[As a courtesy to our guests, please keep comments to the book. Please take other conversations to a previous thread. – bev]
Father and son, Charles Fried (former solicitor general of the United States under Ronald Reagan, legal scholar at Harvard University and author of Modern Liberty) and Gregory Fried (chair of the Philosophy Department at Suffolk University and author of Heidegger’s Polemos) have undertaken the daunting task of examining the limitations and excesses of modern day Presidential power to gather intelligence by torture and surveillance. In order to reach their ultimate conclusions as to the interplay of law, morality, civil community and political leadership, the Frieds review sources and thought from Aristotle to Machiavelli to the Bible, including principles from epieikeia to “dirty hands” to religious and secular precepts relating to human dignity. They have deliberately kept the conversation, “as wide as possible” in recognition that “ours is a nation founded in philosophy.”
While the authors are very clear on their own conclusions, they give an even-handed examination to competing arguments and points of view, legal and philosophical. With respect to torture, the authors use a painting by Leon Golub, titled Interrogation I, to serve as a visual focus for their discussion. This imagery reinforces that a serious discussion of torture must reach beyond a dry legal analysis and into the moral and philosophical underpinning of who we are and how our communities function. You cannot look at Golub’s picture and think that the first reaction of a man or woman should be to look up a statute or reach for a dictionary. For some, the discussions on torture may be too weighted towards a religious view that decries torture of man in part as the desecration of the image of God, but the authors also consider and at times propound a more humanist approach as well.
While they bring each of their backgrounds to bear, legal and philosophical, the Frieds reach agreement that the prohibition on torture should and must be absolute, despite consideration of the “ticking time bomb” scenarios commonly used to bolster the opposing arguments. They posit that torture is not wrong because it is illegal, but rather, it is illegal because it is wrong (and not just inherently, but absolutely, wrong). Golub’s picture provides a constant visual reinforcement that argument follows, rather than leads, when a basic and absolute wrong is at issue. [cont’d]
Father and son fail to agree, however, on the consequences of such an absolute prohibition. Gregory believes that the consequences of violation of such a prohibition, “if we assume the worst” should necessarily require criminal prosecution. Charles, on the other hand, argues that “Cheney is not Hitler”with respect to a consideration of the scale of violation and worries that prosecution would be seen as politically motivated and that failed prosecutions might be worse than a lack of prosecution. Charles offers the argument that while torture can never be justified, at times it may be able to be excused and the Bush administration reactions may into this category.
With respect to government surveillance rather than torture, the Frieds reach different conclusions. Just as Golub’s Interrogation I is used to focus the visceral response to torture, surveillance discussion is focused in part by the historical references: the actions of President Lincoln in suspending habeas corpus after the Fort Sumter surrender and of President Jefferson in assuming the powers of the purse after the Chesapeake-Leopard affair. Given the authors’ determination that surveillance, unlike torture, is by its nature a legal wrong, it is not surprising to see the conversation align itself around historical precedent. In both of these “precedents” however, the Presidents who usurped powers not granted to them by the Constitution did so publically and then promptly went before Congress with a request for Congress to step in and give after-the-fact ratification to what had already been done.
Both of the historical precedents involved situations where the actions at issue would have been perfectly Constitutional if they had been done by the Legislative rather than the Executive branch – they were “illegal” not in their end result, but rather in the governmental process used to achieve that result.
Similarly, we can also say that parts of the President’s Surveillance Program were wrong only because they were illegal – they violated FISA – and that Congress’s action in 2008 in passing the FISA Amendments Act cured that defect. Congress went further and immunized those whose actions were illegal when they did them, but were illegal no longer.
In contrast to torture which is an absolute wrong even when used to gather intelligence to save lives, the Frieds determine that surveillance is instead a well recognized power of the sovereign and is only wrong”when done illegally. They argue that Congressional actions to revise FISA and grant immunity are on a par with Congressional actions to ratify Lincoln’s suspension of habeas and to ratify Jefferson’s spending.
It is very often a thankless task to tackle such complex and emotional subjects and I would like to thank the Frieds for their efforts to take the argument from soundbytes and towards a deeper discussion. With that, I’d like to welcome Gregory Fried to FDL today.