LawCulture

The Value of Torture

       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?

SALT's Power

SALT's bi-annual teaching conference will be held this year at my home institution. We are looking forward to hosting the conference devoted to "Academic Freedom and Teaching Activism in the Post 9/11 World."  Although I am not doing the planning for the conference, its occasion has got me thinking about the acronym (SALT) for the organization (the Society of American Law Teachers) and about acronyms more generally. There is an article, I think, all about legal acronyms. I can't remember whether it's humorous or serious (quick -- anyone find that article?), but the more I think about SALT and the possible connotations the word raises with an activist organization of the kind SALT is, my mind wanders to others: TRIPS, NOAA, ACORDS, ORCAA, PACER, PERC, WIPO.  These days, we are likely jaded by the speed at which acronyms are adopted into our everyday lexicon. Stepping back to think about their value -- informative, humorous, efficient -- makes me think of some of their other effects and qualities -- obfuscating, braggy, hurried. These days, do the creation of acronyms drive the naming of organizations and groups? Is the value of the acronym (the mark?) that obvious to people?  I would love, for example, to learn more about the SALT acronym and its deliberate or coincidental adoption by the Society.  In any case, I hope to see people at the conference next week.

Big Dig Turmoil

As if things around Boston aren't hot enough, state legislatures are actually considering taxing non-Bostonians who tie up traffic by causing accidents during rush hour. The Boston Globe reported today that elected officials are actually considering assessing a surcharge "of several hundred dollars" on any out-of-town automobile commuter whose at-fault accident frustrates what should be a well-oiled commute into downtown Boston. The article reports that with "Boston property taxes up 58 percent since 2002 and the city's cost of doing business rising, the proposal is finding support from people who say money should be raised from those who use city services [tow trucks, ambulances, etc.] but don't pay for them."

With our out-of-town Governor unclear on the concept of avoiding racist speech when talking about one of the costliest (and now fatal) public works projects this nation has ever seen (see coverage yesterday on Mitt Romney's use of the term "tar baby" to describe the Big Dig), Massachusetts doesn't need any more controversy to stir up and divide its citizens. How would a proposal like this work anyway? A Boston-based ambulance arrives at the scene of an accident in one of our newly-built but leaky and collapsing tunnels, and the Boston ambulance driver says to the out-of-towner with a sprained ankle and whiplash: "for the price of driving on our roads and because you have caused a traffic snarl and are not from around here, your ride will cost $300 more than a native Bostonian." How could the out-of-towner respond? "Well, I used be from around here. In fact, I lived in Boston for 12 years while you were building this mess. I suffered through the detours and closed roads and only moved away a couple of years ago, and I did that because the schools were only getting worse and my kid was about to start kindergarten."

It seems to me there are a lot of good reasons (finances aside) not to enact a law like this one. The common demoninator in our public life (and public laws) may seem like money, but it is really community. This proposal may raise money, but it will divide and alienate people. It raises the NIMBY syndrome to new levels. It is a bad idea.

Hamdan and the War Crimes Act

I posted on this issue at the new Georgetown Law Faculty Blog, which is here.

More on Zarqawi, GTMO, law and war....

In this op-ed by David Luban in today's LA Times:

At war with Iraqi law

Killing Zarqawi robbed Iraqis of the chance to bring him to justice.

Was it something we said?

[The NYT reports on the latest Pew Research Center poll]:

"Global Image of the U.S. Is Worsening, Survey Finds"

Oops.

The bad news: "As the war in Iraq continues for a fourth year, the global image of America has slipped further, even among people in some countries closely allied with the United States, a new opinion poll has found. "

For instance, "Support for the fight against terrorism led by the United States is also down, Pew found. Although strong majorities in several countries expressed worries about Iran's nuclear intentions, in 13 of 15 countries polled, most people said the war in Iraq posed more of a danger to world peace."

The good news: "Many respondents distinguished between their largely negative feelings about President Bush and their feelings about Americans in general."

War & Law

Following up on my last post about Bush Admin blurring of the lines between violence and law-- consider the various official responses to the three suicides of Guantanamo inmates. Camp Commander Admiral Harry B. Harris Jr. insisted that the suicides were "not an act of desperation, but an act of asymmetrical warfare waged against us." Then the NYT reports that Gen. Bantz J. Craddock, commander of the United States Southern Command, thinks the suicides "may have been timed to affect the Supreme Court decision on the Hamdan case. 'This may be an attempt to influence the judicial proceedings in that perspective.'"

So, I think I get it. The Guantanamo inmates didn't kill themselves because being detained indefinitely -- maybe forever-- made their lives seem not worth living; they killed themselves in order to strike out at the United States. More specifically, they killed themselves so that they could strike the US from within by making the Supreme Court feel sorry for them, which could in turn influence the Court in the Hamdan case. So a defeat for the Administration in Hamdan would actually be a cleverly planned victory for the terrorists.

I think this actually makes sense to someone.

Delivering "justice" to Zarqawi?

President Bush's statement on the death of Zarqawi: "Last night in Iraq, United States military forces killed the terrorist al Zarqawi.  At 6:15 p.m. Baghdad time, special operation forces...delivered justice to the most wanted terrorist in Iraq." (emphasis added).

Zarqawi's death is difficult to mourn. He was a brutal terrorist, and there's no reason to doubt that the air strike that killed him was justified. But though it was justified, was it really "justice"?

You might say that Bush was merely using a figure of speech-- that "justice," in this context, simply meant that Zarqawi got what he deserved. But I don't think it was just a figure of speech. On the contrary. Clausewitz saw war as "a continuation of politics by other means." Bush takes it a step further, seeing war as form of law by other means.To Bush, war is a form of law, and law is a form of war.

This administration has repeatedly sought to blur the boundaries between law and violence in the context of the war on terror, both through efforts to "legalize" various forms of violence (including once impermissible forms of violence, through the torture memos, for instance) and through efforts to militarize law and legal process (consider the Administration's largely sucecssful efforts to conceptualize Padilla, Hamdi, et al. as enemy combatants).

I'm not sure "militarizing law" is the right way to put it- but think of the term "lawfare," used to suggest that "the enemy" is using international law aginast the US as part of a "war" against us (and also used to suggest that those who raise legal objections to US war on terror tactics are somehow aiding the enemy). 

I'd be the first to say that the boundaries between "law" and "violence" or "force" are inherently blurry and socially constructed - but the administration's efforts to further blur those boundaries strikes me as both interesting and disturbing.

Protecting Marriage

So those irresponsible senators refused, once again, to protect marriage. President Bush pushed for the Marriage Protection Amendment which, building on the Defense of Marriage Act of 1996, would offer a constitutional amendment prohibiting the recognition of same-sex marriages. It failed in the Senate, as expected, but is supposed to undergird similar ballot initiatives in a number of states next November.
My questions: what’s to protect, and where’s the threat? Bush used the standard rhetoric about marriage as “the most enduring and important human institution, honored and encouraged in all cultures and by every religious faith.” That’s true enough, though the modalities of those marriages honored in different cultures and religions might not all be so pretty if closely examined. But what do we know about what marriage is, and what it is for?

Talks with Iran-- not much of a policy shift

Condoleezza Rice has announced that the US is willing to enter into direct talks with Iran, and the press is trumpeting it as a major shift in policy. Well, um, it would be, if it were. But Rice says Iran first has to suspend its uranium enrichment and reprocessing programs, or else no talks!  So, if I understand this right, we're happy to negotiate directly with Iran in an effort to convince Iran to suspend its nucelar program... but only if Iran first promises that it will suspend its nuclear program.

Not much of a policy shift.