According to Deroy Murdock, writing in Human Events, "waterboarding is something of which every American should be proud." An excerpt:
Though clearly uncomfortable, waterboarding loosens lips without causing permanent physical injuries (and unlikely even temporary ones). If terrorists suffer long-term nightmares about waterboarding, better that than more Americans crying themselves to sleep after their loved ones have been shredded by bombs or baked in skyscrapers.
Over at Evangelical Outpost, Joe Carter laments the muted response by conservatives to Murdock's op-ed, which he sees as part of a broader failure by (conservative) Christians to speak up about torture:
Even more disturbing than the idea that a future attorney general doesn't know what's involved in waterboarding is that we live in an age when a familiarity with torture techniques is to be expected of our leaders. How did we get to the point where such a question needs to be asked of an attorney general? Who allowed our country to succumb to such fear and moral cowardice that we parse the the meaning and definition of "torture?"
I blame myself, and implicate my fellow Christians. We have remained silent and treated an issue once considered unthinkable--the acceptability of torture--like a concept worthy of honest debate. But there is no room for debate: torture is immoral and should be clearly and forcefully denounced. We continue to shame ourselves and our Creator by refusing to speak out against such outrages to human dignity.
Evangelical Outpost is the most popular blog out there catering to evangelical Christians, and Mr. Carter has a sizeable platform as a result (he also directs the web presence of Family Research Council). If he is having second thoughts about the human-dignity trade-offs President Bush has been willing to make in the war on terror, does this signal more problems with the evangelical base for the leading GOP candidates (other than McCain) who have outdone Bush in portraying themselves as ready, even eager, to embrace waterboarding, to "double [the size of] Guantanamo," and to rely on a national security adviser who would "stick a knife into someone's thigh in a heartbeat" if it would elicit information that could save American lives?
The Commonweal editorial ("Torture's Enablers"), to which Michael linked, raises a number of important questions. I hope that what follows will not be misunderstood as reflecting a failure, or a refusal, to take these questions very seriously. That said, I believe the editorial proceeds from a mistaken premise.
The editorial states, "[i]n his testimony [Judge] Mukasey suggested that the president’s duty to defend the country overrides his duty to obey the law. That is a perverse, almost monarchical interpretation of the executive branch’s role." Such a suggestion would be perverse -- or, more precisely, it would be mistaken as a matter of constitutional law. But, in my view, Judge Mukasey did not, in his testimony, endorse or propose the notion that "the president’s duty to defend the country overrides his duty to obey the law." Here is the transcript.
The precise question of constitutional law at issue, as I see it, is not whether the President must obey "the law". Of course (I think) he must. The question is whether "the law" which the President must obey is always and no matter what whatever Congress says "the law" is. It is an unremarkable -- and, with all due respect, not "monarchical" -- proposition of constitutional law that the Constitution vests the executive power in the President, and not in the Congress. The challenge, of course -- one that has absorbed for a long, long time the full attention of the very best public-law scholars -- is to identify the content and bounds of the power the Constitution vests in the President and also of the power -- i.e., the legislative power -- that the Constitution vests in the Congress.
To be sure, responsible and reasonable people can and do disagree about the scope of the powers that the Constitution vests in the President and in Congress. Certainly, it is entirely possible that this Administration's understanding of the scope of its power -- and, therefore, of the scope of Congress's power -- is mistaken.
To observe that there are limits on Congress's ability to bind the Executive -- as Judge Mukasey did, and as we all should -- is not to "enable", in a culpable way, torture. I certainly hope the editors at Commonweal -- whom I respect, of course -- did not mean to suggest the contrary, i.e., to claim that to note, as Mukasey did, that there are limits on Congress's ability to bind the Executive, and to accept the structural features of our Constitution, one of which is that the executive power is vested in the President, is to culpably "enable" torture. That the President may abuse the power he has does not mean -- it should not mean, to lawyers -- that he therefore does not, in fact, have that power. It does mean, of course, that he should be criticized, even condemned, for misusing it. It seems crucial to me that we distinguish structural questions about how power is, in fact, allocated from our moral critique of the exercises, and misuses, of power. The fact that the structural principle of separation of powers "enables" Presidents to misuse power -- and, to the extent the Administration has exercised power in order to authorize, facilitate, or engage in torture it has, of course, grossly abused power -- no more tarnishes that principle, it seems to me, than the misuse of the Fourteenth Amendment to constitutionalize abortion-on-demand tarnishes the Amendment's due-process guarantee.
Now, is any of this "Catholic legal theory"? Maybe. The insight that the structure of government is intimately and importantly connected to authentic human freedom and flourishing seems quite at home (see, e.g., "subsidiarity") in the Catholic intellectual tradition. Our federal government has a structure, and respect for that structure is, for us, a dimension of respect for the rule of law. Now, even within this structure, Congress does have the power to give effect to its judgment that the Administration is acting rashly, unwisely, even immorally, with respect to interrogations, detention, etc. Perhaps we should ask, why, exactly, is Congress failing to exercise that power? It could, for example, use the power of the purse to induce changes in policy, more transparency, and so on. But, perhaps out of fear of political backlash, the Congress is not doing this. If so, then perhaps it is not only the President who is misusing power.
Finally, it should go without saying, but I will say it anyway, so that there will be no misunderstanding: I share the view of the editors at Commonweal that "waterboarding" is immoral; as described, it certainly seems to me to fit any plausible definition of "torture." Like the editors, I think it is tragic and awful that "the United States, once widely hailed as a champion of human rights, is now seen as a nation that tortures." (The United States remains, I think, a "champion of human rights", in many, many ways; but, the perception that the United States is not fully respecting human rights -- even though it does respect them to a degree that far exceeds almost every other country -- does, obviously, undermine its ability to effectively champion human rights.) And, I am not endorsing the more extravagant claims that some have proposed regarding the scope and bounds of executive power.
5. The family, since it is a society in its own original right, has the right freely to live its own domestic religious life under the guidance of parents. Parents, moreover, have the right to determine, in accordance with their own religious beliefs, the kind of religious education that their children are to receive. Government, in consequence, must acknowledge the right of parents to make a genuinely free choice of schools and of other means of education, and the use of this freedom of choice is not to be made a reason for imposing unjust burdens on parents, whether directly or indirectly. Besides, the right of parents are violated, if their children are forced to attend lessons or instructions which are not in agreement with their religious beliefs, or if a single system of education, from which all religious formation is excluded, is imposed upon all.
Today is "Guy Fawkes Day" (or, more precisely, for our friends across the Pond, tonight is Bonfire Night),
When I was in first grade, my public school celebrated Guy Fawkes Day. It did not strike me as strange at the time, though it certainly does now. (Probably because of this guy, Henry Garnet, S.J., who was executed for not revealing the Gunpowder Plot, about which he is sometimes said to have learned in confession.) Should it? Would a public school's celebration of Guy Fawkes Day communicate to Justice O'Connor's famous "reasonable observer" that she was an outsider in the political community? Certainly, that was long the celebration's purpose. General Washington raised some eyebrows when he told his soldiers to refrain from burning the Pope in effigy as part of their celebration:
As the Commander in Chief has been apprized of a design form’d for the observance of that ridiculous and childish custom of burning the Effigy of the pope–He cannot help expressing his surprise that there should be Officers and Soldiers in this army so void of common sense, as not to see the impropriety of such a step at this Juncture; at a Time when we are solliciting, and have really obtain’d, the friendship and alliance of the people of Canada, whom we ought to consider as Brethren embarked in the same Cause. The defence of the general Liberty of America: At such a juncture, and in such Circumstances, to be insulting their Religion, is so monstrous, as not to be suffered or excused; indeed instead of offering the most remote insult, it is our duty to address public thanks to these our Brethren, as to them we are so much indebted for every late happy Success over the common Enemy in Canada.
In any event, instead of burning Fawkes, or waxing rhapsodic about how liberty, individualism, and all that is good were saved when the Plot was thwarted, maybe we should read a little Eamon Duffy, and think about what England was.
The Society of Catholic Social Scientists gathered recently at St. John's University Law School in New York. I was not able to attend, but it looks like it would have been worth my while, with speakers including Richard John Neuhaus, Abp. Charles Chaput, John Breen, Edward Gaffney, Joseph Koterski, S.J., and our own Richard Myers, to name just a few. Abp. Chaput's address is available here. An excerpt:
People often say we're living at a "post-Christian" moment. That's supposed to describe the fact that Western nations have abandoned or greatly downplayed their Christian heritage in recent decades. But our "post-Christian" moment actually looks a lot like the pre-Christian moment. The signs of our times in the developed nations-morally, intellectually, spiritually and even demographically-are uncomfortably similar to the signs in the world at the time of the Incarnation.
First you are strapped to a plank. Then the
plank is tilted so that your feet are above your head. Next a cloth is
pulled taut across your mouth, and finally water is poured directly
onto the cloth. Breathing becomes nearly impossible. You start to feel
like you’re drowning-because you are. The flow of water ceases just
before you pass out, and if you don’t tell the interrogators what they
want to know, the process begins again.
That technique, once routinely practiced by
the Khmer Rouge, is called waterboarding. It is a serious form of
torture, and as such it is prohibited by the Geneva Conventions and by
U.S. law. Yet at his confirmation hearings in October, Attorney
General-nominee Michael Mukasey testified that he did not know what the
process entails. “Is waterboarding constitutional?” Senator Sheldon
Whitehouse (D-R.I.) asked. “I don’t know what’s involved in the
technique,” Mukasey answered. “If waterboarding is torture, torture is
not constitutional.”
Given that the Department of Defense has
authorized waterboarding for use by U.S. personnel, perhaps it
shouldn’t surprise anyone that President George W. Bush’s nominee could
not manage a straight answer. Still, it’s hard to believe that someone
in Mukasey’s position doesn’t know what’s involved in waterboarding. As
retired Rear Admiral John D. Huston explained at the Mukasey hearings:
“Other than perhaps the rack and thumbscrews, waterboarding is the most
iconic example of torture in history. It has been repudiated for
centuries.”
But not by the Bush administration, and not
by Mukasey. His response was doubly perplexing because, the day before,
he had offered testimony of a markedly different sort. Senator Patrick
Leahy (D-Vt.) asked Mukasey for his thoughts on the Justice
Department’s notorious 2002 “torture memo,” which legitimized the
harshest interrogation methods and argued that the president can grant
legal immunity to those who use them. Mukasey unequivocally repudiated
the memo. He called torture “antithetical to what this country stands
for.”
And yet, as the New York Times reported in
October, after having publicly abrogated the “torture memo” in 2004,
the Justice Department issued a secret 2005 opinion broadly endorsing
the harshest interrogation methods ever used by the CIA. These included
face-slapping, exposing prisoners to freezing temperatures, and
waterboarding. Then-Attorney General Alberto Gonzales approved the memo
over the objections of his deputy, James B. Comey, who promised his
colleagues that they would be “ashamed” once the public learned of it.
Comey’s protests echoed those made during the
so-called Justice Department mutiny of 2004, in which a small group of
conservative lawyers resisted the arguments of the “torture memo.” They
recognized what the vast majority of interrogation experts have been
saying for years-torture is ineffective, illegal, immoral, and puts
U.S. forces at risk. But those arguments did not carry the day.
So the secret memos remain in effect,
bolstered by President Bush’s July 2007 executive order authorizing
“enhanced interrogation”-despite his constant refrain that “America
does not torture.” That statement is true only if one radically and
unnaturally redefines the word “torture.” That is precisely what the
president has done, largely through agents such as Vice President Dick
Cheney, his counsel David S. Addington, and former Attorney General
Alberto Gonzales.
The campaign to relax the traditional ban on
torture began in the aftermath of 9/11. Desperate to guard Americans
against further attacks, Cheney and others argued that the president
needed more expedient means to extract information from terrorist
suspects. This came to mean warrantless domestic wire taps, secret
offshore prisons for terrorist suspects, sending suspects to other
countries for harsh interrogation, and the authorization of torture,
which has been practiced at Abu Ghraib, Guantánamo Bay, and elsewhere.
But six years on, the destructive legacy of
this policy could not be clearer, or more shameful: more than one
hundred reported detainee deaths, nearly thirty of which have been
ruled homicides by the Pentagon. The United States, once widely hailed
as a champion of human rights, is now seen as a nation that tortures.
What is perhaps more disturbing is that the president appears
unchastened. After all, his attorney-general nominee endorsed the very
view of executive power that set the country down this calamitous path.
In his testimony Mukasey suggested that the president’s duty to defend
the country overrides his duty to obey the law. That is a perverse,
almost monarchical interpretation of the executive branch’s role. And
if Michael Mukasey is confirmed as attorney general, it is a view the
Senate will have endorsed.
Yesterday's New York Times Magazinedetails the fascinating story of Anthony Flew, the prominent atheist who recently declared his belief in God. The story suggests that the elderly Flew was a prized trophy sought by warring camps:
Intellectuals, even more than the rest of us, like to believe that they reach conclusions solely through study and reflection. But like the rest of us, they sometimes choose their opinions to suit their friends rather than the other way around. Which means that Flew is likely to remain a theist, for just as the Christians drew him close, the atheists gave him up for lost. “He once was a great philosopher,” Richard Dawkins, the Oxford biologist and author of “The God Delusion,” told a Virginia audience last year. “It’s very sad.” Paul Kurtz of Prometheus Books says he thinks Flew is being exploited. “They’re misusing him,” Kurtz says, referring to the Christians. “They’re worried about atheists, and they’re trying to find an atheist to be on their side.”
They found one, and with less difficulty than atheists would have guessed. From the start, the believers’ affection for Antony Flew was not unrequited. When Flew met Christians who claimed to have new, scientific proof of the existence of God, he quickly became again the young graduate student who embarked on a study of the paranormal when all his colleagues were committed to strict rationalism. He may, too, have connected with the child who was raised in his parents’ warm, faithful Methodism. Flew’s colleagues will wonder how he could sign a petition to the prime minister in favor of intelligent design, but it becomes more understandable if the signatory never hated religious belief the way many philosophers do and if he never hated religious people in the least. At a time when belief in God is more polarizing than it has been in years, when all believers are being blamed for religion’s worst excesses, Antony Flew has quietly switched sides, just following the evidence as it has been explained to him, blissfully unaware of what others have at stake.
Overheard by UC Davis philosopher Gerald Dworkin (HT: Leiter), several Bush Administration heavyweights offer their views on a hotly contested question:
Mukasey: I haven’t been read into the details of the Rack, and I understand that these details are classified. I am firmly opposed to torture, torture is illegal, but I do not know whether the Rack is torture. To comment further would be to expose sincere and loyal Inquisitors to the possibility of retro-active condemnation.
Bush: I am not going to give aid to our enemies by disclosing details of our interrogation techniques. But if we do expose detainees to the Rack it is not torture, because we do not torture.
Cheney: A little stretching never hurt anybody. I understand it’s actually recommended before exercising.
John Yoo: It is well established that torture involves inflicting pain equivalent to that of the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. No one stretched on the Rack has ever suffered fromkidney, lung, or spleen failure nor, to the best of my recollection, has died. As to impairment of bodily function, it would be a stretch to include deformed limbs under this heading.
David Addington: Congress may no more regulate the president's ability to use the Rack as an interrogation technique than it may regulate his ability to direct troop movements on the battlefield. Decisions about whether to stretch or not require the unity in purpose and energy in action that characterize the presidency rather than Congress.
Gonzalez: I cannot recall what the Rack was. Nor do I have any recollection about whether I ever discussed it with the President. The testimony of some that they heard me mention the Rack in a meeting on March 23rd -- a meeting which I do not remember --may have been a confusion of Rack with Iraq.
Garry Wills has re-produced, in op-ed form, the claims, from his latest book, to the effect that "abortion is not a religious issue." (For earlier MOJ posts on the matter, go here or here.) The argument remains confused and unworthy of so gifted an intellectual.
He writes, for example, "is abortion murder? Most people think not. Evangelicals may argue that most people in Germany thought it was all right to kill Jews. But the parallel is not valid. Killing Jews was killing persons. It is not demonstrable that killing fetuses is killing persons. Not even evangelicals act as if it were. If so, a woman seeking an abortion would be the most culpable person. She is killing her own child. But the evangelical community does not call for her execution."
It is no less "demonstrable" that fetuses are "persons" than it is that Mr. Wills or I are "persons." And, the fact that one does not insist on "executi[ng]" women who cause, via abortion, the death of their unborn children does not prove that fetuses are not persons. It might well confirm the complex nature of judgments about culpability for harms caused that go into the definition and categorization of criminal offenses, but Wills's tired debater's point is just that.
Wills suggests that the reason Catholics did not "require baptism and a Christian burial" for "well-formed fetusus" is because "the subject of abortion is not scriptural." For a response to this strange argument, see Prof. Dellapenna's MOJ post, here. Of course, the injunction against killing innocent persons is scriptural, and one of the distinctive features of early Christianity was precisely that the early Christians were more generous, in terms of acknowledging the equal human dignity of all persons, than the surrounding culture. In any event, one doubts that Wills's views on the morality of contemporary practices depend, generally, on the extent to which those precise practices are singled out for specific mention in scripture.
Now, Wills is right -- but perhaps not in the way that he thinks -- when he says that abortion is not a "theological issue." That is, the morality of abortion is not a question that needs to be answered through revelation, or by the fideistic fiat of a religious leader. (At least, that it is wrong to kill an unborn child is no more a "theological" claim than is the claim that it is wrong to kill a 12-year old, or to torture a suspected terrorist.)
Wills writes:
If we are to decide the matter of abortion by natural law, that means we must turn to reason and science, the realm of Enlightened religion. But that is just what evangelicals want to avoid. Who are the relevant experts here? They are philosophers, neurobiologists, embryologists. Evangelicals want to exclude them because most give answers they do not want to hear. The experts have only secular expertise, not religious conviction. They, admittedly, do not give one answer -- they differ among themselves, they are tentative, they qualify. They do not have the certitude that the religious right accepts as the sign of truth.
Yes, by all means, let's turn to the scientists for resolution of Wills's bizarre beliefs that opposition to abortion requires opposition to "harvesting carrots" and that a human fetus is, like semen, "human life" in a way relevant to the abortion debate. (Can Wills really believe -- does he have so little respect for people, just as smart and sophisticated as he is, who oppose abortion, to believe -- that those who oppose abortion do so because human fetusus are, in this uninteresting sense, animate?) And, can he really believe that "philosophers" have something called "secular expertise", which they -- unlike "evangelicals" -- bring to bear on the question of whether or not we ought to abort unborn children, or permit their direct abortion? If only it were true that those experts identified by Wills were as humble as he suggests!
Now, there is also this:
The question is not whether the fetus is human life but whether it is a human person, and when it becomes one. Is it when it is capable of thought, of speech, of recognizing itself as a person, or of assuming the responsibilities of a person? Is it when it has a functioning brain?
Indeed, this is the question. It's an important one. It is, as Wills sometimes seems to concede, a question of morality, one that is not (remotely) resolvable by describing the biochemistry or noting the physical bulk of a fetus.
Zenit news reports today that this past Friday, a delegation led by the World Coalition Against the Death Penalty and the Community of Sant'Egidio delivered a petition to the United Nations signed by 5 million people from 154 countries calling for a global moratorium on the death penalty. The leader of the delegation expressed the view that "the death penalty lowers the state and civil sociaty to the level of a killer, and that while some defend a culture of life, they wind up legitimating a culture of death." Permanent observer of the Holy See to the U.N., Archbiship Celestino Migliore, stated that the death penalty "undermines human dignity" and that "the right to life is the proper context in which to deal with the [death penalty] becuase if we respect life in all its stages -- from the womb to the tomb -- we really can adequately resolve the issue."
Zenit further reports that the U.N. General Assembly's human rights committee is expected to vote on the moratorium later this month. A positive vote there would result in a vote being put to the General Assembly of the U.N. in December.
