I depart for a moment from the usual appellate-law theme of this blog to point out a very interesting remark that Professor Ilya Somin recently made on the National Constitution Center's "We the People" podcast. Somin and Chicago professor Eric Posner were comparing the Bush administration's torture tactics with the Obama's administration's decision to trade five terrorist prisoners for U.S. Army Sergeant Bowe Bergdahl.
Somin argued that "while neither is justified and both are severe problems, if I had to choose, I think the abuse of prisoners who very likely are themselves terrorists, although wrong and illegal, in some ways is less bad than endangering the lives of innocent civilians." Podcast at 16:08.
He explained that the release of those five terrorists was likely to result in the death of civilians and therefore the trade could not be justified.
While I don't think this is necessarily a radical claim, there are reasons to think it is wrong. Chief among them is a point about cause-and-effect and direct versus indirect liability. Whereas torture is an act that directly hurts people, the Bergdahl trade only indirectly hurts people in the event that the released Guantanamo detainees choose to directly hurt people. In my view, it is less wrong to allow bad to happen than to create the harm yourself. This harkens to the debate over proximate cause: How comparably responsible must a person be for an outcome before we say they were the cause of the outcome?
If the detainees go on to hurt people, those actions fall immediately on their heads. If U.S. agents torture people, that likewise is on them. But Somin obviously believes that it's a pure numbers game: At the end of the day, did you play a role in hurting more people than would have been hurt if you did nothing?
That is pure utilitarian thinking of the sort that is actually pretty useful in justifying torture. Even if you occasionally torture an innocent person (or if there are less direct effects of torture, like the enemy being less willing to surrender or torturing your own guys), an actor could easily decide that--in the long run--torture is more helpful than harmful.
In the same vein as direct/indirect consequences, I would also the benefits in this trade were more direct than the benefits of torturing terrorists. Torture is done with the hope that it will produce information that will hopefully be sufficient to stop attacks in the future, but that benefit is by no means guaranteed when the torture commences. In contrast, the return of Bergdahl provided an immediate benefit in the returning of an American soldier to his family.
ReplyDeleteThanks for your interest in our podcast and your comments! However, it is not my view that "it's a pure numbers game." Numbers do matter. But the kind of people you harm also matters. It is, in my view, less reprehensible to harm captured terrorists than to harm innocent people (though gratuitous harm to the former is still wrong). It is also not just a matter of utilitarian calculation. When we release captured terrorists who are likely to kill again, we also violate the nonutilitarian rights of innocent people, including their rights to life and liberty.
ReplyDeleteI agree that the probability of a harm occurring matters. However, causing a high probability of a greater harm (the death of innocents) is sometimes worse than a certainty of a smaller, though still significant, harm (the torture of captured terrorists).
Finally, I am not convinced that the less direct nature of the causation here is as important as you infer. It is true that when released terrorists kill, they bear the greatest share of responsibility. But the person who ordered their release despite knowing what they are likely to do also has bears a great deal of blame. Similarly, a person who provides arms or financial assistance to terorrists, knowing that they will use them to kill substantial numbers of innocent people, may be more blameworthy than one who, e.g., directly inflicts a much smaller injury (e.g. - breaking someone's ankle).
Ultimately, I don't think it matters enormously whether Obama's conduct here was worse than Bush's or vice versa. We can and should prevent both types of abuses of presidential power. But I thought I would take this opportunity to clarify my views, which may not have been clear to you from the podcast, where this aspect of the issue was discussed only briefly.
-Ilya Somin