Torture: Wrong Yesterday, Wrong Today, Wrong Tomorrow

In nothing new under the sun, the Curmudgeonly Clerk notes accurately that many prior administrations have done quite horrible things in wartime. He notes the firebombing of Dresden and Tokyo, and the Japanese internments as examples of FDR's wartime moral failings. To which one might of course add the general conduct of the anti-insurgency campaigns in the Philippines after the Spanish-American War, the bombing of Cambodia, most of the century-long campaign against Native American tribes, just to name a few.

From this basis, he concludes I was wrong to approvingly quote Kevin Drum saying that “Under this administration, we seem to have lost the simple level of moral clarity that allowed our predecessors to tell right from wrong.”

As Mr. Clerk puts it,

My purpose is neither to justify the conduct of the present administration nor condemn the current president's predecessors. As I indicated during my last stint as a guest contributor at Crescat Sententia, I find wartime torture to be deeply troubling. I do not wish to minimize the moral significance of the events at Abu Ghraib or the decisions that purportedly led to those abuses. But Drum and Froomkin are incredibly mistaken in maintaining that the Bush administration's alleged wartime moral failings are unprecedented or unique.

That excesses and moral failings in wartime are not new, no reasonable person could dispute. That the US has been guilty of some in its history is not seriously in doubt, despite the 'my country right or wrong' crew. But there are important differences about this case which I think make it especially bad.

The first is that we are in a post-Nuremberg age. We profess and affirm a renewed and specific commitment to the rule of law even in wartime, one that labels some (but not all) excesses as war crimes, anathema. Torture falls squarely into that zone.

The second is that the norm against torture is especially well-established, and long-established, in both our domestic (cf. the Eighth Amendment) and international legal traditions, and in world-wide morality. (For a historic example, consider the post-Civil War case of Andersonville, where the mistreatment of prisoners was strongly condemned.) The prohibition is not a new post-Nuremberg idea, even if the clear deliniation of personal responsibility for adhering to the prohibitory norm may be. The attempt to justify cruel and unusual acts as legal thus is particularly hard to accept and particularly deserving of condemnation.

In summary, I am not arguing that inter-temporal relativism excuses past evils. Rather, I am arguing that,

1. The fact that there is a history of many evils in wartime should not blunt our condemnation of other evils, such as systematic torture of prisoners, that even those in the past might have blanched at, and

2. We can, we should, we do, hold ourselves and our government to a higher standard than the lowest common denominator of history. Indeed, it is precisely because we have the benefit of that history that we know we should do better.

I admit that the above is somewhat different from Kevin Drum's lines that I quoted, so I'm grateful to Mr. Clerk for making me be clearer.