Friday, February 15, 2008
Thanks, Michael. I was, I admit, surprised -- but, no surprise, not at all persuaded -- by Prof. Kmiec's essay. Doug Kmiec has been a friend, and mentor, to me for a long time. But, like they say, even Homer nodded.
Of course, if Doug is merely predicting that many Catholics will vote for Sen. Obama, then he is certainly right. And, if Doug is merely observing that there are somethings about Obama, the "tone" of his campaign, and some of his policy positions that Catholics, as Catholics, could find attractive, then he is also certainly right. But, one problem, it seems to me, is this:
"Beyond life issues, an audaciously hope-filled Democrat like Obama is a Catholic natural."
There's kind of an "other than that, Mrs. Lincoln . . . " vibe to this sentence. In case we've forgotten, here is a "top ten list"-style collection of the various reasons Sen. Barack Obama -- who describes here, in his "Call to Renewal" address, the importance to him of his Christian faith -- has given for his vote against the Illinois Born Alive Infant Protection Act.
I also thought it was strange, in Kmiec's piece, that he said "there's something deeply hypocritical about being a nation of immigrants that won't welcome any more of them", in a piece whose main point seems to be that Catholics should prefer Obama to Sen. McCain. Unlike Sen. Obama, though, Sen. McCain has taken actual political risks, and shown genuine political courage, in trying to move our immigration policies and conversation in the way that Doug, and I, think it should move.
Kmiec writes:
Anyone seeking "liberty and justice for all" really can't be satisfied with racially segregated public schools that don't teach.
Indeed not. Nor can such a person be satisfied with signing over education policy to the teacher-unions. Sen. Obama (unlike Sen. McCain) does not support school choice, and -- in effect -- prioritizes the needs of teacher-union members ("[who don't] teach"] over religious freedom and social justice for poor kids. Such a person is not, and should not be regarded as -- even by those who decide that, all things considered, he's the better choice -- a "Catholic natural."
UPDATE: A reader reminded me that, at a speech this summer to a teacher-union gathering, Sen. Obama expressed support for some form of merit-pay reform. That's good. But, not good enough.
This story about the attention Minnesota's superdelegates are getting illustrates that the (hilarious) Borowitz satire Michael Perry posted isn't far from the truth.
Thursday, February 14, 2008
[From The Borowitz Report for February 14, 2008:]
Conversation with a Superdelegate
Actual Transcript
-- Hello?
-- Doug, my man, is that you? Glad I
caught you, buddy! You’ve had your voicemail on the past few days. Hillary and I
have been worried sick.
-- I told you to stop calling me.
-- What?
That’s a fairy tale.
-- The last time we talked, right before I hung up on
you, I said, “Stop calling me here.”
-- Doug, when you said that, you were
in your bedroom, weren’t you?
-- Yes, I was in my bedroom. You called me at
two A.M. But I don’t --
-- and you’re not in your bedroom now, are you? I
hear a coffee maker. You’re in your kitchen now, aren’t you, Doug? So when you
said, “Stop calling me here,” I naturally assumed you meant, “Don’t call me in
my bedroom, but the other rooms in my house are fine.” It depends on the meaning
of “here” I hear.
-- I’m changing my phone number.
-- Hillary can do
that for you.
-- What?
-- Hillary can change your number. She’s been
making change for thirty-five years. Now, when it comes to calling Verizon
customer service and getting your number changed, who do you trust, someone
who’s been a change agent for thirty-five years or someone who’s been making
viral videos with the Black Eyed Peas?
-- I don’t --
-- Now, I’ve got
nothing against the Black Eyed Peas. I like the girl, what do they call her,
Fergie? She’s hot. I like that song that she does about her humps, and what
she’s gonna do with that junk, all that junk inside her trunk. Her humps, her
humps, her humps, her lovely lady bumps. But she’s not even in the video Barack
made, and when you make a video with the Black Eyed Peas I think you owe it to
the American people to let them know right up front that the hot girl with the
lovely lady bumps isn’t going to be in it, so that people won’t waste their time
freeze-framing it.
-- I…
-- Let’s say you, Hillary, and Barack are on a
life raft in the middle of shark-infested waters. And Hillary offers you a life
preserver and Barack offers you a line of blow. Who would you vote for?
-- I
have to take my kids to school.
-- Hillary will take them.
-- What?
-- She’ll be over there in ten minutes.
-- She doesn’t know where I
live.
-- Sure, she does. We drove by your house last night.
-- You drove
by my house?
-- We were hoping to chat with you. By the way, the drainpipe
in the back needs fixing. It kind of separates from the house when you try to
shimmy up it.
-- I’m getting a restraining order.
-- No, you’re not,
Doug. Hillary’s going to drive your kids to school, and then you and I are going
to sit down and have ourselves a nice little talk. Let’s say you were stranded
on a desert island. Who would you choose to help you survive: someone who had
thirty-five years of experience making real change on Day One, or someone who
spent his high school years surfing and sucking on a giant bong?
-- [click].
[Sit down, Rick. Are you ready for this?}
Doug Kmiec--of Pepperdine Law; formerly dean of the Catholic University School of Law--was a Romney supporter... but now he is supporting Obama. According to Kmiec,
"Barack Obama is a natural for the Catholic vote."
Why? Read Kmiec's posting yesterday in Slate, here.
I need to get ready for class, so this post has to be short and perhaps a little sloppy. In response to the questions Rick mentions, I agree that they raise difficult issues. (Scalia, by the way, does not agree. He thinks it's obviously absurd to reach the conclusion that putting things under people's fingernails would not be justified even under the most extreme circumstances. And he thinks people who hold that view are smug.) But I think these are not even remotely useful questions to be asking. The willingness of our decision-makers to engage in and justify torture in situations that are far less dramatic than those Scalia hypothesizes seems to me to be the problem on which we ought to focus. The people who want to fixate on the ticking time bomb (even though what people are complaining about is that (1) we already have tortured and (2) that scenario was not the reason we did) tend to be torture apologists who favor a sliding scale approach to the morality of inflicting pain. They don't just want to slap and put things under nails when we know that there's a ticking time bomb and we know the person in front of us can stop it -- they want to do those things when there might be a ticking time bomb or a pending assassination or a plan to hijack a plane six months from now and the person in front of us might possibly be somehow involved or know something about it. (Today's Times has an op-ed on just this problem.)
In our popular political discourse, within which Scalia participates with great relish, the ticking time bomb is not being used to shed light on the contours of our moral imperatives in difficult situations. Rather, it operates as a reverse slippery slope argument -- the effort is to get the interlocutor to justify an exception on the basis of an extreme hypothetical that has not come up and is unlikely ever to come up precisely in order to then use the exception thus generated to defang the effectiveness of the rule here and now.
I'm not saying that asking the question makes one a torture apologist per se, but those who immediately (as Scalia does in this interview) go to that hypothetical without even giving lip service to the reasons someone might be justified in concluding that torture is everywhere and always wrong seem in my experience to be people trying to throw up dust to create the (a)moral space in which the torture we have committed is justified. Scalia's not speaking inconvenient truth to power or asking hard questions that we don't want to hear. He's just mugging for the (talk radio) crowd, impugning those who are struggling to hold the line against torture by writing them off as smug and out of touch, and defending the actions of the powerful by giving them moral cover. There's nothing meritorious in that.
On the comparison to the abortion question, I don't read Scalia as making nearly as subtle a point as Rick is. He's saying that it's "absurd" to suggest that one should not torture (put things under finger nails, etc.) in the ticking time bomb scenario. He is not saying that we might conclude that one should not torture even in those difficult circumstances but yet decline to punish the person who, confronted with that terrible situation, makes a different decision.
UPDATE: Sure enough, in my rush to write this post, I think I misunderstood Rick's question. I thought he was asking whether the ticking time bomb scenario is difficult. My answer to that is a qualified yes, as I set out above. But it seems like he was really asking whether determining the boundaries of the ticking time bomb is difficult -- i.e., how much pain and how certain do we have to be about the threat. I don't think these are very hard questions. They are only really hard if one rejects the categorical nature of the prohibition of torture at the outset (as Scalia seems to) and then has to figure out how to calibrate the pain to the gain, as it were. And I don't think it makes me smug to say this, as Scalia suggests.
"C'mon Rick," my friend Eduardo writes. Alright. Starting with Eduardo's second point -- and putting aside the question whether Justice Scalia is the one who should be doing the asking - I do think it is fair to ask those of us who believe (or, perhaps, who want to believe, or want to say we believe) that necessity and consequences do not matter to the question whether harsh interrogation is justified whether, in fact, we can honestly say that, if we were in a position of responsibility, and believed that the infliction of pain were necessary to extract information that would save (hundreds of? thousands of?) lives, we would really maintain that we would not -- because it would be immoral to -- employ such interrogation.
It is often suggested -- including, if I recall, on this blog -- that it is somehow a mark against pro-lifers that they are reluctant to endorse serious criminal penalties for women who have abortions (the suggestion being that if one is really pro-life, then one should, in principle, want to send women who have them to jail). Well, it's easy to dismiss as "the predictable, far-fetched hypothetical favored by torture scoundrels everywhere" questions about the "ticking time-bomb hypothetical" but, frankly, I'm not sure why those (Eduardo, me, and others) who claim to categorically oppose torture should not be required to say "yes, even in that scenario." (Sen. Clinton, for example, will not say this.) Yes, that's the answer *I* (and Eduardo) want to give. But to ask the question is not to be a "torture scoundrel." If one is not willing to answer it, then it seems to me one is not really a torture opponent; one is simply trying to enjoy the moral satisfaction that comes with having a higher necessity threshold (or that comes with the comfort of not being faced with the choice) than one's political opponents.
Rather than engage the points I was was trying (perhaps inartfully) to make, Eduardo wants to insist that these were not the points Justice Scalia was making. Fine. What about my questions? I said (and, in fact, Scalia did too):
That is, it *is* a "difficult question" -- isn't it? -- to determine "when physical coercion could come into play" and to determine the moral limits to the "coercion" that could ever be employed. Does anyone think these are "easy" questions? We all agree that human-dignity commitments constrain what may be done, even for good purposes, and even to bad people. But, we would justly be criticized (using Scalia's term) as "smug" if we suggested that these commitments translate easily, neatly, and non-controversially to interrogation regulations.
Well?
Rick says:
Now, it would be absurd (wouldn't it?) to say that precisely
the same constitutional (and extra-constitutional) regulations that
apply to garden-variety interrogations of suspects must apply, in the same way, to a "ticking timb bomb" interrogation. (No, to point this out is not to
say that, in the "ticking time bomb" scenario, morality does not bind
or anything goes.) So, what do we think the public authority could do
differently in the ticking-time-bomb scenario? We need not -- as a
moral matter, putting aside whatever the current constitutional-law
doctrines might be -- it seems to me, issue Miranda warnings and call
lawyers. And, I would think, we may use more aggressive techniques
than we would otherwise want to use. No, we cannot torture, no matter
what. But, are we sure it would be immoral to "smack in the face"
someone we thought was hiding the ticking bomb? It seems to me that
"waterboarding" is on the other side of the line. But, is a smack in
the face?
Two things here. First, despite Rick's heroic reconstruction, and with all due respect, this is not what the good Justice is talking about. Scalia does not limit himself to waiving procedural niceties and a delivering smack in the face. He never even mentions Miranda warnings and warrants. Those points are too obvious for him. But he does mention putting things under fingernails. He's talking about the legitimacy of intentionally inflicting pain to extract information from a suspect, and he's using the predictable, far-fetched hypothetical favored by torture scoundrels everywhere. His answer to this question: it depends on the information you'll get. This is a standard that we all reject. I disagree completely with Scalia's (not Rick's) suggestion that it would be absurd to object to this sort of logic, not to mention to the very behavior (things under fingernails) Scalia is endorsing with his Limbaugh-esque rhetoric.
Second, given our current situation -- a government that has admitted to torturing on multiple occasions in situations decidedly less pressing than the one Scalia describes and a public that seems all too willing to support this behavior -- are Scalia's points, even if they were valid, about the finer points of defining torture really the ones that need to be made, particularly by one of the 9 men and women charged with, ultimately, policing the executive branch for this sort of thing? Don't his comments bespeak an inappropriate nonchalance?
