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Reflections on the Torture Debate

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What remains to be said of the torture debate? I asked myself this question because March 28 was an anniversary of sorts. On that date 10 years ago the United States cast the first person into a CIA black site. In time, he was subjected to each and every one of the Bush administration’s “enhanced” techniques. Waterboarding, of which there was a great deal, was in many ways the least of it. Today he is at Guantanamo. His name is Abu Zubaydah. I represent him.

Like much in the so-called war on terror, torture has fallen from prominence, replaced by other matters that have elbowed their way to the most visible regions of the public square. Much has been written and said about torture in the past decade. Religious, historical, and pragmatic arguments have all been aired, but little has been settled. Those who like it (and there are many) will continue to like it. They have resolved the matter in their own minds and have hardened themselves to the evidence against it.

There is no reason to believe this state of affairs will change anytime soon. As a result, the debate has taken on the character of a long-running but unfinished argument between siblings: at some point, the shouting just stops — not because anything has been resolved, but because everyone knows what the others will say.

It is time to move past this stalemate and examine whether the torture controversy will have any lasting impact. Indeed, it is precisely because torture is no longer the hot-button issue it used to be that we can finally begin to assess its enduring effect on American life.

Every controversy associated with September 11 has been characterized as an imagined contest between liberty and security. But it makes much more sense to think of torture as a tri-cornered tension involving limited government, individualism, and community — three values that are all essential elements of American identity. The question posed by torture is whether we are willing to empower the government to sacrifice the dignity and integrity of the individual for the perceived benefit of the community.

At least since the rise of modern conservatism in the late 1960s, the welfare of the individual has taken on almost religious significance in this country. The iconoclastic libertarian Ayn Rand, author of The Fountainhead and Atlas Shrugged, mocked the very notion that there was a “common good” and ridiculed the suggestion that “everybody is responsible for everybody’s welfare.”

Traditionally, libertarians broke with social conservatives over the issue of limited government. Social conservatives had always been less alarmed about centralized authority as long as it was used to protect an idealized community from marauding “Others.” Prior to the Civil Rights movement, that meant African Americans; afterwards it meant “gang-bangers,” juvenile “super-predators,” sex offenders, or drug dealers. Today it means Islamic terrorists.

Fragile unity

The great success of modern conservatism came about when social conservatives adopted the libertarian language of individualism. The emphasis on community began to disappear from conservative rhetoric. Controlling “Others” became a matter of individual and not community welfare. The right of a person to run a business without being robbed; to sleep at night without being burgled; to walk the streets without being accosted — these were individual interests, not community concerns. The rhetorical shift allowed social conservatives to build a bridge to libertarians.

For a brief period in the 1960s, Democrats were relatively enthusiastic about using the federal government to protect the rights of those among us whose voices were not as loud and did not reach as high. In later years, however, and particularly since the Clinton years, they have generally thrown in their lot with social conservatives in the belief that it was better to protect crime victims than criminals. Unlike social conservatives, however, they defend this sentiment in terms of the common good and the welfare of the community.

The result was a fragile accommodation: Libertarians place the welfare of the individual above other interests and are suspicious of centralized authority; social conservatives (who are overwhelmingly Republican) embrace centralized authority in order to protect the rights of some individuals; and Democrats welcome centralized authority in order to promote some individual rights but not others. That has led them to favor crime control as long as there remains at least a rhetorical nod to the rights of the accused. Each group has its own motivations for supporting different policies.

The unity broken

Now toss state-sanctioned torture into the mix. Libertarians are aghast, since torture is the ultimate denial of the individual at the hands of the State, worse even than capital punishment because of its calculated brutality. That explains why libertarians have been the staunchest foes of torture. Social conservatives have been most willing to accept it, since it fits with their historic willingness to use centralized authority in order to protect an idealized community from the dangerous “Others.” That has been part of the fissure that has split the Right since September 11.

And Democrats have been most confronted by the intellectual and moral limits of their philosophy. Do they protect the dignity of the individual, which would align them with libertarians? Or do they protect the welfare of the imagined community? As liberalism has been defined since Bill Clinton, that would align them more with social conservatives.

Or do they use the torture debate (and other post–9/11 controversies) as the opportunity to redefine their philosophical commitments? One reason that torture appeals to so many people who are not at all social conservatives is that post–1960s liberalism has painted itself into an intellectually bankrupt corner and therefore cannot provide a coherent argument for why torture is categorically wrong.

In a word, modern liberalism has foundered because it has embraced an artificial conflict between the individual and the community. The defense of individual rights is not achieved, as Clinton supposed, at the expense of the community. Instead, it is in recognition that the individual is part of a community, and we protect his rights in order that he may remain so. Community welfare and individual rights are, and ought to be, joined and inseparable. Government serves the welfare of the community by protecting the dignity and rights of the individual, for it is the individual with dignity and rights who makes the ideal citizen and provides the most value to the community.

If Democrats were to redefine their philosophy along those lines, the torture debate would no longer be a conundrum. The government must never be allowed to sacrifice the dignity and integrity of the individual for the perceived benefit of the community because there can be no community as long as the government is allowed to sacrifice the individual. That is a choice no government should ever be allowed to make, and no Democrat should ever endorse.

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    Joseph Margulies is an author for The Future of Freedom Foundation. We'll have a more detailed bio for them soon.