Monday, April 28, 2008
Reading List Update
With Rosenbaum's travesty out of the way, I am moving on to Chris Hedges's War Is a Force That Gives Us Meaning, with the hope that I can finish it in the next couple days before begining The American State Constitutional Tradition.
Movies
So, it's going to be a good week for movies. Saw Harold and Kumar on Saturday, and that was very funny. As can be expected, it trailed off when they started wrapping up all the plot issues. It was very gag centric until the last 20 minutes and then it got very sincere. Annoying, but such is life. Also, the complaints that it wasn't as tightly plotted or written as the original are justified. That's not really to take away from the movie though, as I thought it was very funny.
I saw 2001: A Space Oddysey at the AFI Silver Theatre. They had a 70 mm print, and it was beautiful. People can complain that the movie doesn't make any sense, but it is absolutely stunning to watch on the big screen. The fact that they accomplished it 40 years ago, well before digital effects became anywhere close to common, makes it all the more amazing.
One of the things that surprised me about the film was the intensity of the sound. The score is well-known and often parodied, but it is quite good with movie. There is a 5-7 minute overture that plays before the film starts and a roughly 10 minute intermission about 2/3 of the way through the film. Both of those periods have music playing over them. I was not expecting either, so that was a fun experience. The sound during the movie, however, could be excrutiatingly loud. That was also something I wasn't expecting. Kubrick was clearly trying to use music and sound as part of the force of the film.
But again, the main point was that it was genuinely beautiful to watch to the point that it is probably hard to appreciate on a television.
This coming weekend, I'll be seeing "The Final Cut" of Blade Runner and I'm really looking forward to it.
I saw 2001: A Space Oddysey at the AFI Silver Theatre. They had a 70 mm print, and it was beautiful. People can complain that the movie doesn't make any sense, but it is absolutely stunning to watch on the big screen. The fact that they accomplished it 40 years ago, well before digital effects became anywhere close to common, makes it all the more amazing.
One of the things that surprised me about the film was the intensity of the sound. The score is well-known and often parodied, but it is quite good with movie. There is a 5-7 minute overture that plays before the film starts and a roughly 10 minute intermission about 2/3 of the way through the film. Both of those periods have music playing over them. I was not expecting either, so that was a fun experience. The sound during the movie, however, could be excrutiatingly loud. That was also something I wasn't expecting. Kubrick was clearly trying to use music and sound as part of the force of the film.
But again, the main point was that it was genuinely beautiful to watch to the point that it is probably hard to appreciate on a television.
This coming weekend, I'll be seeing "The Final Cut" of Blade Runner and I'm really looking forward to it.
Myth of Moral Justice: The Bloody End
I'm putting the book down. I probably could have finished it if I hadn't spent so much time thinking about what he was saying, but alas, I did. The problem is very clear as I have already spent so much time discussing it: He has no functional conception of morality. This leads him to advocate positions that are profoundly immoral in my view. Exhibit A:
WHAT THE FUCK? Just to be clear here, Rosenbaum is saying that restricting civil liberties for men of Middle Eastern descent would have been morally justified in the aftermath of 9/11, and that Ashcroft's failure was not pursuing those policies but rather trying to give the policies a veneer of legality. He's throwing out the constitution, and I don't care who you are, that's wrong.
As I said before, I am a Liberal with deontological leanings and aristotelian sympathies. I believe in human rights. His position is unacceptable--he is in fact arguing for something that is profoundly immoral.
So, those two paragraphs were the beginning of the end. He hurt himself further by repeated referring to the Midwest as "Middle America," and praised the politeness of "Middle America and the South." (MoMJ at 191) Of course, this is nonsense. He's just reenacting stereotypes about the Midwest and importantly about eastern cities.
Finally, he maintains enormous contradictions in his theory. Rosenbaum argues that apologies should build the foundation for moral justice. Thus he writes this:
This observation leads to the final blow: Rosenbaum is aiming at the wrong target. He likes to lay all these moral problems at the feet of the legal system, but he's really arguing that society as a whole needs to be more contrite and more willing to apologize. It doesn't have anything to do with the legal system. It has everything to do with how people, individually and outside of their legal actions, are immoral. He needs to write a book entitled, "Be More Moral, Apologize." That's it. That's the point of his book.
So, I couldn't bring myself to finish this book.
Attorney General John Ashcroft wasn't nearly as forthcoming as Judge Hand when he proposed sweeping investigative and prosecutorial iniatives to combat terrorism in the aftermath of the September 11th tragedy, pursuant to the Patriot Act. The attorney general routinely came across as tentative, and at times even squirming, when asked to explain how his fast-track, furtive procedures to interview, arrest, and interrogate Middle Eastern men was consistent with civil liberties. His concept of military tribunals provoked even greater discomfort--and for good reason. The fact is: Middle Eastern men with any links to Al Qaeda were going to receive a very different brand of justice from the rest of us, and it was absurd for the attorney general to make it seem as though these post-September 11th investigations and prosecutions complied with constitutional safeguards of justice.
These were indeed strange times and special circumstances. There might have been strong moral and political reasons to justify Ashcroft's various undertakings, as abhorrent as they may have sounded to civil libertarians. Ashcroft wasn't entirely truthful when he tried to suggest that his legal initiatives comported with the law. Because they didn't. Unfortunately, he tried to present his case in legal terms. But the constitutional ground on which he was standing was genuinely shaky. He would have been far better off, and more intellectually honest, had he instead rested on the moral found of Ground Zero. The hole in the ground where the World Trade Center once stood may have warranted an alternative path to justice, one perhaps that was legally suspect by morally sound. (MoMJ at 161, my emphasis)
WHAT THE FUCK? Just to be clear here, Rosenbaum is saying that restricting civil liberties for men of Middle Eastern descent would have been morally justified in the aftermath of 9/11, and that Ashcroft's failure was not pursuing those policies but rather trying to give the policies a veneer of legality. He's throwing out the constitution, and I don't care who you are, that's wrong.
As I said before, I am a Liberal with deontological leanings and aristotelian sympathies. I believe in human rights. His position is unacceptable--he is in fact arguing for something that is profoundly immoral.
So, those two paragraphs were the beginning of the end. He hurt himself further by repeated referring to the Midwest as "Middle America," and praised the politeness of "Middle America and the South." (MoMJ at 191) Of course, this is nonsense. He's just reenacting stereotypes about the Midwest and importantly about eastern cities.
Finally, he maintains enormous contradictions in his theory. Rosenbaum argues that apologies should build the foundation for moral justice. Thus he writes this:
This is what the grieving mother in A Civil Action viscerally understood. This is what she had hoped would happen; as a remedy this is what she most wanted. Although an apology wouldn't bring back her child, it would provide the unfiltered, moral acknowledgement of loss, and the acceptance of responsibility. What she needed--and what she was morally entitled to--was to make a human connection with the person or entity that robbed her of her child, and for that person to stare grief in the face and try to imagine the knee-buckling horror of her loss. (MoMJ at 184)Purple prose aside, this is stupid for a variety of reasons, not the least of which is that even if someone wants to apologize, you can't make them "stare grief in the face" and you certainly can't make them "imagine knee-buckling horror." That's just ridiculous. And Rosenbaum knows it:
The healing power of an apology is morally vital, but seldom seen. . . . In the United States, apologies are cynically applied, given as an excuse or justification for less than exemplary conduct, and not as sincere gestures of contrition. When Americans apologize, they do so grudgingly so as to avoid having to pay some other price, or in order to mitigate their punishment, and not out of a sense of social or moral responsibility--not because they should, but because they have to. (MoMJ at 185)Note the citations--that paragraph is on the VERY NEXT PAGE. This is also ridiculous on multiple levels. First, he has been arguing the entire book that people don't want money out of their lawsuits, that they really want someone to understand their pain, and apologies are useful to this end. But here he is recognizing that people apologize to avoid paying damages--something he thinks is apparently bad. The real contradiction, though, is his acknowledgement that apologies, though "morally vital," can be used cynically. Guess what, Thane, give people the opportunity to apologize without any legal consequences, and they will say whatever you want them to.
This observation leads to the final blow: Rosenbaum is aiming at the wrong target. He likes to lay all these moral problems at the feet of the legal system, but he's really arguing that society as a whole needs to be more contrite and more willing to apologize. It doesn't have anything to do with the legal system. It has everything to do with how people, individually and outside of their legal actions, are immoral. He needs to write a book entitled, "Be More Moral, Apologize." That's it. That's the point of his book.
So, I couldn't bring myself to finish this book.
Sunday, April 27, 2008
Myth of Moral Justice Part 3: Summary and Counterarguments
So far I have done a lot to argue against Thane Rosenbaum's The Myth of Moral Justice. Even my last post in which I tried to point out some of the things I liked was just another attack. Let me at this point try to offer a broader view of my problems with the book.
In my first post about the book, I wrote that it's two biggest flaws were first, that he was interested in emotional truth rather than factual truth, and second, that he thought morality was essentially a matter of emotions and that emotional harms can be resolved through story telling.
When it comes to morality, I am not particularly concerned about emotions. Emotions are not an important part of morality. If I had to explain how Rosenbaum gets to this place, I would argue that his personal ethics are primarily concerned with human dignity, and that as such infractions against dignity produce emotions, and the emotions occur when people are stripped of their dignity. That is about as charitable as I can be when it comes to his position, because emotions are not a big concern to ethicists.
There are multiple theories of ethics, of course, and I haven't studied any in several years. With that caveat, I am going to reconstruct some of those theories in order to show how Rosenbaum's view does not fit into any of them.
First, Aristotle argued for a virtue based ethics. There are a certain set of traditionally recognized virtues: Honesty, Bravery, Justice, Kindness, and so on. Virtue is found in the middle road between two extremes. Thus, there is a continuum of "bravery" with cowardice on one extreme and foolhardiness on the other extreme. A brave man is one who rationally examines risks before proceeding, i.e. does not foolishly charge headlong into dangerous situations, but who also does not shrink from difficulties. Aristotle was not overly concerned with damaging emotions. I find I am more receptive to Aristotle's ethics than I used to be.
Second, Kant argued that morality should be a matter of strict rules that each person should follow. We are to act only on those maxims which we can will to be universal laws. Furthermore, we are to treat human beings always as ends in themselves and never as means to an end. From this derives a lot of modern thinking about human dignity, but even this thinking is not overly concerned with human emotions. Whether someone is treated with dignity is not a matter of the emotions they have in response to your actions, in other words, it is deontological as Kant's theory is, and not consequentialist. Offenses to dignity can produce emotional harms, but that is not the motivating factor in Kant's theory.
Third, there is, of course, Utilitarianism. In it's simplest form, utilitarianism tells us to produce happiness. This leads naturally to the arguments that if morality is a matter of feeling good, then it would be best to feed the population heroin or other drugs that produce feelings of euphoria. John Stuart Mill tried to avoid this argument by distinguishing types of happiness such that lower pleasures, such as drunkeness or sex, were not as valued as higher pleasures such as art or music. That doesn't really solve the problem, though and other utilitarians have tried to modify the theory in various ways, for example, by introducing "side constraints" that limit the space of acceptable actions. I still don't find any of this convincing.
We might think that Rosenbaum is making a utilitarian argument throughout his book by discussing emotional harms. But I just don't think that is what he is doing, and even if it is, it is not well thought out. This is perhaps the third great flaw in this book: Rosenbaum's moral theory is not articulated. If he is making a utilitarian argument, then his book will not be convincing to people who are closer to Aristotle or Kant. That may be why I find it so dissatisfying.
Ultimately, I am concerned with human dignity, human rights, and civil liberties. My personal morality is largely informed by the insight that everyone has to act right--that there are right ways to act and wrong ways to act, i.e. that there are rules to follow no matter what consequences they produce. I cannot subscribe to Kantian ethics or Aristotelian ethics because I am at heart a nihilist and a pragmatist. That is to say, I can't believe in a priori theoretical constructs. The world, if not human arguments, will always show every theory to be insufficient. We must be empirical and pragmatic about truth. Nonetheless, I accept a Liberal, rights-based, dignitarian, and democratic view of the world. Thus, I would be more interested in critiques informed by values derived from these perspectives rather than all this nonsense about emotions.
I am more sympathetic to deonotological theories of ethics than utilitarian views, but I realize that neither can fully describe the world. If we assume that Rosenbaum is adopting a utilitarian theory, then he will certainly fail to make a sufficient argument against the practice of law, because those views are not particularly widely accepted. Ultimately, a successful critique of the legal system will include only those parts of the system that every ethical theory would reject. In other words, each ethical theory should be a limiting factor on the number of problems with the legal system. (Think vin diagram.) That would be the best critique.
Generally, I am more concerned about the morality of the practice of law, and as such whether a person can be moral and be a lawyer. Sometimes I doubt it because representing individuals requires zealous advocacy, strict confidentiality, and the advancement of the client's interests to the exclusion of other concerns. The best response is, as far as I can tell, that though law is nominally concerned with "justice," the practice of law, like other professions, affords opportunities for morality and immorality.
In my first post about the book, I wrote that it's two biggest flaws were first, that he was interested in emotional truth rather than factual truth, and second, that he thought morality was essentially a matter of emotions and that emotional harms can be resolved through story telling.
When it comes to morality, I am not particularly concerned about emotions. Emotions are not an important part of morality. If I had to explain how Rosenbaum gets to this place, I would argue that his personal ethics are primarily concerned with human dignity, and that as such infractions against dignity produce emotions, and the emotions occur when people are stripped of their dignity. That is about as charitable as I can be when it comes to his position, because emotions are not a big concern to ethicists.
There are multiple theories of ethics, of course, and I haven't studied any in several years. With that caveat, I am going to reconstruct some of those theories in order to show how Rosenbaum's view does not fit into any of them.
First, Aristotle argued for a virtue based ethics. There are a certain set of traditionally recognized virtues: Honesty, Bravery, Justice, Kindness, and so on. Virtue is found in the middle road between two extremes. Thus, there is a continuum of "bravery" with cowardice on one extreme and foolhardiness on the other extreme. A brave man is one who rationally examines risks before proceeding, i.e. does not foolishly charge headlong into dangerous situations, but who also does not shrink from difficulties. Aristotle was not overly concerned with damaging emotions. I find I am more receptive to Aristotle's ethics than I used to be.
Second, Kant argued that morality should be a matter of strict rules that each person should follow. We are to act only on those maxims which we can will to be universal laws. Furthermore, we are to treat human beings always as ends in themselves and never as means to an end. From this derives a lot of modern thinking about human dignity, but even this thinking is not overly concerned with human emotions. Whether someone is treated with dignity is not a matter of the emotions they have in response to your actions, in other words, it is deontological as Kant's theory is, and not consequentialist. Offenses to dignity can produce emotional harms, but that is not the motivating factor in Kant's theory.
Third, there is, of course, Utilitarianism. In it's simplest form, utilitarianism tells us to produce happiness. This leads naturally to the arguments that if morality is a matter of feeling good, then it would be best to feed the population heroin or other drugs that produce feelings of euphoria. John Stuart Mill tried to avoid this argument by distinguishing types of happiness such that lower pleasures, such as drunkeness or sex, were not as valued as higher pleasures such as art or music. That doesn't really solve the problem, though and other utilitarians have tried to modify the theory in various ways, for example, by introducing "side constraints" that limit the space of acceptable actions. I still don't find any of this convincing.
We might think that Rosenbaum is making a utilitarian argument throughout his book by discussing emotional harms. But I just don't think that is what he is doing, and even if it is, it is not well thought out. This is perhaps the third great flaw in this book: Rosenbaum's moral theory is not articulated. If he is making a utilitarian argument, then his book will not be convincing to people who are closer to Aristotle or Kant. That may be why I find it so dissatisfying.
Ultimately, I am concerned with human dignity, human rights, and civil liberties. My personal morality is largely informed by the insight that everyone has to act right--that there are right ways to act and wrong ways to act, i.e. that there are rules to follow no matter what consequences they produce. I cannot subscribe to Kantian ethics or Aristotelian ethics because I am at heart a nihilist and a pragmatist. That is to say, I can't believe in a priori theoretical constructs. The world, if not human arguments, will always show every theory to be insufficient. We must be empirical and pragmatic about truth. Nonetheless, I accept a Liberal, rights-based, dignitarian, and democratic view of the world. Thus, I would be more interested in critiques informed by values derived from these perspectives rather than all this nonsense about emotions.
I am more sympathetic to deonotological theories of ethics than utilitarian views, but I realize that neither can fully describe the world. If we assume that Rosenbaum is adopting a utilitarian theory, then he will certainly fail to make a sufficient argument against the practice of law, because those views are not particularly widely accepted. Ultimately, a successful critique of the legal system will include only those parts of the system that every ethical theory would reject. In other words, each ethical theory should be a limiting factor on the number of problems with the legal system. (Think vin diagram.) That would be the best critique.
Generally, I am more concerned about the morality of the practice of law, and as such whether a person can be moral and be a lawyer. Sometimes I doubt it because representing individuals requires zealous advocacy, strict confidentiality, and the advancement of the client's interests to the exclusion of other concerns. The best response is, as far as I can tell, that though law is nominally concerned with "justice," the practice of law, like other professions, affords opportunities for morality and immorality.
Saturday, April 26, 2008
The Myth of Moral Justice
My critique of The Myth of Moral Justice will be an ongoing project as I am only half way through the book and I have yet to say half the things I want to. Hooray for stuff to write about!
Is moral justice a myth? Part 2
So what does Rosenbaum get right?
He is right to criticize the legal system first for avoiding truth and second for valuing efficiency over finding the right outcome. These two things are related, but not very closely. Certainly a legal system that prefers efficiency to the correct outcome is going to on many occasions avoid or miss the truth.
We are equivocating, though, we when talk about truth. I mentioned this in the last post and I want to draw it out more now. There are multiple conceptions of what it means for something to be true. In a basic philosophical sense, truth is a property of propositions such that a proposition is true when it matches reality. The proposition, "The grass is green" is true if the indicated grass is actually green. It is false if it is some other color. This is a very boring definition of truth.
The legal system, particularly juries and judges, are put in the place of verifying whether the grass is green, but instead of walking outside to look at the grass, it prefers to have different people come inside and tell them what color the grass is. The metaphor is a little strained, but it is essentially correct. Judges and Juries can't simply go outside because they are dealing with events that happened in the past. As such, all they have to rely on is witnesses, exhibits, and experts.
But, as I mentioned last time, the court is only able to "know" those things that are brought before it by the lawyers. This is the sort of truth that I am concerned with when it comes to the the law. I don't see the law being concerned with finding out what actually happened in any particular dispute. It is merely concerned with what happened as it is presented to the court.
This isn't the sort of truth that concerns Rosenbaum. As I said last time, he wants the legal system to search for "emotional truth," that is he wants trials to not be about violations of the law, but rather to be about finding the emotional hurt that gives rise to the action. This can be very weird in the book:
Ultimately, Rosenbaum is right to focus on the lack of truth in the legal system, but he fails by thinking there is a specific truth that needs to be sought out and exposed. What needs to be exposed is the reality of the situation that gave rise to the suit, not the emotional hurt of the litigants.
He gets closer to being right when he talks about efficiency and the distortions it creates. This is the major focus of the six chapter of the book in which he discusses settlements, plea bargains, perjury, and the rules of evidence. I want to talk about each of these at least a little bit, and I'll go in that order.
Rosenbaum is on his strongest ground when it comes to settlements:
To be fair, Rosenbaum addresses this quite well. I could give another extended quote, but that wouldn't really serve any purpose. Furthermore, he is right to argue against settlements that involve secrecy and silencing the victim, and especially those settlements that are made without an admission of responsibility. So, I generally agree with Rosenbaum on this point, but have slight disagreements about the value of a public trial.
As for plea bargains, he again goes too far with his argument. Plea bargains are the criminal equivalent of civil settlements. I agree with Rosenbaum that there are certain problems with plea bargains generally, but those problems are largely the same problems with settlements. Specifically, plea bargains are designed to make "justice" efficient and as such plea bargains avoid trials which are useful for discovering what actually happened.
Rosenbaum goes too far with his argument because he imagines in the first place that criminal law is primarily concerned with crimes that result in some injury to a victim. This is manifestly not the case. The criminal justice system is overburdened in part because it is overly concerned with things like possession of marijuana or drunk driving where there is no actual victim to the crime. There is really no problem with a plea bargain in a PoM case. Unless there is a search issue (you know, one of those pesky technicalities), the defendant is going to be convicted. The only question is the sentence they will receive. In those sorts of cases, it is best to figure out a plea and move on with your life.
Thankfully victim crimes are relatively rare in our country. We could spend some more time focusing on them, though.
Ultimately, the remedy for both plea bargains and settlements is not to reform the legal system to allow for complaints about emotional hurts, but rather to increase the number of courts and judges that we have so that more can be exposed through trials. Judges can also limit the amount that litigants can hide in a settlement. A judge could demand that a corporation admit responsibility or refuse to ratify settlements that remain secret or gag the plaintiff.
Rosenbaum is rightly concerned about perjury. I don't have anything to add to his argument really. I just want to mention that in this chapter he is overly concerned with lying before the law and the system's failure to punish perjury, but he later decries specific provisions of law that are designed to reduce perjury. (I'm not finding them right now, but will get back to it.)
Finally, Rosenbaum refuses to acknowledge the utility of the rules of evidence and again goes off the deep end:
Rosenbaum also argues against the rule that prohibits the introduction of character evidence. I personally think that is a rather profoundly moral aspect of our legal system since it is designed to ensure that a person is punished for their acts on this specific occasion and that they won't be punished for those things that they have done in the past. Taken to the extreme position, this rule respects free will by ensuring that prior bad acts don't influence the jury.
Finally, Rosenbaum also makes a rather strong argument about zealous advocacy. Generally, I think he's right in that zealous advocacy requires the attorney to protect the client at the expense of other values. I'll have more to say about this later as it ties in fairly neatly to my critique of the law.
He is right to criticize the legal system first for avoiding truth and second for valuing efficiency over finding the right outcome. These two things are related, but not very closely. Certainly a legal system that prefers efficiency to the correct outcome is going to on many occasions avoid or miss the truth.
We are equivocating, though, we when talk about truth. I mentioned this in the last post and I want to draw it out more now. There are multiple conceptions of what it means for something to be true. In a basic philosophical sense, truth is a property of propositions such that a proposition is true when it matches reality. The proposition, "The grass is green" is true if the indicated grass is actually green. It is false if it is some other color. This is a very boring definition of truth.
The legal system, particularly juries and judges, are put in the place of verifying whether the grass is green, but instead of walking outside to look at the grass, it prefers to have different people come inside and tell them what color the grass is. The metaphor is a little strained, but it is essentially correct. Judges and Juries can't simply go outside because they are dealing with events that happened in the past. As such, all they have to rely on is witnesses, exhibits, and experts.
But, as I mentioned last time, the court is only able to "know" those things that are brought before it by the lawyers. This is the sort of truth that I am concerned with when it comes to the the law. I don't see the law being concerned with finding out what actually happened in any particular dispute. It is merely concerned with what happened as it is presented to the court.
This isn't the sort of truth that concerns Rosenbaum. As I said last time, he wants the legal system to search for "emotional truth," that is he wants trials to not be about violations of the law, but rather to be about finding the emotional hurt that gives rise to the action. This can be very weird in the book:
Untreated emotional injuries get played out in legal settings all the time. The law becomes the hammer for a wounded person's misplaced rage. Lawyers rename the hurt and the indignity and call it something else--the breach of a contract or the failure to exercise due care--which doesn't at all speak to the underlying grievance. The character of the hurt materializes as a legal injury, even though it began as a spiritual one. But even in this new guise--particularly in this new guise--the griefRosenbaum continues this sort of language throughout the book. The problem is obvious from the first sentence: untreated emotional injuries do get played out in legal settings, but they are not the sole source of legal disputes. But imagining that they are, Rosenbaum spins stories about how contracts are breaches of sacred friendships and commercial litigants want to just tell their hurt to a court. That's fine, except that is not the way it is. Commercial litigants especially come to court in order to get money--to recover the value of their contract. In this way, he tries to force a specific proposition on the world without seeing if it matches. In other words, his theory of what gives rise to lawsuits is not true.
remains. (MoMJ at 49, emphasis in original)
Ultimately, Rosenbaum is right to focus on the lack of truth in the legal system, but he fails by thinking there is a specific truth that needs to be sought out and exposed. What needs to be exposed is the reality of the situation that gave rise to the suit, not the emotional hurt of the litigants.
He gets closer to being right when he talks about efficiency and the distortions it creates. This is the major focus of the six chapter of the book in which he discusses settlements, plea bargains, perjury, and the rules of evidence. I want to talk about each of these at least a little bit, and I'll go in that order.
Rosenbaum is on his strongest ground when it comes to settlements:
In the area of civil law, nothing is more questionably moral than settlements--as conventionally applied and practiced in our legal system. While in some cases they do indeed reflect the best interests and personal wishes of the parties to the action, in most situation they merely serve to silence the story in return for a cashier's check. The reflexive impulse towards settlements has turned courtroom lawyers into backroom negotiators. It has removed face-to-face, direct encounters between the parties. . . . There is enormous moral value in having parties to a legal action sit in a courtroom, surrounded by strangers, and swear to tell the truth to each other, and to the world. . . . (MoMJ at 93-94)I actually agree with that, but those ellipses leave out of a lot. Rosenbaum argues in that paragraph that settlements are immoral because they deprive people of the opportunity to heal themselves by telling their story. That's not why settlements are immoral. They are immoral because they allow tortfeasors or wrong doers to escape public scrutiny. That is the value of having public trials: We get to expose people, companies, the government, to the world and show the wrong that they did. I know that sounds a lot like telling the story, but the difference is that I am not pretending that the telling of the story will work some magical healing on the victim. Rather I do think that public trials force tortfeasors and other wrong doers to accept responsibility and public approbation.
To be fair, Rosenbaum addresses this quite well. I could give another extended quote, but that wouldn't really serve any purpose. Furthermore, he is right to argue against settlements that involve secrecy and silencing the victim, and especially those settlements that are made without an admission of responsibility. So, I generally agree with Rosenbaum on this point, but have slight disagreements about the value of a public trial.
As for plea bargains, he again goes too far with his argument. Plea bargains are the criminal equivalent of civil settlements. I agree with Rosenbaum that there are certain problems with plea bargains generally, but those problems are largely the same problems with settlements. Specifically, plea bargains are designed to make "justice" efficient and as such plea bargains avoid trials which are useful for discovering what actually happened.
Rosenbaum goes too far with his argument because he imagines in the first place that criminal law is primarily concerned with crimes that result in some injury to a victim. This is manifestly not the case. The criminal justice system is overburdened in part because it is overly concerned with things like possession of marijuana or drunk driving where there is no actual victim to the crime. There is really no problem with a plea bargain in a PoM case. Unless there is a search issue (you know, one of those pesky technicalities), the defendant is going to be convicted. The only question is the sentence they will receive. In those sorts of cases, it is best to figure out a plea and move on with your life.
Thankfully victim crimes are relatively rare in our country. We could spend some more time focusing on them, though.
Ultimately, the remedy for both plea bargains and settlements is not to reform the legal system to allow for complaints about emotional hurts, but rather to increase the number of courts and judges that we have so that more can be exposed through trials. Judges can also limit the amount that litigants can hide in a settlement. A judge could demand that a corporation admit responsibility or refuse to ratify settlements that remain secret or gag the plaintiff.
Rosenbaum is rightly concerned about perjury. I don't have anything to add to his argument really. I just want to mention that in this chapter he is overly concerned with lying before the law and the system's failure to punish perjury, but he later decries specific provisions of law that are designed to reduce perjury. (I'm not finding them right now, but will get back to it.)
Finally, Rosenbaum refuses to acknowledge the utility of the rules of evidence and again goes off the deep end:
[E]vidence rule are frequently invoked to exclude testimony that is deemed "irrelevant," "immaterial," "not credible," "cumulative," or "hearsay." . . . These objections, aside from being rude and insulting, also limit the story and rob it of all the nuance and emotion of the human experience. What kind of legal system says to people testifying under oath, right in front of their faces, as if they are not there hearing the interruption, that their words are "irrelevant," or worse, "not credible"--simply not to be believed." (MoMJ at 108)A pretty good one, I think. Like his complaint against Rule 12(b)(6), this problem with the rules of evidence is self-defeating. In the first place, let me say that I have never heard of a "not credible" objection. Rosenbaum is a professor at Columbia, or he was at the time of writing this book, and thus it is possible this is a local rule, but I doubt it. Credibility, after all, is a quintessential determination of the finder of fact and as such, I seriously doubt any objection on credibility grounds would ever be sustained. Nonetheless, even if we had Rosenbaum's ideal justice system--one in which emotional harms are addressed and not simply physical injuries--then we would still need to restrict witness narratives to relevant information. Supposing someone comes to court to tell a story about a betrayal that lead to a breach of contract, you wouldn't want them to talk about the dog they owned as a child. It would be irrelevant.
Rosenbaum also argues against the rule that prohibits the introduction of character evidence. I personally think that is a rather profoundly moral aspect of our legal system since it is designed to ensure that a person is punished for their acts on this specific occasion and that they won't be punished for those things that they have done in the past. Taken to the extreme position, this rule respects free will by ensuring that prior bad acts don't influence the jury.
Finally, Rosenbaum also makes a rather strong argument about zealous advocacy. Generally, I think he's right in that zealous advocacy requires the attorney to protect the client at the expense of other values. I'll have more to say about this later as it ties in fairly neatly to my critique of the law.
Friday, April 25, 2008
Is moral justice a myth? Part 1.
I am reading The Myth of Moral Justice by Thane Rosenbaum. I picked it up because I am still trying to refine my personal conception of justice. Justice is not something that I can often explain to other people.
Generally speaking, Rosenbaum argues that the law as it operates today is deeply immoral. I do find some aspects of the law to be immoral, and I often think that the law is amoral. After all, if Holmes was right in saying that justice was not done in courts, then the law will be amoral. Rosenbaum addresses some of these issues, but he doesn't approach it in the right way.
First, he is right to focus a lot on how the justice system fails to take an interest in truth. It is a fundamental fact of our court system that the court will not take account of all relevant information. Relevant hearsay will be excluded because it is unreliable. Incriminating evidence will be excluded if it is acquired through unconstitutional means. Moreover, the judge is not in charge of the trial--he has a responsibility only to manage the trial, not to direct it. The evidence brought before a jury or judge sitting as fact finder are the facts chosen by the attorneys of the litigants. As such, the court only "learns" those things that lawyers choose to tell it.
Civil law systems are admirable in this way. Generally speaking, civil law courts are more interested in "the truth," and will seek it out even when the lawyers refuse to present it.
The problem with Rosenbaum's book, however, is that he isn't interested in truth as facts or truth as it relates to reality. Instead, he is interested in emotional truth. That is the single biggest flaw in this book. He assumes, without argument, that morality is essentially a matter of emotions. That emotional harms are moral wrongs, and moral wrongs produce emotional harms. Furthermore, he assumes, again without argument, that religion provides moral guidance and therefore that morality is an issue of the spirit. As someone who isn't religious, a lot of this language bothers me, and detracts from his argument.
The second biggest flaw in his book is that he has developed a specific belief about how to remedy the emotional harms he sees in the world. This is not a book written by a philosopher. It is written by a novelist, and consequently, he believes that emotional harms are to be remedied by story telling. That sounds nice and it is undoubtedly true in many cases, but it doesn't account for a lot of human experience.
Let me discuss some examples:
His point about technicalities is really dumb. He says that you can avoid responsibility based on a technicality because it doesn't rise to the level of an infraction. What he is arguing for is lowering legal standards so that people can be punished or liable or otherwise held accountable for things that aren't currently illegal. In his view, it seems, someone should be liable for their actions even if they don't fit the legal definition of negligence. After all, just because you technically didn't cause any damages, you can avoid responsibility for your actions.
Of course, that's the point of a lot of law, or to put it another way, Rosenbaum's point is self-defeating--it would create a feedback loop where responsibility is continually forced downward so that people are responsible for more and more. He makes this point himself:
His point about constitutional technicalities also doesn't withstand criticism. Rosenbaum goes to great lengths to discuss how the exclusionary rule is immoral. But this is a failure in his conception of morality. As I pointed out above, he conceives morality primarily as a matter of emotional harms. Consequently, in his view, if an emotional harm goes unremedied because of an improper search or seizure, the law acts immorally. But there are plenty of immoral acts that have nothing to do with emotional harms. Honesty is one example: We are taught to be honest, but we often lie in order to protect a person's feelings. In that case we are being immoral but avoiding emotional harms.
Similarly, the constitution exists in part to protect us from an overbearing state--it is not about emotional harms. It is supposed to ensure that the government does not harm us without proper approval. I believe it is immoral for government officials to act in ways that violate the constitution. The constitution isn't a set of technicalities. It is a moral guide for the government. Is it more moral to violate the constitution in order to tell someone's story? The answer isn't clear, but Rosenbaum doesn't even consider the question.
That's enough for right now. Let me summarize by saying that Rosenbaum's argument focuses too much on emotional harms as the source of morality, i.e. he assumes that something is immoral when it produces an emotional harm but does not consider other forms of morality; relatedly, he assumes that morality is a product of religion and does not have other sources (this is a significant critique I want to discuss further); and finally that some of his arguments are inconsistent with any conception of law.
I am imagining this will be at least a three part series. In the next part, I want to discuss some of the things he gets right.
Generally speaking, Rosenbaum argues that the law as it operates today is deeply immoral. I do find some aspects of the law to be immoral, and I often think that the law is amoral. After all, if Holmes was right in saying that justice was not done in courts, then the law will be amoral. Rosenbaum addresses some of these issues, but he doesn't approach it in the right way.
First, he is right to focus a lot on how the justice system fails to take an interest in truth. It is a fundamental fact of our court system that the court will not take account of all relevant information. Relevant hearsay will be excluded because it is unreliable. Incriminating evidence will be excluded if it is acquired through unconstitutional means. Moreover, the judge is not in charge of the trial--he has a responsibility only to manage the trial, not to direct it. The evidence brought before a jury or judge sitting as fact finder are the facts chosen by the attorneys of the litigants. As such, the court only "learns" those things that lawyers choose to tell it.
Civil law systems are admirable in this way. Generally speaking, civil law courts are more interested in "the truth," and will seek it out even when the lawyers refuse to present it.
The problem with Rosenbaum's book, however, is that he isn't interested in truth as facts or truth as it relates to reality. Instead, he is interested in emotional truth. That is the single biggest flaw in this book. He assumes, without argument, that morality is essentially a matter of emotions. That emotional harms are moral wrongs, and moral wrongs produce emotional harms. Furthermore, he assumes, again without argument, that religion provides moral guidance and therefore that morality is an issue of the spirit. As someone who isn't religious, a lot of this language bothers me, and detracts from his argument.
The second biggest flaw in his book is that he has developed a specific belief about how to remedy the emotional harms he sees in the world. This is not a book written by a philosopher. It is written by a novelist, and consequently, he believes that emotional harms are to be remedied by story telling. That sounds nice and it is undoubtedly true in many cases, but it doesn't account for a lot of human experience.
Let me discuss some examples:
Sometimes what's right is simply obvious, because its opposite is so clearly wrong--like failing to apologize or acknowledge someone else's pain. We were taught these basic moral lessons as children, and we have conveniently forgotten them as adults. The very things that we were properly warned not to do as children, like lying, blaming others, and failing to take personal responsibility for our actions, underlie the lawsuits that crowd our dockets and choke the decency out of our morally challenged legal system. (The Myth of Moral Justice, 2005, at 14-15.)
This is essentially true. One of my major problems with the legal system is my perception that the wrong kinds of cases end up in court. I believe that the law should operate for the people of this country, actual people, and not for the sole benefit of corporations. Corporations, however, by their nature are more likely to end up in court. And when they do, they tend to refuse responsibility for their actions. A friend of mine related the story of a deposition in which the attorneys representing a corporation were so belligerent with plaintiff that she broke down and cried. In this case, the corporation had admitted liability and was having a trial on the issue of damages. The attorneys' responsibility to their client was to ensure that the damages were as small as possible, and they were willing to act immorally to ensure they achieved their goal. A full admission and acceptance of responsibility would include paying damages, not berating a young woman who has already been injured by the company's negligence.
In some very basic ways, the legal system asks people to act in ways that are manifestly immoral. Rosenbaum takes this argument too far, though:
A technicality allows you to avoid responsibility because the conduct doesn't--literally or technically--rise to the level of an infraction, or something else intervenes to cancel it out. Technicalities also have a way of obliterating the story when a court of law gets overly bogged down in bureaucratic minutia and becomes more interested in going by route rather than doing what's right. . . . (MoMJ 115)He goes on to discuss how 4th amendment violations can lead to letting criminals go free. That's all a very standard and very tired argument about criminal justice. What's going on in such cases, however, isn't a lack of moral justice. It is much more likely to be a specific belief overwhelming our sense of what justice should look like.
His point about technicalities is really dumb. He says that you can avoid responsibility based on a technicality because it doesn't rise to the level of an infraction. What he is arguing for is lowering legal standards so that people can be punished or liable or otherwise held accountable for things that aren't currently illegal. In his view, it seems, someone should be liable for their actions even if they don't fit the legal definition of negligence. After all, just because you technically didn't cause any damages, you can avoid responsibility for your actions.
Of course, that's the point of a lot of law, or to put it another way, Rosenbaum's point is self-defeating--it would create a feedback loop where responsibility is continually forced downward so that people are responsible for more and more. He makes this point himself:
Rule 12(b)(6) of the Federal Rules of Civil Procedure . . . demands that a case be dismissed as a matter of law, because of the plaintiff's failure to state a legal claim upon which relief can be granted--even if everything the plaintiff is alleging is true. Although the allegations are true, the claim may not actually violate the law, or is framed in a technically improper way. . . . To those without law degrees, and hopefully to some who have them, Rule 12(b)(6) naturally seems absurd. If the plaintiff is telling the truth, why shouldn't he be allowed to tell his story in front of a judge and jury? (MoMJ at 116-117)This is patently stupid. No matter what you do, if you sit down and write a law, there are going to be minimum standards that have to be met in order for a violation of that law to occur. That is the nature of law. Rosenbaum's position would demand the destruction of law itself, because he would allow anyone to come to court for any reason whatsoever even if it doesn't violate any law. Rule 12(b)(6) may sometimes be used to get rid of improper claims, but it isn't in itself an example of how the law is immoral.
His point about constitutional technicalities also doesn't withstand criticism. Rosenbaum goes to great lengths to discuss how the exclusionary rule is immoral. But this is a failure in his conception of morality. As I pointed out above, he conceives morality primarily as a matter of emotional harms. Consequently, in his view, if an emotional harm goes unremedied because of an improper search or seizure, the law acts immorally. But there are plenty of immoral acts that have nothing to do with emotional harms. Honesty is one example: We are taught to be honest, but we often lie in order to protect a person's feelings. In that case we are being immoral but avoiding emotional harms.
Similarly, the constitution exists in part to protect us from an overbearing state--it is not about emotional harms. It is supposed to ensure that the government does not harm us without proper approval. I believe it is immoral for government officials to act in ways that violate the constitution. The constitution isn't a set of technicalities. It is a moral guide for the government. Is it more moral to violate the constitution in order to tell someone's story? The answer isn't clear, but Rosenbaum doesn't even consider the question.
That's enough for right now. Let me summarize by saying that Rosenbaum's argument focuses too much on emotional harms as the source of morality, i.e. he assumes that something is immoral when it produces an emotional harm but does not consider other forms of morality; relatedly, he assumes that morality is a product of religion and does not have other sources (this is a significant critique I want to discuss further); and finally that some of his arguments are inconsistent with any conception of law.
I am imagining this will be at least a three part series. In the next part, I want to discuss some of the things he gets right.
Friday, April 4, 2008
Required Reading: Torture and Democracy by Darius Rejali (Princeton University Press, 2007)
Cross posted at tpmcafe.
Earlier this week, I wrote a post detailing the techniques that John Yoo's recently declassified memorandum would allow military interrogators to use against detainees. Some of the more despicable methods included gouging out eyes, cutting off limbs, and pouring acid on the detainee. These methods are obvious, and that is perhaps why they are so despicable. The victims of these techniques would be permanently and horribly disfigured. If they survived the torture, they would be able to point to their bodies to explain what happened to them. That is why, even if an interrogator believed such things were legal, it is unlikely these techniques would be used.
Waterboarding and stress positions, however, are not likely to leave any lasting marks on detainees. "Waterboarding" is a form of choking with water in which a towel is forced into a detainee's mouth and water poured over the towel and into his or her throat. "Stress positions" can mean many different things including forced standing, lifting a person off the ground by handcuffs, or the use of restraints to keep a person in a specific position for a long period of time. These tortures are extremely painful and potentially life threatening, but unlike eye-gouging and acid, they leave no marks.
As Darius Rejali argues in his masterful book, Torture and Democracy, it is this fact that explains why modern democracies choose these specific tortures and why they are spreading around the world. The argument is simple: Democracies avoid scarring tortures because they are subject to public oversight. Furthermore, since the 1960s and 1970s, many authoritarian states have began adopting clean torture techniques because international organizations began documenting and exposing the use of scarring tortures.
It is not, however, a simple book. Rejali, an Iranian-American professor of political science at Reed College, is treading on dangerous ground. A work like this, if it is not handled well, is easily open to charges of bias from the right wing. One can easily imagine Bill O'Reilly accusing the author of 'blaming America first' and excusing the behavior of authoritarian regimes. Rejali ultimately succeeds because his book is even-handed, encyclopedic, thoroughly documented, and carefully reasoned.
Torture and Democracy can be split into two equally significant parts. In the first part, Rejali recounts the history of modern torture, and in the second, he discusses the continued use of torture and contemporary debates. Accurate histories allow us the opportunity to think clearly. Without knowing where specific tortures come from, how the tortures have been used, and how the techniques have spread, it is impossible to escape the dangerously mistaken folk histories that often dominate our public discourse on torture.
It is not the case, for example, that modern torture techniques originated with the Nazis. As Rejali documents, the Nazi regime had little use for clean techniques as its torturers were not likely to face prosecution. As a result, Nazi torturers often whipped, beat, and choked their victims. Similarly, the Soviets had no special techniques. Despite popular beliefs, Pavlov played no role in securing confessions for Stalin's show trials. Instead, the Soviets relied on methods that were well known to and used by police in the United States until the 1940s.
Specifically, Stalin's torturers relied on continuous questioning, sleep deprivation, bright lights, forced standing and forced sitting, clean beatings, and hot and cold rooms. The use of these clean techniques by the Soviet Union is consistent with Rejali's hypothesis about the public oversight of torture in democracies. The show trials were designed for international consumption, and to be effective propaganda, it was necessary that the defendants appeared to be confessing voluntarily. Evidence of torture would have harmed the credibility of the trials.
Furthermore, these and many other clean tortures did not originate with the Soviets or with the Nazis. Rather, many contemporary clean tortures are traceable to British military punishments and the practices of American slave traders. Slave traders had strong incentive to avoid scarring slaves in that scars might indicate to a potential buy that the slave was a disciplinary problem.
Despite documenting that many clean tortures originated with democracies, Rejali is very careful to limit the scope of this history. He strongly rejects the hypothesis advanced by Noam Chomsky and others which maintains that the United States acted as a universal distributor of torture techniques during the 20th century. Chomsky believes that the United States trained authoritarian regimes to torture, especially in Latin America, and consequently if it were not for the United States, there would be significantly less torture in world. Rejali examines and rejects this hypothesis because it is not supported by the evidence. There is no uniformity in the techniques used by the countries that the United States is supposed to have trained, and in many cases the techniques used by those countries have histories that predate U.S. training.
As he proceeds, Rejali continually clears away myths, folk histories, and baseless hypotheses. Electroconvulsive therapy is not related to electrotorture. No one was thrown from a helicopter in Vietnam. Torture cannot be conducted scientifically. It will always remain low tech. There are no "truth serums." This is the value of an accurate history. Torture is widely and rightly believed to be entirely unacceptable. It has thus become a taboo shrouded in myth and popular misconceptions. Those misconceptions grow as they are retold in movies and television which relish in violating taboos, and as they are passed down by interrogators and torturers. We must always be careful about the stories we tell ourselves.
Of course much of this does not touch on the most important issue: Does torture work? Rejali addresses this in the second part of his book and again approaches it with particular insight. This question--"Does it work?"--is behind the continued misunderstanding of torture in the public mind and the use of euphemistic language by the press. It is this question that turns torture into "enhanced" or "aggressive" interrogation. If torture works, then its use cannot be condemned entirely--if it works, it belongs on the continuum of acceptable methods of interrogation.
Rejali finds that torture does not work, but again, he avoids simple answers. Part of the problem with our public discourse on torture is an inability to get beyond theoretical moral arguments. One side argues that torture is never right. The other side argues that it might be necessary to save lives. One side adopts a deontological view, the other reasons by utility, and there is no way to bridge their theories. This is about as much as can be contained in a typical cable news segment. Rejali cuts through this morass by relying instead on social science and concrete evidence.
As Rejali argues, it is not a simple matter of whether torture produces intelligence or not. The issue is whether it is more effective than other means. The list of possible intelligence gathering techniques is not simply torture or no torture. Rather, it includes public cooperation, informants, and traditional investigative work such as examining documents, forensic evidence and the use of surveillance. Importantly, Rejali finds that torture is remarkably worse than these methods and because of its propensity for producing false information, torture is very likely to be worse than doing nothing at all.
The problem with the information produced by torture is that there is no way to know if it is reliable. A knowledgeable detainee will provide false information in order to deceive the authorities while innocent detainees will provide any information whatsoever in order to escape the torture. Interrogators have no effective means of distinguishing deceitful or false information from true information. Ultimately, any intelligence gained by torture must be independently verified in order to be of any use. In that case, it would be much more efficient to get the information from the independent sources in the first place. In this way, torture is an extraordinarily bad way of gaining information.
Perhaps as important as explaining why torture does not work, Rejali details how torture leads to the degradation of intelligence agencies' ability to gather information through traditional means. When information gather by torture is presumed to be accurate--when it is thought that "torture works"--agencies rely less on investigation and public cooperation and these skills atrophy. It seems then that torture is both a symptom and a cause of intelligence failure. It is often used when agencies are unwilling to use other techniques and it ultimately makes them incapable of using those techniques.
Furthermore, to oversimplify, Rejali concludes that any acceptance of torture leads to a slippery slope where the use of torture naturally expands and overwhelms intelligence gathering. Crucially, he explains why the slope is slippery--he explains why torturers cannot distinguish between different degrees of torture. I could not do justice to this argument and his evidence in this post. You will have to read the book.
Rejali, however, does not dodge moral arguments. Instead he subjects them to cool empirical tests. For example, he details the origins of the "ticking time bomb" argument in France's Algerian War. He shows how it's extensive rhetorical use by Israeli politicians lead to the torture of an Israeli fighter pilot captured by Lebanon in the 1990s. According to the Lebanese authorities, the pilot was a ticking time bomb. Finally, he shows the argument to be bankrupt: Following the attacks on the London Underground in 2005, the final unexploded bomb--an actual ticking bomb--was found through public cooperation and detective work, not torture.
Again, this is the ultimate value of this work. It moves us beyond simplistic platitudes, unproven assumptions, false beliefs, and theoretical arguments. If we are to overcome the Bush Era, we must clear our heads; we must rely on facts, science, and reason. We must banish not just our fears but the rhetoric of fear. Darius Rejali's work is an excellent step in that direction. It is required reading for conscientious citizens.
---------------------
Post Script: In his otherwise excellent article, Phillipe Sands describes waterboarding as the "the application of a wet towel and water to induce the perception of drowning." This is exactly the sort of language I wanted to address in my earlier post this week. Fundamentally, the description is accurate, but its construction hides what we are really talking about. "Application of a wet towel" does not denote the force used to stuff the towel in a person's mouth. Saying that the use of water "induces the perception of drowning" is to refuse to face the facts. People who are choked with water in this manner have the perception of drowning because they are in fact drowning.
This phrasing suggest that somehow their perception is false, and that because it is false the technique is mental. This is an important lesson: Drowning is painful, and pain is a mental phenomenon. By the logic of this phrasing, any torture, clean or scarring, should not concern us because all it does is produce pain. But it is that pain that is essential to torture; the pain is the reason we call it torture--it is the central feature of torture. We cannot afford to deceive ourselves in this way.
Earlier this week, I wrote a post detailing the techniques that John Yoo's recently declassified memorandum would allow military interrogators to use against detainees. Some of the more despicable methods included gouging out eyes, cutting off limbs, and pouring acid on the detainee. These methods are obvious, and that is perhaps why they are so despicable. The victims of these techniques would be permanently and horribly disfigured. If they survived the torture, they would be able to point to their bodies to explain what happened to them. That is why, even if an interrogator believed such things were legal, it is unlikely these techniques would be used.
Waterboarding and stress positions, however, are not likely to leave any lasting marks on detainees. "Waterboarding" is a form of choking with water in which a towel is forced into a detainee's mouth and water poured over the towel and into his or her throat. "Stress positions" can mean many different things including forced standing, lifting a person off the ground by handcuffs, or the use of restraints to keep a person in a specific position for a long period of time. These tortures are extremely painful and potentially life threatening, but unlike eye-gouging and acid, they leave no marks.
As Darius Rejali argues in his masterful book, Torture and Democracy, it is this fact that explains why modern democracies choose these specific tortures and why they are spreading around the world. The argument is simple: Democracies avoid scarring tortures because they are subject to public oversight. Furthermore, since the 1960s and 1970s, many authoritarian states have began adopting clean torture techniques because international organizations began documenting and exposing the use of scarring tortures.
It is not, however, a simple book. Rejali, an Iranian-American professor of political science at Reed College, is treading on dangerous ground. A work like this, if it is not handled well, is easily open to charges of bias from the right wing. One can easily imagine Bill O'Reilly accusing the author of 'blaming America first' and excusing the behavior of authoritarian regimes. Rejali ultimately succeeds because his book is even-handed, encyclopedic, thoroughly documented, and carefully reasoned.
Torture and Democracy can be split into two equally significant parts. In the first part, Rejali recounts the history of modern torture, and in the second, he discusses the continued use of torture and contemporary debates. Accurate histories allow us the opportunity to think clearly. Without knowing where specific tortures come from, how the tortures have been used, and how the techniques have spread, it is impossible to escape the dangerously mistaken folk histories that often dominate our public discourse on torture.
It is not the case, for example, that modern torture techniques originated with the Nazis. As Rejali documents, the Nazi regime had little use for clean techniques as its torturers were not likely to face prosecution. As a result, Nazi torturers often whipped, beat, and choked their victims. Similarly, the Soviets had no special techniques. Despite popular beliefs, Pavlov played no role in securing confessions for Stalin's show trials. Instead, the Soviets relied on methods that were well known to and used by police in the United States until the 1940s.
Specifically, Stalin's torturers relied on continuous questioning, sleep deprivation, bright lights, forced standing and forced sitting, clean beatings, and hot and cold rooms. The use of these clean techniques by the Soviet Union is consistent with Rejali's hypothesis about the public oversight of torture in democracies. The show trials were designed for international consumption, and to be effective propaganda, it was necessary that the defendants appeared to be confessing voluntarily. Evidence of torture would have harmed the credibility of the trials.
Furthermore, these and many other clean tortures did not originate with the Soviets or with the Nazis. Rather, many contemporary clean tortures are traceable to British military punishments and the practices of American slave traders. Slave traders had strong incentive to avoid scarring slaves in that scars might indicate to a potential buy that the slave was a disciplinary problem.
Despite documenting that many clean tortures originated with democracies, Rejali is very careful to limit the scope of this history. He strongly rejects the hypothesis advanced by Noam Chomsky and others which maintains that the United States acted as a universal distributor of torture techniques during the 20th century. Chomsky believes that the United States trained authoritarian regimes to torture, especially in Latin America, and consequently if it were not for the United States, there would be significantly less torture in world. Rejali examines and rejects this hypothesis because it is not supported by the evidence. There is no uniformity in the techniques used by the countries that the United States is supposed to have trained, and in many cases the techniques used by those countries have histories that predate U.S. training.
As he proceeds, Rejali continually clears away myths, folk histories, and baseless hypotheses. Electroconvulsive therapy is not related to electrotorture. No one was thrown from a helicopter in Vietnam. Torture cannot be conducted scientifically. It will always remain low tech. There are no "truth serums." This is the value of an accurate history. Torture is widely and rightly believed to be entirely unacceptable. It has thus become a taboo shrouded in myth and popular misconceptions. Those misconceptions grow as they are retold in movies and television which relish in violating taboos, and as they are passed down by interrogators and torturers. We must always be careful about the stories we tell ourselves.
Of course much of this does not touch on the most important issue: Does torture work? Rejali addresses this in the second part of his book and again approaches it with particular insight. This question--"Does it work?"--is behind the continued misunderstanding of torture in the public mind and the use of euphemistic language by the press. It is this question that turns torture into "enhanced" or "aggressive" interrogation. If torture works, then its use cannot be condemned entirely--if it works, it belongs on the continuum of acceptable methods of interrogation.
Rejali finds that torture does not work, but again, he avoids simple answers. Part of the problem with our public discourse on torture is an inability to get beyond theoretical moral arguments. One side argues that torture is never right. The other side argues that it might be necessary to save lives. One side adopts a deontological view, the other reasons by utility, and there is no way to bridge their theories. This is about as much as can be contained in a typical cable news segment. Rejali cuts through this morass by relying instead on social science and concrete evidence.
As Rejali argues, it is not a simple matter of whether torture produces intelligence or not. The issue is whether it is more effective than other means. The list of possible intelligence gathering techniques is not simply torture or no torture. Rather, it includes public cooperation, informants, and traditional investigative work such as examining documents, forensic evidence and the use of surveillance. Importantly, Rejali finds that torture is remarkably worse than these methods and because of its propensity for producing false information, torture is very likely to be worse than doing nothing at all.
The problem with the information produced by torture is that there is no way to know if it is reliable. A knowledgeable detainee will provide false information in order to deceive the authorities while innocent detainees will provide any information whatsoever in order to escape the torture. Interrogators have no effective means of distinguishing deceitful or false information from true information. Ultimately, any intelligence gained by torture must be independently verified in order to be of any use. In that case, it would be much more efficient to get the information from the independent sources in the first place. In this way, torture is an extraordinarily bad way of gaining information.
Perhaps as important as explaining why torture does not work, Rejali details how torture leads to the degradation of intelligence agencies' ability to gather information through traditional means. When information gather by torture is presumed to be accurate--when it is thought that "torture works"--agencies rely less on investigation and public cooperation and these skills atrophy. It seems then that torture is both a symptom and a cause of intelligence failure. It is often used when agencies are unwilling to use other techniques and it ultimately makes them incapable of using those techniques.
Furthermore, to oversimplify, Rejali concludes that any acceptance of torture leads to a slippery slope where the use of torture naturally expands and overwhelms intelligence gathering. Crucially, he explains why the slope is slippery--he explains why torturers cannot distinguish between different degrees of torture. I could not do justice to this argument and his evidence in this post. You will have to read the book.
Rejali, however, does not dodge moral arguments. Instead he subjects them to cool empirical tests. For example, he details the origins of the "ticking time bomb" argument in France's Algerian War. He shows how it's extensive rhetorical use by Israeli politicians lead to the torture of an Israeli fighter pilot captured by Lebanon in the 1990s. According to the Lebanese authorities, the pilot was a ticking time bomb. Finally, he shows the argument to be bankrupt: Following the attacks on the London Underground in 2005, the final unexploded bomb--an actual ticking bomb--was found through public cooperation and detective work, not torture.
Again, this is the ultimate value of this work. It moves us beyond simplistic platitudes, unproven assumptions, false beliefs, and theoretical arguments. If we are to overcome the Bush Era, we must clear our heads; we must rely on facts, science, and reason. We must banish not just our fears but the rhetoric of fear. Darius Rejali's work is an excellent step in that direction. It is required reading for conscientious citizens.
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Post Script: In his otherwise excellent article, Phillipe Sands describes waterboarding as the "the application of a wet towel and water to induce the perception of drowning." This is exactly the sort of language I wanted to address in my earlier post this week. Fundamentally, the description is accurate, but its construction hides what we are really talking about. "Application of a wet towel" does not denote the force used to stuff the towel in a person's mouth. Saying that the use of water "induces the perception of drowning" is to refuse to face the facts. People who are choked with water in this manner have the perception of drowning because they are in fact drowning.
This phrasing suggest that somehow their perception is false, and that because it is false the technique is mental. This is an important lesson: Drowning is painful, and pain is a mental phenomenon. By the logic of this phrasing, any torture, clean or scarring, should not concern us because all it does is produce pain. But it is that pain that is essential to torture; the pain is the reason we call it torture--it is the central feature of torture. We cannot afford to deceive ourselves in this way.
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