Others have begun to delve into the legal arguments employed in(here), the institutional questions raised by (here), and John Yoo’s personal culpability for (here) the latest “Torture Memo,” which became public this week. What initially strikes me about the memo, and the executive branch worldview it exemplifies, is the utter lack of recognition that principled legal constraints are in fact, well, constraints when it comes to torture and other interrogation practices.
The many critics of the administration’s practices and the administration apologists who provide the legal justifications for these practices see the world in what seems like entirely different ways. The critics recognize legal constraints as operable even during times of perceived national necessity. The apologists, such as Yoo in the latest memo, justify jettisoning constraints at just the point when they may be most needed to guide official action. When we are living in “normal” times, prohibitions against official torture do not have to do much work because nobody thinks it necessary to engage in the practice. But when something exceptional happens, like the events of September 11, prohibitions against torture go to work, because some officials will be tempted to resort to torture; after all, in as Yoo’s memo puts the point: “It may be the case that only successful interrogation can provide the information necessary to prevent future attacks upon the United States and its citizens” (19). But if legal constraints against the use of torture do not apply precisely when they are called upon to constrain official action, then they become useless constraints. One achieves precisely this view from Yoo’s memo. As the memo unfolds, we learn that neither Congress nor international treaties can “prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.” As I argue more fully here (and here), the problem with this approach is the role that necessity plays in purporting to trump legal constraints. Even if Yoo is right that “there can be no more compelling government interest than that which is presented” (65) by the supposed need for interrogational information from an enemy combatant, the very idea of legal constraint demands that methods employed to obtain that information be channeled by existing laws, not liberated from them.
Hannah Arendt first warned that:
The conception of human rights, based upon the assumed existence of a human being as such, broke down at the very moment when those who professed to believe in it were for the first time confronted with people who had indeed lost all other qualities and specific relationships – except that they were still human. The world found nothing sacred in the abstract nakedness of being human. (Origins of Totalitarianism p. 299).
The paradox Arendt identifies is that when human rights were most needed, they were least applicable. We seem to have stumbled into a similar paradox. Principled constraints on executive officials are said to apply precisely when they are least needed, and thought obstructionist when they are most needed to guide and constrain official action. It is a clever, one hesitates to call it “lawyerly,” trick to make law in essence disappear as legal constraint exactly when it is most needed.
Posted by Tommy Crocker on April 4, 2008 at 03:27 PM