Torture, Necessity and Existential Politics
University of California, Berkeley - School of Law
UC Berkeley Public Law Research Paper No. 870602
Stanford Public Law Working Paper No. 121
This paper takes up the political theory sketched by the infamous (and now withdrawn) Office of Legal Counsel memorandum of August 1, 2002. That memorandum proposed for the Bush Administration a theory of executive emergency powers, including the power to use torturous interrogation techniques otherwise barred by domestic and international law. According to the memorandum, both the power to deploy torture and other forms of coercive interrogation, and the general freedom of the executive to direct policy in times of war, are grounded in a justification of necessity. The central aim of my paper is to explore the force and limits of necessity claims in moral and political theory as a general matter.
In particular, I argue that we make use of two very different concepts of rights, one concept that serves to impose limits on institutional, welfarist considerations, and another that is far more sensitive to such considerations. Instances of the former are core human rights protections; instances of the latter are rights over property. We must also distinguish between two concepts of necessity, as fact and as justification. The confusion displayed in legal and philosophical thought concerning torture in extremes is a consequence of the failure to grasp these distinctions. When necessity is deployed as a justification, it vitiates the content of the principles it claims to override, and lends itself to the psychological and institutional abuses of which we have such stark evidence. Understanding necessity as fact, by contrast, demands that we resist the impulse towards justifying and institutionalizing the exception, while acknowledging the theoretical limits of the justifying force of our principles.
I also pursue in this paper the striking parallels between the Administration's claims of emergency power and exceptional justification, and the political theory of Carl Schmitt, the German constitutional thinker who developed an argument about the need for extra-constitutional executive power in times of existential crisis for the Weimar Republic. As with Schmitt's theory, the administration's theory gains (potential) executive effectiveness at the cost of rejecting two of the deepest legacies of the Enlightenment: the inviolability of the individual and the priority of right to power.
Number of Pages in PDF File: 53
Date posted: December 16, 2005
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