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Constitution, Society, and Leadership Week 9 Unit 2 Concepts of Justice: Terrorism and Torture

Constitution, Society, and Leadership Week 9 Unit 2 Concepts of Justice: Terrorism and Torture. Christopher Dreisbach, Ph.D. Johns Hopkins University. Terrorism and Torture- i Unit Overview- i. Is torture ever just? From a constitutional point of view?

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Constitution, Society, and Leadership Week 9 Unit 2 Concepts of Justice: Terrorism and Torture

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  1. Constitution, Society, and LeadershipWeek 9 Unit 2 Concepts of Justice: Terrorism and Torture Christopher Dreisbach, Ph.D. Johns Hopkins University

  2. Terrorism and Torture-iUnit Overview-i • Is torture ever just? • From a constitutional point of view? • This appears to be a question about retributive justice • Although it does not concern punishment for a proven crime

  3. Terrorism and Torture-iiUnit Overview-ii • Each of 5 sections in this unit looks at one of five answers to the question whether it is ever just to torture someone • Matthew Noah Smith, The Moral Significance of Terrorism • John Yoo and Robert J, Delahunty, Application of Treaties and Laws to al Qaeda and Taliban Detainees • Hamdan v. Rumsfeld, 2006 • Alan M. Dershowitz, Should the Ticking Time Bomb Terrorist Be Tortured? A Case Study in How democracy Should Make Tragic Choices • Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House

  4. Terrorism and Torture-iiiSmith -i • Point: terrorism is uniquely morally objectionable • Cf. war crimes, genocide, assassination, and serial killing • Because terrorism • Violates the rules of war • Threatens the value of trusting relations internationally and • “Quick cessation to war” • “Lasting and just peace” • “Just forms of international peace”

  5. Terrorism and Torture-ivSmith -ii • Rejects the claim that terrorism = “violence internationally targeted at civilians,” since • Civilians can be combatants and soldiers can be noncombatants • Need to distinguish terrorism from war crimes and genocide

  6. Terrorism and Torture-vSmith -iii • Terrorist acts = “spectacular and preformative acts of violence that transgress shared rules of war.”

  7. Terrorism and Torture-viSmith -iv • Extended Argument • Part 1 • War is a moral disaster • Since it leads to undeserved suffering and death • Anything that limits that disaster is morally good • Shared rules of war limit that disaster • By providing “a minimal but sufficient basis for a trusting relationship even between mortal enemies” • Therefore, shared rules of war are morally good

  8. Terrorism and Torture-viiSmith -v • Part 2 • Shared rules of war are morally good • Terrorism violates shared rules of war • Therefore, terrorism is morally bad

  9. Terrorism and Torture-viiiYoo and Delahunty • Point: International treaties governing war do not apply to al Qaeda or Taliban detainees • Specifically, RE: detention and trial procedures • Since • Neither organization is a legitimate state actor • And therefore cannot be party to such an agreement • International law “does not bind the President or restrict the actions of the United States military • Because it does not constitute federal law recognized under the Supremacy Clause of the Constitution

  10. Terrorism and Torture-ixHamdan v. Rumsfeld • Point: A military commission • Convened to try Salim Ahmed Hamdan • A Yemeni national held in custody at Guantanimo Bay • Cannot proceed because • Its structure violates • The UCMJ • Geneva Conventions • Hamadan’s alleged offense—conspiracy—is not a violation of the law of war

  11. Terrorism and Torture-xDershowitz-i • Point: “If it is necessary to torture in the ticking bomb case, then our governing laws must accommodate the practice” • “If we refuse to change our law to accommodate any particular action, then our government should not take that action” • A warrant requirement • Only non-lethal torture

  12. Terrorism and Torture-xiDershowitz-ii • Justification • A society has a right to protect itself against terrorism • Torture warrant requirement would make matters easier to control with “a formal, visible, accountable, and centralized system” • “Decrease the amount of physical violence” against the suspect

  13. Terrorism and Torture-xiiDershowitz-iii • Justification (ctd) • Suspect’s rights better protected • No torture without compelling evidence • Better records kept of the acts of torture

  14. Terrorism and Torture-xiiiWaldron-i • Point: Torture is wrong in itself, not just by statute • Malum in se v. malum prohibitum • Yoo is wrong to think torture’s moral value is a matter of statute—malum prohibitum • Dershowitz is wrong to trust human motives in his torture warrant scenario

  15. Terrorism and Torture-xivWaldron-ii • Note: U.S. ratified several international agreements against torture • And has its own laws against torture • Because it recognizes the inherent evil of torture • Not because it wanted to make torture wrong by positive law

  16. Week 9 Unit 2 Concepts of Justice: Terrorism and Torture Constitution, Society, and Leadership

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