The Brecher Brief: The Military Commissions Act: A Right to Torture?

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October 20, 2006

The Military Commissions Act: A Right to Torture?

The usual argument one hears for the Military Commissions Act signed last week by the President is both compelling and familiar. It’s the argument for virtuous torture, a staple of Hollywood thrillers. The narrative goes like this: If you’ve got a really really bad guy strapped to a chair down at the station (the crazy evil type with a splotchy face and a poorly groomed moustache) and you can’t make him talk, pronto, the dirty bomb he planted at City Square Orphanage is gonna blow in forty-five minutes! Thousands will die. No time to be nice. You’ve got to beat the shit out of him, cut off his fingers, crack his kneecaps, whatever—just make it fast! That red digital clock he duck taped to the black shoebox bomb thingy keeps beeping and it’s getting close to “000.00”.

It’s a slam-dunk (to use CIA jargon). You’ve got to be an ACLU lawyer or an obese police captain worried about retirement not to get it. Torture ‘til he talks, right?

Well, right. I would anyway.

And given that scenario, I’d probably keep whacking away long after the credits have ended. And so would my 87 year old mom. And so would you. And, truth told, so would that ACLU lawyer. (That’s everybody except obese police captains and they never get it.)

But the question really is, why is this a good rationale for throwing away habeas corpus, legalizing (i.e., institutionalizing) torture, and offering a carte blanche to every brutal dictator on the planet to rewrite the Geneva accords to suit themselves? Why, in other words, is it smart to reshape the law (and pervert fundamental American values) just to be “legally prepared” for such an extraordinary hypothetical?

It isn’t smart. To see why, consider this hypothetical.

Let’s say I’m out camping by the lake. I think I’m alone until I notice you, fishing a few yards away. We strike up a conversation. Suddenly, you drop to the ground, writhing and gasping for air. Now, I don’t have any medical training but I’ve seen enough TV to know how to perform an emergency tracheotomy when I have to.

So, out comes my trusty screwdriver and a few seconds later, presto! You’re breathing. I’ve saved your life. I’m a hero.

Three weeks later, presto again; out comes your lawyer. I’m a respondent in a civil action—you’re suing me for mutilating you. And the laws of decency and gratitude notwithstanding, the laws our (unnamed) state are on your side.

This is a terrible injustice, isn’t it? But how do we fix it?

For those who share the worldview of George Bush, the answer’s a no-brainer: pass legislation that would, 1) authorize well intentioned citizens to perform tracheotomies in situations they perceive to be emergencies, and 2) prohibit the courts from reviewing those “emergency procedures” to determine how proper they really were. Well, change “private citizens” to “CIA interrogators,” “emergency” to “terrorist threat,” and “tracheotomy” to “torture,” and you’ve got the essential logic of the Military Commissions Act. (A WH summary of the act is here, the White House signing statement is here.)

Whether I’m wandering the forest with a screwdriver honing my surgical skills or thrashing some swarthy terrorist in a race against the clock, the law is generally not on my side. We don’t lower the bar to accommodate the violence of reckless do-gooders. This is probably true even if I’ve sized up the emergency correctly. And it’s especially true if I’m wrong (if, say, I’ve poked a hole in somebody having an epileptic seizure or smashed the knuckles of a deaf-mute janitor). We don’t give our spooks a real license to kill. We don’t riddle the Constitution with loopholes.

But, if I am right, what jury of my peers will find against me? None—not in Massachusetts, not in San Francisco. None. And if every fifty or seventy years or so some real life 007 happens to make a little human sausage in the process if actually saving the day we don’t need to revise the Constitution to protect him from our legalistic selves. A little technicality or a strategically “botched” investigation should do the trick.

But of course, as Bush loyalist John Yoo boasts, this is not really about security, terrorism or anything else except executive power—and more precisely, about the willingness of this executive to undermine both the judicial branch and the law itself in order to grab it. Senator Spector seemed to understand this when he predicted that the court would kick it back to the Senate. Apparently, it’s only a matter of time. Let’s hope then it is also about the Supreme Court living up to its honorary title of defenders of the Constitution.

Posted by stevemack at October 20, 2006 02:22 PM

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