When it comes to torture: everything old is new again

Slippery slope arguments are usually not considered very strong criticisms, but when it comes to analyses of torture they are right on the mark. Dr. Darius Rejali's podcast on the ethics of torture has quickly become one of our most listened to interviews. In a recent Slate.com article,, he describes how just a little torture opens the floodgates for all sorts of injustice. What is most striking is that practices that were widely regarded as crimes just one hundred years ago, such as waterboarding, are today being resuscitated by our country's leaders as necessary for national security. Can it really be that the new world order means going back on at least a hundred years of moral progress?

For the legally minded: a short guide as to why one might consider the Military Commissions Act of 2006 to be bad law and possibly unconsitutional.

Does the Constitution Matter?

A new book challenges the very foundation of American democracy (right in time for election season!). Sanford Levinson, who teaches law at the University of Texas at Austin, raises some deep doubts about the democratic worth of the American Constitution in his new book, "Our Democractic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It). He previews his arguments here.

Some of his concerns are echoed by the eminent theorist of democracy, Robert Dahl, in his book "How Democratic is the American Constitution?" (A book I always use in my philosophy of law class). One of the more interesting claims they raise is whether the American constitution actually preserves the value of political equality among citizens.

We all live with the conception that our vote/voice matters (as long as we bother to exercise it). This is usually spelled out as "one person, one vote", unlike the system proposed by John Stuart Mill where some citizens might be allocated more votes based on intelligence or specialized knowledge . But does this equality actually obtain or is it a myth about our democracy that our vote counts just as much as any other?

Levinson and Dahl both point out that the Senate works to make equality among citizens doubtful. For instance, 35 million people live in the state of California, but it has just as much representation as the state of Wyoming with only 500,000 people. This means one senator in California can represent about 6.5 million votes, while one senator in Wyoming only has to contend with about 150,000. Small state voters have an incredible amount of power to block the decisions of millions of other citizens. In his own work, Dahl points out that this kind of power imbalance contributed substantially to the kind of gridlock that sustained slavery in the United States up to the Civil War.

Dahl thinks that there are some severe undemocratic features of the Constitution, but is pessimistic that anything can really be done about it at the federal level (largely because any changes have to be ratified by the Senate and small states are unlikely to give up their unequal share of power). Levinson argues we need a new constitutional convention to rethink the fundamental building blocks of our political order. Cass Sunstein points out that this is a very Jeffersonian move in his review of the book. (part two of his review is here)

Have we gotten to the point where we need a radical transformation of our constitutional framework? Sunstein has his doubts and worries that if we open up the Constitution to comment now it could turn into a Pandora's box where people would be willing to do away with all sorts of constitutional protections and liberties. Does the Constitution, as it currently stands, matter anymore?

Immigration and the Seige Mentality of Whiteness

An interesting post on AlterNet by the folks from the Southern Poverty Law Center on Patrick Buchanan's most recent book "State of Emergency: The Third World Invasion and Conquest of America" raises the question: if this work is blatantly racist, what explains its steady hold on the New York Times Bestseller List?

Buchanan seems to dismiss the idea (that is central to other more nativist works that have treated the subject of Latino/a immigration to the United States, such as that of Samuel Huntington) that the United States is a society built around certain ideals of democracy, freedom, rights--what is called by sociologist Gunnar Myrdal as "the American Creed". Buchanan writes: "This idea of America as a creedal nation bound together not by 'blood or birth or soil' but by 'ideals' that must be taught and learned ... is demonstrably false." He locates the threat to the U.S. not in people who may not uphold the Creed, but in people who are simply not of European descent. Its worth repeating the claims he makes in the book as posted by AlterNet:

Excerpts from "State of Emergency, The Third World Invasion and Conquest of America":

"Our ancestors were not paralyzed by guilt. Confident in their culture and civilization, they believed in their superiority over what Kipling had called the 'lesser breeds without the law.'"

"Was not Western civilization vastly superior to the indigenous civilizations it encountered and crushed, from the Aztecs and Incas in the Americas to the Muslim, Hindu, Buddhist, Taoist civilizations from Africa to the Far East?"

"Against the will of the vast majority of Americans, America is being transformed ... we are witness to one of the greatest tragedies in human history."

"Though the South remained segregated [before the Civil Rights movement], culturally, we were one."

"California is becoming -- indeed, has become -- a Third World state."

"Thus the world's finest five-star hotel, the United States of America, becomes the flophouse for the planet."

"Since Americans of European descent -- unlike Germans -- are not into sackcloth-and-ashes, but take immense pride in their ancestor's achievements and bridle at reverse discrimination, it is hard to see a happy future of peace and reconciliation [if white guilt continues]."

"This idea of America as a creedal nation bound together not by 'blood or birth or soil' but by 'ideals' that must be taught and learned ... is demonstrably false."

"America faces an existential crisis. If we do not get control of our borders, by 2050 Americans of European descent will be a minority in the nation their ancestors created and built."

"A new border war has begun with the first signs of an 'intifada' to retake control of the Southwest."

I certainly don't recommend evaluating a book by looking at quotes taken out of context, but Buchanan does have a history of seeing complex political and economic issues in terms of a grand culture war between European societies and the "rest of the world." On the one hand, this is problematic because he does not explain very well what the "West" is; nor does he recognize the enormous diversity of cultures and ideals within Europe that make it difficult to think of it speaking in one voice.

On the other hand, I want to ask: what is it about this discussion that taps into the imaginations and feelings of vulnerability of so many Americans, making this book popular? The thread of comments on the AlterNet post is very interesting--many people wrote in to say "Ignore Buchanan's obvious racism, but don't dismiss the idea that immigration IS harming the American middle class in serious ways."

A very important work that came out recently is "The New Rural Poverty" and it does a very good job of laying out the policy proposals around immigration and the extent of the poverty surrounding immigrant communities in the United States. I found some claims made at the end of the book very eye opening. Many people argue that immigrant labor allows middle class Americans to have cheap food and that without it a lot of fruit and vegetables would become luxury items.

The authors point out that the percentage of the average family's income spent on fresh produce is actually very small (a sad commentary on our diets) and that raising wages for farm workers would not substantially increase food costs for American families. Raising wages would raise costs for growers, however, who would stand to see their portion of profit and the worth of their land decrease. At the same time, many growers resist mechanizing farm work because of cost. The result is the reliance on a relatively cheap labor force that is at the same time deepening poverty in rural areas--and that does come back as a problem for the middle class in terms of burdens on the social safety net. But its unlikely that a conversation can get started on this level with the kind of ahistorical, apolitical vocabulary injected into the public sphere by people such Buchanan.

Banality of Evil Today

In my conversation with Dr. Rejali last week on the ethics of torture, the hopeful moment came toward the end of the interview when I asked about what he wishes his life's work on torture will do. He explained that he would like us to understand torture not as a diabolical practice, an unimaginable evil, but a practice in which normal human beings engage and for reasons that are perhaps quite mundane.

I'm not sure if Dr. Rejali thinks of it in these terms, but his response made me think of Hannah Arendt's notion of the "banality of evil" that she develops in her report on the war crimes trial of Adolf Eichmann. Her observation was that Eichmann sent thousands of people to their deaths from the Nazi concentration camps, but he was not filled with hatred or diabolical intelligence. He was simply incapable of engaging in self-reflection and having any kind of other-regarding thinking. He was perfectly ordinary.

Arendt's 100th Birthday is October 14 and this article by Edward Rothstein attempts to highlight her current relevance to our political world. It would seem to me appropriate to take her idea of the banality of evil and apply it to Lynndie England, the woman involved in the Abu Ghraib incident. Or perhaps to her defenders--her mother is reported to have said that England was "... just doing stupid kid things, pranks." When inhuman and degrading practices are thought of as child's play, then perhaps Arendt is more relevant than ever.

The Ethics of Torture

As promised, the podcast in commemoration of the Nuremberg War Crimes Tribunal is now available. In "The Ethics of Torture", I sat down with Dr. Darius Rejali (Political Science, Reed College) to talk about the ethical and political implications of the Military Commissions Act of 2006. This act was promoted by the Bush administration as a result of last year's Hamdan decision before the Supreme Court which held that the inital plan for military tribunals for "unlawful enemy combatants" was unconstitutional. Some system needed to be put in place to allow such detainees to be processed--the result is the MCA.

Dr. Rejali is very clear about what the MCA would allow--the kinds of treatment to which detainees at Abu Ghraib were subjected would most likely be legal. What is most striking about this is that this standard is one rejected internationally. The United Nation Convention Against Torture, ratified by the U.S. in 1994, defines torture "as severe physcial or mental pain or suffering." In 2002, the U.S. Department of Justice, in a memo to the President, sought to define the threshold of "severe" this way: torture "must be equivalent in intensity to the pain accompanying serious physcial injury, such as organ failure, impairment of bodily function, or even death." As Dr. Rejali pointed out in the podcast, this threshold was developed based on Medicare studies, not on analysis of torture or interrogation techniques.

Below this threshhold would be "coerceive interrogation". Here there are two important distinctions. Coercion might be 1) lawful or 2) inhuman and degrading. In 1999, the Israeli Supreme Court ruled that certain forms of coercion fit under the latter distinction, including making a detainee stand in a painful position for hours, sleep deprivation,hooding, shaking detainees vigorously, or exposing them to extreme hot or cold.

The MCA appears to include with the distinction of lawful coercion what might be called "humiliating or degrading" techniques, i.e. forcefully removing a Muslim woman's veil, forcing a devout Muslim to drink alcohol or engage in sexually explicit behavior, or destroying a Koran in front of them. A question might be: what would such techniques hope to accomplish as a legitimate part of "the war on terror"? Is there a possiblity that this will do nothing but intimidate and alienate populations, rather than win their "hearts and minds" over to the U.S. cause?

For me, what was most stunning about this conversation with Dr. Rejali was the moment when he listed various coercive techniques that might now be regular parts of interrogation under the MCA and then pointed out that the list was from Gestapo manuals of interrogation. The MCA raises the question of our identity as a democratic society. Are WE the kind of people who do THAT? Michael Ignatieff argues that if we take the democratic identity argument against torture seriously, then we must be prepared to realize that there might be large numbers of our fellow citizens who will willingly trade liberty for security. Choosing torture might be a democratic perogative.

During our off air conversation, Dr. Rejali pointed out that many studies indicate people are not so easily swayed and the numbers in favor of torture is not yet a majority of the public. Democracies can be illiberal and dangerous--this is the worry behind Plato's worries over this kind of government. But in a liberal democracy such as the United States, we have tradition of suspicion about government having too much power over the "life, liberty, and property" (to use John Locke's phrase) of its citizens. The danger is that the MCA opens up the possibility for the government to strip American citizens of various forms of civil protections. This should be a tremendous worry considering that there seems to be very little proof that torture, or even coercion, works in any kind of way to make people more secure.