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Escaping the State of Exception: Terror, Martial Law and Democracy
Bard College
Fall 2009

Description
Mark Danner
Monday 7:30-9:50p
Carnegie Council (New York campus)
In the aftermath of the attacks of September 11, 2001, officials of the US government put in place what one high White House official called a "new paradigm" in fighting wars. George W. Bush's "War on Terror" would be an entirely different kind of conflict, one that would rely to an unprecedented degree on intelligence, surveillance and interrogation. As such it would require new tools and new methods, most prominent among them warrantless surveillance, to track terrorist suspects; "extraordinary rendition," to seize those suspects and secretly transport them to friendly countries; and "enhanced interrogation," to persuade them to give up the information they had. Together these techniques, and the alterations in or circumventions of the law that came with them, constituted what might be called "a state of exception" - a kind of improvised and undeclared State of Emergency or martial law. In this seminar, we will study Bush's "state of exception," identifying and analyzing its major components. We will trace their history and debate their effectiveness. We will compare the United States' efforts to deal with terrorism with those of other democracies, including the United Kingdom and India. Finally we will closely follow the new Administration's ongoing efforts to revise the "state of exception" - and to help the country emerge from it.


Syllabus
Requirements

Escaping the State of Exception:

Terror, Martial Law and Democracy

BGIA Seminar, Monday 7:00-9:20, Carnegie Conference Room

Mark Danner

Requirements. This is a discussion course about democracy, terrorism and war. Its method is simple: track these issues closely in the daily and weekly press, print and electronic; read the class assignments, usually about a book a week, sometimes two; come to class prepared to talk about them. Or, in schematic form:

1.   Attend class

2.   Come Prepared

3.   Take Part

Apart from this, a final paper taking up some of the themes and works discussed in the class will be due on December 14. A short paragraph setting out the theme or subject of the final paper will be due on November 23.

Course Grading. Grades awarded for the course will be based on attendance, class participation and the quality of the written work.

Newspapers, Magazines, Television. In this seminar we are examining a moving target, the "state of exception" as imposed by the Bush Administration and as modified by the Obama Administration. The daily and weekly press, both print and electronic, is extensively covering the issue, and a requirement of this course is to follow that coverage closely.

Required Reading and Editions.  Please use the editions specified in the list below. I'd strongly recommend purchase.

Required Books

Giorgio Agamben, State of Exception (Chicago, 2005)

Matthew Alexander with John R. Bruning, How To Break A Terrorist (Free Press, 2008)

General Paul Aussaresses, The Battle of the Casbah: Terrorism and Counter-Terrorism in Algeria, 1955-57 (Enigma, 2002)

Steven Brill, After: How America Confronted the September 12 Era (Simon & Schuster, 2003)

Matthew Carr, The Infernal Machine: A History of Terrorism (Free Press, 2006)

Richard Clarke, Against All Enemies: Inside America's War on Terror (Free Press, 2004)

Barton Gellman, Angler: The Cheney Vice Presidency (Penguin, 2008)

Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned Into A War on American Ideals (Doubleday, 2008)

Mark Danner, Torture & Truth: American, Abu Ghraib and the War on Terror (New York Review Books, 2004)

Louise Richardson, What Terrorists Want: Understanding the Enemy, Containing the Threat (Random House, 2006)

Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Rossiter, 2007 [1948])

Geoffrey R. Stone, War and Liberty: An American Dilemma, 1790 to the Present (Norton, 2007)

Lawrence Wright, The Looming Tower: Al Qaeda and the Road to 9/11 (Vintage, 2006) 

Films: 

Gillo Pontecorvo La Battaglia di Algeri (The Battle of the Algiers) (1967)

Alex Gibney, Taxi to the Dark Side (2007)

Errol Morris, Standard Operation Procedure (2008)

Recommended and Other Assorted Books

Bruce Ackerman, Before the Next Attack: Restoring Civil Liberties in an Age of Terror (Yale, 2006)

John Conroy, Unspeakable Acts, Ordinary People: The Dynamics of Torture (California, 2000)

Jim Dwyer and Kevin Flynn, 102 Minutes: The Untold Story of the Fight to Survive Inside the Twin Towers (Times Books, 2005)

Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (Norton)

Philip Gourevitch and Errol Morris, The Ballad of Abu Ghraib (aka Standard Operating Procedure) (Penguin, 2008)

Eric Lichtblau, Bush's Law: The Remaking of American Justice (Anchor)

Chris Mackey and Greg Miller, The Interrogators: Task Force 500 and America's Secret War on Al Qaeda (Back Bay, 2005)

Alfred W. McCoy, A Question of Torture: CIA Interrogation, From the Cold War to the War on Terror (Owl Books, 2006)

Charlie Savage, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (Little, Brown)

Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereighty (Chicago, 1985 [1922])

Ron Suskind, The One Percent Doctrine: Deep Inside America's Pursuit of Its Enemies Since 9/11 (Simon & Schuster, 2006)

Jacobo Timerman, Prisoner Without A Name, Cell Without A Number (Vintage, 1981)

John Yoo, War By Other Means: An Insider's Account of the War on Terror (Atlantic Monthly Press, 2006)

Syllabus

September 7 

Introduction to the course. On the State of Exception — a matter of definition. Escaping the State of Exception: Where are we now: A matter of history. Are we at war? 

Class Notes (Taken By Course Assistant Dashiell Farewell):

The State of Exception: Setting aside the normative rules, suspension of normal rights, voiding of normal laws, all in a time of crisis as designated by the Bush admin. And set down seemingly in perpetuity.

Elements:

Warrantless surveillance/domestic spying via the NSA

Preventive detention

Extraordinary rendition

Enhanced Interrogation

Also an important factor: use of fear by those in power to solidify power. "With us or against us" mentality   promoted, dissenting voices "soft on terror"; opposition from those in power becomes politically dangerous b/c of general culture of public fear. Any reluctant to oppose SoE b/c of "why do you care about the rights of terrorists?" argument sure to be levied against them.

Recommended Reading:

James Bamford, The Puzzle Palace: Inside the National Security Agency, America's Most Secret Intelligence Organization (Penguin, 1983)


September 14 

On the identity of the enemy. Are we at war? How is this war different from all other wars?

Reading:

 Lawrence Wright, The Looming Tower: Al Qaeda and the Road to 9/11 (Vintage, 2006)

Class Notes (Taken By Course Assistant Dashiell Farewell):

The Antagonists in the "War on Terror"

For Americans, 9/11 had no historical foundations or contexts. In truth, as Wright's book indicates, there was an immense amount of history that led up to 9/11, almost, one could argue, inevitably

What influenced the attacks?

Desire to purify Islam

Desire to purify Arab lands

Redemption for past humiliations at the hands of the West

Israel, US influence in the corrupt Saudi and Egyptian regimes

Salafist thinking

A return to the time of the Prophet, pure religion

Current state: Pre-Prophet darkness that must be actively addressed

The attackers

Largely young, middle class men

Radicalized b/c of life in frozen/corrupt societies w/ no opportunity, abundant corruption, Western influence, no pure religion

Desire to actively transform society from above to something pure and uncorrupted, driven to this desire by intense humiliation/powerlessness 

U.S. seen as main agent responsible for ills of society

The "Near Enemy" i.e. the decadent house of Saud, the Mubarak regime and, most importantly, Israel, all of whom are idolatrous, apostate regimes, cannot be overthrown so influence shifts to "The Far Enemy" i.e. the U.S. who props up these closer foes

Failure to stop 9/11

Not a legal problem: the legal tools existed to detect the threat and stop it before completion

Bureaucratic issue instead: Intelligence orgs. (CIA and FBI) inherently at odds w/ one another, unwilling to share intel. 9/11 threat could have been discovered if all intelligence had been analyzed as a whole. Conflict between the two agencies prevented this possibility from coming about.

Recommended Reading:

Edward Luttwak, Coup d'Etat: A Practical Handbook (Harvard University Press, 1979)

V.S. Naipaul, Mimic Men (Vintage, 2004)

 

September 21 

On the American Sense of Compromise: War and Liberty.

Reading: 

Geoffrey R. Stone, War and Liberty: An American Dilemma, 1790 to the Present (Norton, 2007)

Class Notes (Taken By Course Assistant Dashiell Farewell):

Measures the gov. has taken in wartime in regards to civil liberties

Post 9/11 SoE legal policies, just like the attacks themselves, are firmly grounded in historical precedent

Historically, constant struggle to balance between war and liberty

"Balance" is problematic, suggests a tradeoff is necessary and that a decrease in civil liberties = an increase in security and vice versa. This is an assumption, not a fact.

Typical reaction of wartime leaders: being seen to take action, whether that action is effective or not is of secondary importance to the fact of mere action

Dangerous, can lead to notion that the action itself, if done earlier, would have prevented war/attacks. The action comes to be seen as essential.

Politics always a factor, always considering constituents/elections etc. 

Again, dangerous: tends to lead to political niceties and oversimplifications that prevent true understanding of an event and therefore makes preventing similar events in the future less likely

Binary rhetoric, a carryover from Cold War politics, is common ("with us or against us" "good or evil" etc.)

 

September 28

Terror — A History of a Peculiar Form of War.

Reading: 

Matthew Carr, The Infernal Machine: A History of Terrorism (Free Press, 2006)

Osama Bin Laden, Fatwahs 1996 and 1998: http://www.pbs.org/newshour/terrorism/international/fatwa_1996.html

http://www.pbs.org/newshour/terrorism/international/fatwa_1998.html

George W. Bush, Speech to the Joint Chiefs, September 20, 2001: http://www.americanrhetoric.com/speeches/gwbush911jointsessionspeech.htm

Class Notes (Taken By Course Assistant Dashiell Farewell):

The history of terrorism

Terrorism evolves in waves, has since late 19th century anarchism through post-WWII colonial struggles and into religious and nationalist violence of today

Message of Carr's book: 

Terror comes in waves, has for past 150 years

Terrorism is always for a distinct political goal. It is almost never an isolated phenomenon, generally deeply rooted in historical and political precedent. Terrorists operate with the hopes of becomes a political force instead of being regarded as exceptional criminals. Counterterror always seeks to deny the politics behind terrorist actions for acknowledging these goals you run the risk of granting some legitimacy. Counterterror is about the malediction of terror

Terror and counterterror always go together. Often the counterterrorist response is worse, more repressive and more brutal than the terrorist threat. Counterterror exploits fear and exploits terrorism as a means of fulfilling previous desirable but unattainable political ends (see the Bush 43 admin invading Iraq post 9/11, something that was desired but difficult to prove necessary before that event).

Recommended Reading:

Fyodor Dostoevsky, Demons

 

October 5 

Fighting Terror: Method and Strategy.

Reading: 

General Paul Aussaresses, The Battle of the Casbah: Terrorism and Counter-Terrorism in Algeria, 1955-57 (Enigma, 2002)

Class Notes (Taken By Course Assistant Dashiell Farewell):

Class: Screening on Pontecarvo's Battle of Algiers

Keep in mind when viewing three time periods

When the movie is set

1950s early 1960s ('56-'62)

War of decolonization in Algeria

Anticolonial uprisings in face of attempts to reassert colonial authority in the backwash of WWII

France in particular, in Indochina and Algeria

When the movie was made: '65-'66

Recent history

Filmed in Algeria

Modern era

How do the questions the film raises apply to today's conflicts particularly in Iraq/Afghanistan and the govs. Response to terrorism

Film hinges at the middle

People's war 

Counterterrorist response

Film also the biography of a revolutionary, Ali la Pointe

Early events (held in prison, witness to executions, abused by pied noirs) politicized him

See parallels to modern conflict and origins of key players on terrorist side as well as parallels to the techniques used by Bush admin and currently to those used by the French (i.e. Aussaresses in Battle of the Casbah)

Goal of revolutionaries: 

violence to provoke the other side to respond with oppression, forces bystanders to choose sides and cease being bystanders

Terrorism as the beginning stage, the people must eventually take over the movement begun by those willing to use terror

 

October 19 

Fighting Terror: The State of Exception

Reading:

Louise Richardson, What Terrorists Want: Understanding the Enemy, Containing the Threat (Random House, 2006)

Class Notes (Taken By Course Assistant Dashiell Farewell):

Constant dilemma in current type of war

How to fight an insurgency on the ground overseas w/o legit local gov. as partner

Difficult to manage, cajole, threaten if you actually need local support

For ex., saying "do X before you get Y" to local gov. is dangerous b/c it could backfire; supporting a gov. before they legitimate themselves by doing Y is dangerous too

For local gov., calculation: give in to US demands or call their bluff?

Do they need support more than they need to legitimate presence? Can the US afford to say and follow through on a "do things the right way to get our aid" mentality?

9/11 goal:

Symbolic rallying point for recruits

Invite US attack in Afghanistan, lure them into "graveyard of empires" : provocation (common tactic)

War on Terror: US created a war that could not be won b/c of it's proclaimed goals

Dangerous and counterproductive rhetoric post 9/11 by pres. and admin: elevating terrorists/conflict to an equal foot/cosmic war by presenting binary "good v. evil" fight instead of approaching attackers rationally

Terrorism attempts to undermine the prestige of power; US response a desire to reassert that symbolic thwarting

US failed in its response largely b/c it assumed the very characteristics of the caricature that Bin Laden/Al Qaeda has painted of us

 

October 26

 Fighting Terror: The Inside

Reading: 

Main focus: Richard Clarke, Against All Enemies: Inside America's War on Terror (Free Press, 2004) 

Secondary: Steven Brill, After: How America Confronted the September 12 Era (Simon & Schuster, 2003)

In-Class, movie: Alex Gibney, Taxi to the Dark Side (2007)

Class Notes (Taken By Course Assistant Dashiell Farewell):

Made, 2007

Story line, 2004

Film, therefore, is an organizational tool for known facts, not an expose

Ideas:

War on Terror began before the institutions/infrastructure to effectively fight it were in place

"going to war with the army you have"

This, plus plans that never accounted for extended war, insurgency, use of mass interrogations etc.

On insurgents: "we don't know who they are, just grab everyone" attitude prevailed

Interrogators given task of working out who was a danger, who wasn't from the masses

This lack of appropriate institutional framework was partially reason for widespread abuse

Torture/cruel treatment of detainees created class of prisoners who had been radicalized, become anti-American within the prison system or who were already terrorist but, b/c of the way in which intel had been extracted, could not be tried

These prisoners cannot be tried, convicted, or released

Leads to argument for indefinite detention as necessary

Recommended Reading:

Qatani interrogation logs

Jane Mayer, Profile of Admiral Mora for The New Yorker

 

November 2

 Intelligence and Interrogation: The Heart of a New Kind of War

Reading:

Steven Brill, After: How America Confronted the September 12 Era (Simon & Schuster, 2003)

Barack Obama and Dick Cheney, Speeches on National Security
Cheney:
http://enduringamerica.com/2009/10/22/transcript-cheney-speech-on-national-security-21-october/
Obama:
http://www.huffingtonpost.com/2009/05/21/obama-national-archives-s_n_206189.html

David Cole, "Closing Guantanamo," The Boston Review (Dec. 13, 2008) http://bostonreview.net/BR34.1/cole.php

Mark Danner, "Voices from the Black Sites," The New York Review of Books (February 2007) http://www.markdanner.com/articles/show/151

Mark Danner, "The Red Cross Torture Report: What it Means," The New York Review of Books (February 2007) http://www.markdanner.com/articles/show/the_red_cross_torture_report_what_it_means 

In class, film: Errol Morris, Standard Operating Procedure (2008)

Class Notes (Taken By Course Assistant Dashiell Farewell):

Abu Ghraib = first time torture was televisual but not the first time it was made public

Torture by US in war on terror widely known/reported on for years prior to AG

Television not best source for conveying info but still remains the key source b/c it is easily #1 at conveying images, emotions etc.

Cycle: torture came into public eye, controversy/discussion died down. Happened in waves but torture continued the whole time

Abu Ghraib unusual: 

Active war zone

"Bad apples" defense

What happened there described officially as a crime, not government policy

Small amount of truth to this, largely inaccurate as most techniques were monitored, approved of, encouraged etc.

Images were almost damaging to the investigation, one could argue

Discussion/investigation of AG circumscribed around these images and the US soldiers present in them. Allowed for the investigation not to go up the chain of command or asking "why?" in a way that got concrete answers

 

November 9 

"Enhanced Interrogation Techniques" and Torture

Reading: 

Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned Into A War on American Ideals (Doubleday, 2008)

Mark Danner, Torture & Truth: American, Abu Ghraib and the War on Terror (New York Review Books, 2004)

Class Notes (Taken By Course Assistant Dashiell Farewell):

Important to keep in mind, many of Bush SoE techniques not w/o historical precedent

See, for ex., suspension of habeus corpus under Lincoln

Argument: Guantanamo, Abu Ghraib, Bagram etc.: habeus corpus, Geneva convention doesn't apply

In US, divisions in power/size of bureaucracy makes radical change difficult but w/ the right people in the right positions of power, substantial alterations can be made

See Bush admin. for proof: Cheney, Addington, Byee, Yoo, Ashcroft, Gonzales etc. intense cronyism, willingness/ability to manipulate system, interest in seeing power used in a certain way

Why torture?

"It worked," stopped future attacks

A show of force, no chance of seeming soft

W/ invasion of Afghanistan, major influx of prisoners many of whom may or may not have been militants. More than expected. What to do with them? -> system of incentives put into place: getting as much info as possible to facilitate fast turnaround, getting guilty out of detention centers to accommodate new influx

Demands decision to be made

Goal: protect the country

Need to counter insurgency in Iraq, Al Qaeda in Afghanistan

Gonzales: Geneva Convention "quaint" under these conditions

W/ time, Shift from need to gather intelligence to need to self-preserve. "How can we release them now after torture?"

 

November 16 

"Old School" vs. "New School" interrogations: Legal, Ethical, and Practical Arguments

Reading:

Matthew Alexander with John R. Bruning, How To Break A Terrorist (Free Press, 2008)

Jack Goldsmith, "The Cheney Fallacy," The New Republic (May 18, 2009): http://www.tnr.com/article/politics/the-cheney-fallacy

Lieutenant General John Kimmons, DoD News Briefing, Sept. 6, 2006. http://www.defenselink.mil/Transcripts/Transcript.aspx?TranscriptID=3712

Phil Zelikow, "Legal Policy for a Twilight War," George Mason University, History News Network (May 30, 2007) http://hnn.us/articles/39494.html

Class Notes (Taken By Course Assistant Dashiell Farewell):

Pre-invasion Iraq, Sunni rule (20% pop.)

Sectarian divisions divide Iraq in middle

Invasion unseated Sunni, rep. gov. put in place, Shia maj. so new gov.

US goal: Install US friendly Shia gov. in Iraq, inspire uprisings in other Shia societies i.e. Iran that the US would backup, domino effect ending in several US friendly regimes coming to power in region

Many confused by this, Sunni's unsure why US would back Shia regime like on in US enemy Iran

Shia death squads upsurge, anger at former Sunni oppression

Spike in Sunnis joining Al Qaeda for protection, way to make money after Sunnis banned from many different jobs etc.

Sunni suicide bombers v. Shia death squads = ^ violence

Interrogation of prisoners, two camps: old school v. new school

Old school: all Al-Qaeda ops. are brainwashed ideologues, need to be treated harshly, do not understand anything else and cannot be reformed, turned around, convinced to give info w/ anything but force: fear and control

New School: Nuanced, many factors lead to Al Qaeda membership, some are ideologues, many join out of fear, need for money etc. Rapport building much more useful as a result

 

November 23  

The State of Exception: Where it Came From; Implications of its Existence

Final paper proposal due

Readings:

Giorgio Agamben, State of Exception (Chicago, 2005)

Mark Danner, "war of the Imagination," New York Review of Books (Dec. 21, 2006) http://www.nybooks.com/articles/article-preview?article_id=19720

Eric Holder, press conference on bringing Khalid Shaik Mohammed and four other alleged 9/11 perpetrators to trial in NYC: http://ironicsurrealism.blogivists.com/2009/11/13/full-text-us-ag-eric-holder-press-conference-on-guantanamo-detainees-nov-13-09-voices-in-opposition/

 

November 30 

Knowing how Power Works: Power Structures of the Bush Administration in Relation to the State of Exception

Readings:

Barton Gellman, Angler: The Cheney Vice Presidency (Penguin, 2008)

David Cole, "Closing Guantanamo," Boston Review (Dec. 13, 2008) http://bostonreview.net/BR34.1/cole.php
This is the condensed version of a much larger piece that was published in the Georgetown Law Review.

Alissa J. Rubin, "Afghans Detail Detention in 'Black Jail' at U.S. Base" New York Times (November 28, 2009) http://www.nytimes.com/2009/11/29/world/asia/29bagram.html?_r=1&hpw

Marc Thiessen, "'Years of Delay' Saved Lives," USA Today (Nov. 24, 2009) http://blogs.usatoday.com/oped/2009/11/column-years-of-delay-saved-lives.html

Class Notes (Taken By Course Assistant Dashiell Farewell):

Angler = lessons in how to absolutely utilize power

Experience, knowledge of gov.

Impressionable chief exec., willing to delegate

Friends in key positions, personnel is policy

Bush/Cheney relationship:

Not just latter manipulating former (too simplistic), a symbiotic relationship more accurate: Bush wanted to make big, grand, general strategic calls and no concern himself with the nitty gritty, happy to delegate general power, something Cheney was more than happy to accept and utilize 

Cheney: general disdain for gov., existing bureaucracy etc., saw them as obstacles to be circumvented in order to redraw power dynamics in a way that favors the executive, allows for more substantial change to be made by a select few 

 

December 7 

Lessons of History: How and Why the State of Exception has been manifested in the past; Its implications; Difference and Similarities Today

Reading:

Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Rossiter, 2007 [1948])

Class Notes (Taken By Course Assistant Dashiell Farewell):

Govs. have crisis periods where they become, necessarily, constitutional dictatorships in order to survive

US has been lucky historically that there have been strong/energetic enough executives in power in times of crisis in order to make these tough calls

Lincoln, Wilson, FDR

Bush not an example of this

Const. Dict. i.e. implementing a State of Exception is only acceptable if no other viable legislative or institutional alternatives to remedy the crisis exist. This was not the case with Bush

Others implemented tactics openly. Much of what Bush did was done in secret

Const. Dict. must always have a given end, the const. dict. are the means to restoring the status quo once the crisis is over. Bush imp. SoE (ongoing) has no est. or foreseeable endpoint and is therefore an abuse of the executive's privilege to enact a const. dict. in a time of absolute necessity.

Begs argument: Something should be done const. or legislatively so that how the exec. Responds/enacts emergency legislation in a time of crisis isn't left up to a dice roll depending on who is in power at that time.

 

December 11 (Make Up Class)

Alternatives and Compromises: Ideas on how to Proceed Given the Failures of Bush's State of Exception

Reading: 

Alan M. Dershowitz, "Want to Torture? Get a Warrant," SF Chronicle (Jan. 22, 2002) http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2002/01/22/ED5329.DTL 

Scott Horton, "Six Questions for Louis Fisher, Author of The Constitution and 9/11," Harpers Magazine (Jan. 5, 2009) http://www.harpers.org/archive/2009/01/hbc-90004121

Bruce Ackermann, "Don't Panic," London Review of Books (February 2002) http://www.lrb.co.uk/v24/n03/bruce-ackerman/dont-panic

Bruce Ackermann, "Before the Next Attacks" Yale Law Review (June 29, 2009) http://www.law.yale.edu/news/2881.htm

Bruce Ackermann, "Impeach Jay Bybee," Slate Magazine (January 13, 2009) http://www.slate.com/id/2208517/

Class Notes (Taken By Course Assistant Dashiell Farewell):

Ackermann: institute Emergency Constitution w/ certain SoE elements in time of need with built in sunset clause, smaller and smaller % of congress needed to end situation over time, restore old Const.

Would this work? Politics of fear might convince many to vote with public perception, keeping certain policies enacted b/c of climate of fear in place longer than necessary

How is this SoE different from ones in the past?

Previously and definitional: SoE should be tied to a temporally/physically bounded conflict w/ set end

Current conflict: amorphous, potentially infinite, unbounded

This is akin to an endless SoE, what Agamben calls a dictatorship

 Dershowitz, torture warrants

Like wiretap, judges would consider cases in 'ticking bomb' scenarios and grant permission to torture in a regulated way in order to extract info w/ legal immunity for torturer

Torture would occur based on 'absolute need' and 'probable cause'

Problematic, might lead to system being taken advantage of: proponent of torture presents case in such a way that makes it difficult for judge to say 'no'

B/c judge would have responsibility if s/he denied torture warrant and attack occurred, pressure to avoid this could lease to easily granted warrants

Is regulating/legitimating torture in certain circumstances worse than not at all and having it take place in less regulated/legal ways or is it better?

As in Israel, on the books: torture technically illegal, in ticking bomb scenario torture will happen, torturer pleads necessity.

Better system or worse than what Dersh. proposes?

Possible to imagine: In US ticking bomb scenario w/ Dersh. warrant, approved torture not working, torturer goes beyond those limits anyway to get info to stop ticking bomb, could plead necessity. Since this is possible, why risk damage to image by legitimating torture at all?

Fundamental issue: 'ticking bomb' is a fallacy, no '24' scenarios in real life so torture warrants bound to be abused, used when not truly needed

 

December 14 

Is Torture Anti-Liberal? Do We Need to Make a Compromise Between Being Free and Being Safe?

Final Paper Due

Reading:

David Luban, "Liberalism, Torture, and the Ticking Bomb," Virginia Law Review (Sept. 2005) http://www.virginialawreview.org/content/pdfs/91/1425.pdf

Class Notes (Taken By Course Assistant Dashiell Farewell):

Luban on the 'ticking bomb'

"intellectual fraud"

Construction of an essential impossibility to prove that the absolute against torture doesn't stand in order to tiptoe it back to allow torture in a greater variety of circumstances

Risks opening up category of torturable individuals and/or situations where torture should be allowed to a larger and larger group

What is a 'ticking bomb'? When is danger great enough?

Torture should be inherently anti-liberal not only b/c of its illegality but because it represents an ultimate invasive ability by the state.

Dershowitz on 'torture warrants'

Torture bound to happen anyway in moments of extreme peril i.e. the 'ticking bomb,' so better to regulate it and make it legally permissible in certain situations. This way at least there will be oversight of some kind and torture will happen less

Is this accurate? If people will do anything to stop 'ticking bomb,' why wouldn't they go beyond the agreed upon limits est. in hypothetical 'torture warrants' if those techniques weren't working? Warrant does not preclude torture or its escalation to extremes in this hypothetical moment of crisis

Suggests the need to make a decision, a tradeoff: 

A. In daily life, accept an element of danger (criminals go free b/c of a mix up in criminal proceedings i.e. not being read Miranda rights for example) in exchange for greater freedom and awareness of a limit of the invasive abilities of the state, more protection from the state

B. In daily life, accept a lower level of danger (all suspects held, for example, due process not strictly adhered to in exchange for more convictions) in exchange for a higher level of state invasiveness, less protection from the state

Recommended Reading:

Ron Suskind, The One Percent Doctrine (Simon & Schuster, 2007)

Report of the Events Relating to Maher Arar, Analysis and Recommendations: http://www.sirc-csars.gc.ca/pdfs/cm_arar_rec-eng.pdf#53

  



© 2017 Mark Danner