Torture and the Vagueness Paradox
By The Editors discuss a typically exceptional piece by Dahlia Lithwick, which points to the danger of overly-specific definitions of torture. In his particularly testy press conference today, [more here] President Brags-About-Torture spoke again and again about the need for “clear standards,” which makes the truth of Lithwick’s point manifest:
The president himself raises the real reason for the change in the torture standard. He can’t get his interrogators to interrogate people as long as they are afraid of being dragged into court to answer for it later. The administration has been worried about its interrogators’ liability for their abuses since the debate about suspending Geneva began. And again yesterday, the president was emphatic in his contention that “as long as the War Crimes Act hangs over their heads, they [interrogators] will not take the steps necessary to protect” Americans. The War Crimes Act of 1996, passed by a Republican Congress, made it a felony to violate the Geneva Conventions. But while it sounds like Bush seeks to offer interrogators legal clarity, what he really strives to offer them is legal immunity.
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In a superb article last fall in the Columbia Law Review, professor Jeremy Waldron argued that there is “something wrong with trying to pin down the prohibition on torture with a precise legal definition.” That it seems to “work in the service of a mentality that says, ‘Give us a definition so we have something to work around, something to game, a determinate envelope to push.’ ” And indeed it would be worrisome if the president were trying to create a sharp, bright line-rule for when interrogation crosses into torture, so that his agents could dance right up to it and stop, or find tricky ways to tunnel under it. But I suspect that the Bush administration doesn’t seek to clarify the definition of torture so much as to confound it. The whole objective of defining, refining, and then redefining the rules has become an end in itself. It keeps our attention trained where the president wants it: on the assertion that old bans on torture don’t work and that this conflict is unlike any conflict contemplated under existing international law. All this murk and confusion has begun to be the object of the game and not a casualty of it.
Right. Paradoxically, while making the rules a little more specific may seem to place a greater restraint on government, in cases like this, it’s the opposite. Consider the “cruel and unusual punishment” clause of the 8th Amendment. Had the framers tried to define particular forms of cruel and unusual punishment rather than writing it as a vague principle, what would have happened is obvious: the government could have used forms of punishment that were as bad or worse than the listed punishments but not actually prohibited–and, needless to say, this problem would get far, far worse over time as new forms of cruelty were made possible by technology. There are obvious legal problems created by the inherent indeterminacy of the standard, but a standard that will sometimes fail to constrain the state is better than a standard that will not only inevitably fail but actually legitimize forms of punishment it is designed to prohibit. What Bush seems to want is a definition just specific enough to make some forms of the torture he wants people to engage in clearly legally protected, which is much worse than a broader standard that would have greater deterrent effect. What Bush sees as a bug–people worried about facing legal consequences for torturing suspects–is of course a feature.