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
I am wondering whether present practices concerning the war on terrorism might be more acceptable with one small modification. Given the enormous social benefits we are told justify torture and detaining people without judicial hearings, the probability is quite high, assuming that we do indeed reap those benefits, that this utilitarian calculus would still justify Bush Administration and Republican policies even if twice the number of persons were tortured or detained without judicial hearings. Surely, for example, in the ticking time bomb hypothetical it would not matter if we had to torture two persons (each of whom knew half the vital information).
For this reason, I propose we create a lottery as follows. Every American has one chance of being chosen. All Representatives and immediate family members have five chances of being chosen. The President and immediate family members have ten chances of being chosen. The lottery is conducted every time we engage in "rough interrogation" or detail a person without a judicial hearing. The "winner" of the lottery is treated exactly how we treat the suspected terrorist. After all, what patriotic American would not be willing to be waterboarded (assuming that is a word) for the cause. Such a lottery, one presumes, would guarantee as near as practically possible that "rough interrogation" and detention was last recourse options.
More than half a century ago, Justice Jackson observed that "nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected." Maybe this explains why while Americans are very upset that a few thousand American soldiers have been killed in Iraq, we not care all that much how many Iraqi children and civilians are killed in this dubious effort to make us feel safer. Perhaps the above suggestion might prove useful in this endeavor. Posted
by Mark Graber [link]
The logic of that would suggest we extend the lottery to children across the country, and shoot or cripple some number of them proportional to Iraqi children.
I fear the discussion would get bogged down on the correct proportion.
More importantly there is far too little sacrifice on the part of the affluent in this country. Their children most likely wont be going to Iraq even if there is a draft and their investments in the military industrial complex are paying off big time.
We can even go further than the example of torturing two people, each knowing half the truth in a ticking time bomb scenario. Suppose there is a terrorist--immune to torture--who knows the location of the bomb. Suppose further he is the father of 50 children who are unaware of the bomb's location. On act-utilitarian grounds we can torture his children if we have reason to believe the terrorist will reveal the location of the bomb to prevent his children from suffering. In emergency circumstances almost any cruelty is justified according to act-utilitarian theory if grounds exist to believe that the cruelty will diminish the effects of the emergency. For act-utilitarians, even completely innocent people may be tortured to prevent the bomb from exploding. Accepting the ticking time bomb scenario as a reason for torturing a guilty terrorist requires accepting the moral justification of torturing innocents if the latter’s suffering will prompt the terrorist to reveal the bomb’s location.
Dumb satirical proposal. Just because we don't want it to happen to ourselves doesn't mean that we think it should not occur. (sorry for the triple negative).
People don't like prison. If people were randomly assigned to prison everytime someone was sentenced, sure, then people might want it to be as nice as possible. If people were randomly put to death, everytime someone was executed, sure, then everyone would be against the death penalty.
You lottery idea doesn't make your point and is too clever by half.
How about a counter proposal. We will do your proposal if you concur with mine. Everytime an Islamic extremist kills someone or blows up a bomb - we will randomly bomb a Muslim village, utterly destroying it. The war "hasn't been brought home" to many tacit supporters of Islamic extremism, so maybe if we visit actual "retribution" then it will stop. I know, it is a stupid and ignorant proposal (for some reasons similiar to your proposal and for some reasons that are differnt), but it isn't any worse than yours.
This strikes me as Rawlsian nonsense. It also assumes that people value human life equally, when the fact of the matter is I and every other poster on this board, when faced with a choice between their own child or the lives of 1000 citizens of some country you've never heard of, will choose the life of their child every time. Its fun to consider the what might happen behind a veil of ignorance, but unless you're going to program true equality of life values into the human genome--i.e. play god--you're not going to get very far.
The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect 'domestic security.' Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.
With regard to the "ticking time-bomb" scenario, my thoughts are this: If someone who truly believed that information extracted by such illegal and immoral practices is worth obtaining by means of torture or murder, then they should be willing to accept the consequences of their actions... that is, to be tried and punished according to law. They and their superiors with them.
That we hear about CIA "interrogators" who are worried about defending themselves against accusations of torture and murder tells us all that they don't consider the stakes worth their own hides.