In the Hamdan decision, the Supreme Court said that torture was our responsibility. We couldn’t allow the president to decide secretly whether and when to obey the Geneva Convention. There would have to be a public law, passed by our representatives, subject to our review at the next election.
Alas, the Congress appears likely to pass legislation that will permit torture, buoyed by polls that suggest the American people prefer to sacrifice our ancient common law principles in favor of spurious security. Our national honor and liberty are at risk. Those are old-fashioned terms, more securely anchored in conservative than in progressive thought. Yet they are precisely the correct terms, as I shall argue here.
Torture is dishonorable because of the perverted personal relationship that it creates between the torturer and the victim. That is why people of honor do not torture, and nations with honor do not condone it. As David Luban writes: “The torturer inflicts pain one-on-one, deliberately, up close and personal, in order to break the spirit of the victim–in other words, to tyrannize and dominate the victim. The relationship between them becomes a perverse parody of friendship and intimacy: intimacy transformed into its inverse image, where the torturer focuses on the victim’s body with the intensity of a lover, except that every bit of that focus is bent to causing pain and tyrannizing the victim’s spirit.”
Torture may not be the worse injustice. To bomb from 30,000 feet can be more unjust, because more may die. To imprison 5.6 million Americans may be more unjust, because one in 37 of us spends months or years in dangerous, demeaning, state-run facilities. But there is a difference between injustice and dishonor. Bombing people and locking them up are impersonal, institutional acts. Torture is as intimate as rape. It sullies in a way that injustice does not. That is why the House of Lords ruled in 2005: “The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it.”
Torture threatens liberty because it gives the state the power to generate testimony and evidence contrary to fact, contrary even to the will of the witness. It thus removes the last constraint against tyranny, which is truth. Torture was forbidden in English common law since the middle ages, not because medievals were sqeamish about cruelty–their punishments and executions were spectacularly cruel–but because a king who could use torture in investigations and interrogations could reach any conclusions he wanted.
Torture is personal, yet torture is an institution. One cannot simply decide to torture in a one-off case, a hypothetical instance of a ticking time bomb. To be effective, torture requires training, equipment, expertise, and settings. The bureaucracy of torture then inevitably seeks to justify and sustain itself–if necessary, by using torture to generate evidence of its effectiveness. As Phronesisaical says, “Torture requires an institution of torture, which … entails a broader torture program than the administration would have us believe.” Again, the Lords were right:
The lesson of history is that, when the law is not there to keep watch over it, the practice is always at risk of being resorted to in one form or another by the executive branch of government. The temptation to use it in times of emergency will be controlled by the law wherever the rule of law is allowed to operate. But where the rule of law is absent, or is reduced to a mere form of words to which those in authority pay no more than lip service, the temptation to use torture is unrestrained.