Jonathan Adler at The Volokh Conspiracy and Marty Lederman at Balkinization have both blogged about this quote from a Montreal Gazette interview with John Yoo:
Look, death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them. I don’t see how it can be reasonable to have an absolute prohibition on torture when you don’t have an absolute prohibition on killing. [Emphasis added.] Reasonable people will disagree about when torture is justified. But that, in some circumstances, it is justified seems to me to be just moral common sense. How could it be better that 10,000 or 50,000 or a million people die than that one person be injured?
Commenting on this quote, Adler writes that
I have long taken it for granted that there are some things worse than death. Certainly torture, if severe enough, can be worse. Apparently this is not a universal view, however.
I couldn’t agree more with Adler on this point. And, apparently, neither could John McCain after being tortured. According to this article in Sunday’s NYT, in the years after McCain was captured by the North Vietnamese,
he spent two years in solitary confinement, was bound, kicked and stomped, had his left arm broken again, suffered from dysentery, and tried to commit suicide [emphasis added].
(Note: according to this bio at Answers.com, McCain’s “contemplated suicide” because he signed “a confession that he was a ‘black criminal’ and an ‘air pirate’.” The bio does not say that he never did attempt suicide, for what it’s worth.)
(Another note, from an October 18, 2006 abcnews blog post: “While campaigning for Republicans in Iowa today, Sen. John McCain (R-AZ) jokingly said ‘I think I’d just commit suicide,’ when he was asked how he would react if the Democrats gained majority control of the United States Senate.” McCain’s still alive, so I guess he decided a Democratic Senate is not worse than death, after all.)
Posted by Jonah Gelbach on March 20, 2007 at 12:28 PM
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Tracked on Mar 21, 2007 3:02:32 PM
Comments
Right, Adam, we should decide whether a punishment is cruel based on the moral position and virtue of the punished. Good plan.
Posted by: Bart Motes | Mar 22, 2007 12:26:39 AM
Frank: Yoo could answer that although the death penalty is cruel, it is not necessarily unusual. By contrast, other punishments could be both cruel (albeit not as cruel as the death penalty) and unusual (i.e., less usual than is the death penalty).
In the alternative, Yoo could answer that “cruel” is not merely a function of the criminal’s pain alone but, rather, a function of both the criminal’s pain and society’s interests in exacting that punishment on that criminal. (Under such a reading of “cruel”, the use of the electric chair on an admitted mass murderer and rapist would be less cruel than the use of the same punishment of an innocent eight-year-old girl, even if their pain threshholds were the same.)
Posted by: Adam | Mar 21, 2007 12:36:53 PM
This is what happens when your brain is rotted by too much utilitarianism. You become unable to see that the consequences of an act to the victim aren’t the only things that are relevant to justification.
Posted by: Paul Gowder | Mar 20, 2007 11:52:35 PM
According to this rationale, either capital punishment is cruel and unusual or, there is no such thing as cruel and unusual punishment. What do you suppose Yoo thinks about this provision?
Posted by: frank cross | Mar 20, 2007 8:20:06 PM
John McCain agrees with John Yoo: Torture is justified in certain circumstances. Yoo and McCain would quibble over what those circumstances are, but they wouldn’t quibble over Yoo’s point, quoted about, that absolute prohibitions are inapporpriate.
Even Andrew Sullivan, one of Yoo’s most vociferous critics in the media, agrees with McCain and Yoo on the basic point that torture is sometimes justified. (“What should a president do? The answer is simple: He may have to break the law.”
Of course, to point out that Yoo’s views on that point are mainstream is not to agree with the rest of his logic: “If we are entitled to kill people, we must be entitled to injure them.” I certainly don’t see how the latter necessarily follows the former.
Posted by: Adam | Mar 20, 2007 4:48:33 PM
Killing in a war is a utilitarian act and justified, I think we instinctively feel, because someone else is trying to kill you. We view the killing of prisoners, in which the killing party enjoys complete power over their victim, with similar distaste as we do torture. (Note that he tries to make a utilitarian argument in the form of a veiled “ticking time bomb” scenario. But interrogation experts say that ticking time bombs only make it less likely that someone will crack because they know that they only have to endure the pain for x number of hours.)
Posted by: Bart Motes | Mar 20, 2007 12:59:34 PM