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Torture, Litmus Tests, and the Future of American Law:
Will the Battle Over Government Accountability Define this Generation of Lawyers?


Tuesday, Nov. 29, 2005

When I was in law school, twenty years ago, I remember wondering whether the truly momentous constitutional law battles had already been fought and in large part won. Brown v. Board of Education was thirty years old and almost universally accepted, a few academic quibbles notwithstanding. The barriers to gender equality were crumbling. The Supreme Court and a vigilant Congress had held a corrupt and deceitful president constitutionally accountable, and he had left office in disgrace.

This is not to say that liberals and conservatives did not have plenty of important stuff to fight about. We battled over affirmative action and a host of social issues, ranging from Roe v. Wade to gay rights to school prayer. But as significant as these arguments were, it still seemed that both sides, more or less, had come to operate within a paradigm that was fixed in some very fundamental respects - namely, that the Constitution called for America to be a pluralistic nation without racial castes, where women and men could play equal roles.

Most of the arguments we were having back then, still rage now - and still seem extremely significant, but not really epochal. Gazing ahead, however, I am beginning to think that we may be approaching another legal battle of momentous proportion, the kind that -- like the battle to dismantle Jim Crow -- transcendently defines who we are as a nation.

This battle will not focus on any single constitutional right (such as the right to equal protection of the laws that was at issue in Brown) or any single structural principle (such as the principle of federalism that preoccupied the Rehnquist Court). Instead, it will be a battle that ranges across a broad range of specific issues, all of which fall under the general concept of government accountability in an age of ever-increasing governmental power.

America will continue to be deeply divided, but not quite as it is now. Whereas the current configuration pits the liberal against conservative, and the red-stater against the blue-stater, the new divide will be between the statist and the libertarian. That is, it will be between, on the one side, those who deeply trust government and governmental actors, and, on the other side, those who do not.

A Deeper Divide Between Libertarians and Statists, Over How Much Trust to Extend

Of course, arguments between libertarians and statists (to use overgeneralizations) are nothing new. But the divide between these camps has become deeper and more urgently relevant in the wake of 9/11, as we struggle to reassert a sense of national and personal security in the age of terror.

Today, we face claims of unprecedented executive power by an Administration that seeks to do more and more on its own, while revealing less and less to the American people. How we respond to this "just trust us" approach to governing may well define what we are as a nation, domestically and abroad, for a long time to come.

Our response is all the more important in light of the fact that in one crucial respect, trust was not warranted: The weapons of mass destruction claim that was the rationale for sending our soldiers to die, simply proved false. This Administration has cried "Wolf!" once already; how can we know now if the wolf is really at the door?

Considering Whether to Torture: Any Case in Favor Must Be Based on Trust

The current debate over whether Congress should outlaw the use of torture is a case in point. Even assuming that the idea of using torture should not be declared categorically abhorrent, countenancing the use of torture presupposes an extraordinary trust in the government officials authorized to carry out such conduct.

Any reasonable proponent of the selective use of torture on suspected terrorists must surely assume that the people in charge of deciding who to torture will rarely, if ever, make mistakes: That they will reserve the awful power of torture for those who have been definitively identified as belonging to enemy organizations such as Al Qaeda, whose guilt is certain, and who are known with certainty to be in a position that makes them likely to know the information being sought. Torture based on mere speculation is an especially great moral evil.

Otherwise, the United States would be guilty not only of torture, but of not infrequently torturing the innocent or the ignorant. It is a hard question whether to torture Bin Laden or his lieutenant Ayman Al-Zawahiri; reasonable people can differ as to the answer. But it is not a hard question whether to torture a person rounded up in Afghanistan who may not ever have been an Al Qaeda member in the first place; we should not.

Surely, too, the good-faith torture proponent must believe that the people who will be doing the torturing are especially perspicacious in discerning which tortured confessions are real and potentially useful -- as opposed to those confessions where the torturee says whatever it takes, true or untrue, to stop the pain. Otherwise, the torturing process produces largely useless results and is, in many cases, gratuitous.

Trust Is Also Key to Other Important "War on Terror" Powers

Torture is a graphic and extreme case of a power that can only be predicated on an assumption of trust in our government. But a similar set of assumptions operates with respect to other aspects of the war on terror.

Take the decision to designate someone an enemy combatant, or to incarcerate them without charge for years on end. We are asked to trust that the government had good reason, for instance, to hold American citizen Jose Padilla without charge for three years - even though, when it finally indicted him, it was for a crime very different that the alleged "dirty bomb" conspiracy the government had discussed throughout his confinement.

Or take the decision to use the "rendition" process, by which suspected terrorists are turned over by the United States to other countries so that they can use torture to extract information. Those who advocate unilateral executive authority to undertake such measure must believe that executive branch officials get it right almost all of the time.

The same holds true for some of the more far-reaching powers available under the Patriot Act. Proponents have to believe that the FBI and other agencies almost always seek secret warrants, or collect sensitive information, about the right people for the right reasons.

And the ramifications are by no means limited to terror-related surveillance. Technology is giving government astonishing new abilities to know what we do with our time, where we go, what buy, what we watch, what we say, and to whom. All this raises questions about whether government should be permitted to use these powers, and, if so, who will watch the watchers.

The Urgent Need for an Agenda That Is About Accountability

It seems plain, by now, that 9/11 created a semi-permanent seismic upheaval in our national psyche. As Judge Richard Posner has written, society engages in an inevitable balancing between security and liberty. For the foreseeable future, the reality is that we will be striking that balance in favor greater governmental power to ensure security, even at the price of some liberty. And, thus, old nostrums about the inalienable "right to be left alone" may well fall on deaf ears.

At the same time, however, the issues of executive power, and the power of government to invade and destroy individual lives, may give some focus and coherence for a new political agenda - an agenda that might appropriately be called an agenda for accountability.

Ideally, this agenda could unite liberals and conservatives alike. Libertarians, conservative and liberal, who traditionally have pushed to curtail power with strong recognition of individual rights, may discover that accountability, while it does not curtail power, at least can rein it in. And conservative moralists may begin to see that without accountability, their morality will be honored only in the breach.

Most people would agree that government needs the power to respond vigorously and effectively to the new threats we face. The real dispute is over accountability for the exercise of such power. No one -- of any political bent -- supports the general use of torture or rendition for all prisoners or detainees, so everyone must be concerned, at a minimum, with the conditions under which these powers are used, and the need for accountability of those who use them.

We live in an era when government officials want to know more and more about us, and to exercise more and more power over us, while revealing less and less about what they are up to, with fewer and fewer consequences for their mistakes.

That is a formula for anti-democratic disaster. And in response, we need to develop a new version of the old notion - trust but verify. In future columns, I will address the particular mechanisms of accountability we may need; for now, it's important to see that we simply cannot live without them.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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