A morally serious person does not pretend to an absolute objection to torture that he or she cannot support. Too much is at stake to indulge in extreme but indefensible positions that collapse under the weight of reality. Sanford Levinson is morally serious and intellectually honest and judges it necessary to offer a reluctant kind word for torture that might contribute to the avoidance of disaster. But torture falls beneath the minimal standards of civilization, and there are powerful reasons to protest any advance permission for such degrading actions. At most, we should consider retrospective forgiveness for someone so convinced that he confronted the rare exceptional case that he was willing to risk severe punishment if decent people were not later persuaded that he had been right. Formal exceptions invite widespread abuse, especially where a judicial system is under the degree of intimidation inflicted by the Bush administration since 9/11. How many U.S. judges have so far shown the wisdom and courage to resist less extreme assaults on civil and human rights?

An initial reason why the United States should never engage in torture is precedent. When I heard that U.S. military personnel bravely and professionally performing their duties in the U.S. and British invasion of Iraq had been captured, my first thought was, "I hope they are not tortured." We have no guarantee that a precedent of refraining from torture will be followed by others, but we can be sure that a precedent of engaging in torture will be followed. "If the world's superpower, with all its high technology weapons, cannot defend itself without using torture, how can incomparably weaker and poorer groups like us manage without torturing captured fighters who might provide valuable life-saving information?" Torture seems to be the ultimate in efficiency, the shortcut to end all shortcuts. It is difficult enough to resist when you would be the exception if you gave in. When you would simply be following the leader, the precedent is irresistible.

More frightening than the permissive power of precedent is that for the United States to use torture would undermine its logic in condemning terrorism. How could we condemn all terrorism while permitting some torture? Any sane defense of torture attempts to justify only the exceptional act in the extreme emergency. For some terrorists, extremity is not necessary; terror is a way of life, just as torture is a way of life for some torturers, and it is easy to explain why neither terrorism nor torture should be a way of life. But what about "selective terrorists" for whom this cause is noble, this situation desperate, and this possible pay-off enormous? If those circumstances justify "selective torture" (by the most powerful state in human history), why don't they justify "selective terrorism" by profoundly threatened true believers?

Justifications for torture thrive in fantasy. We imagine we have exactly the person we need-not some poor devil who looks like him to agents who have parachuted in from another culture. We imagine that the person we hold knows exactly what we need to know-not out-of-date information overtaken by events. We imagine that the person will reveal exactly what we need-not simply vomit and die, or descend into a psychotic state (of course torturers become better at it when they have more practice). We imagine that the information that will be revealed will be sufficient to prevent the terrible catastrophe-not that the catastrophe will simply be re-scheduled for a different time or place.

It is as easy to imagine the perfect torture as it is the perfect murder. The question is, what guidance do such imaginings provide for the real world in which things tend to go awry and to have unexpected consequences? No doubt there have been perfect murders, possibly also perfect tortures in which only some temporary degrading treatment of only a few people yielded spectacularly valuable information that prevented horrific catastrophes. But the question is whether public policy should presume the likelihood of these imagined neat cost/benefit bonanzas or the greater likelihood of snafu, excess, and metastasizing degradation.

For the ultimate reason not to inflict agony upon other human beings is that it is degrading to all involved: all become less human. The Washington Post documented on December 26, 2002, that the U.S. government currently sub-contracts the most awful torture to its supposedly less civilized allies, such as the governments of Morocco and Saudi Arabia. One could have a nice philosophical argument about whether it is more contemptible to arrange for third parties to do the dirty work or to act on one's supposed convictions and dirty one's own hands. Either way, ultimate responsibility lies with those who give the order, even if they can only bring themselves to whisper and wink. Perhaps the pitiful U.S. efforts at "deniability" are a tiny, hopeful sign of surviving conscience.

ISN'T THERE a cost to insisting on minimal civilization? Of course. I first read Levinson's essay in the departure lounge at Heathrow airport, waiting for American Airlines flight 155 to Logan in the first week of the U.S.-U.K. invasion of Iraq. "What if today is the day of the follow-up to 9/11, and in some London basement is a man who knows that there is a bomb on AA155? Wouldn't you endorse torture just this once, great moralist?" I am not a brave man, but I couldn't take my little airport thought-experiment very seriously. Mainly, I thought that a dedicated terrorist would insist to the police that the bomb was on the later United flight to Dulles, until the American flight to Logan had already exploded. Having already suffered so much, why shouldn't he try at least to accomplish his goal? Looking into the faces of the families around me innocently waiting for their trip to Boston, I reflected on the fact that this was not only or mostly about me. If these mothers and children died from terrorism because I would not endorse torture, it would be terrible. But what kind of world would these children live in if I added torture to the terrorism while imagining that I was saving their lives? Conceivably, they would live, not die, but they would live in a world in which even the strong had abandoned restraint and sunk further into barbarity. If I had had the London police on the phone ready to do my bidding, I honestly believe that I would have said, "Let's risk it-let's gamble that we can honor our principles and that the children (and old men) will not only not die but will live in civilized countries."

In mid-October 1940, with Nazi occupiers in Paris and a new French regime called "Vichy" legislating aggressively against Jews, Jacques Maury leveled a frontal protest against racism. A specialist in public law from the University of Toulouse, Maury could not believe that his own country had jumped the gun on German demands and exceeded Nazi models in persecuting the Jewish population under its own jurisdiction. Maybe the occupiers would eventually force this on the French, but Maury stated what he deemed to be the obvious: it was unacceptable for a government acting in the name of France to violate "our long-held rule safeguarding equality in their rights as well as in their responsibilities to all French people."

Although he wrote prominently for the Parisian equivalent of the Yale Law Journal, Maury was punished for his unequivocal support of human rights neither by Vichy nor the Nazis. Three years later, we find him still writing about these laws, but now with an acceptance and a familiarity born of his colleagues' failure to join with him in 1940. Whatever their personal feelings about Vichy's reversal of France's 150-year long egalitarian legal traditions, the entire legal community in France had begun "debating" the fine points of racism in the new "emergency" environment of World War II.

So today comes Sanford Levinson, a liberal constitutional lawyer of impeccable credentials, to help us "debate" torture. Although the practice violates all of our traditions, Levinson and others are starting to "pull a Vichy" on their community. Instead of clearly and simply opposing what they know violates our best traditions and laws, they cave. Before the fact, before anyone knows whether torture has already or will ever become a widespread American technique of interrogation, those who might be the architects of protest instead produce a road map for the unacceptable. As Eyal Press wrote in the Nation (March 31, 2003), "the taboo on torture has been broken." And a so-called "legal realist" like Levinson is among the first to breach the barricades.

Well, let me step in and try to emulate Jacques Maury by reminding these fellow travelers that when right(s)-thinking people start to equivocate, they bring about the practice that their better nature abhors. It is not "realistic" to lead (or join) the equivocation chorus. History proves that countries and their legal systems emerge much the worse when the urge to "get real" overwhelms the instinct to protest.

For it is clear beyond contradiction that had his community lined up behind Maury, France as a whole would have fared better in its treatment of Jews during Vichy. More Jews would have survived, even if the Nazis had been able to do the terrible work all alone of annihilating this population in the face of principled protest. Instead, France continues to suffer today because only Maury had the common sense and the courage to say "NO!" So, too, does American law continue to show the scars of Korematsu v. United States, which affirmed the legalized roundups of tens of thousands of our Japanese heritage citizens and residents, also in the name of "emergency." If there had been principled resistance, instead of rationalization, the extreme and aberrational set of arrests might never have taken place. An example from a far worse regime proves this. Hitler himself had to short-circuit a program of killing so-called "mental defectives" when a broad-scale protest made clear that whatever else was happening, this at least would not be tolerated.

"No one likes torture." This is the opening gambit of someone who we know is about to say BUT . . . The complex analysis that follows, the dividing of an abhorrent practice into "good torture" and "bad torture," sets the stage for a full-blown acceptance of the practice. Avant la lettre, folks like Levinson (and Richard Posner and Alan Dershowitz) display an unseemly haste to appear sophisticated and, of course, "instrumental." No one, after all, wants to seem wide-eyed when facing the "ticking bomb" hypothetical. Even if there are severe admitted costs to breaking the taboo, they say, the benefits in the saving of thousands of lives far outweigh the pressure on our system of such heavy practices as torture and its many variations.

As David Cole and I, among others, have pointed out, it may be the instrumentalists who are being naive. "You can't know whether a person knows where the bomb is," explains Cole in the Nation, "or even if they're telling the truth. Because of this, you end up sanctioning torture in general."

Let us continue to be alert to what governments may be doing. And, if there is evidence of torture, let us begin the "debate" by protesting the practice. Let us not lead, in the name of some misguided and ahistorical "realism," with our collective, liberal chins.


Henry Shue is a senior research fellow at Merton College, Oxford.

Richard H. Weisberg is Floersheimer Professor of Constitutional Law at Cardozo Law School, Yeshiva University, and author of Vichy Law and the Holocaust in France. His first debate on torture with Sanford Levinson is available from Public Radio in Chicago
("Odyssey" www.odysseyradio.org).

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