Linker on Strauss on Torture
Hat tip to Jake for surfacing this excellent Damon Linker post on Strauss and torture.
Linker’s argument is, finally, that there are certain exceptions to “natural law” that require action normally outside the bounds of moral behavior, such as when the state faces an “existential” crisis. In such an instance, because the true nature of the crisis is often only clear in retrospect, so too the justification for the action is only clear after the fact. This is where Linker leaves it.
I want to push a step forward and discuss what this might mean for thinking about such moments of crisis in the future. A few preliminary observations that I hope will not be controversial:
- Some politicians will mistakenly invoke an existential crisis due to poor judgement
- Some politicians will mistakenly invoke an existential crisis due to lack of information
- Some politicians will mistakenly invoke an existential crisis because they take their own interests to be the interests of the state (on this see Andrew Sullivan on how the Bush regime authorized torture specifically to derive false justificaitons for the war)
Because the strong tendency of political leaders will be to to err on the side of invoking an “existential crisis,” (especially in the third category above) incentives need to be structured so as to reduce politicians’ incentives to do so.
Therefore, those politicians willing to take the risk of using immoral means for the security of the state should expect to be punished severely when they are mistaken. What Obama is missing with his “look forward, not backward” stance is that he is in effect creating incentives only to disregard the rule of law and removing the disincentives to doing so. Of course, had torture developed information that was used to prevent another terrorist attack, Cheney’s bunch would have been judged heroes. However, the strong preponderance of the evidence reveals not only did torture not reveal any information in this case, but that it generally never does so.
An objection might be that we risk punishing politicians who in fact made the right decision, but the facts justifying their action have not yet been revealed. However, A) such an argument only reveals that they acted upon false or unproven pretenses and B) the specter of false prosecution simply incentivizes politicians to err on the side of caution in following the rule of law.
Much of the debate on punishing Bush-regime torturers has centered around punishment-as-retribution. The debate needs to shift to punishment-as-disincentive.
-John
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[...] I thought, incomplete post on the nature of executive power in uncommon or emergency circumstances. I argued that, because it is in the polity’s best interest to create strong disincentives to unconventional and [...]
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