Richard John Neuhaus

Other — By on December 9, 2005 at 5:52 pm

This is an argument very much worth having. Charles Krauthammer writes in the Weekly Standard:

But if that is the case, then McCain embraces the same exceptions I do, but prefers to pretend he does not. If that is the case, then his much-touted and endlessly repeated absolutism on inhumane treatment is merely for show. If that is the case, then the moral preening and the phony arguments can stop now, and we can all agree that in this real world of astonishingly murderous enemies, in . . . very circumscribed circumstances, we must all be prepared to torture. Having established that, we can then begin to work together to codify rules of interrogation for the two very unpleasant but very real cases in which we are morally permitted–indeed morally compelled–to do terrible things.

Krauthammer is writing against Senator John McCain’s proposal for banning all forms of “cruel, inhuman, or degrading” treatment of prisoners, a proposal which has overwhelming support in Congress but is opposed by the Bush administration. McCain has said that in extreme circumstances–such as the familiar “ticking time bomb” scenario–authorities will do what they have to do to extract information. Krauthammer says that means McCain’s proposed rule is “merely for show, ” and comes close to saying that its supporters are guilty of hypocrisy.


I am not at all sure. Establishing a principle is not “merely for show.” Recognizing, clearly but sotto voce, that there will sometimes be exceptions to the principle is not hypocrisy. Those who, under the most extreme circumstances, violate the rule must be held strictly accountable to higher authority. Here the venerable maxim applies, abusus non tollit usus–the abuse does not abolish the use.
We are not talking here about the reckless indulgence of cruelty and sadism exhibited in, for instance, the much-publicized Abu Ghraib scandal. We are speaking, rather, of extraordinary circumstances in which senior officials, acting under perceived necessity, decide there is no moral alternative to making an exception to the rules, and accept responsibility for their decision. Please note that, in saying this, one does not condone the decision. It is simply a recognition that in the real world such decisions will be made.
This understanding of the matter offends the legal, and legalistic, mind of Alan Dershowitz of Harvard who has suggested that officials should have to get a court order in order to torture a prisoner. This, like Krauthammer’s proposal and the apparent position of the administration, would be a giant step toward “normalizing” torture and other forms of cruel and inhumane treatment. In short order, it would likely result not only in the very widespread abuse of the rule but in the effective abolition of the rule.
Krauthammer’s moral logic is that it is sometimes necessary to do evil in order that good may result. Here he is in the company of Michael Walzer who has argued that effective leaders must be prepared to have “dirty hands.” An alternative argument is that coercion, even brutal coercion, may be morally justified in extraordinary circumstances in order to save thousands of innocent lives. In that event, it is further argued, the use of such coercion is not evil but is the moral course of action.
Whether, in fact, the circumstances justified the action must be subject to the rigid scrutiny of higher authority. There will likely be cover-ups, rationalizations, and other forms of duplicity. Where possible, they must be exposed, in the full awareness that in this connection, as in all connections, we are dealing with fallen humanity. As with all rules, the aim is to make sure that the exception to the rule does not become the rule.
McCain is right: The United States should be on record as banning “cruel, inhuman, or degrading” treatment of prisoners. The meaning of each of those terms will inevitably be disputed, as will the case-by-case application of the principle. But again, abusus non tollit usus.
Richard John Neuhaus is the editor-in-chief of First Things. This essay originally appeared at the First Things blog, On the Square. It is reprinted here with the permission of the author.]
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  • Kristofer

    Steve, the gospel predates the phrase “sola fides, sola scriptura and solus christus” by over a thousand years. Unless you’re willing to countenance the idea that somehow the true church simply disappeared from the earth until Mr. Luther appeared and aligned himself with Germanic lords who were extremely happy with the idea of getting rid of Vatican domination of their earthly affairs, then perhaps you have a very limited view of God’s sovereignty. Or do you think God should check in with you before figuring out who belongs in the Church proper?
    I mean, thank God you came along with your sola scriptura to tell us what the Bible meant to say, because for 2,000 years we’ve kind of been at a loss.
    And thank God you also really have no other influences or sources of interpretation than the Bible. Thank God there’s no discipleship, or loving relationships, or a prayer life, or the culture you were born in, to muddy with your extremely acute, modernist hermeneutical vision.
    I thought I might have a relationship to God, but now I no better. I should check with you first.

  • White as snow

    …..

  • Gabriel Austin

    We seem to have forgotten the reason for the Constitution’s prohibition of cruel and unusual punishments: the practices of Elizabeth’s favorite torturer, Richard Topcliffe.
    Our system of government is a daring and courageous effort to avoid such practices. If a president cannot rule without such practices, then he is incompetent, and should be thrown out.

  • Gabriel Austin

    We seem to have forgotten the reason for the Constitution’s prohibition of cruel and unusual punishments: the practices of Elizabeth’s favorite torturer, Richard Topcliffe.
    Our system of government is a daring and courageous effort to avoid such practices. If a president cannot rule without such practices, then he is incompetent, and should be thrown out.