The United States suffered a catastrophic series of terrorist attacks on September 11, 2001, and since then the Bush Administration has committed itself to a “war on terror” and an active doctrine of preemptive self-defense. In Al Qaeda it faces a resourceful enemy that obeys no legal restraints on armed conflict and may attack without warning at any time. The issue of torture arises because of the importance of intelligence in this conflict: Success in protecting a country from terrorist attack depends on intelligence more than brute force; good intelligence is also necessary for protecting our armed forces from insurgent attack in countries like Iraq (whose occupation by the United States is connected with the war on terror).
I have heard colleagues say that what the Bush Administration is trying to do in regard to torture should be understood sympathetically in light of these circumstances, and that we should be less reproachful of the Administration’s efforts to manipulate the definition of “torture” than we might be in peacetime. I disagree; I do not believe that “everything is different” after September 11. The various municipal and international law prohibitions on torture are set up precisely to address the circumstances where torture is likely to be most tempting. If the prohibitions do not hold fast in those circumstances, then they are of little use in any circumstance. In what follows, therefore, I shall consider the various attempts that have been made to narrow or modify the prohibitions on torture as though they were attempts to narrow its normal meaning or its normal application. This is because those who set up the prohibitions envisaged that circumstances of stress, fear, and danger would be the normal habitat in which these provisions would have to operate.
I want to place particular emphasis on the fact that these efforts to modify the prohibition on torture have been undertaken by lawyers. Sure, our primary objection to torture ought to be out of consideration for the potential victims of the treatment that Yoo, Dershowitz, and Bybee appear to condone. But the defense of torture is also shocking as a jurisprudential matter. That views and proposals like these should be voiced by scholars who have devoted their lives to the law, to the study of the rule of law, and to the education of future generations of lawyers is a matter of dishonor for our profession. Reading the memoranda of Judge Bybee and Professor Yoo and the mooted proposal of Professor Dershowitz shook my faith in the integrity of the community of American jurists. At the very least, it indicates the necessity of our thinking more deeply about the nature of the rule against torture, its place in our legal system, and the responsibilities that lawyers (particularly lawyers working in government) have to uphold the integrity of our law in this regard.
(Jeremy Waldron, “Torture and Positive Law: Jurisprudence for the White House,” Columbia Law Review 105 [October 2005]: 1681-750, at 1686-7 [footnotes omitted])
Note from KBJ: This is mind-boggling. Waldron acts as though (1) the term “torture” has a single clear legal meaning (i.e., that the term is neither ambiguous nor vague), (2) there can be no reasonable disagreement about what that meaning is, (3) the prohibitions on torture contained in, say, the Geneva Conventions clearly apply to Al Qaeda and Taliban detainees (John Yoo has argued persuasively that they do not), and (4) anyone who disagrees with him on any of these matters is either corrupt or incompetent. This is a classic case of ad hominem abuse. Sadly, it typifies contemporary legal “scholarship,” much of which is indistinguishable from propaganda.
Note 2 from KBJ: Here is a videotaped debate between Waldron and Yoo.
