45 Pages Posted: 6 Mar 2008
A choice seems to be unavoidable once the topic of justifying torture to protect national necessity is introduced: one can adhere to the principle prohibiting the practice of torture or admit that circumstances and consequences matter to one's assessment of the legitimacy of torture. If circumstances matter, then it would appear that we must then balance national security interests against liberty interests. Two recent contributions to the growing literature on the purported clash between civil liberties and national security, Eric Posner and Adrian Vermeule's Terror in the Balance and Richard Posner's Not a Suicide Pact, eschew the practice of principle, articulating instead consequentialist apologies on behalf of official actions ranging from the suppression of dissent to the practice of torture. In their hands, constitutionally protected civil liberties become luxuries to be upheld only when conditions are thought normal but are to be substantially ignored when security threats are perceived as high. A primary goal of Posner and Vermeule's book is to restrain civil libertarians, philosophers, and other lawyers from shackling the government in its pursuit of the proper balance of liberty and security. Each of these projects provides apologies on behalf of torture. Each of these projects also presents powerful arguments in favor of unilateral executive action in the face of national-security emergencies, but neither project reflects the considered judgments of our constitutional tradition, which views with suspicion unchecked and unbalanced exercises of power. What is presented as a fair-minded act of balancing, designed to provide an optimal equilibrium of liberty and security, under closer scrutiny becomes, I argue, a rhetorical trope that obscures the underlying purpose of advancing security interests at the expense not only of civil rights and liberties, but of our constitutional tradition. I argue, within what I identify as a broad American pragmatist tradition, that we should abandon the image of balancing security against something so broad as civil liberties, take seriously our constitutional tradition's institutional design of checks, balances, and suspicion of unilateral action, and encourage the widest possible discussion of ways to harness both our pragmatist and constitutional traditions in order to create lasting structural solutions to the twin goals of fostering liberty and providing security.
Keywords: Torture, liberty, constitution, executive power, judicial review, national security, pragmatism
Suggested Citation: Suggested Citation
Crocker, Thomas P., Torture, with Apologies. Texas Law Review, Vol. 86, No. 3, 2008. Available at SSRN: https://ssrn.com/abstract=1102495