The Debate on Torture: War Against Virtual States: Responses: Replies
Levinson, Sanford
I AM, OF COURSE, very grateful to Henry Shue and Richard Weisberg for their thoughtful comments. I will address them in order. I am not convinced there is much difference between Shue and...
...This willingness to forgive at least one (hypothetical) torturer, places him closer, I believe, to Michael Walzer (and, therefore, to me) than to Thomas Nagel...
...A fastidious lawyer could, no doubt, refuse to have anything to do with answering such questions, but, at the end of the day, I believe that represents a moral copout— unless the lawyer rejects the propriety of any interrogation that goes beyond a courteous request for information...
...I am not sure that my good friend Richard Weisberg agrees with this last sentence...
...94 n DISSENT / Summer 2003...
...Senate, when ratifying the Convention, was careful to limit the banned methods to those that would independently violate the Eighth Amendment's prohibition of "cruel and unusual" punishments...
...Still, like me, Shue appears to accept the possibility that someone might indeed "confront . . . the rare exceptional case" where "retrospective forgiveness" would be the proper response to that person's decision to use torture in that particular situation...
...I am not convinced there is much difference between Shue and me...
...I suppose that the best question to direct back at Weisberg is whether he believes that the French Resistance was itself justified, in even a single instance, when it used torture and similar methods in its fight against the Nazi evil...
...Anyone who doesn't share this fear is a fool...
...What made Vichy contemptible was its willingness to share at least in part the Nazi vision of the proper end-state of European society...
...For the reasons given in the essay, I can't really agree...
...I AM, OF COURSE, very grateful to Henry Shue and Richard Weisberg for their thoughtful comments...
...Any such efforts require potentially gruesome and explicit conversations...
...I was touched by the eloquence of his conclusion and by his reminder that to accept torture is indeed to countenance "barbarity...
...What this means is that lawyers must necessarily be involved, for better and, no doubt, for worse, in trying to identify what it is that constitutes "torture" as against something less than torture—or, for that matter, in identifying precisely what reaches the level of "cruel, inhuman, and degrading treatment...
...Where we disagree, then, is on the relative merit of before-the-fact permission and retroactive exculpation...
...One way of reading his argument is that the only proper response of a decent person is to proclaim that torture is always wrong, period, and to refuse to give the slightest countenance to any argument that suggests that the "always" should have an "almost" in front of it...
...Let me concede, for sake of the argument, that Weisberg is correct DISSENT / Summer 2003 • 93 ARGUMENTS that one ought never, even for an instant, suggest that torture is anything other than the evil it undoubtedly is...
...But my greater fear is that reliance on ret rospective assessment will have much the same effect, as potential torturers realize that the actual prospects of punishment are very low indeed, for reasons given in my article...
...I may be wrong, of course...
...This is something about which people of good faith can disagree...
...And the U.S...
...That is not enough to stop the conversation, though, because as my article demonstrated, so many opponents of torture seem altogether willing to accept methods that "stop short of torture" (putting to one side, of course, the fact that the United Nations Convention prohibits cruel, inhuman, and degrading treatment as well...
...Shue fears that adopting anything like Alan Dershowitz's proposal for "torture warrants" would inevitably take us down the road to accepting torture as relatively routine—since supine judges would grant the entreaties of overly aggressive security agencies...
...But there may be a more fundamental disagreement between us...
...I also agree with the Economist that the United States (as the exemplar of "the West") has a special responsibility to resist temptations to torture...
...No one who "defends" it does so on any other basis than that in some circumstances it may be a "necessary evil," but evil it always remains...
...Where I hope we agree is that it is better to have this conversation in public than to avert our eyes to what is actually going on...
...Perhaps this is a difference between ends and means...
...Part of the reason is that I do not accept in full the analogy between the collaborator with Vichy and one who decides, with a heavy heart, that there might be an isolated circumstance where torture would be defensible...
...If Weisberg refuses to join that conversation, I think he is mistaken, however admirable his motives might be...
...Once one accepts the validity of some kind of more stressful interrogation, then we have no choice but to try to figure out how to demarcate the boundaries between the acceptable and the unacceptable, as well as to discuss what kinds of legal procedures offer the greatest promise of maintaining the boundaries we set...
...I would, therefore, resist his labeling my essay as having a "kind word" for the torture that I have no doubt is occurring under the aegis of the United States, even if it is being carried out by our allies in the "War against Terrorism...
Vol. 50 • July 2003 • No. 3
