Thinking about Torture

By Berkowitz, Peter | Policy Review, February-March 2011 | Go to article overview

Thinking about Torture

Berkowitz, Peter, Policy Review

CHARLES FRIED AND GREGORY FRIED. Because it is Wrong: Torture, Privacy, and Presidential Power in the Age of Terror. W. W. NORTON & COMPANY. 222 PAGES. $24.95.

THIS IN MANY ways admirable book was "born of conversations" between father and son. The father, Charles Fried, a professor at Harvard Law School, is the author of many works on legal and political philosophy, and served as solicitor general of the United States under President Ronald Reagan. The son, Gregory Fried, is chair of the Philosophy Department at Suffolk University and author of Heidegger's Polemos: From Being to Politics. The father voted for George W. Bush in 2000 and supported the war in Iraq; the son opposed Bush and "only reluctantly" backed the Iraq war. The conversations in question arose out of shared concerns about the dangers posed to the United States by those who attacked the country on 9/11 and about the legality and morality of measures adopted by the Bush administration to defend the nation.

  Father and son found that their conversations increasingly focused on
  two controversial tactics in the war against the terrorists--brutal
  interrogations of suspected terrorists abroad and pervasive
  electronic surveillance at home--tactics used to get desperately
  needed intelligence about a hidden and unfamiliar enemy. What we
  realized they shared was the question of whether an executive has the
  right to break the law in a time of crisis, for both were indeed

To assess whether Bush administration interrogation and surveillance policy were nevertheless proper, the Frieds examine the meaning of torture and the significance of suffering and inflicting it; the sphere of privacy and the cost to liberty when government invades it; and the conditions under which executives may honorably and justly break the law.

Despite their political differences, father and son succeed in producing a single voice and, up until their final pages, a single line of argument. They diverge on what to do about the Bush administration officials implicated in the use of harsh interrogation techniques that, they assert unequivocally, broke domestic and international law prohibiting torture. The younger Fried believes that Bush administration officials should be prosecuted to the full extent of the law, while the older Fried believes the extraordinary circumstances under which they acted and the need in a democracy for winners in elections to refrain from using their power to pursue their defeated rivals counsel forbearance. They articulate their difference of opinion in the same lucid tones and restrained terms that characterize even their most uncompromising claims.

At the same time, their argument is marked by evasions, equivocations, and rash conclusions. The evasions and equivocations begin with their failure to state clearly that the genuinely hard questions they laudably confront arose not in the struggle against terrorists of all kinds but in a battle against Islamic extremists who have chosen terror as their tactic and are determinedly seeking weapons of mass destruction to kill vast numbers of American civilians and strike crippling blows against the United States. Prominent among their rash conclusions are the two most dramatic in their book: the philosophical opinion that torture is "absolutely wrong," and the legal and political claim that in ordering the use of harsh interrogation and warrantless electronic surveillance the Bush administration brazenly, if on behalf of the national interest as the president and his team understood it, defied the law.

Although scholars of law and politics will profit from their book, which draws on art, philosophy, moral and political theory, history, and legal analysis, it was not in the first place written for specialists. It is intended, rather, for "fellow citizens, and particularly for those engaged in public service, be it in the military or the government, who find themselves running up against those limits in the crisis we now face and may continue to face in new and unexpected forms.

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