A Torturing Sequel

After going to the hearing on torture on Tuesday I went along to the 'sequel' one today before the full Judiciary committee in the House. John Ashcroft, the former Attorney General was one of the witnesses testifying. The hearing itself was much less charged than the one on Tuesday, despite it being a full committee with higher ranking witnesses, and the exchanges were surprisingly civilised despite the difference of opinions held by those on both sides of the debate.

It was probably less interesting than the one on Tuesday, but it was more thoughtful, so I wanted to follow up on what I wrote before about extreme cases making bad law.

One of the witnesses, Benjamin Wittes advocated a law that would permit the President to authorise torture in extreme cases so long as he publicised his authorisation. But another, Walter Dellinger, the assisstant Attorney General under President Clinton, was forthright in his disfavour for such an idea, and I have to agree. No state, or at least no state based on the rule of law and respect for basic human dignity should officially sanction torture, even in the ticking time bomb scenario. Walter Dellinger's solution was that when the ticking time bomb situation arose, the President should sanction torture, then admit his breach of the law and submit to the ordinary criminal process - in essence, he advocated civil disobedience in such a case. It's not an immediately compelling approach, the idea that the law basically 'runs out' is uncomfortable, but I think he's right here. Any law that sanctions torture, that essentially admits a country practices and condones torture is dangerous. Firstly it degrades that country's right to call itself civilised. Secondly it increases the chances of other countries following suit and practicing torture on the citizens of those countries with such laws. Thirdly, it could be the start of a very slippery slope. The civil disobedience approach reconciles the two strands I pointed out in my other post. Torture is illegal, but that's not to say it can't be justified, but that justification should not be legal. Perhaps it could result in a pardon - although who would pardon the President? - but the importance of the conviction would stand.

Beyond the torture debate though, the hearing was interesting for any number of legal reasons. For instance, the authority (or otherwise) of the President to set aside validly passed laws is crucial to the debate. One strand of thought is that he simply can't. Another is that where he has serious doubts as to the constitutionality of the law, he can do so. There's nothing in the Constitution either way, but neither does the Constitution give the Supreme Court the power of judicial review - a power it assumed for itself. What's to say that the President can't assume the same?

There's a lot more to this, like the Supreme Court's ambiguous and highly flexible definition of toture - compared to the expansive definition put forward by the European Court of Human Rights, and the constant sniping by the Republicans and their constant appeals to 9/11 and the threat's we still face. Debate at this level of importance needs to move beyond such things for it actually to be worth anything. Hopefully, the hearing today will set the standard for the future. I'll be interested to read the eventual report.