an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Three generations of American statesmen of both political parties constructed a powerful alliance. With this alliance, America prevailed in her greatest challenge, the Cold War, and with it, America emerged just fifteen years ago as the world’s paramount power. This power brought with it still greater responsibility. Our Government has assumed a conscious mantle of leadership, but the manner in which it has sought to pursue a new and highly controversial war has not always done us credit. As the London Times wrote in a powerful editorial on Sunday, one decision in particular has betrayed the vision of the Founding Fathers and the common bond of the English-speaking peoples. It is the decision to haul out of the armory of shame the old tool of royal prerogative, torture.
America still has important friends around the world, but increasingly they are saddened. They look for the old America and wonder what has happened to her. Last Thursday, the Judicial Committee of the House of Lords - Britain’s Supreme Court - handed down a landmark decision on the issue of torture. I can’t escape thinking it was written like a worried letter to American friends. For one thing, the Law Lords decided the question before them - whether evidence derived from torture could ever be introduced in legal proceedings - almost entirely on the basis of precedent from before 1789. That is, precedent which forms the common bond between the United States and Britain, the sole aspect of American law as to which the Law Lords have the power to speak with unquestioned authority. In presenting the case this way, the Law Lords seem to be making a conscious appeal to their American counterparts, and to the court of American opinion. And what they have to say is important, addressing as it does one of the most troubling questions to arise in our lifetime. They remind us of facts that were well known to the great leaders who cobbled our republic together, but seem forgotten by the men who now walk Washington’s corridors of power.
In 1628, a noble favorite of King James I was assassinated, and the proposal was put in council whether the man accused of the deed should be tortured to extract information about those who might have conspired with him. The new king, Charles I, declared that he would not use Royal Prerogative to order this unless the law expressly sanctioned it - and to answer this question, the judges of England were assembled at Serjeants’ Inn to deliberate the question. Blackstone recorded their answer,
‘The judges, being consulted, declared unanimously, to their own honour and the honour of the English law, that no such proceeding was allowable by the laws of England.’
From that year forward, no writ ever issued in England for torture. And after the Civil War and the Glorious Revolution, the question of Royal Prerogative also was finally resolved.
In answering the question anew, last week, Lord Hoffmann, perhaps Britain’s most renowned judge and certainly one of its best, stated ‘That word honour, the deep note which Blackstone strikes twice in one sentence, is what underlies the legal technicalities of this appeal. The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it.’ He goes on to cite an important essay by the Columbia legal ethicist Jeremy Waldron, which talks at length about these concepts and concludes that the prohibition on torture falls into the area of legal archetypes. Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 Colum. L. Rev. 1681 (2005).
Like Blackstone, Hoffmann uses the word ‘honour’ twice in stating his rule against torture. Why does this strange word figure so prominently here? What on earth does ‘torture’ have to do with ‘honor?’
‘Honor’ has a strange ring in modern ears. We are used to hear it in accounts of duelers motivated by personal slight, and consequently it has the feel of vanity and by-gone times. But this is not what Blackstone and Hoffmann mean. The word they use is a concept of the classical philosophers, reintroduced in the Renaissance.
In classical times, the concept was, of course, ‘virtue.’ As Joseph Addison explains in The Spectator No. 219 (Nov. 10, 1711), the word ‘honor’ came in English usage to parallel ‘virtue’ and ultimately to supplant it (‘Vertue,’ he writes, ‘is the most reasonable and genuine Source of Honour.’)
As it happens, it was a vital word in the founding of this country. In the winter of 1776-77, for instance, as the Continental Army was camped at Valley Forge, the American commander, George Washington gave a curious order to his troops. He wanted them to perform a play. Specifically, it was Joseph Addison’s ‘Cato, A Tragedy,’ a play about the final days of the Roman senator and stoic philosopher Cato. For Cato and for Addison, ‘honor’ was a simple and powerful concept. A person behaved with honor when he lived his life as the realization of the values for which his society stood. Cato died struggling for the values of the Republic, against the dictator and would-be emperor Julius Caesar. In one of his final, pathos-laden speeches, Cato says that death is preferable to a life lived without honor. ‘When vice prevails and impious men bear sway, the post of honour is a private station.’ For Washington, who quoted this passage at least twice in letters to friends, ‘honor’ requires conduct - in daily life, but especially in times of war - that bears witness to the values for which the soldier and his nation stand. And curiously, a part of that honor Washington took not from Cato, but from his arch-rival Caesar. As Addison recalls, Caesar’s great and unexpected string of military victories against the Republic after he crossed the Rubicon rested in part on his policy of clementia – the decision always to treat his defeated adversaries with dignity and respect, and to restore them to their offices and wealth, provided only that they recognize his legitimacy as a ruler and pledge not to battle against him.
As his correspondence and contemporary writings show, it is clear that Addison’s work, the concepts of the Stoic philosophers, and the writings of Enlightenment thinkers who campaigned against torture had equal measure in influencing Washington as he conceived a new standard of warfare in those fateful years. At the Battle of Trenton, Washington gave concrete form to this idea. He introduced a rule on the treatment of prisoners - ‘Treat them with humanity,’ he said. In no case would torture or abuse be countenanced; the captured mercenaries were to receive food, lodging and medical treatment in no respect inferior to our own soldiers. In particular, their religious values were to be respected. Washington ordered severe penalties for any soldier who broke this rule. So for Washington ‘honor’ meant that torture was forbidden. Indeed, for him this prohibition and a positive standard of conduct associated with it was the very essence of the word ‘honor.’
Col. Ted S. Westhusing, the highest ranking US soldier to die in Iraq, was also the US Army’s premier ethicist. His Ph.D. dissertation was written on the classical definition of ‘honor’ and its application in the law of armed conflict. I didn’t know Col. Westhusing, but I knew and admired his work. In his last reports from Iraq, he expressed real anguish about the collapse of the discipline and values for which the US military has been known historically. According to the Los Angeles Times account, his last message included these lines: ‘I cannot support a mission that leads to corruption, human rights abuse and liars. I am sullied. I came to serve honorably and feel dishonored.’ In Ted Westhusing’s life and death lies an unmistakable and profound bond with the past – with Seneca, Addison’s Cato, and George Washington. This loss diminished our military service, for who can doubt but that Westhusing was an important moral leader. America’s leadership desperately needs to hear Col. Westhusing’s call.
President Bush tells us that the war in Iraq must continue so that the casualties suffered - 2,100 Americans killed, and perhaps 10,000 seriously wounded - shall not have been in vain. In this he goads the American public, just as Agamemnon invoked the Greek dead to bring Achilles back to battle in the Trojan War. But our answer to Bush must be this - nothing we do today can change the facts underlying this nation’s march to war in Iraq. What once seemed a strong case for just war now is revealed decidedly less so. That is now a cause for the historians. But at least let our soldiers fight it with the honor that is their birthright. Denying America’s military traditions dishonors us all, but for soldiers in combat it brings a special taint.
The Bush Administration’s policy of torture and abuse has been an unprecedented assault on our nation’s honor. It is time for us to take it back.
John McCain in proposing his amendment said, ‘It’s not about who they are. It’s about who we are.’ That indeed is the essence of the concept of honor, as Washington used the term. Enacting the McCain Amendment will be a critical first step - but only one step - in this struggle.
Have I missed something? I haven't seen any evidence that the U.S. has tortured anyone. I've seen strong assurances that the U.S. absolutely does not use torture. And I've seen stories that a few guards abused prisoners and were prosecuted for it. I've also seen stories that the liberal left and left-leaning news media make things up to suit their purposes. So I need concrete evidence.
Sometimes honor is in the eye of the beholder. Consider the expression "honor among thieves." Perhaps there are profit centers surrounding torture. Certainly there are profit centers among thieves. Look at the political scandals in Washington, DC; look at the wagons circling. Perhaps the "honor" displayed by their associates concerning the culprits has as its profit center self preservation. No one shows "honor" by falling on one's sword any more. Delay, Delay, Delay, and the problem may go away, at least until after the next election.
The truth is that some people believe in torture. The reasons may vary, but, they believe it is useful.
As evidence, I offer the first two comments. The first cheerfully ignores the flood of stories about the US outsourcing torture and Sec. Rice's convoluted evasion about the issue. The second blames the "left leaning media" for talking about it. Hint: Fox and the Wash Times talked about it too.
Neither will discuss "honor", the topic under discussion, and how to honorably torture.
Honor is irrelevant for an Administration and electorate that do not belive in truth as a basis for governance. Honor is hardly an issue for a religious right which purports to believe in God, but forgets the Ten Commandments and is willing to kill for no reason but to exert power and political control at home. This is democracy - people were given a choice between a President who was a war veteran and one who idled his time at home under false pretexts. O tempora, O mores.
I think this series of comments shows how the torture debate continues to be "out of stasis," in the sense that, the two sides are arguing past each other.
Horton's post seems to me to be an argument that some of our leaders and soldiers, and some people acting as agents of our government, have behaved towards detained persons dishonorably. Horton calls those actions torture, and defines honor by drawing on the decision of the Judicial Committee of the British House of Lords, and on the thoughts of a leading military ethicist who recently, apparently, committed suicide.
A Christian Prophet does not directly respond to that argument from Horton. He does not say, for example, "None of the evidence I've seen so far makes me concerned about whether our soldiers and agents are behaving honorably. Everything I've seen seems honorable."
Instead, he sidesteps the substance of the argument by re-defining terms, saying that the behavior that Horton is referring to does not fit the definition of "torture." And by insinuating that reports of any such behavior coming close to fitting into the definition "torture" were made up by the liberal media and lefties.
Eric responds by calling A Christian Prophet an ignoramus because of the insinuation that the reports of the behavior were biased or false.
Like Eric, I liked the original post a lot. It resonates with me. But that's because I agree with it.
But I agree so strongly, and I believe the real issue to be so important, that I don't want to sweep aside a comment like A Christian Prophet's as ignorant. Instead, I want to realign the debate. Okay, so we don't call it torture; whatever we call it, given what we know about what happened -- e.g., the pictures and testimony coming out of Abu Ghraib -- is that the sort of behavior we want our government to engage in? Is that honorable behavior? If you think so, why? Why, for example, don't the arguments presented in the British decision persuade A Christian Prophet?
"Honor" is a little bit like "kosher," and ancient Jewish law says you eat the pig if your life's at stake, not to mention that a little bit of pig in the soup (2%) is just fine. That said, "no pig" is the law and so should be "no torture."