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Monday, July 03, 2006

Condemn and Ignore, or Tolerate and Regulate?

As part of his continuing campaign for “torture warrants,” Alan Dershowitz again was arguing last week that “[t]orture is never acceptable, but it's a reality that should be covered by rules.” The obvious paradox in his position, of course, is that if torture really is never acceptable, then the only rule we need to cover it is “don’t torture,” and we already have it. If we write rules that permit torture under certain circumstances, then it inexorably follows that we are acknowledging that torture is acceptable under those circumstances.  So you can’t really have it both ways.  Dersh’s response, of course, is that torture happens anyway, so it is better to do it out in the open than behind closed torture-chamber doors.  The argument Dersh is making fits within a larger conundrum that arises whenever allegedly essential powers also happen to be illegal. The War Powers Act is a largely unsuccessful example of such an effort. 

Presidents like to deploy troops to various theaters of combat, and once there, they tend to keep them there for extended periods of time. The problem is that the Constitution reserves the war power to Congress.  But Congress sometimes is too slow to act, and perhaps lacks the institutional capacity to make timely judgments about the use of military force. In any event, Presidents don’t like to wait for Congress to declare war before they deploy military troops, and argue against any legal constraints on their authority. 

Here is the pattern: A argues that tactic X (deploying troops, torturing detainees, searching without warrants) is essential (to national security, public safety) but the formal law (Article I, int’l and domestic law, 4th A.) indicates that A lacks the power to do X.  Decisionmaker (Congress, judge) is convinced that A’s claim of necessity is correct. How should decisionmaker respond?   

There are three basic alternatives. First, we can, like the lawyers we are, create legal fictions, e.g., redefine words like “war” by creating intermediate concepts like “peacekeeping mission” or “policing power” to permit Presidents to use military force without Congress’s approval.  That is always a favorite tactic. It was used by the Court in Terry to avoid having to subject temporary investigative stops to full-blown Fourth Amendment protections – Terry stops aren’t really “seizures,” just like peacekeeping missions aren’t really “wars.”  The same tactic has been used in the torture debates; hence subjecting a detainee to waterboarding or extreme sleep deprivation isn’t really “torture” – it’s only “pressure,” or at most, “cruel, inhuman, and degrading treatment” (i.e., bad, but not totally impermissible).

A second strategy is to continue to formally condemn the conduct but to look the other way when it happens, or even retroactively to authorize it, as Congress did after Lincoln suspended the writ of habeas corpus during the Civil War.  There are lots of ways to do this, but setting up slow-moving investigatory commissions to investigate the allegedly illegal acts is one good strategy, and then claiming after a respectable amount of time has passed that it is “time to move on,” or to “think about the future and not the past,” as Republicans are urging with respect to a Senate committee’s stalled investigation into alleged misuse of intelligence to justify the Iraq war.  The harmless error doctrine, narrow standing rules, and the impeachment exceptions to various fourth and fifth amendment violations all permit Courts to both condemn unlawful police conduct without actually doing anything to stop it from occurring.

Dershowitz’s comments harken to a third strategy: authorize but regulate.  That is, where apparently unlawful conduct appears inevitable and we don’t have the stomach to prevent it, then it is better to expand formal legal authority to recognize the lawfulness of the conduct, but to place careful boundaries on the use of that new power.  The upside of the "authorize and regulate" strategy is that, as Dersh argues, at least it gets the phenomena out in the open where there can be a proper debate about the true necessity of engaging in the formally unlawful conduct. The downside is that we expand the lawful power of the executive branch, and thereby willingly feed the Leviathan.  And if power naturally tests its outer boundaries, we can surely expect after we authorize some limited use of a new power, say, the power to torture suspected terrorists, that the state soon enough will then seek to apply that new power to torture suspected drug dealers or child molesters or some other “dangerous” class.

Posted by Russell Covey on July 3, 2006 at 05:51 AM in Law and Politics | Permalink


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Interesting issue -- I mused about a similar version of this problem earlier today with respect to constitutional limitations that don't seem so pressing any more. But I would just note the obvious with respect to Dershowitz's article, that the decisionmaker can avoid the difficult choice you outline above if he or she is not convinced by the "necessity" argument. And it seems less strong here than it does with respect to, say, deploying troops.

Posted by: Bruce | Jul 5, 2006 10:49:56 PM

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