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torture and "obliteration"

By Jack M. Balkin

My previous post concerns Hillary Clinton's reminder that the United States could "obliterate" Iran and that she is prepared to order just that--with or without the consent of Congress is manifestly unclear--should Iran attack Israel (though why only Israel--why not threaten obliteration if Iran invades Iraq, or Saudi Arabia, etc.?). I believe that her close-to-glee--she is, after all, trying to portray Obama as a Chablis-drinking wimp who would forbear from picking up his guns--in threatening to "obliterate" millions of innocent Iranis because of the acts of their leaders underscores a certain anomaly in our debates about the conduct of warfare at the present time.

There is a widespread consensus, shared, at least rhetorically, by the Bush Administration itself, that "torture" is forbidden and indefensible. That is precisely why so much of the debate concerns what, precisely, counts as torture. (For the record, let me state that I regard waterboarding, as well as extended sleep deprivation and much else, as torture.) But, of course, there is also the additional debate, sparked by the Yoo memorandum, as to whether the President, under extreme conditions, has the authority to order torture.

But why isn't there more debate, not only among academics but among the general public, about a) the morality of any military strategy that depends on "obliterating" millions of innocent people simply because they have the bad luck to be living in a country run by terrible leaders and b) the propriety of a view of presidential power that makes it possible for an ostensibly serious candidate for our nation's highest office so casually to threaten such obliteration should another country engage in behavior that, though no immediate threat to American security, we deem sufficiently awful? As awful as torture is, it really isn't the most awful thing that regularly occurs in the world, starting with "collateral damage" to innocent civilians as the result of "justified" military attacks, and going onward to the "destruction" that is at the basis of nuclear deterrence strategy (under the rubric "Mutually Assured Destruction").

Deterrence through threats of obliteration has the "virtue" of minimizing risk to our own military personnel. The same logic explains the reliance on bombing by Bill Clinton in the War against Serbia that he initiated without the consent of Congress. No doubt he saved American lives that would have been lost in ground warfare, but at the cost of innocent Serbian lives.

Imagine that Herman Kahn had been a member of the Berkeley faculty who, while working for the Defense Department, advised the construction of a "doomsday machine" that would take the decision to engage in a nuclear response to an attack out of the human decision-making process at all. After all, we might find literally "incredible" the assertion, by Hillary Clinton nor any other decent and non-sociopathic human being, that he/she would be willing to "obliterate" millions or, indeed, threaten the maintenance of human society itself in order to demonstrate adequate political resolve. (During my youth, this was the "better dead than red" debate.) Thus the need for taking the "decision" away from human beings and giving it to an impersonal machine. (For details, see Kahn's classic On Thermonuclear War.) Should he have been threatened with the loss of tenure for offering such advice, or is it, like all deterrence theory, intellectually and morally "acceptable" in a way that countenancing the legitimacy of even one instance of torture under an extreme set of facts is not? (Indeed, Kahn can easily be read to have "advocated" such a machine, as against Yoo's own claims, sincere or not, that he never "advocated" torture but, rather, engaged "only" in good-faith interpretation of notably difficult language given the Senate's "reservation" concerning the definition of torture.)

Also for the record, I am not a pacifist, and I believe that deterrence can be an important aspect of military strategy--thus my willingness, whatever my opposition to many Israeli policies, to accept the propriety of Israel's possessing nuclear weapons and issuing, no doubt sotto voce, credible threats of a willingness to use them if attacked. (This is, frankly, one reason why I'm not so worried about the prospect of Iran's gaining nuclear weapons, because I do believe that Iranian leadership is rational enough not to be attracted by a Gotterdamarung strategy. ) And I think that one of the explanations for the present debate about intelligence-gathering methods is precisely the realization that classic deterrence models don't work when the enemy is not a state with a locatable "address," but, rather, multi-national organizations that may have access to certain kinds of weaponry that in the past was indeed confined to "Westphalian states" that were subject to the rational logic of deterrence. On this, see my colleague Philip Bobbitt's new book Terror and Consent .

It is obviously important to continue to ferret out the Bush Administration's policies on torture. But there are other things we should be talking about as well with regard to America's willingness to kill innocent people as part of one's military tactics or ultimate strategy.
Do we really want as president someone who so casually evokes the "obliteration" of Others (I use the capitalization advisedly) even if, by stipulation, she promises to honor the "absolute" ban on torture (see her letter to the American Freedom Campaign).

Full post as published by Balkinization on April 24, 2008 (boomark / email).