Torture

An argument can be made for the use of torture. That argument, however, will rarely consider the myriad of extraneous issues that are certain to surround the use of torture. The argument for torture will also always be made using well-tailored, extreme situations, both real and hypothetical, that will point to torture as the inevitable method needed for foiling criminal plots. Unfortunately, many of these arguments actually succeed in swaying people’s attitudes toward accepting the practice of torture. At the very least they create a gray issue out of one that should be black and white. Alan Dershowitz does an almost extraordinary job of adding more shades of gray to the issue in his essay, “Make Torture an Option.” In citing the “ticking bomb” scenario, kidnapped children, and faulty “truth serum” Dershowitz manages to pull all the right strings to make torture seem permissible. He then claims that torture could be contained by the State and should be authorized by the law. Dershowitz’s proposal is to allow for “torture warrants” to be issued by judges on a special case-by-case basis. Such warrants, he argues, would allow the U.S. to maintain the democratic principle of the rule of law and would end the hypocrisy of “winking an eye of quiet approval at torture while publicly condemning it.” (350) While seeming to be reasonable on the surface, Dershowitz’s proposal creates more problems than it solves and fails to completely address the issue.   

            Dershowitz’s proposal seems like a panacea to all the moral hesitations of those people who, as a general rule, dislike the idea of torture, but view it as a necessary evil under some circumstances. The idea being that while torture is bad it will be controlled under this proposal and only used in extreme cases as to be determined by a judge. It is, however, the process of getting a warrant and concern for the judges who will be given this responsibility that Dershowitz fails to even consider in his argument. If, as the “ticking bomb” and kidnapped children scenarios point out, time really was of the essence in these investigations the necessity to get a torture warrant is unpractical and self-defeating. For the warrant to even be valid law enforcement would be forced to go through the needed paper work and then actually track down a judge to sign off on the torture warrant before they could legally begin any information extraction. Not following this protocol would leave law enforcement in the same position as it is in now. The difference being that we would have two classes of torture going on: the legally sanctioned tortures that took the time to get a torture warrant and those performed outside the law and from which any information would be deemed unusable.

In the time it actually takes to get all this filing done the plot that authorities were trying to prevent has probably already been executed or sufficiently changed so any information extracted from the suspects would be effectively worthless. Hopefully during this time other, more reliable routes of information gathering would have been used concurrently, but even if they were it would not justify the wasting of resources on what would most likely be a wild goose chase. Even the thwarted plot to bomb U.S. airliners that was cited in David Lubin’s essay was revealed to have been foiled by information found through conventional means on the suspect’s laptop, not by any information gleaned from his subsequent torture. By failing to consider something as simple as the impracticality surrounding clerical time requirements of the legal process Dershowitz seems to be revealing that even he has not fully thought through this proposal.

            Dershowitz also fails to make any mention of what issuing torture warrants would actually mean for the judges themselves. They are essentially being used as scapegoats under this proposal. The torturers could conceivably wash their hands of any moral misgivings by saying that they were only following orders. The judges would then bear the responsibility of doling out treatment that has often been documented as resulting in a fate worse than death. The judges are now the ones who will have to live with these types of decisions for the rest of their lives even though they have not done the actual torturing. There is no feasible way in which we can assume that a judge will be capable of completely detaching themselves from a decision to authorize a warrant stating that a suspect be tortured. A similar point was actually brought up by St. Augustine in his book The City of God. St. Augustine addresses this issue by saying that

“melancholy and lamentable judgments they are, since the judges are men who cannot discern the consciences of those at their bar, and are therefore frequently compelled to put innocent witnesses to the torture to ascertain the truth regarding the crimes of other men[1].”

Even if the suspect did turn out to be guilty the judge would have to shoulder the burden of knowing that a person was tortured, and probably irreversibly changed, through their decision making. It is unfathomable to claim that we can comprehend what the burden of such decisions would be like if the suspect actually turned out to be innocent.

            As flippantly as he dismisses the effect of his proposal on judges so too does Dershowitz dismiss the possibility of the innocent being caught up in a torture scenario. On several occasions Dershowitz makes reference to “guilty terrorists,” and seems to believe that these are the only people who would ever be affected by torture. This idea is blatantly untrue. Some of the situations of the people being held in Guantanamo Bay in Cuba provide very poignant, non-hypothetical case studies for just how easy it is for mistakes to be made. Each scenario Dershowitz decides to use assumes that law enforcement already knows many of the details of any supposed crime or plot behind a crime. These details work conveniently into his proposal by implying that only the people we already know are guilty will be brought in for torturing. With time being of the essence and considering the nature of criminals being dealt with, it seems highly unlikely that the last piece of the puzzle in any of these investigations would be correctly discerned through torture. Law enforcement would be more likely to receive misinformation or information that was no longer correct than any pertinent truth.  

            By stepping back to take in an even wider array of issues besides those pertaining to the judges or the chance of torturing innocents it is easy to see that Dershowitz’s proposal would have other serious ramifications. How the country is seen both at home and abroad would be brought into question. Through legalizing torture the government would presumably take away some of the stigma surrounding it. As the connotations around torture soften or more special scenarios are devised to justify it the use of torture would be more readily accepted by the public. In turn, more judges might begin backing the idea because, as David Luban noted in his essay “Torture and the Ticking Bomb,” “judges do not fight their culture. They reflect it.” (353) It is unlikely that this would develop into a full-blown culture of torture, but Dershowitz is correct in noting that “law enforcement personnel who are given limited authority to torture will expand its use.” (350) In a worst case scenario is it possible to see torture edging out more conventional methods of investigation.

The international stage is a difficult one to play and the actions of the U.S. have far-reaching and often unforeseen consequences. If the United States government was to legalize the use of torture, even for use solely in contained, extreme situations, it would be putting the country at odds with international standards. It would be impossible for the country to avoid dirtying its hands in dealing with torture cases and we would be considered to be no better than those criminals we were trying to bring to justice. The United Nations’ Universal Declaration of Human Rights specifically states in article five that “No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.” In being able to read the international consensus put so bluntly it is difficult to see how Dershowitz’s proposal for legalized torture could be allowable. It would be better to pursue the accountability and transparency he desires with a plan to end any and all use of torture.

            Dershowitz seems to have started his proposal with genuinely good intentions. He recognized some of the complications regarding torture, but he kept the scope of the issues too narrow, made too many assumptions, and failed to even consider what would be very obvious objections to his plan.  He stressed that he was furthering the rule of law and legalizing torture for the purpose of removing hypocrisy from a system that is definitely rife with it. The proposal, however, ultimately failed to stand up to any sort of meaningful inspection. Too many facets of the torture issue were disregarded and a poor explanation of who would really be affected in his proposal caused it to fail almost immediately.

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[1] Augustine, Saint, Bishop of Hippo. The City of God. New York: Random House, 1993. Book XIX, Chapter 6.

Economic Justice

Economic justice is certainly an honorable goal; perhaps even the most important thing a society can work toward for its citizens. It is, unfortunately, often a concept that is misinterpreted by those seeking to attain it. There are many economic systems in this world that work in theory, but fail to be successful when those ideas are applied in real world situations. Economic systems based on the ideals of capitalism, however, have been able to take their ideas off the page and actually put them into successful practice. Milton Friedman’s book, Capitalism and Freedom, expounds the role and importance of personal freedom to society and how this concept should be mirrored in that society’s economic system. He addresses many of the issues faced in developing economic justice, but focuses, in part, on what can be interpreted as the role of the common good, the necessity for equal opportunity, and the social mobility achieved through capitalism. By grounding these rather metaphysical ideals to tangible practices and results Friedman demonstrates that a truly capitalistic society promotes the most economic justice.

            Seeking to further the common good is the most misunderstood and misused objective of economic justice. Frequently, the idea of working for the common good is about removing all inequalities within an economy or requires people use certain personal abilities for the good of everyone. The intentions behind the desire to always work for the common good are noble, but in practice they frequently cause more harm than good. Stressing that an economic system must always put the common good first, at this point, seems to be a desire to “level down” society until everyone can be on exactly the same level. Proponents rarely take into account the fact that people, besides each being human, are inherently unequal. Abilities, desires, attitudes toward risk, and almost all other aspects of being human vary from person to person. These inherent inequalities seem to only be fairly addressed under a capitalist system.

The idea of always putting the common good first also asks for people of ability to continually sacrifice themselves for others in a manner that will earn them little, if anything, in the terms of either money or respect. At first, this view may seem extreme, but it is essentially true. In forcing people to think like this, society is impeding on individuals’ freedom in regard to their personal abilities and is coercing them into behavior they might otherwise not engage in. A society built around a mandated public good creates only disincentive as Friedman correctly observed, “one can hardly compel individuals to put forward their best efforts.” (166)  

A system utilizing the theories behind capitalism, however, creates the opposite type of environment while fulfilling the original goal of a greater common good. A capitalist system which rewards risk takers and stresses personal achievement fosters creativity, thinking, and production. This new level of incentives calls for people to rise to the challenge of making themselves better. As a beneficial side effect, the whole of society is built up instead of being leveled down. Members of a society that once called for sacrifice for the greater good would now be in a position to do good by doing well. Inequalities are allowed to exist, but these inequalities actually flow back into the system as efforts that will ultimately raise everyone up so that even those less fortunate are in an overall better position.

Despite the end result of such a system it may seem to many to be surrender to complete materialism without any regard for the “human element.” People operating under capitalism, it could be argued, would only be valued for their ability to produce, nothing more. This argument, at best, is only partially true. Yes, production is important, but “the great achievement of capitalism has not been the accumulation of property, it has been the opportunities it has offered to men and women to extend and develop and improve their capacities.” (169) In light of this it would seem that capitalism actually demonstrates a high level of regard for the human element. People do not have to merely subsist, but can grow to expand their horizons and are encouraged to do so.    

The common good, however, can never be served if equality of opportunity does not exist first. Equal opportunity combined with the values of individual freedom creates the backbone of capitalism. This idea of equal opportunity puts everyone on at least the same starting level and works to enhance each individual’s freedom of choice while allowing them to rise to their full potential. Having equal opportunity will in the long run lower overall inequality. It is also what effectively allows for the justification of inequalities that will exist within an economic system. If equal opportunities exist then the only thing holding anyone with ability back from success is simply bad luck, or, more likely, a lack of motivation. Bad luck, while unfortunate for a time, would be fairly easy to bounce back from in a capitalist system. Addressing the lack of motivation goes back to the right to live according to personal choices, but ties people to then live with the responsibilities of making those choices.

To bring this idea down to a more immediately evident level, Friedman references the fact that the “extension and widening of educational opportunities has been a major factor tending to reduce inequalities.” (176) Education is especially important in a capitalist society because the motivation to move toward constant improvement is always present. If education stagnates then thinking and innovation stagnate along with it, and society is once again in a cycle of leveling down. As things stand today it is a fairly common consensus that private schools, at least through secondary education, are doing a better job at educating than public schools. Because education is really the key to equal opportunity in a society with constant improvement as a mindset it is necessary for the government to step in and ensure good education for all its citizens.

The need for equal education should not by any means call for abolishing either private or public education. To do that would once again be removing personal freedom as well as act as leveling down for everyone. Instead, the government should rethink the way in which it handles public education. While I am not in a position to suggest highly specific changes to policy it seems that reworking the way public schools are funded would go a long way toward evening the playing field of opportunity. By tying funding of schools to property tax revenue the government is institutionalizing inequality of opportunity for many of its citizens. This method of funding puts both inner city as well as rural schools at risk as their tax base will most likely be lower than that of wealthy suburbs.

The result of working toward the capitalist ideals of valuing personal freedom and granting equal opportunities is a society which “undermines status and introduces social mobility.” (172) Inequality will still exist, but it will not be a strict class structure. Data put out by the Treasury Department shows that this is still true here in the United States. The relative well-being of the poor is improving from year to year and is still higher than in much of the rest of the world. The number of people in the U.S. filing tax returns as millionaires almost doubled from 2003-2006. In 2003 there were around 181,000 such filers; now there are close to 354,000 people filing with more than $1 million of income per year. 

This strived for ideal of social mobility also ties back into the concept of what is best for the common good. Capitalism has made more choices available to more people, “freed the masses from backbreaking toil” (170) for the most part, and has made “products and services that were formerly the monopoly of the upper classes” (170) available to much of the population. These quality of life measurements are just one way to quantify the idea behind the common good and they will continually improve as long as markets act on cooperation through mutual consent for mutual advantage.

History provides several dramatic examples of social mobility that appear to be on the side of countries that have adopted capitalist economies. Communist or socialist systems that stressed government-controlled economies, always worked primarily for the difficult-to-define common good, and operated through a cycle of leveling down have more often than not failed. As countries open up their economies to capitalism the value in personal freedom takes hold and these countries begin to flourish. The United States, even in light of recent events, still operates as one of capitalism’s greatest achievements. Now, China, post-Soviet Russia, and even Africa, an entire continent once deemed “hopeless” by the Economist, have begun to prosper under new systems of open market capitalism.   

When taken as a theory on paper capitalism seems like any other proposal for one set of ideal’s way toward economic justice: utopian set up acting under ideal conditions. What really matters, however, is how those theories act in the real world to promote real and evident economic justice. Friedman’s analysis of capitalism as the best way to reduce inequality seems to hold true to being effective when applied in the often harsh laboratory of the real world.