Torture vs FISA


Some of you have wondered how my passionate opposition to torture can be reconciled with my tolerance of the new FISA regime. And the invasion of our correspondence and communications by the government is indeed a threat to liberty; and there is no denying that our liberties have been seriously eroded by the last few years in this respect. I just understand that some loss is defensible in the war we now fight, and wire-tapping, if monitored by the Congress, a FISA court, as well as the executive is a price we may have to pay to keep our intelligence accurate. Torture, on the other hand, is a far more invasive attack on liberty, a threat to reliable intelligence, a danger to our own troops, a violation of treaty obligations, and an act of human cruelty inimical to the core meaning of the West.

I made the case the best I could three years ago in TNR for why I think torture is in a separate category. The essay is here. Two key points:

Torture is the polar opposite of freedom. It is the banishment of all freedom from a human body and soul, insofar as that is possible. As human beings, we all inhabit bodies and have minds, souls, and reflexes that are designed in part to protect those bodies: to resist or flinch from pain, to protect the psyche from disintegration, and to maintain a sense of selfhood that is the basis for the concept of personal liberty. What torture does is use these involuntary, self-protective, self-defining resources of human beings against the integrity of the human being himself. It takes what is most involuntary in a person and uses it to break that person's will. It takes what is animal in us and deploys it against what makes us human.


The very concept of Western liberty sprung in part from an understanding that, if the state has the power to reach that deep into a person's soul and can do that much damage to a human being's person, then the state has extinguished all oxygen necessary for freedom to survive.

That is why, in George Orwell's totalitarian nightmare, the final ordeal is, of course, torture. Any polity that endorses torture has incorporated into its own DNA a totalitarian mutation. If the point of the U.S. Constitution is the preservation of liberty, the formal incorporation into U.S. law of the state's right to torture--by legally codifying physical coercion, abuse, and even, in Krauthammer's case, full-fledged torture of detainees by the CIA--would effectively end the American experiment of a political society based on inalienable human freedom protected not by the good graces of the executive, but by the rule of law.

I know wire-tapping, even monitored by three branches of government, is a loss of liberty. But nothing is as corrosive as torture to the possibility of Western freedom. It is vital that we expose the war crimes that have been committed, ensure they cannot happen again, and bring the criminals to justice.