there are anchors for our interpretation of the constitution's text, whether there are stable values or ideals that guide our application of the constitution to the new facts presented such that we can both evolve over time as well as recognize in the interpretation a societal identity, a continuity of community that was founded on these central principles in 1776 and 1789.
In Justice Holmes' famous dissent in Lochner, he wrote that the constitution is made for "people of fundamentally differing views," speaking, of course, of various theories of economics and social justice debated between the majority and dissents in that case. But Holmes' comment begs the question that I find myself asking over and over this past day as I contemplate how the U.S. House of Representatives could have passed the so-called "torture bill" by a majority of 253 to 168. Although sufficiently capacious to maintain differing views of "equality," "free speech," and "commerce" can we really say that the constitution makes room for the purposefully threatening, degrading, humiliating and violent treatment of prisoners of war? (As Marty Lederman writes here, the treatment may apply to more than prisoners of war, but to any "enemy combatant" so designated by the Commander in Chief.)
On September 11, 2001, I felt vengeful. I felt violent. I recognized in me a common human reaction to hate-motivated violence: a like response of hate-motivated violence. I wanted the terrorists who killed the September 11 victims and the terrorists' loved ones to die. But as much as this might be a common human response, it seems to me obvious it is not the right response. It is not the good response. It is not the moral response. It does not promote peace or justice. It repeats and continues hatred and violence.
And so why would we, as a society founded on liberty, opportunity, fairness, a society that has grown into the value of equality -- all of which are manifested in the constitution -- why would we condone the tactics proposed by the torture bill? (In addition to being so vague on what constitutes prohibited torture, the bill also removes the right to petition for liberty -- the right to file a writ of habeas corpus -- for anyone so detained. Can you imagine being held against your will indefinitely with no way to contest your detention because someone in the executive department has labeled you an enemy combatant? If that isn't tyranny, I am not sure what is. Cf. US Const. Art. 1, Sec. 9, cl. 2 (“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it”) and Ex parte Milligan, 71 US 2 (1866) (only the privilege, not the writ itself, is suspended, such that a court can pass on the constitutionality of the suspension). Due process of law, prohibitions on cruel and unusual punishment, these terms might be vague, but certainly they prohibit waterboarding and sleep deprivation. (Were police ever to use such tactics against criminal suspects there would be no question of a constitutional violation.) There are lots of good arguments as to why these kinds of tactics are futile and bad policy -- they produce unreliable information and excludable evidence, they model a behavior we have criticized other countries for employing. But isn't the best reason for saying "no" to the torture bill that our society's values as embodied in our constitution require we treat even the most vile of human beings as human beings? Except for losing control over our impulses and letting our hatred and fear get the better of us, why would we destroy the reputation and identity of the United States that is embodied, hopefully, in the promise that is our constitution, by condoning the violence that is being done to these prisoners?