A father-son team, Charles Fried (Harvard Law School) and Gregory Fried (Chair of the Philosophy Department at Suffolk) parlayed years of family conversation into a new book: Because It's Wrong: Torture, Privacy and Presidential Power in the Age of Terror. Last Tuesday evening, they and Alan Dershowitz (as agent provocateur) played to a packed house at the Brattle Theater in Cambridge, sponsored by the Harvard Book Store. I have mentioned before that this is one of the great benefits of having any academic job (or, for that matter, any job at all) in Boston-Cambridge. Last spring, I listened to Rebecca Newberger Goldstein do a reading from 36 Arguments for the Existence of God: A Work of Fiction at the book store, and then a tag team presentation at Harvard-Hillel with her and her husband, Steven Pinker.
I think I can fairly summarize the Fried/Fried versus Dershowitz debate. The Frieds contend if there is any absolute moral imperative, it is the one that forbids torture. And no law can legitimate it. Nor can any circumstance, even the ticking bomb about which the captured terrorist knows and will not reveal unless he is tortured (accepting for the sake of the argument that torture is efficacious.) On the other hand, they believe that Presidents may violate the law in the national interest so long as they promptly seek ratification by Congress. Hence, they believe that the FISA violations shortly after 9/11 were justifiable, even if they thought the Bush Administration wrongly dallied in seeking and getting Congressional ratification.
Dershowitz (surprise!) disagreed, contending, first, that he did not agree there were moral absolutes and, second, that, even if there were such absolutes, he was not prepared to say that torture, as opposed to other acts of cruelty, qualified. While he abhors torture, he is not prepared to say that it should never be used, and has proposed that torture only be permitted after a judge has issued a "torture warrant."
This isn't my area, but I find both positions overstated. The Fried/Fried position is Kant-influenced - that we can reason our way to categorical imperatives like "torture is always wrong." Kant thought reason was merely "regulative" in terms of knowledge of the physical world (the "is"); it is the process by which we understand and explain the world around us. But the fruits of reason's process as to the "is" are not knowledge unless confirmed by experience. As to the "ought" of morality, however, Kant thought that the fruits of reason could be constitutive and not merely regulative. When deciding whether we might torture, we should act on that principle we would have as a universal law of nature. I've come to think that there is something fundamentally true about the CI as a process, but only a God is capable of unraveling the hardest cases. Hence, I shrink from human formulations of instantiations of the Categorical Imperative. In fact, as Jeremy Waldron has written, Kant himself seemed to be a legal positivist because he himself knew that human beings would never agree on those specific instantiations! So I wasn't persuaded by the philosophical argument this was an instance in which law could NEVER validate a moral abomination.
Nor was I much impressed with the Dershowitz position. His idea is that torture be contained within or by the rule of law, rather than existing outside it. That struck me as odd, or at least jurisprudentially controversial on the "what is law" question, since the Nazis managed to have the equivalent of genocide warrants under the Nuremberg Laws. Indeed, the position seemed to be question-begging. What would the substantive arguments for a torture warrant be? Would a judge be entitled to hold the Fried/Fried view, or would the fact that a torture warrant existed in concept mean that judges were required to be consequentialists rather than deontologists? In other words, I wasn't persuaded by the argument that throwing an issue before a judge, and calling it thus "the rule of law," could somehow validate a moral abomination.
Obviously, these are terribly difficult moral and philosophical questions, and invoke debates and contending positions that have been around for thousands of years. I thought about Larry Solum's much-downloaded paper, Virtue Jurisprudence: A Virtue-Centered Theory of Judging, and concluded that perhaps the middle ground was indeed the concept of a torture warrant, but only if we could be assured, pace Solum, that all judges were truly virtuous.