Abstract
Jeremy Waldron’s 2010 anthology, Torture, Terror, and Trade-Offs: Philosophy for the White House, published by Oxford University Press, is a fascinating and detailed account of the morally repulsive act of torture.
Waldron holds the post of University Professor at the New York University School of Law. He is well known for his writings on legal and political philosophy, and in recent years he has applied those principles to the study of terrorism. This volume collects six of his previously published essays and two previously unpublished essays. This compilation of new and previously published works is highly recommended for serious students of the issues surrounding terrorism, torture, and public policy.
The underlying theme of the collection is that “torture was and remains a moral as well as a legal abomination” (p. 4). Torture metastasizes beyond the actual event of the torture itself, and it infects all parts of the body politic. Powers that had previously been withheld from government have now been fearfully assigned to it. People become even more deferential to their leaders when they are afraid, and a terrorist event is a perfect opportunity for the rulers to increase their power over the ruled. As the power of the state increases, so, too, do the means of oppression.
It is common to hear about the trade-offs between individual liberty and public safety, and it is no secret that reducing liberty provides a fertile environment for increasing government power. Professor Waldron believes that all the talk about balancing individual rights and security is based on treacherous logic. Waldron convincingly argues that we do know enough about the probability of reducing risk to justify decreasing civil liberties. We should not reduce liberties unless we have real predictions of effectiveness.
Waldron advocates that all laws relating to security be undergirded by moral, legal, and constitutional principles. All the talk about balancing, he says, is just cover for justifying the diminution of personal freedom. If civil liberties are human rights, they should trump other considerations. The belief that an increase in government power equates to more protection for its citizens is fanciful and magical thinking, Waldron asserts.
The laws relating to torture did not change after September 11. Torture has long been prohibited by international law (including treaties that the United States signed and ratified) and by domestic legislation. These laws continue to prohibit cruel, inhuman, and degrading treatment.
Waldron condemns former President George W. Bush’s attempts to disguise various forms of torture as mere interrogation methods. For example, the near-drowning technique of waterboarding was condoned by the President and labeled as something short of torture. Other brutal and humiliating techniques were used repeatedly on detainees. Basic humanity and human decency were given short-shift in the Bush administration’s “war on terrorism,” Waldron says.
Waldron makes a powerful point about the differences between inter- and intracivil liberties. He uses the metaphor of airplane travel to explain intrapersonal losses of civil liberties: most people accept a loss of privacy at airports for a hope of greater protection on their flights. Interpersonal losses of civil liberties, however, occur when only certain people lose their liberties in the hopes that it will make the rest of us feel safe. A good example of interpersonal loss of rights happened shortly after September 11 when many men of Arab descent were detained without probable cause. When security gains for the majority are balanced against the loss of liberty for a few, more attention needs to be paid to the balance between the few and the many, not just security versus liberty.
Waldron is bent on getting rid of the old saw that “one man’s terrorist is another man’s freedom fighter.” He suggests a means/end test, whereby pursuing violent means is wrong regardless of the ends and pursing ends with nonviolent means is right. He also refuses to enter the debate about whether violence is aimed at civilians or noncivilians because civilians are usually the most harmed by terrorists, who have no respect for the normal rules and constraints of law.
He urges lawyers working in the administration’s Office of Legal Counsel to advise the President to follow the Rule of Law and the agreements on torture outlined in the Geneva Convention when they advise the President. In the Bush Administration, many of these lawyers treated the Rule of Law as an inconvenience that could be ignored, Waldron holds. Instead, he argues, lawyers for the President should defend all international laws that the United States has signed and ratified.
The relevance of the legal and philosophical issues surrounding torture are just as important today as they were after the September 11 attack on the United States. As the startling uprisings in North Africa and the Middle East have clearly shown, repressive rulers tend to do whatever is necessary to hang onto their power. Although there are no reliable records about the use of torture by the police in the early days of Egypt’s or Tunisia’s revolts, it can be assumed that before the leaders of those two countries relinquished their powers, techniques not approved by international law were employed. And there is no doubt that all sorts of violence, including torture, have occurred with frequency in countries such as Syria, Yemen, Libya, Bahrain, and Algeria, where, as of this writing, the dictators are zealously holding on to their privileges.
Professor Waldron has contributed greatly to the literature on torture with this intricate and thoughtful anthology.