Religion & Law

Response to Eduardo

By Rick Garnett

"C'mon Rick," my friend Eduardo writes.  Alright.  Starting with Eduardo's second point -- and putting aside the question whether Justice Scalia is the one who should be doing the asking - I do think it is fair to ask those of us who believe (or, perhaps, who want to believe, or want to say we believe) that necessity and consequences do not matter to the question whether harsh interrogation is justified whether, in fact, we can honestly say that, if we were in a position of responsibility, and believed that the infliction of pain were necessary to extract information that would save (hundreds of? thousands of?) lives, we would really maintain that we would not -- because it would be immoral to -- employ such interrogation. 

It is often suggested -- including, if I recall, on this blog -- that it is somehow a mark against pro-lifers that they are reluctant to endorse serious criminal penalties for women who have abortions (the suggestion being that if one is really pro-life, then one should, in principle, want to send women who have them to jail).  Well, it's easy to dismiss as "the predictable, far-fetched hypothetical favored by torture scoundrels everywhere" questions about the "ticking time-bomb hypothetical" but, frankly, I'm not sure why those (Eduardo, me, and others) who claim to categorically oppose torture should not be required to say "yes, even in that scenario."  (Sen. Clinton, for example, will not say this.)  Yes, that's the answer *I* (and Eduardo) want to give.  But to ask the question is not to be a "torture scoundrel."  If one is not willing to answer it, then it seems to me one is not really a torture opponent; one is simply trying to enjoy the moral satisfaction that comes with having a higher necessity threshold (or that comes with the comfort of not being faced with the choice) than one's political opponents.     

Rather than engage the points I was was trying (perhaps inartfully) to make, Eduardo wants to insist that these were not the points Justice Scalia was making.  Fine.  What about my questions?  I said (and, in fact, Scalia did too):

That is, it *is* a "difficult question" -- isn't it? -- to determine "when physical coercion could come into play" and to determine the moral limits to the "coercion" that could ever be employed.  Does anyone think these are "easy" questions?  We all agree that human-dignity commitments constrain what may be done, even for good purposes, and even to bad people.  But, we would justly be criticized (using Scalia's term) as "smug" if we suggested that these commitments translate easily, neatly, and non-controversially to interrogation regulations.

Well?

Full post as published by Mirror of Justice on February 14, 2008 (boomark / email).