To recap, I argued that when defending the political community against a dire threat to the common good, actions that would under normal circumstances rightly be regarded as immoral and beyond the bounds of civilized decency (like torture) can become morally acceptable and even morally imperative. This is what Aristotle (and Leo Strauss) called the changeability of "natural right," and I consider it to be a permanent fact of political life.
Andrew seems to agree in general. In the opening paragraph of his post, for example, he concedes that the presidency can possess "extra-constitutional and extra-legal powers in an emergency." And then there's the title of his post (Taming the Prince), which is a reference to a wise book by his esteemed teacher Harvey Mansfield that explores at great length the moral "ambivalence" at the heart of executive power.
Yet Andrew also appears to deny that natural right is changeable enough to specifically permit or demand torture, at least as the Bush administration employed it. He writes:
[T]he kind of claims that Bush and Cheney made about executive power in the context of the current conflict, especially when allied with the power to seize individuals and torture them on the basis of executive judgment alone, goes far beyond such exigencies [i.e., temporally constricted emergencies in which the transgression of normal moral limits would be justified]. It goes beyond [them] because the emergency that usually justifies this kind of exceptional action is now permanent insofar as the Jihadist threat stretches indefinitely into the future; because the remit of the power is universal in so far as it has no geographical limits, and can extend, as Jose Padilla discovered, to citizens as well as non-citizens; and it is secret, in so far as we knew nothing about the torture policies of Bush and Cheney until long after they had tortured and abused people in their captivity.
Of these three objections, I find the
first one the strongest by far. If a ticking time-bomb can temporarily
justify extra-legal and extra-moral executive actions, then a perpetual
ticking time-bomb appears to justify permanent extra-legal and
extra-moral executive actions -- which would make the presidency, as
Andrew puts it, "an elected tyranny."
That's a strong case against the Bush administration's torture policies. But is it an argument against torture in all conceivable cases? I confess that I can't tell. On the one hand, there's the post's opening paragraph and title. But on the other, there are Andrew's passionate, articulate, and relentless attacks on torture over the past few weeks, which certainly make it sound like he rejects torture on principle, in all conceivable cases. And then there is the final, remarkable sentence of his post:
[T]he first Americans would gladly have lost a few cities - and countless lives - to resist it [an elected tyranny].
Andrew here appears to be admitting that a principled rejection of torture may very well come at an enormous cost to the United States. How many cities would be too many to lose? How many "countless" lives would we be willing to see extinguished for the sake of the principle that we ought never torture? If the principle is absolute, then the number has to be infinite: the United States should accept its own destruction rather than torture a single individual.
But I submit that this can't be right. Our leaders have a moral duty, a solemn responsibility, to defend the common good -- to defend the nation against those who would destroy it -- and when the threat is sufficiently grave, this moral imperative may demand that we diverge from our moral principles. How far should we be willing to go in defending ourselves? That, unfortunately, will depend on the ruthlessness of the enemy. If the nation's enemies refuse to wear uniforms, if they deliberately seek to maximize civilians casualties, if they embrace an ideology that exalts death over life and suicide over surrender, then we might have to stoop pretty low to combat them. I concede that this permanent dynamic of politics is ugly, but that doesn't make it any less true. When fighting for its survival, no nation is exceptional, no matter how high-minded the principles it embraces under normal conditions.
Let me be perfectly clear: None of this is meant as a defense of the Bush administration's torture policies, let alone Charles Krauthammer's recent revision of his somewhat narrower 2005 apology of torture, which would seem to permit it in an alarmingly wide range of cases. But if we reject these justifications, we should do so not because torture is everywhere and always wrong but rather because we believe that the threat over the past seven-and-a-half years has been insufficient to justify transgressing the ordinary moral norms that forbid it.
The primary reason that we should treat our rejection of the Bush administration's torture policies as a matter of prudence (or practical wisdom) rather than principle is that it allows us to maintain clarity about the often harsh reality of political life. Imagine, for example, that the slaughter of 9/11 had been followed not by an absence of terrorist strikes but by a string of spectacular attacks with conventional explosives. Imagine a dozen suicide bombers blowing themselves up in the food courts of the nation's 12 largest malls at precisely 1:30 pm, eastern time on a Saturday in mid-October 2001. Several hundred would have died, and the economy would have been dealt an enormous blow as Americans decide en masse to stay away from public places. Then imagine a half-dozen bombers blowing themselves up in coordinated attacks at Manhattan's Grand Central Terminal, Washington's Union Station, Philadelphia's 30th Street Station, and a handful of other major train stations at the same moment during evening rush hour on the Wednesday before Thanksgiving, 2001.
I submit that any president -- George W. Bush, Barack Obama, anyone -- who under these circumstances (let alone one involving attacks with weapons of mass destruction) did not do everything within his power to determine the location and timing of future attacks, including (if there was reason to believe it would be effective) torturing captured members of active terrorist cells, would be acting irresponsibly and immorally, even if his refusal to torture was based on the noblest liberal principles. Liberal ends can usually be defended using liberal means. But not always. It is perfectly acceptable, even admirable, to be deeply troubled by this fact. It is not acceptable to deny it.
Is Andrew Sullivan denying it? I confess, once again, that I can't tell.
UPDATE: Conor Friedersdorf has an interesting (and flattering) response to this post here. I'm afraid, though, that I don't find his objections especially compelling. Is it "a moral abomination" to say that a president in the situation outlined above would be morally obligated to do everything within his power to prevent future terrorist attacks? From the standpoint of morality under normal conditions, perhaps it is, just as it is normally a moral abomination for me to kill another human being. But what if this human being has broken into my house and is about to murder my children? I submit that in this case, doing everything to protect my children, including attacking and perhaps killing the other human being, becomes a moral imperative. That, writ large, is the situation of the president in the hypothetical scenario I sketched in this post. In such a situation, it may be moral to torture -- and to do lots of other unsavory things. (What, I wonder, would Conor have done in Truman's place in the summer of 1945? Not used the atomic bombs, I presume, since sending hundreds of thousands of American soldiers -- and presumably even more Japanese soldiers and civilians -- to their deaths in a land invasion of Japan would have been the "moral" thing to do?) As for nuking Mecca, destabilizing Pakistan, etc., there is nothing about the changeability of natural right that necessitates stupidity on the part of the president.
UPDATE 2: Also over at The American Scene, John Schwenkler comes out against thought experiments that justify torture in the abstract. In its place, he advocates hard-nosed analysis of whether the Bush administration was justified in torturing terrorist suspects in the specific, concrete circumstances it faced after 9/11. I'm all in favor of the latter, since the changeability of natural right can only be objectively justified or condemned in retrospect (as I argued at the end of my first post, and as a reader at Andrew Sullivan's blog nicely states here.) But I think thought experiments like the one I lay out above also have their place, not because we should be open to torture (and other nastiness) in the abstract, but rather because such experiments might help us to understand and empathize with the moral complexity of statesmanship in times of genuine crisis (as opposed to during bouts of media-driven hysteria). And this understanding and empathy just might lead some to temper a bit of their indignation-fueled self-righteousness when they set out to judge the decisions of those who acted (and yes, perhaps erred in acting) to defend the common good.