Sunday, May 01, 2005

Waldron v. Yoo: Torture and Policy

Professors Jeremy Waldron and John Yoo recently debated torture at an event sponsored by Columbia Law School chapters of the American Constitution Society and the Federalist Society. Jack Balkin gives a summmary highlighting some key issues. Also, the discussion of the debate at Ex Post has been intelligent and passionate.

My personal bias on the question of torture leans towards Waldron's position. However, I hadn't really witnessed a serious defense of Yoo's position, much less considered it as if it were valid. So to hear the debate in this format was edifying to say the least.

How the issue is framed will in large measure determine the conclusions that are reached. If the question is presented as "Is torture ever acceptable?" then most people would agree that Waldron's position is the correct one: morally and legally torture is not acceptable under any circumstances. However, if one adopts the framing Yoo prefers, that it is a matter of foreign policy in the conduct of a historically original form of warfare, the question becomes "In what way, if at all, do existing laws that prohibit torture place restraints on the exercize of executive power in the war against terror?" That really is, in my view, a more difficult sort of question to answer.

Yoo presents the alternative framings as a difference between a Kantian view exemplified by Waldron and a consequentialist view, which he claims is typical of policy makers at all levels of government. It would seem as if the two sides were talking past each other--but that would not be entirely accurate. Consider one point on which Yoo engages Waldren, in response to Waldron's argument that to entertain the notion that a prisoner can be tortured, one must imagine changes in the culture of the military and the legal establishment that can only have deleterious moral and political consequences for the United States, and that indeed such appears to be the case:

About the culture arguments. I mean I think it's a, again, I think it's a very rhetorically powerful argument. It's a very difficult one to prove or to disprove, right? How do you prove or disprove that people who worked at Abu Ghraib were affected by the culture of the changes that the government sought after 9-11 to fight Al Qaeda. Alright, it's something that's inherently disprovable or provable one way or the other, because it depends on sort of this abstract culture which is hard to pin down. So he can say, "I think," if he wants to, "that we're engaged in this big cultural change that's going to have lots of negative effects on everything else the intelligence agencies, defense agencies, that law enforcement does." I can also say that "I think that would be quite limited, because the purpose is limited and we haven't seen its widespread use yet." But how would we prove or disprove it causally, one way or the other? It is a plea I think, a more of an emotional or rhetorical plea about culture than something that actually gets to the facts.

One problem here is that Yoo's position can and perhaps must be understood within something approximating a Kantian framework, rather than the purely consequentialist view he invites us to consider. His appeal to reason in this context is surely consistent with Kant's idea of a practical reason which governs moral conduct, and there are plenty of indications that Yoo has an understanding of duty that would not be unfamiliar to Kantians. Here's the rub: Yoo would like us to believe that culture belongs to the purely theoretical in this case, and yet he himself had previously invoked an aspect of the cultural as a contingency bearing on the interpretation of the Geneva Conventions of 1949 for the protection of victims of war, and other prior international law. So the logic would seem to be that when one wishes to emphasize discontinuity with historical tradition, the cultural context of a law or treaty is of immediate, practical concern; yet when one wishes to emphasize continuity, it suddenly becomes hard to pin down and not very useful. That strikes me, to be perfectly quaint about it, an instance of special pleading. (And indeed were I to dwell on it I might discard my criticism as too, too quaint, but I'll record my impression regardless as it may yet point to a worthy argument.)

When it comes to interpreting the applicability of the Geneva Conventions, it's perhaps not particularly germaine whether those who drafted and ratified them held to a Kantian view of moral reason. It does seem highly relevant, that, as Waldron argues, such laws as prohibit torture were intended to be of consequence to the culture and social-psychology of military institutions. So indeed there would seem to be an imperative against torture in international law which envisions a cultural horizon as a practical matter and not merely in the abstract, and, for whatever reason, this imperative is not inconsistent with Kant's second categorical imperative, "So act as to treat humanity, whether in thine own person or in that of any other, in every case an an end withal, never as means only."

Yoo puts himself in a tough position for while refusing either to affirm or deny something akin to Kant's second imperative, he accepts the legal (and probably moral) imperative against torture, but wishes to limit its meaning and applicability based upon changing circumstances. On what philosophical grounds then? As I've indicated, I don't believe Yoo makes a case based upon genuine pragmatist thinking, but instead uses consequentialism to disguise an instance of special pleading. Nevertheless he does press good points and raise compelling questions, so that by the end of the debate Waldron's position is not as firm as human rights advocates might wish it to be. It is not clear at all that members of international terrorist networks should enjoy all of the rights commonly afforded to combatants who wear the uniform of a nation state. What imperatives or practical considerations should govern our conduct towards those accused or convicted of terrorism? Waldron and Yoo contribute a lively installment to this ongoing public debate.

posted by Fido the Yak at 2:10 PM.


Blogger john mason said...

The discourse seems to lapse into a discussion of philosophy and ways of formulating things, leaving behind the question itself: whether civilized people should impose pain, brutality, and fear, on other persons.

April 27, 2009 11:23 PM  

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