Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, October 18, 2006

"Torture Warrants," again

Alan Dershowitz has this op-ed in the Los Angeles Times, in which he remembers that he had "provoked a storm of controversy [several years ago] by advocating 'torture warrants' as a way of creating accountability for the use of torture in terrorism cases.  [He] argued that if we were ever to encounter a 'ticking bomb' situation in which the authorities believed that an impending terror attack could be prevented only by torturing a captured terrorist into revealing the location of the bomb, the authorities would, in fact, employ such a tactic."

He is probably right that the authorities "would, in fact, employ such a tactic."  However, I disagreed then, and disagree now, that this predictive judgment calls for legal mechanisms that would authorize, before the fact, their doing so.  It seems important to me that the law set its face against torture, even in such extreme cases.

Dershowitz wonders, though, if a similar storm of controversy will follow this recent statement by President Clinton:

"Look, if the president needed an option, there's all sorts of things they can do. Let's take the best case, OK. You picked up someone you know is the No. 2 aide to Osama bin Laden. And you know they have an operation planned for the United States or some European capital in the next … three days. And you know this guy knows it. Right, that's the clearest example. And you think you can only get it out of this guy by shooting him full of some drugs or water-boarding him or otherwise working him over. If they really believed that that scenario is likely to occur, let them come forward with an alternate proposal.

"We have a system of laws here where nobody should be above the law, and you don't need blanket advance approval for blanket torture. They can draw a statute much more narrowly, which would permit the president to make a finding in a case like I just outlined, and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court."

Clinton was then asked whether he was saying there "would be more responsibility afterward for what was done." He replied: "Yeah, well, the president could take personal responsibility for it. But you do it on a case-by-case basis, and there'd be some review of it." Clinton quickly added that he doesn't know whether this ticking bomb scenario "is likely or not," but he did know that "we have erred in who was a real suspect or not."

Clinton summarized his views in the following terms: "If they really believe the time comes when the only way they can get a reliable piece of information is to beat it out of someone or put a drug in their body to talk it out of 'em, then they can present it to the Foreign Intelligence Court, or some other court, just under the same circumstances we do with wiretaps. Post facto….

Church autonomy at Pepperdine

I'm blogging from a cafe in Malibu, having given a talk at Pepperdine's law school on the ministerial exception and the church-autonomy principle.  After a great deal of soul-searching, I've reached a decision:  Malibu is prettier than South Bend, Indiana.

"Used"

Michael P. links here to Martin Marty's column about David Kuo's new book, "Tempting Faith."  I know David, and have no doubt -- having heard him on the radio today -- that he sincerely intended his book to be a very personal meditation on the importance of remembering that the name of the game is the Lord, and not a political majority.  I share his disappointment that the more interesting and promising aspects of the "faith based initiative" / "compassionate conservative" program (e.g., meaningful school choice) never materialized.  (Of course, that agenda was blocked, in important ways, by the President's political opponents in Congress.)  Certainly, it is not his fault that his book was released right before an election in which evangelical Christian turnout is important to the Republicans.  (Who is being "used"?)  A few quick thoughts:

Professor Marty writes "David Kuo is as well positioned as anyone to give behind-the-scenes views of how the 'elites' in the administration in Washington regard their most faithful and core supporters."  Maybe.  Other pretty "well positioned" folks -- Michael Gerson and Jim Towey, for example -- disagree quite forcefully with David's thesis.

As Professor Marty notes, the commentators on and promoters on the book have seized on David's claim that (unnamed) officials referred to some Christian leaders as "goofy" and "nuts."  It is, I suppose, not relevant that many of those (e.g., Keith Olbermann) who are currently touting Kuo's book *also* think that evangelical leaders are "goofy" "nuts."  The point is -- who are we kidding? -- some of them are.  I certainly hope that, when White House officials learned that some prominent, self-styled Christian leaders blamed Katrina on sexual decadence in New Orleans, or 9/11 on abortion, they called those Christians "nuts."

Finally, the claim that evangelical Christians have been "used" ignores the fact -- and, it is a fact -- that the current Administration has been receptive to evangelicals' concerns -- consider, for example, the efforts of the Department of Justice to defend equal-access and equal-expression rights for religious believers in public forums, or the Administration's support for vouchers in DC, or the partial-birth abortion ban.

My point is not to question Kuo's sincerity or his motives.  (I am happy to question the motives of "60 Minutes" or of the book-promotion campaign.)  Clearly, evangelical Christians (like some constituencies in the Democrats' base) are regarded by some GOP operatives as useful, but (at best) quirkly.  Nor is it to disagree with him that following Christ is something Christians should care more about than winning elections.  But, his "used" argument, in my view, is not particularly powerful.  And, I suspect that most evangelical Christians will react skeptically to a media-blitzed suggestion, three weeks before an election, that they "fast" from politics.

UPDATE:  Here is E.J. Dionne, in the Post, commenting on the Kuo book.  He says, among other things, "I hope Kuo's book promotes serious discussions in religious study groups around the country about whether the evangelicals' alliance with political conservatism has actually made the world, well, more Godly from their own point of view."  Fair enough.  I cannot help thinking, though, that a book which urged the millions of devoutly religious, church-going African-Americans to "fast" from politics, given that many prominent Democratic leaders value their votes but regard their religious values and commitments with disdain, would enjoy significantly less promotional energy in the press.

Religious devotion as "a mark of separation"

I would guess that most of us on MoJ oppose the French ban on head scarves in schools, but what about Tony Blair's criticism of full-face veils?  Is the bully pulpit an acceptable mechanism for expressing (and likely promoting) public disapproval of minority religious practices?

Rob

Tuesday, October 17, 2006

Church Position on Embryo Biopsy

I offer just a tiny contribution to this fascinating conversation about the humanity of embryos, as I continue to work my way through these arguments.  Eduardo Penalver asked for direction toward any "official Church evaluation" of the claim that embryonic stem cells could be cultivated from a single cell extracted from an 8-cell embryo, without harm to the embryo.  Though Ryan Anderson's First Things column is more comprehensive in exposing the problems (scientific and ethical) with that claim, perhaps this statement by Richard Doerflinger, Deputy Director of the Secretariat for Pro-Life Activities of the U.S. Conference of Catholic Bishops, comes closer to an "official Church evaluation."   

Lisa

Further remarks from Robert George on the criteria for affording human standing

Dear Steve:
 
I would add the following thoughts to those offered by the anonymous priest you quoted.
 
Infants can't think.  Nor can very severely retarded persons.  Comatose individuals can't think or feel.  Yet infants, retarded persons, and comatose individuals are rational animal organisms.  As humans, that is the kind of thing (=substance) they are.  A human creature's nature is a rational nature, even if the individual has not yet developed, or has lost, immediately exercisable capacities for characteristically human mental functions.  Indeed, a human individual is a rational animal organism even if, due to severe retardation, he or she never developed and never will develop these immediately exercisable capacities.   Infants possess, as do embryos, the primordia (which are most fundamentally epigenetic) for self-directed development to the point at which they can immediately (though intermittently, of course, due to the need for sleep) perform characteristically human mental acts.  They possess in radical (=root) form the basic natural capacity that will in the course of development unfold to the point at which, if all goes well, they will be able to engage in conceptual thought, deliberation, and choice.  It is the possession of the basic natural capacity (shared by all human beings, even if blocked in the severely retarded), and not immediately exercisable capacities (possessed by some human beings but not by others, and possessed by some to a greater degree than by others), that determine the kind of substance a human being is, namely, a rational animal organism.
 
It is, of course, logically possible to deny this basic point.  I have, in at least one of the papers I shared with you, given several reasons why I think denying it is a serious error.  I won't repeat them here.  I'll simply emphasize the first one.  To suppose that embryos are something other than human beings---rational animal organisms of the human species---is to undercut the ground for believing that infants, severely retarded persons, and comatose individuals are human beings.  This is a move that people like Peter Singer, Michael Tooley, and some others rightly see as necessary if they are to deny the standing of humans in the embryonic and fetal stages, and they are willing to bite the bullet and make it.  (I've offered rebuttals to their arguments in various places, including in the paper on the embryo question I sent you.)  But (even apart from the direct arguments to be made against identifying immediately exercisable capacities, as opposed to the basic natural capacity, for characteristically human mental functions as the criterion for human standing) most people recognize that eliminating the grounds for regarding infants and retarded and comatose people as human being is too high an ethical price to pay.  The fact that this view, when all is said and done, licenses infanticide, euthanasia of the seerely handicapped, and worse atrocities is a reductio ad absurdum.
 
Yours faithfully,
Robby
 
PS:  I agree with the anonymous priest that the proposition that all human beings, and not just those who have moved far enough down the developmental path to manifest immediately exercisable capacities, possess profound, inherent, and equal dignity is progressive.  Political liberals should be at least as eager as political conservatives to endorse it.  There was a time---not all that long ago---when many did (including Edward Kennedy, Jesse Jackson, Albert Gore, Richard Durbin, and, if I am not mistaken, Bill Clinton).  It was a tragedy for the progressive movement, and the nation, when they abandoned the pro-life cause, embracing first abortion and now cloning and embryo-destructive research.  What a blessing it would be if the progressive movement began to find its way back.
 

Culture Watch: Parental Priorities

In the midst of a culture that seems headed in the wrong direction by many measures, it is important to recognize signs of authentic human flourishing, such as the continued investment of time by parents in building relationships with their kids.

Rob

A population problem?

As the US population surpasses 300,000,000, Richard Posner argues that overpopulation, despite the hysteria of doomsday predictions in the past, is a legitimate cause for concern.  Gary Becker disagrees.  One particularly provocative remark from the comments (not from either Posner or Becker) struck me:

The operative word is sustainability. If there are three-to-five billion people in the world who are dependent on aid from developed nations to live, and that past aid has not proven the ability to make these societies self-sufficient, is it ethical to continue the aid and watch the populations balloon, knowing that the aid is finite?

Rob

Monday, October 16, 2006

Deception on Cloning

Sunday’s New York Times (10/15/06) laid out the purposeful deception that is being practiced on Missouri voters. The very reason for the Amendment was to promote cloning, and yet the ballot will say (without further clarification) that the Amendment bans cloning. See the Times excerpts below (my emphasis added):

The largest group in the state promoting stem cell research [is] the Missouri Coalition for Lifesaving Cures, which is responsible for putting the initiative on the ballot....

The group’s chairman [is] Donn Rubin....

The ballot measure would guarantee that any stem cell research that is legal under federal law could be performed in Missouri. Mr. Rubin said the coalition sought to get the issue on the ballot in direct response to efforts for years by conservative lawmakers to ban the cloning procedure involved in some forms of the research.

In the most controversial form of stem cell research, embryos are cloned and their stem cells are removed....

“This is the big one, this is the biggest pro-life issue voters have ever been confronted with,” said Pam Fichter, the president of Missouri Right to Life. “This is the people deciding whether they want to enshrine in the constitution the right to clone and kill human embryos.”

Embryos, Dignity, and Resort to Authority Part III

This is Part III of a three part post (Part I and Part II) using Professor George’s “Embryo Ethics,” an essay forthcoming in Daedulas, to explore whether embryos share equal moral worth with other human organisms (beings).

George frames the issue:  “At the heart of the debate over embryo-destructive research, then, are two fundamentals questions: what – or who – is a human embryo, and what is owed to a human embryo as a matter of justice.”

This post will address the second part of the question:  what is owed to a human embryo as a matter of justice.” 

George writes:

“A supporter of embryo-destructive research might concede that a human embryo is a human being, in a biological sense, yet deny that human beings in the early stages of their development are due full moral respect such that they may not be killed to benefit more fully developed human beings who are suffering from afflictions.

“But to deny that embryonic human beings deserve full respect, one must suppose that not every human being deserves full respect.  And to do that, one must hold that those human beings who deserve full respect deserve it not in virtue of the kind of entity they are, but, rather, in virtue of some acquired characteristic that some human beings (or human beings at some stages) have and others do not have, and which some human beings have in greater degree than others.

“In my judgment, this position is untenable.  It is clear that one need not be actually or immediately conscious, reasoning, deliberating, making choices, etc., in order to be a human being who deserves full moral respect, for plainly people who are asleep or in reversible comas deserve such respect.  So, if one denied that human beings are intrinsically valuable in virtue of what they are, but required an additional attribute, the additional attribute would have to be a capacity of some sort, and, obviously a capacity for certain mental functions. 

“Of course, human beings in the embryonic, fetal, and early infant stages lack immediately exercisable capacities for mental functions characteristically carried out by most human beings at later stages of maturity.  Still, they possess in radical (= root) form these very capacities.  Precisely by virtue of the kind of entity they are, they are from the beginning actively developing themselves to the stages at which these capacities will (if all goes well) be immediately exercisable. Although, like infants, they have not yet developed themselves to the stage at which they can perform intellectual operations, it is clear that they are rational animal organisms. That is the kind of entity they are.

“It is important then to distinguish two senses of the “capacity” (or what is sometimes referred to as the “potentiality”) for mental functions:  an immediately exercisable capacity, and a basic natural capacity, which develops over time.  And there are good reasons for believing that it is the second sort of capacity, and not the first, that provides the justificatory basis for regarding human beings as end-in-themselves, and not as means only—as bearers of inherent dignity and subjects of justice and human rights, and not as mere objects.

“First, the developing human being does not reach a level of maturity at which he or she performs a type of mental act that other animals do not perform—even animals such as dogs and cats—until at least several months after birth.  A six-week old baby lacks the immediately exercisable capacity to perform characteristically human mental functions.  So, if full moral respect were due only to those who possess immediately exercisable capacities for characteristically human mental functions, it would follow that six-week old infants do not deserve full moral respect.  Thus, if human embryos may legitimately be destroyed to advance biomedical science, then it follows logically that, subject to parental approval, the body parts of human infants should be fair game for scientific experimentation. 

“Second, the difference between these two types of capacity is merely a difference between stages along a continuum.  The immediately exercisable capacity for mental functions is only the development of an underlying potentiality that the human being possesses simply by virtue of the kind of entity it is.  The capacities for reasoning, deliberating, and making choices are gradually developed, or brought towards maturation, through gestation, childhood, adolescence, and so on.  But the difference between a being that deserves full moral respect and a being that does not (and can therefore legitimately be killed to benefit others) cannot consist only in the fact that, while both have some feature, one has more of it than the other.  A mere quantitative difference (having more or less of the same feature, such as the development of a basic natural capacity) cannot by itself be a justificatory basis for treating different entities in radically different ways.

“Third, the acquired qualities that could be proposed as criteria for personhood come in varying and continuous degrees:  there are an infinite number of degrees of the relevant developed abilities or dispositions, such as for self-consciousness or rationality.  So, if human beings were worthy of full moral respect only because of such qualities, then, since such qualities come in varying degrees, no account could be given of why basic rights are not possessed by human beings in varying degrees.  The proposition that all human beings are created equal would be relegated to the status of a myth; since some people are more rational than others (that is, have developed that capacity to a greater extent than others), some people would be greater in dignity than others, and the rights of the superiors would trump those of the inferiors. 

“So, it cannot be the case that some human beings and not others are intrinsically valuable, by virtue of a certain degree of development.  Rather, human beings are intrinsically valuable (in the way that enables us to ascribe to them equality and basic rights) in virtue of what (i.e., the kind of being) they are; and all human beings are intrinsically valuable.

“Since human beings are intrinsically valuable and deserve full moral respect in virtue of what they are, it follows that they are intrinsically and equally valuable from the point at which they come into being.  Even in the embryonic stage of our lives, each of us was a human being and, as such, worthy of concern and protection.  Embryonic human beings whether brought into existence by union of gametes, SCNT, or other cloning technologies should be accorded the respect given to human beings in other developmental stages.”

Thank you Professor George for allowing me to quote your insightful essay in these posts.  I look forward to hearing from Steve and others as to whether they think Robert George has adequately demonstrated the embryo’s equal moral worth on the basis of scientific and philosophical authority.