Andrew Sullivan is leaning increasingly on the administration, particularly on the issue of torture. Being a right-wing writer, he describes being "inundated" with emails that are pro-torture. That is disturbing in and of itself, but I don't think we should come down too hard on his readers just yet. The question has not been correctly framed for them.
Most justifications for torture read something like this: If, by torturing an Al Qaeda member, we can gain information that will save hundreds or thousands of lives that might be lost in a terrorist attack, do we not have an obligation to do so?
This is not the correct question. The correct question is this:
Should we torture hundreds or thousands of people, not knowing with certainty if they are Al Qaeda, in order to gain information that might prevent hundreds or thousands of deaths in a terrorist attack?
The use of power is rarely confined to a single incident. Once torture is an deemed acceptable in certain circumstances, those circumstances have a way of enlarging and changing. Should torture only be used against known terrorists? Who makes that determination? And what is a "known terrorist" anyway? The government is vigorously pursuing prosecution of persons it deems to have supported terrorism. I have no problem with the legitimate prosecution of real supporters, but a recent case comes to mind.
In that case, a Saudi named Sami Omar Al-Hussayen, 34 years old, studying for his doctorate in Computer Science here in the US on a student visa, was prosecuted for "supporting terrorism", when he created a web site and discussion forum for Islam. On this forum, speech was engaged in and comments for and against terrorism flowed back and forth. My knowledge of this case is limited, but I do know that he was acquitted of the charge of supporting terrorism.
"There was a lack of hard evidence," said John Steger, a retired U.S. Forest Service employee who was the only juror to discuss the case publicly. "There was no clear-cut evidence that said he was a terrorist, so it was all on inference."
Steger called the First Amendment aspects of the case important to the verdict, citing Lodge's instruction that the Constitution protects speech even if it advocates the use of force or violation of the law unless imminent lawlessness occurs.
"What the First Amendment actually meant was more extensive than I thought," Steger said. "I was surprised that people could say whatever they wanted."
Justice Department officials in Washington, D.C., declined comment on the acquittal. But U.S. Attorney Tom Moss in Idaho said it would not deter future attempts to bring people supporting terrorists into court.
"We'll continue to go after people who support terrorist activities," Moss said. "You don't just need people who will strap on bombs and walk into crowds. You need people to support them. For terrorism to flourish, they have to have a communications network. . . . This was a case as prosecutors we're expected to pursue."
The government prosecuted him for supporting terrorism. Setting aside issues of free speech, should that same government also have a ability to torture him to gain more information? Is this man a terrorist or not? The government thought so; it prosecuted him for supporting terrorism.
Under the Bush torture doctrine, this man could have been tortured. This torture would have been performed away from the watchful eye of any court, or any check and balance.
A court found him not guilty. It is sobering to juxtapose the horror of torture, the willingness and desire of an administration to use it, the declarations and decisions of an administration that it is above the law and that it retains executive privilege to do what it deems necessary without review or consequence, and the decision of a jury of peers that a man is not a supporter of terrorism.
It seems that our court system serves a purpose after all. The founding fathers were correct to provide checks and balances between the branches of government.
Bad things happen to good people. You can't make an omelette without breaking eggs. Would you torture one terrorist? The lazy comfort of black and white is held before us, a temptation...
This slippery slope is the one that matters.
Sami Omar Al-Hussayen is still being prosecuted by the government on immigration charges intended to deport him, based on the theory that his student visa entitled him only to study while in the US; as a foreigner, he did not have the right to speak his mind, create a web site, or engage in discussion.
What right to free speech do I have?