Friday, June 05, 2009

Ending torture: Domestic terrorism and "torture culture"

Jack Balkin provides a sobering look at the state of the torture culture we developed in the United States during the Cheney-Bush years in Terrorism, Domestic and Foreign Balkinization blog 06/01/09. (I picked up the link from dday who also discusses Balkin's argument in Equal Justice
Hullabaloo 06/04/09.)

We've had two acts of deadly domestic terrorism just this week: the murder of Dr. George Tiller on Sunday in Kansas, with which far-right anti-abortion activist Scott Roeder has been charged, and the murder the next day of Army recruiter Pvt. William Long in Arkansas, to which the accused suspect Abdul Hakim Mujahid Muhammad has admitted via his attorney.

Balkin, a long-time critic of the Cheney-Bush torture program, raises some lawyerly questions about the Tiller case in particular.

He was posting on Monday so may not have known about the Little Rock shooting. Muhammad has been charged with multiple counts of terrorism, but the county district attorney didn't not initially charge Roeder with terrorism, nor with capital murder. He asks rhetorically:

One of the most important reasons for detaining terrorists (suspected or otherwise) is to obtain information about future terrorist attacks that may save lives and prevent future bombings. To procure this information, can the government dispense with the usual constitutional and legal safeguards against coercive interrogation? Should it be able to subject Roeder to enhanced interrogation techniques, including waterboarding and other methods, to determine whether Roeder knows of any other persons who are likely to commit violence against abortion clinics or against abortion providers in the future? Would your answer change if you believed that an attack on an abortion provider or a bombing of an abortion clinic was imminent? [my emphasis]
Now, Balkin is definitely not arguing for doing this, quite the contrary:

My assumption is that the government may not do any of these things. Roeder lives in the United States. He should be treated according to the ordinary criminal process. We should not be able to strip him of his rights simply by calling him a suspected terrorist, and it should make no difference whether he is a Muslim or a Christian, whether he is white or brown. And pro-life organizations, like Muslim charities, have rights of freedom of association that governments should protect lest we effectively criminalize political association and belief in the name of national security.

The difficulty is that our national deliberations on terrorism have largely proceeded on the assumption that all terrorists are non-Americans and/or non-Christians who live in or come from distant lands. They are not part of the American community, they are not "people like us" and therefore do not deserve the rights and protections of "people like us." We can detain them indefinitely, and even subject them to interrogation procedures that we would never apply to "real Americans." [my emphasis]
But the blunt fact is that in the Cheneyist torture culture that has been adopted virtually wholesale by the Republican Party, then all the methods used against terrorist suspects in the Bush Gulag can be used on domestic terrorism suspects. Including those used on Jose Padilla, an American citizen arrested on America soil and sent to a Navy brig where he was kept under conditions of extreme isolation that apparently turned his brain to something like mush.

Balkin correctly pinpoints the future-oriented "ticking-time-bomb" argument as representing an open door to torture of all kinds for all kinds of reasons. As Stephen Holmes has described very well.

That "ticking-time-bomb" scenario takes torture out of the long historical debate that rejected it for investigation of crime by putting its justification into an unknowable historical future. The torturer isn't asking the victim to confess a crime committed in the past, but in order to force him to help prevent a crime not yet committed. Since fears of the future can be open-ended, some hideous hypothesized threat in the future is an open-ended justification for torture.

He also reminds us that institutionalized torture has always been directed at outsider groups of some kind. In ancient Athens, for example, slaves could be tortured, free Athenian citizens not, except in cases of high treason. That aspect of torture is exactly what Balking emphasizes when he says, "our national deliberations on terrorism have largely proceeded on the assumption that all terrorists are non-Americans and/or non-Christians who live in or come from distant lands".

But with the completely open-ended and fear-based justification of the ticking time bomb, that restriction of torture to the foreigner, to the dark-skinned or even to the "terrorist" cannot be maintained. International law bans torture in all circumstances, making it even more of a taboo than capital punishment, torture represents a kind of ultimate barrier. That understanding is consistent with the basic view of law in classical liberal theory on which democracy and the rule of law are based. Once that barrier has been breached and that taboo violated, torture has its own "radicalizing logic", just as the real existing anti-abortion movement has in its extreme definition of abortion in a way that essentially eliminates compromise as a possible solution.

As David Luban explains in some detail, accepting torture means metaphorically falling off a cliff. Once torture is accepted as an legitimate tool of the state, a basic, basic element of the rule of law has been discarded. The torture culture that has to be built up around it will find more and more situations to include as ticking time bombs.

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