Torture Justified

The full text of the legal brief which was used to justify torture was released today (see NYT article here, Washington Post Op-Ed here). There is much to discuss and analyze, but I think the following quote addresses the fundamental issue:

“If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”

That is, when a government agent acts with the intention of protecting the American people it is ok to break the law. This is the logic of tyranny. It places no bounds on presidential authority other than the boundaries of what the president himself believes the consequences of his actions will be. Anything the President thinks keeps America safe is legal because he thinks it so. Therefore, the law flows from his conjecture. Therefore, he is ultimate ruler.

I emphasize this point because I think it is essential that we distinguish the perniciousness of this logic above and beyond our anger and disgust with the Bush Administration. Bush’s policies are merely a particlar manifestation of the rationale that inevitably flows from the premise that ultimate ends justify extra-legal means.

This logic is wrong. It is wrong because it gives a priori justification to the authority figure’s subjective judgment. That is, it says something is right because a particular individual thinks it is right. You can see this throughout the memo — the intentions of the perpetrators, what they believed they were doing, is the defense of all of their illegal actions.

We know that our knowledge is imperfect. This makes delegation of power to others tricky.  On the one hand, we know it is absurd to argue that anyone can be sure that the outcome of their actions will match their intentions. Ends cannot justify means in this absolute sense. So in some ways on actor is ever justified.  But practical demands require that we act in this uncertain world. Thus it is not practical to insist that people to whom we grant power ignore their strongest conjectures about how the world works when considering what action to take.  They have to connect ends and means. The President and the CIA need some basis for deciding what actions are likely to bring about the goals we have assigned them to achieve.

What keeps these actions in check, however, is that we judge their ability to make these connections. The rules we have placed on them, i.e. the law, reflect our current best guess as to what those connections are.  So they may follow the law without reproach.  If they have a different view of those connections, they may choose to act against this law.  That is, they may believe their knowledge is superior to ours.  But even if they believe this, nothing they can do can give them permission to act against the law.  Superior knowledge may compel them to act, but it does not grant them a right to act.  Only we can give them a right to act.  Simply put, they have no ability to give themselves permission to do anything. We give permission.

If the President, or any person with a responsibility, believes they have superior knowledge and thsu wishes to violate rules in order to fulfill a responsibility he/she has two choices:

1) Justify the application of a new set of rules which would permit the desired actions and wait for us to approve, i.e. share the superior knowledge with us a priori so that we may grant permission.

2) If time is of the essence, act on his/her sense of what is best (violate the law) and then submit for a posteriori judgment of the actions, e.g. ask for forgiveness or dispensation.

These two choices can be used to address any practical problem the President or other person may face. The only difference between this approach and the approach outlined in the White House brief is the distribution of consequences to being wrong.  In the case where the President is right, the consequences are the same.  He acts on his rightness and we all benefit.  He explains his rightness, with the benefit of hindsight showing the good consequences of his rightness, and we approve.

Things are different when the President is wrong.  In the White House brief, the ultimate correctness of the President’s conjecture is irrelevant.  The fact that he thought it was right at what time is justification enough.  That it later turns out that he was wrong is no basis for challenging the rightness of his actions.  Thus, the risks of the President being wrong are born by us, those who live with the consequences of his deeds, not him (technically he bears some consequence as a citizen as well, but it is small).  In the approach I described above, the risk of being wrong is born by the President.  If he is wrong and acts on this wrong judgment, we do not approve after the fact.  He is singled out for punishment for being wrong and violating the rules to execute his bad ideas.

Our constitutional demcracy works because it uses checks and balances to distribute these risks in a sensible way.  It should be no surprise that this President, given his talents, chose the un-constitutional strategy laid out in the brief.