Framing Torture
Andrew Sullivan is leaning increasingly on the administration, particularly on the issue of torture. Being a right-wing writer, he describes being "inundated" with emails that are pro-torture. That is disturbing in and of itself, but I don't think we should come down too hard on his readers just yet. The question has not been correctly framed for them.
Most justifications for torture read something like this: If, by torturing an Al Qaeda member, we can gain information that will save hundreds or thousands of lives that might be lost in a terrorist attack, do we not have an obligation to do so?
This is not the correct question. The correct question is this:
Should we torture hundreds or thousands of people, not knowing with certainty if they are Al Qaeda, in order to gain information that might prevent hundreds or thousands of deaths in a terrorist attack?
The use of power is rarely confined to a single incident. Once torture is an deemed acceptable in certain circumstances, those circumstances have a way of enlarging and changing. Should torture only be used against known terrorists? Who makes that determination? And what is a "known terrorist" anyway? The government is vigorously pursuing prosecution of persons it deems to have supported terrorism. I have no problem with the legitimate prosecution of real supporters, but a recent case comes to mind.
In that case, a Saudi named Sami Omar Al-Hussayen, 34 years old, studying for his doctorate in Computer Science here in the US on a student visa, was prosecuted for "supporting terrorism", when he created a web site and discussion forum for Islam. On this forum, speech was engaged in and comments for and against terrorism flowed back and forth. My knowledge of this case is limited, but I do know that he was acquitted of the charge of supporting terrorism.
"There was a lack of hard evidence," said John Steger, a retired U.S. Forest Service employee who was the only juror to discuss the case publicly. "There was no clear-cut evidence that said he was a terrorist, so it was all on inference."
Steger called the First Amendment aspects of the case important to the verdict, citing Lodge's instruction that the Constitution protects speech even if it advocates the use of force or violation of the law unless imminent lawlessness occurs."What the First Amendment actually meant was more extensive than I thought," Steger said. "I was surprised that people could say whatever they wanted."
Justice Department officials in Washington, D.C., declined comment on the acquittal. But U.S. Attorney Tom Moss in Idaho said it would not deter future attempts to bring people supporting terrorists into court.
"We'll continue to go after people who support terrorist activities," Moss said. "You don't just need people who will strap on bombs and walk into crowds. You need people to support them. For terrorism to flourish, they have to have a communications network. . . . This was a case as prosecutors we're expected to pursue."
The government prosecuted him for supporting terrorism. Setting aside issues of free speech, should that same government also have a ability to torture him to gain more information? Is this man a terrorist or not? The government thought so; it prosecuted him for supporting terrorism.
Under the Bush torture doctrine, this man could have been tortured. This torture would have been performed away from the watchful eye of any court, or any check and balance.
A court found him not guilty. It is sobering to juxtapose the horror of torture, the willingness and desire of an administration to use it, the declarations and decisions of an administration that it is above the law and that it retains executive privilege to do what it deems necessary without review or consequence, and the decision of a jury of peers that a man is not a supporter of terrorism.
It seems that our court system serves a purpose after all. The founding fathers were correct to provide checks and balances between the branches of government.
Bad things happen to good people. You can't make an omelette without breaking eggs. Would you torture one terrorist? The lazy comfort of black and white is held before us, a temptation...
This slippery slope is the one that matters.
Sami Omar Al-Hussayen is still being prosecuted by the government on immigration charges intended to deport him, based on the theory that his student visa entitled him only to study while in the US; as a foreigner, he did not have the right to speak his mind, create a web site, or engage in discussion.
What right to free speech do I have?
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If they had tortured Mr. Al
If they had tortured Mr. Al-Hussayen, the court would have found him guilty. Of something. Anything. That's the problem with torture. If the goal is to gain accurate information that is otherwise not forthcoming, torture is a stinking lousy tool. A human being under that kind of duress will concoct anything plausible in order to end the ordeal. So instead of getting valuable information that may save the lives of hundreds or thousands, you get an endless stream of useless bullshit that virtually guarantees failure. And those mythical hundreds or thousands are left swinging in the breeze.
GP:
GP:
The standard line is that torture doesn't work anyway. I think that's been proven false, but it, too, is a misphrasing of the problem.
In the case that Ross brings up, could he have been tortured? Sure. Would it have been right, given the outcome of the case? Utterly not. Ipso-fatso, torture in his case would have been wrong, and even I'm not cynical enough to think that this would have caused the court to find him guilty, because the court, in this case, included a jury which was empowered to act otherwise. And no information gained via torture would have been used to sway the jury's opinion, both because it wouldn't be admissable and because the torture wouldn't have been used to gain incriminating evidence on al-Hussayen.
That said, torture's a lousy tool. Even when it might work.
As for Ross's rhetorical question about his free speech rights, he already knows the answer - they're just as fully enforceable as are mine. The theory that a student visa doesn't come with constitutional protection is vacuous, in the extreme, and the gubmint isn't going to win a case based on such a claim. An illegal immigrant, once inside the US, is granted the same constitutional rights as a citizen.
They'll find a way to deport him, of course, but it won't be due to his exercise of free speech. They can deport him for pretty much any reason they like - unlike his constitutional protections once he's here, the visa on which he arrived is revocable for many reasons.
But the stupidity of a claim that his rights are somehow different because he's foreign or because they couldn't convict him is pretty breathtaking.
Patton, On an anecdotal level
Patton, On an anecdotal level, I know a few resident aliens and long-term visa holders who feel as though their words (and in general speech) are scrutinized more than they would be if they were native-born Amurricans like yrself and me. Much like the modern manifestations of racism, there's not much you can put a finger on, but the presence of awareness, of scrutiny is there nonetheless. I agree that this is not much to go on, and certainly isn't hard evidence that the government has it in for outspoken resident aliens. But it sure does make some good people paranoid.
What really blew my mind about Ross' post was this quote from a juror: "'What the First Amendment actually meant was more extensive than I thought,' Steger said. 'I was surprised that people could say whatever they wanted.'" Surprise!
There's the old tale of the
There's the old tale of the first year law students who go out into the community with a copy of the Bill of Rights written in modern colloquial English and presented as a petition. Random citizens asked to sign said "petition" usually refuse and often call the students communists. Or worse.
I dunno if it's true or urban legend. But Jay Leno finds the civically unaware with apparent ease wandering the streets Los Angeles. I think he's vetting for all prospective Attorneys General as they do no better.
In this, my fantasy, Mr. Leno interviews the next AG:
"What's this document? It's the Bill of Rights. Do you have to uphold them? Well, they are the first ten amendments to the Constitution of the United States. So to answer your question, yes, you must uphold them. Yes, it would be part of your job. No, you cannot pick and choose your favorites. Yes. I understand that is how it is traditionally done but you are supposed to uphold them all. Really. Yes. Them all."