The Debate on Torture: War Against Virtual States: Responses
Weisberg, Richard H.
IN MID-OCTOBER 1940, with Nazi occupiers in Paris and a new French regime called "Vichy" legislating aggressively against Jews, Jacques Maury leveled a frontal protest against racism. A...
...Even if there are severe admitted costs to breaking the taboo, they say, the benefits in the saving of thousands of lives far outweigh the pressure on our system of such heavy practices as torture ARGUMENTS and its many variations...
...RICHARD H. VVEISBERG is Floersheimer Professor of Constitutional Law at Cardozo Law School, Yeshiva University, and author of Vichy Law and the Holocaust in France...
...Because of this, you end up sanctioning torture in general...
...IN MID-OCTOBER 1940, with Nazi occupiers in Paris and a new French regime called "Vichy" legislating aggressively against Jews, Jacques Maury leveled a frontal protest against racism...
...This is the opening gambit of someone who we know is about to say BUT . . . The complex analysis that follows, the dividing of an abhorrent practice into "good torture" and "bad torture," sets the stage for a full-blown acceptance of the practice...
...An example from a far worse regime proves this...
...If there had been principled resistance, instead of rationalization, the extreme and aberrational set of arrests might never have taken place...
...Avant la lettre, folks like Levinson (and Richard Posner and Alan Dershowitz) display an unseemly haste to appear sophisticated and, of course, "instrumental...
...Let us continue to be alert to what governments may be doing...
...Three years later, we find him still writing about these laws, but now with an acceptance and a familiarity born of his colleagues' failure to join with him in 1940...
...You can't know whether a person knows where the bomb is," explains Cole in the Nation, "or even if they're telling the truth...
...So today comes Sanford Levinson, a liberal constitutional lawyer of impeccable credentials, to help us "debate" torture...
...And, if there is evidence of torture, let us begin the "debate" by protest ing the practice...
...Although the practice violates all of our traditions, Levinson and others are starting to "pull a Vichy" on their community...
...As Eyal Press wrote in the Nation (March 31, 2003), "the taboo on torture has been broken...
...Instead of clearly and simply opposing what they know violates our best traditions and laws, they cave...
...No one likes torture...
...So, too, does American law continue to show the scars of Korematsu v. United States, which affirmed the legalized roundups of tens of thousands of our Japanese heritage citizens and residents, also in the name of "emergency...
...Instead, France continues to suffer today because only Maury had the common sense and the courage to say "NO...
...More Jews would have survived, even if the Nazis had been able to do the terrible work all alone of annihilating this population in the face of principled protest...
...And a so-called "legal realist" like Levinson is among the first to breach the barricades...
...No one, after all, wants to seem wide-eyed when facing the "ticking bomb" hypothetical...
...History proves that countries and their legal systems emerge much the worse when the urge to "get real" overwhelms the instinct to protest...
...Whatever their personal feelings about Vichy's reversal of France's 150-year long egalitarian legal traditions, the entire legal community in France had begun "debating" the fine points of racism in the new "emergency" environment of World War II...
...Hitler himself had to short-circuit a program of killing so-called "mental defectives" when a broad-scale protest made clear that whatever else was happening, this at least would not be tolerated...
...Let us not lead, in the name of some misguided and ahistorical "realism," with our collective, liberal chins...
...For it is clear beyond contradiction that had his community lined up behind Maury, France as a whole would have fared better in its treatment of Jews during Vichy...
...A specialist in public law from the University of Toulouse, Maury could not believe that his own country had jumped the gun on German demands and exceeded Nazi models in persecuting the Jewish population under its own jurisdiction...
...Before the fact, before anyone knows whether torture has already or will ever become a widespread American technique of interrogation, those who might be the architects of protest instead produce a road map for the unacceptable...
...Maybe the occupiers would eventually force this on the French, but Maury stated what he deemed to be the obvious: it was unacceptable for a government acting in the name of France to violate "our longheld rule safeguarding equality in their rights as well as in their responsibilities to all French people...
...Although he wrote prominently for the Parisian equivalent of the Yale Law Journal, Maury was punished for his unequivocal support of human rights neither by Vichy nor the Nazis...
...His first debate on torture with Sanford Levinson is available from Public Radio in Chicago ("Odyssey" www.odysseyradio.org...
...As David Cole and I, among others, have pointed out, it may be the instrumentalists who are being naive...
...It is not "realistic" to lead (or join) the equivocation chorus...
...Well, let me step in and try to emulate 92 n DISSENT / Summer 2003 Jacques Maury by reminding these fellow travelers that when right(s)-thinking people start to equivocate, they bring about the practice that their better nature abhors...
Vol. 50 • July 2003 • No. 3
