Legalized Torture is a Victory for the Rule of Law? (Book Notes: Hitler's Prisons)

How can you get otherwise moral people to authorize morally evil acts? One effective method is to argue for committing much greater moral evils and then allow them to suggest a "compromise" whereby a somewhat lesser moral evil is permitted. You can even get people to think that a well-regulated and well-structured moral evil is a "victory" for the forces of law and good.

In Hitler's Prisons: Legal Terror in Nazi Germany, Nikolaus Wachsmann describes how this occurred in Nazi Germany when otherwise decent prison officials and jurists were convinced to authorize police torture of prisoners:

The only time the police regularly got their hands on imprisoned offenders was during brief police interrogations. Prisoners could be taken for a short period to police headquarters. Others were interrogated inside penal institutions. Some prisoners returned from police custody badly bruised, as police officers did not hesitate to use brutal violence, beating, whipping and strangling their victims.

Some regional legal officials as well as Reich Minister Gürtner initially objected to this police brutality. But the practice was backed by Hitler and Himmler, who described the methods as a way of ‘opening the mouths’ of enemies of the regime.

The Führer, thought to embody the will of the German people, was given the authority to do whatever he thought was necessary in order to defend the German people and German nation. It was his responsibility to ensure that Germany not suffer as it had in the past. This then inclined people to accept his claims that it was necessary to use torture on enemies of the state — if causing them to suffer might prevent the German nation from having to suffer, it was easy exchange to make.

Torture is morally evil, however, and so people in positions of responsibility and power were also inclined to reject the claim that using torture was necessary or acceptable. This created a conflict, but since people’s fear of their enemies was greater than their commitment to morality, they were willing to compromise their morality in order to accommodate the Führer’s demands:

Eventually, the legal system accepted police torture, but demanded that it be standardised. To this end, senior legal officials, led by Wilhelm Crohne, and police officials met in the Reich Ministry of Justice on 4 June 1937. After some discussion, it was agreed that police officials could be allowed to hit captives on the behind up to 25 times.

The minutes of the meeting give a clear insight into the mind-set of the legal officials, who in their delusion saw their endorsement of police torture as a victory for the rule of law: ‘A “regular cane” shall be designated to eliminate any arbitrariness.’

The official introduction of a moral evil like torture should be regarded as an abject and complete failure not only of the rule of law, but also of people’s moral decency. Because this moral evil was structure, regulated, and conducted in an open manner, it became a “victory” for the rule of law. Apparently, the rule of law “wins” merely because something is legalized and regulated rather than tolerated as existing in the shadows.

If this sounds absurd, it’s not — and it’s not even entirely history. Alan Derschowitz has suggested that it might be better for the rule of law if “torture warrants” be made a part of the legal system rather than allow torture to exist in the shadows of the legal world.

In Morality Matters, Roger Trigg responds to Derschowitz’s idea:

One suggestion that has been seriously made by [Alan] Derschowitz is that any such torture should be preceded by a ‘torture warrant’ granted by a judge. His argument is that ‘a formal, visible, accountable, and centralized system is somewhat easier to control that an ad hoc, off-the-books, and under-the-radar-screen non-system’.

This procedure might appear to regularize a situation that is going to occur anyway. Instead of pursuing a policy of silence and pretense, the state faces up to the fact that torture may be necessary as an instrument of policy. It thus gives judges, as neutral observers, the right to decide in what circumstances this can be allowed by law.

I think that this was probably the basic attitude of people working in the legal system under Hitler: instead of fighting and resisting the use of torture, which can’t prevent it from occurring completely, let’s instead accommodate the evil demands of those in charge and regulate the system of torture in order to prevent this moral evil from becoming any worse than is absolutely necessary.

This will supposedly prevent an abuse of the system. Yet it immediately makes the law acknowledge, and even approve of, a practice that most would consider should be absolutely ruled out on all occasions. That is the point of the UN Declaration. Can law entertain something that morality rules out absolutely? [...]

[T]orture cannot be separated from wider views about the worth of human beings and how they ought to be treated. A person, or a system of law, that regards people as expendable for the greater good may be operating according to strict utilitarian principles. Nevertheless, once injustice is accepted as an explicit and integral part of policy, a precedent is created. Regimes that openly practise torture are usually also guilty of wider injustice and oppression.

The Nazi regime under Hitler gradually introduced all sorts of injustices, each of which helped justify a further move away from law and morality. The Nazi regime corrupted the German justice system by transforming it from an instrument for the protection of justice and into an ideological weapon whose only purpose was to further injustice and oppression.

Alan Derschowitz’s suggestion would accomplish something very similar: it would introduce a fundamental injustice into our system of justice, thus corrupting it in a way that would make it extraordinarily difficult to recover from. The justice system would no longer be just if it incorporated, in an official and regulated manner, extreme injustice. Even though perfect justice is unattainable, it is illegitimate to sanction injustice as a result.

Unfortunately, those who promote the incorporation of injustice into society rarely or never acknowledge that this is what they are doing. Consider, for example, the growth of injustice as a tool against “enemies of the state” in America — otherwise known as the War on Terrorism. American citizens and citizens of other nations can be spied upon without a warrant, taken into custody without being officially charged, and kept in prison indefinitely. If courts are asked to hear their case, the government can simply cite “national secrets” to deny courts any authority to rule on the matter. The accused could be tortured, tried before a military tribunal, and even executed.

None of this represents “justice” in even the remotest way. We are fortunate that our political leaders have tried to incorporate little of it into the justice system in an official manner, but what they have pushed has already corrupted the system — and the existence of the rest renders what is just in our system almost irrelevant. Like the Germans before them, Americans are acquiescing to the corruption of justice and promotion of moral evil because propaganda tells them it is necessary for their own protection.

Otherwise moral people engage in “compromises” with this evil, officially sanctioning “lesser” moral evils in the expectation that they will appear “moderate” for not endorsing the greater evils. They certainly don’t want to be branded as traitors for insisting that injustice and moral evil be rejected entirely. In has become a patriotic imperative to defend injustice and evil in the name of the Volk.

We should consider where this might lead us. America has been engaged in its “War on Drugs” for decades now, with little apparent success. There is no sign that we are turning any corners or that anything like a victory is attainable. This “war” is, of course, a metaphorical war rather than a real, declared war. The so-called “War on Terrorism” is the same — metaphorical rather than real. How long before someone decides to conduct the War on Drugs more like the War on Terrorism?

Alonzo Fyfe writes about the elimination of notorious drug lord Evan Norez in Jersey City:

According to reports, the units involved in the operation received information three days ago that allowed them to follow Norez into the Pine Street Theater. Once they received information that Norez was inside, they called in an air strike that destroyed the theater. Norez’ body was identified from among the nineteen bodies removed from the building. Two key lieutenants in Norez’ organization were also reported to have been in the theater.

Norez’ drug cartel has been responsible for a major part of the drug crime in the region known as the Northeast Triangle -- the region from Boston to Philadelphia to Baltimore. Sources inside the White House expressed hope that this would restore support for President Smith’s war on drugs, which had lost popularity in the polls in recent months.

World leaders congratulated President Smith on the death of Norez, stating that the drug lord was a major source of misery and suffering.

In his speech, President Smith went on to defend his administration’s decision to use the tools develop in the war on terror to fight the war on drugs. “For eight years we fought a war on terror, and we fought it successfully,” said President Smith. “Here we see the benefits of applying those same tools to the drug cartels.”

Few if any people would regard actions like this to be even remotely acceptable in the War on Drugs; few, though, raised complaints when basically the same actions were taken in Iraq in the War on Terror. The American government criticized Israel for doing such things; the American government called it “justice” when they did it. Why these double standards? Why is it OK to use bombs to assassinate terrorist leaders, but not drug leaders?

Granted, the harm, damage, and violence committed by terrorism are all very dramatic, but is it really greater than the harm, damage, and violence which drugs cause against America? American politicians have spent decades trying to make us afraid of the “drug problem” and hyping the damage which drugs cause to American society as well as America’s economy. Directly or indirectly, drugs can indeed cause a lot of harm — so why doesn’t the government take more decisive action against the problem?

The New York Times reporter Jane Walton revealed in a series of articles last year the extent of the Defense Database. Originally thought to be a database that held only telephone calls, Walton revealed that the database also contained tax information gathered from the Internal Revenue Service, credit reports, credit card statements, bank account statements, mail and email records, and internet browsing records. [...]

Walton has now served over 120 days in jail for her refusal to reveal the names of the people who leaked the details of the Defense Database. [Attorney General John] Miller has said that he is still trying to decide whether to charge Ms. Miller with treason.

In further testimony before the Senate Committee, Miller said that he also considers the agents [who leaked the information] to be traitors and that he is committed to finding their identity. “The Justice Department will get the information from Ms. Walton, one way or another,” he said.

When Senator Bailly asked whether this might include torture, Miller answered, “The Administration does not torture prisoners. I assure you, Ms. Walten will not be permanently damaged.”

The American government’s principles of justice and morality have already become corrupted by the incorporation of torture, redefined to not be “real” torture — thus leading to a corruption of language as well. It wouldn’t be a very large step to push this redefinition along so that “torture” only involves inflicting “permanent damage” on people. It’s an easy move to envision — too easy, in fact, because it reveals just how far we have gone along the path of injustice and moral evil. The idea that the government would imprison journalists and use physical violence to extract information from them should be relegated to fevered fantasy, not serious concerns about the near future.

The same should be true with the idea of troops sweeping residential neighborhoods, killing innocent people, imprisoning government officials, and sending citizens to detention centers abroad where they are out of the reach of lawyers, judges, courts, or family members — all things which occur in Fyfe’s post. Who are these “enemy combatants” which government claims it can imprison at will and without scrutiny? Everyone who is an enemy of moral evil, everyone who combats injustice; everyone who is an enemy unchecked power, everyone who combats the corruption of power.

When the America government, established to provide for and protect justice, equality, and basic civil rights, becomes an instrument of injustice, inequality, and an enemy of civil rights, then the "enemies of the state" are all those of us who still believe in freedom and liberty.

 

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