I might go all around the blogosphere looking for places to comment, but I'm satisfied at stopping at Kleiman's because I think he provides some fairly useful terms I would like to use as well.
Firstly, we should examine the question outside of the context of our society. The value or morality of an idea should be established independently of people's ability to realize it. I happen to believe that most of the legitimate arguments against torture-execution have this as their key rationale: Any society that legitimates torture-execution sets a liberalizing precedent that is intolerable because it is apt to be systematically miscarried. Once you torture and kill Eichmann, people will always look for 'another Eichmann'; a crime to fit the punishment.
I wonder if the rationale against torture and torture-execution is based upon the principle that certain things simply cannot be right, vs certain things cannot be proxied. In the first case the result would be that lethal injection would always be our most severe punishment. The second case suggests that more severe punishments could be justified, but we simply cannot allow the state to perform them. I tend to believe that our legal principles are based on the second case rather than the first. The example that immediately comes to mind is that of the man who defends his home with a shotgun. I cannot think of any circumstance under which a state which executes convicts would allow their guts to be blown out with buckshot and left to bleed out. That would be cruel and unusual. I also can't imagine any state that would blame the parent whose child was held at knifepoint by an intruder from using Mr. Mossberg.
What concerns me most about the use of torture or of a particularly painful death sentence is not that they might be cruel or unusual, but that they might be applied irresponsibly or liberally. However I cannot agree that 'torture is always wrong and should never be used'. That is self-limiting and self-defeating, and it suggests that there is absolutely no use for torture under any circumstances. There must be, if only for its provision of a credible threat. From what I've gathered, it's torture to threaten torture rather in the same way raising your hand is assault even if you don't hit. Such hairs must be split I imagine, but in either case, the threat of torture must be credible.
This is why I have some two kinds of difficulty with what our Attorney General is saying about the president's policy on rendition. Firstly, I simply don't believe his flat denial. We torture. There can be no question about the fact that American culture is tolerant of what goes by the label of torture. We are a culture that remains positive on the matter of 'rough justice'. Furthermore, I don't believe we have any real good faith that our allies to whom we deport or render prisoners don't torture. It's a double lie, but I hope it's a transparent one.
Secondly, I don't think ruling out torture is good policy, but if you're going to, leave rendition off the table. The way I see it, rendition allows us to have our cake and eat it to. Rendition allows us to retain a credible threat of torture without actually having to practice it. With an absolute statement like the one made by Alberto Gonzales, we are committing to a lie. It may be effective in a disinformative way; anyone within earshot of the AG will believe that they are in deep doodoo if they find themselves facing real torture at the hands of Americans, but it puts us on the hook to punish our monsters. What we really want is for our monsters to have sharp teeth at the ready.
I'm going to come back to this matter over and over because there are a wide number of angles to consider, but what breaks this post out of 'draft' this evening is my consideration of the matter of nuclear weapons.
I can hardly imagine anyone reasonably arguing that the employment torture is worse than the use of nuclear weapons. What then is the rationale for us having them? Our possession of nuclear weapons is a deterrent, and our defiance of the Test Ban Treaty is raising our hand in assault and reminding the world of the credible threat. But what then would it sound like if we were to say out loud that it is our president's policy never to use nuclear weapons, nor do we expect any of our allies to use them? I think everyone would see that it is a transparent lie, because clearly we reserve the right to under certain circumstances.
In the end, with torture as with any weapon our confidence can only be in very strict rules of engagement. This alone allows us to have any justfication in reserving the right to have the capacity. It is strict adherence to those rule that justifies our collective proxy and avoids the true evil of arbitrary and liberal use of force. This is nothing more or less than a strictly maintained chain of command and control - the backbone of the military.
All this is a bit off Kleiman's topic of torture-execution and justice as a proxy for revenge, but I did want to establish my first principles. The scary thing is not that our monster has sharp teeth, but that it has a weak backbone.
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