'Because It Is Wrong': A Meditation On Torture
MELISSA BLOCK, host:
From NPR News, this is ALL THINGS CONSIDERED. Im Melissa Block.
ROBERT SIEGEL, host:
And Im Robert Siegel.
The new book "Because It Is Wrong" is a father and son collaboration. Charles Fried, the father, is a Harvard law professor and former solicitor general of the United States. Gregory Fried is chairman of the Philosophy Department at Suffolk University. And in addition to the generational divide, the Frieds are divided by political affiliation. Charles Fried served in the Reagan administration and has supported Republican candidates for president. Gregory Fried is a self-described independent.
Together, they have attempted a rigorous analysis of, to quote the subtitle of "Because It is Wrong," "Torture, Privacy and Presidential Power in the Age of Terror."
Charles and Gregory Fried, welcome to both of you.
Professor GREGORY FRIED (Chairman, Philosophy Department, Suffolk University): Thank you, Robert.
Professor CHARLES FRIED (Harvard University Law School): Good to be here.
SIEGEL: And I'd like you to elaborate first a distinction between wrongs that you make in the book: Torture is illegal because it is wrong; government snooping on us without a warrant is wrong because it is illegal.
Charles Fried, what's the difference?
Prof. C. FRIED: The difference is that decent, civilized human beings will not under any circumstances torture or order torture. The Constitution itself says searches - which is what eavesdropping, snooping is - searches are only wrong if they're unreasonable or if they dont have a warrant. Well, that immediately shows there's a difference, because you can have reasonable snooping. You can have snooping pursuant to a warrant.
I dont care what kind of a warrant you have, you can't torture and there is no such thing as reasonable torture.
SIEGEL: And, Gregory, you agree with that - the wrongness of torture is absolute and there is no reasonable instance for it.
Prof. G. FRIED: Thats correct. And it is the burden of argument to make that case because I think it's essential to our identity as a nation that we hold to this absolute among others, that torture is one of the things that a democratic republic must not do in order to retain its character.
SIEGEL: Well, you address the cliched hypothetical that Ill repeat here and have you deal with: There's a devastating bomb about to go off, the clock is ticking, a detainee who is known to countenance and even plot mass murder, is under interrogation. If holding his head underwater so that he feels the threat of imminent drowning, if that technique were proven efficacious and that it would break his will and avert the explosion, you, Charles Fried would say, don't do it.
Prof. C. FRIED: Don't do it because it might break his will but it dishonors you and the whole country. It is part of our history. Washington said treat those captured in the battle with humanity and let them have no reason to complain over our copying the brutal example of the British army. Lincoln said military necessity does not admit of cruelty that is the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions.
It is an essential part of our honor and dignity as human beings to respect the honor and dignity of other human beings, even though they plot the most horrible things against us. Because if we dont respect their dignity we lose ours.
Prof. G. FRIED: And I would add - this is Gregory Fried speaking. I would add that one needs to think about what the consequences of that argument are. If you believe that dunking someone's head under the water will work in one case but it won't in another, what other calculations are admissible?
John Yoo has argued that the president has the authority to crush the testicles of a prisoner's child in order to coerce a confession or information from the prisoner. Would we accept that? Down that road lies madness.
SIEGEL: But to pursue this further. If I could rule out relatives of the detainee and deal only with the detainee himself, and if I could limit it, say, to what was called waterboarding, the argument turns to something that you write about. Machiavelli instructed the prince that to rule entails learning not to be good.
A supporter of those aggressive interrogation techniques or torture, if they were proven effective, would say you're being a moral narcissism, to put your own desire to keep one's hands clean ahead of the common good - ahead of preventing that bomb from going off and killing thousands.
Prof. C. FRIED: The ticking time bomb scenario is an exceptionally rare circumstance, one that our public may be convinced by shows like "24" happen all the time but, in fact, is so exceedingly rare that if you allow it to settle your entire interrogation policy, what you end up with is not rare cases where it's implemented with minimal negative effect. What you wind up with is Abu Ghraib.
SIEGEL: Well, in the book, you agree on nearly everything despite your different political affiliations. And I should say despite your being father and son, because that would be a good enough reason to disagree.
But you do differ in the end on this question: If President Bush and his subordinates knowingly violated laws and treaties in their policies on interrogation and on surveillance, should they be put on trial? Should they be prosecuted for it?
Gregory Fried, you said yes.
Prof. G. FRIED: Well, first of all, the kind of actions that were authorized by the Bush administration are unequivocally crimes, according to U.S. law. Furthermore, I find both the specific laws that were broken - laws against torture - and the theory which empowered the president to do those things, so dangerous, that the only way that it can be made clear to the American political system that these are inadmissible actions is through prosecution.
Prof. C. FRIED: Now, Im not at all pragmatic about whether torture is permissible or not. But I am pragmatic about whom you prosecute and when. And it seems to me that in a democracy for the ins to prosecute those who used to be in is a very dangerous, un-pragmatic thing to do.
And I know enough about the legal system to know that were there actually be an attempt to prosecute Vice President Cheney, Alberto Gonzales, John Yoo, Jay Bybee, those prosecutions would not be resolved until well after the second Palin administration. Thats how this would work out. And it's not at all clear that a jury would convict or, indeed, that a grand jury would indict.
SIEGEL: Charles Fried and Gregory Fried, thank you both very much.
Prof. C. FRIED: It's been a great pleasure to talk to you.
Prof. G. FRIED: Thank you, Robert.
SIEGEL: Charles and Gregory Fried's new book is called "Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror."