"The house we hope to build is not for my generation but for yours. It is your future that matters. And I hope that when you are my age, you will be able to say as I have been able to say: We lived in freedom. We lived lives that were a statement, not an apology."


Monday, April 30, 2007

Gonzales v. Carhart

I would concur in part and dissent in judgment from the Court’s recent decision in Gonzales v. Carhart.

Justice THOMAS correctly wrote in his concurrence "that the Court’s abortion jurisprudence, including Casey and Roe v. Wade [citation omitted], has no basis in the Constitution." Gonzales v. Carhart, Slip at 47 (2007)(THOMAS, J., concurring). This is because the Constitution does not contemplate nor address abortion. Among the litany of powers allocated to the Congress and the federal government in Article I, §8, one mentioning abortion is nowhere to be found.

This is inescapably dispositive to the inquiry. In a system of enumerated powers, such as our own, the government cannot exercise a power that is not expressly granted it. Such is only logical. You would not enumerate specific powers to be held by an entity if you intended them to have powers other than or beyond those enumerated. The framers certainly did not, and for most of the nation’s history this was understood. As Chief Justice Marshall wrote in Marbury, "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?" Marbury v. Madison, I Cr. (5 U.S.) 137 (1803).

As Madison explained further in the original debate over the Constitution, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." Madison, Federalist 46. The Tenth Amendment simply manifests this principle in legal form, mandating that those "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." To quote from the attorney Charles Cooper, the Amendment was included as the last within the Bill of Rights to warn against a supposition that there were "powers in the national government that were not granted by the original document." Charles Cooper, Reserved Powers of the States, in The Heritage Guide to the Constitution 371, 371 (Edwin Meese, ed., 2005).

If the Constitution does not say the national government has a power then that power is reserved by the individual states, or to the people. The Tenth Amendment controls here. The states, and only the states, have the ability to regulate or not regulate abortion.

Accordingly, there was no basis for the Court to proscribe statutory abortion prohibitions or restrictions by the states in Roe, Casey, Carhart I, etc. As Justice Thomas has explained, "Although a State may permit abortion, nothing in the Constitution dictates that a State must do so." Stenberg v. Carhart, 530 U.S. 914 (2000)(THOMAS, J., dissenting). Because of this, the Court has not been faithfully applying the Constitution, to borrow from Justice Scalia, it has been creating a "self-awarded sovereignty over a field where it has little proper business..." Webster v. Reproductive Health Services, 492 U.S. 490 (1989)(SCALIA, J., concurring).

The same principle is at play in this case. If the Court or federal government cannot prevent a state from statutorily prohibiting or restricting abortion, then neither can the Congress and the President pass and sign into law a statute regulating it in any form. The sword cuts both ways. The Constitution gives no authority to any branch or entity of the federal government to enter a sovereign province of the states.

Granted, the Court’s decision is licitly correct under the premise it was decided within, which was consideration of the Court’s own abortion precedent and jurisprudence. In accordance with Casey, the Court did rightly hold that the statute does not place an "undue burden" on a woman’s ability to receive an abortion, nor is it impermissibly vague or without an adequate exception for the life of the mother, unlike the Nebraska statute struck down by the Court in the preceding Carhart decision.

But this is a false premise. If the Constitution does not mention abortion—and does not permit the federal government to regulate or hinder the individual states’ license to regulate it—then this statute is not Constitutional, regardless of the Court’s erroneous abortion jurisprudence. If respondent’s genuinely sought the invalidation of this statute, then this would be the case to be made. (Of course they did not and would not make this assertion because a Court willing to invalidate a statute on these grounds would not hesitate to vacate Roe and every other bit of its illegitimate progeny.)

Conservatives throughout the nation are rejoicing at the Court’s decision, and in a sense, why shouldn’t they be? The merits of the statute are laudable. Few—conservative or otherwise—could object to a general proscription of a practice that virtually obliterates the line between abortion and infanticide.

But this is ultimately irrelevant. The fact that the statute is the fruits of sound moral and ethical judgment is irrelevant; it was not the federal government’s judgment to make.

For those genuinely concerned with fidelity to the text and meaning of the Constitution, there is little to celebrate in this decision. The jurisprudential house of straw the Court has constructed on abortion still stands and the text and principle of the Constitution remain no less mired in obfuscation than it did before. The Court’s decision is as equally Constitutionally specious as Roe and Casey.

Narrowly tailored to the premise the case was presented and decided in, I would concur with the Court’s holding. But that premise is divorced from the text, meaning, and effect of the Constitution the decision falsely claims to represent. Our founding charter makes no mention of abortion, leaving the questions presented by it to be decided by the respective states. Accordingly, the Congress has no authority to enact the statute considered and it is Constitutionally invalid.

Tuesday, April 17, 2007

Comment Response: "On Torture"

Jason:

There have been publicly known instances where torture has elicited the intelligence requisite to preventing an act of terror. I would refer you to the Krauthammer piece I cited.

Beyond that, it would not at all be surprising if there were no publicly known instances given the classified umbrella that torture—or any other interrogation—would be performed under.

Even if there were no instance it in the past, I do not think anyone could argue that such a scenario is not a discreet possibility in this day and age. It certainly is, and we as a society should be prepared for such a contingency.

Regarding your point that people can be trained to withstand torture, America’s elite interrogators could also be trained to combat those resistance techniques. Just because someone may have been trained to withstand torture does not mean it will not ever be effective.

And if torture were not effective in some instances, then why has it been practiced for centuries by multitudinous individuals and entities? It surely is or can be effective, though it admittedly is not infallible.

There are certainly as many possible motivations to torture as there are stars in the sky, but for a moral people like us there is only one strictly-defined justification.

I agree with your point regarding the effective tool the threat of torture provides in interrogation.

I personally do not see much confusion in the definition of torture, though some of those with whom I disagree do. It is the infliction of intense, sustained, repetitive, and acute physical harm. Denying someone air conditioning on a hot day is not torture, nor is being forced to live in a tent. Torture certainly is not simply anything the detainee does not like.

Sean:

There is no way to make it right with someone who has been wrongly victimized by torture. But that point is hardly relevant. Because you cannot remedy the wrong created by falsely torturing an individual does not mean that torture should be proscribed in all instances no matter what. Instead it means that the rules governing torture must be strictly defined and strictly enforced so as to insure as much as possible that false torture does not occur. If the fact that there is no way to make it right when someone is falsely tortured dictates that torture must never be allowed, then under that same logic we can never prosecute and incarcerate an individual because there is always the chance it will turn out that they were done so wrongly.

Further, though it is certainly true that we could never make it right with an individual wrongly tortured, it is just as true that we could never make it right with the victims of an act of terror and their families and friends if we could have done more to prevent it. I am simply saying that sometimes one evil (torture) is less than another (multitudes of innocents dying). When placed in a predicament such as the one I described in my piece, we as a society have to error on the side of the lives of the innocent many, even though error is obviously a possibility in any human pursuit.

Monday, April 16, 2007

Barack Obama, Inspiration?

In his recent remarks of a controversial nature regarding the Clintons, Hollywood mogul David Geffen commented—somewhere in between all the anti-Clinton vituperation—that Sen. Barack Obama "is inspirational."

How so? What fundamental principles, innovative ideas, or wise doctrines does the Senator possess and promote that make him inspirational? What matter of substance would convince one that, unlike Sen. Clinton, he could unite the country, which Mr. Geffen implied? For that matter, what justifies the infatuation such a significant portion of the Democratic base has with him?

Is it his likeable nature only? His affability? His comfortable, skilled public speaking abilities? Is this alone enough to inspire? Is this why he and his supporters believe he should be the next President of the United States?

Presidents Franklin Roosevelt and Ronald Reagan, two of our most inspirational presidents of the previous century, were also affable characters highly skilled and comfortable with public communication. But this alone is not why they inspired, and continue to inspire. There was so much more to them. President Roosevelt led a nation forced into war and inspired it to conquer its fears, confront it enemies, and, in "its righteous might", defeat them. President Reagan took a nation paralyzed by malaise and inspired it to believe in itself and in its greatness once again and to defeat an "evil empire" previous presidents had been too weak and unwilling to confront.

To be frank, Senator Obama does not have anything on these men. I personally like Senator Obama, and appreciate the generally non-partisan tone of his discourse, but when it comes to his credentials to be our president the cupboard is bare. That he is an attractive, likeable candidate makes him little more competent to be president of this nation—a nation at war—than Brad Pitt, who is also attractive and likeable (or at least he was before his decree nisi with Jennifer Aniston). He may make us feel warm inside, but he certainly is not an inspiration, nor ready to be president of the greatest nation in the history of man.

The senator may very well make a competent and effective president some day. He certainly has potential. But now is not his time. He has to have some experience, something of substance to offer the electorate that demonstrates that he can hold the highest—and in terms of importance and gravity, the heaviest—office in the land.

He has demonstrated no such modicum of competence yet, and if we were to elect him as our president next year only for such superficial reasons as his charm and likability—which alone are not enough to inspire—we would be a nation of shallow character. We would be no less shallow than the stereotypical teenager who dates the hot, busty, blonde cheerleader whose attributes penetrate only skin deep.

There simply is not anything to the senator that inspires or indicates he is ready for the presidency. Not now at least.

Saturday, April 14, 2007

On Torture

Torture is one of those issues whose morality is easily decided in the philosophical and the abstract. It is so cruel, so barbaric, so inhuman, and so overly repugnant to the senses that it cannot possibly be justified or condoned. No democratic nation that claims to respect and protect the sanctity of human life could sanction it and still deserve the name. It is a brutal and abominable relic of civilized man’s violent past, and it should remain there. We have long since evolved and (hopefully) left the institutions of such a nature long behind. This much we can all be certain of.

But sometimes the cold realities of the world we live in today pierce clear and indisputable holes through even those most perfect absolutes of the philosophical and the abstract. In such circumstances the crystal clear sky we create in our reasoned rumination quickly becomes beset by little gray clouds produced by the ubiquitous problems inherent within human civilization. What was decided with certainty in our classrooms, lecture halls, parlors, dining rooms, institutions of government, books, and editorial pages is no longer so.

Torture is such an issue. Western civilization as a whole, but the United States specifically and most prominently, faces an existential threat from Extremist Islamic terrorism. This terrorism seeks to kill as many innocent lives as possible, to inflict as much physical destruction as possible, and to incubate maximum suffering. Its barbaric intents and effects are of the same nature as torture, and in fact it is nothing more than torture on a much larger and more horrific scale. That those who endeavor to perpetrate it have no regard for their own life in the pursuit, and seem to glorify their own death, presents a unique and daunting challenge to any society who must protect themselves from it.

It is this context and reality that serves as a thick, gray cloud challenging and, in my view, refuting the philosophical and abstract certainties we have reached as a society regarding torture.

Do not misunderstand me. I by no means assert that torture is generally an acceptable form of interrogation. With most of those unlawful illegal combatants we capture on the battlefield and in the preponderance of situations torture is not and should not be an option. Period. But to create a blanket, absolute ban on torture no matter the circumstances and the implications could ultimately result in the loss of innocent life, possibly on a massive scale. As the columnist Charles Krauthammer has pointed out, "However rare the cases, there are circumstances in which, by any rational moral calculus, torture not only would be permissible but would be required (to acquire life-saving information)."1

These rare instances would entail an imminent atrocity. We have all heard the hypothetical, or some variation of it. A weapon of mass destruction has been planted in a major American city and in a short period of time it will be detonated. A terrorist with knowledge of the bomb—where it will be detonated, who will detonate it, when it will be detonated—is incarcerated at the American military base at Guantanamo Bay, Cuba. He is not talking, and has no intention of doing so. None of the legal, acceptable, and humane interrogation techniques are working, nor will work. The weapon could be detonated at any minute. Whole streets stand in impending danger of being destroyed. Millions of dollars stand to be lost. Worst of all, thousands of innocent people, simply going about in the routine of their daily lives, are likely to be killed or maimed. Their deaths will have a devastating effect on the secondary victims of the attack as well, the friends and family members of those lost.

You are responsible for interrogating the incarcerated terrorist who possesses the information that can prevent all of this. What do you do?

In circumstances such as these, can we truly say, in good conscience, that torture is always impermissible? Does this not confirm that, though it is morally impermissible most of the time, it is not so all of the time. If that interrogator can ascertain needed life-saving intelligence from the obstinate terrorist through torture, should he not do so? Can it possibly be morally repugnant to torture a terrorist with knowledge when doing so can help save innocent human life?

I cannot hold that it is. And I think that most people, confronted with this same scenario, would so concur. Only one with a naive and misbegotten moral and ethical code could find that torturing a terrorist—actively involved in plots to reap mass destruction upon innocent peoples—to save innocent life is morally wrong. In such a situation, to not do everything possible to save those lives would be the moral wrong, not torture.

The true question society must debate and resolve is not whether torture is permissible in these rarest of circumstances, but under which circumstances it is. Given the obviously cruel nature of it—or as Mr. Krauthammer has termed it, "the monstrous evil that is any form of torture"—and its oppressively heavy moral implications, those circumstances must be strictly defined and strictly enforced.

The "monstrous evil" that torture represents logically mandates that it be employed only in the most dire and impending circumstances. It must be a last resort, used only after all other available means have been attempted and have failed. To be justified, torture must be the only possible method through which an impending act of terror may be thwarted through the collection of the requisite intelligence. Essentially, there has to be a ticking time bomb, not one with a short fuse; and all other means must have been tried. Torture is only to be the last, desperate attempt.

Just as important in deciding which circumstances torture is to be prescribed under is specifying who in the chain of command has the ultimate authority to make that decision. It should not be those directly responsible for the interrogation. If given this discretion, there would be no real opportunity for oversight over the process by America’s elected officials, those who are directly accountable to the American people. Accordingly, the very top of the chain of American government—the President of the United States—should be the lone American official capable of making such a decision. It might also be wise to craft a provision which would mandate that a congressional committee—likely the Intelligence committee—be apprised in a classified basis of the situation, either prior to authorization or post facto.

No doubt most presidents and public officials would likely be uncomfortable with such a singular and oppressively solemn responsibility. But, quoting from Mr. Krauthammer once more, these officials are "responsible above all for the protection of their citizens, [and] have the obligation to tolerate their own sleepless nights by doing what is necessary—and only what is necessary, nothing more—to get information that could prevent mass murder." Besides, I would assume that a president would rather endure a sleepless night over having to authorize torture than endure one following a terrorist act which may have been prevented through torture.

In cases where the bomb is ticking to the extent that there is no time for an appeal to the president, I would adopt Krauthammer’s provision that an interrogator be provided the authority to act on their own with a mandatory post facto review by an independent body to follow within the next twenty-four to forty-eight hours. Granted, with the specter of a possible review and sanction looming over them an interrogator may decline to act in an attempt to cover themselves from any possible prosecution in the future, even where torture is self-evidently justified and required. This prospect however, is outweighed by the protection against abuse provided by the post facto review.

Those who would actually be charged with executing the torture must be highly trained and thoroughly screened and vetted. It is an absolute necessity that they be the elite of the elite in American intelligence. They have to be competent to handle the obvious stress and pressure of torturing an individual. They must be of the soundest mind.

As a means of review, there should be more than one of the qualified interrogators present.

Any American intelligence officer who does torture an individual without authorization must be prosecuted and punished to the full extent of the law. This might be the most important provision we can craft on the issue. There are few crimes greater and more heinous than torture, and the sanction for its violation should be commensurate to that fact. Without such a penalty, we would forfeit many of the benefits and protections of the provisions I outlined above.
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All of this is certainly an unpleasant conversation to have and a rather obnoxious question to decide. And some may seek to avoid it by simply clinging to the notion that torture is ineffective anyway. This would obviously be an easy resolution to the moral crisis the topic presents, but it does not seem to be true. There are documented incidents of torture actually being effective.

Those who would still refuse to condone torture under any circumstance, despite all of the above, are certainly admirable in their intent. He who refuses to harm another human being no matter the circumstance or effect is certainly a saint among us. But this does not change the fact that such a stance is grossly naive and self-paralyzing if adopted by a besieged society as a whole. Sometimes torture is the lesser of two evils. If we decline to defend ourselves, and adopt the necessary means in defending ourselves, we inexorably decline to protect innocent life. Quoting from Mr. Krauthammer one last time, "One should be grateful for the saintly among us. And one should be vigilant that they not get to make the decisions upon which the lives of others depend."

Moreover, I do not see how one can assert that we should always be compelled to treat an individual humanely when doing so will allow that individual and his ilk to perpetrate the most inhumane, barbaric acts on scores of innocent individuals. It would be too tragically ironic if an act of senseless murder was allowed to be carried out on a mass scale because we were unwilling to adopt some unusually terrible measures with one or a couple of the perpetrators to prevent it. If the choice is forced upon us how can we as a society stand idle and allow scores of innocents to fall prey to unspeakable barbarities instead of enacting some barbaric measure with individuals who are not at all innocent to prevent it? In such circumstances, I think it is clear what we must do, as odious as it may be.

We all wish that the bitter realities of our world would never put us in this position. But we do not live in such a world. In this age of terrorism, torture may be a necessary evil to be utilized—in the most limited, strictly defined and enforced circumstances possible—to save the lives of countless innocents. Sometimes in the most severe of instances the act of torture is the most moral thing to do; when, that is, the only other option is to remain idle as an act of bloody savagery is perpetrated.

Our society’s absolute objection to rendition in all circumstances in the philosophical and abstract—noble as it is—does not stand up to the occasional realities of the world we inhabit.

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1. Charles Krauthammer, The Truth about Torture, The Weekly Standard, December 5, 2005, at 21.