Sanford Levinson Responds

I am, of course, very grateful to Henry Shue and Richard Weisberg for their thoughtful comments. I will address them in order.

I am not convinced there is much difference between Shue and me. I was touched by the eloquence of his conclusion and by his reminder that to accept torture is indeed to countenance “barbarity.” I also agree with the Economist that the United States (as the exemplar of “the West”) has a special responsibility to resist temptations to torture. I would, therefore, resist his labeling my essay as having a “kind word” for the torture that I have no doubt is occurring under the aegis of the United States, even if it is being carried out by our allies in the “War against Terrorism.”

Still, like me, Shue appears to accept the possibility that someone might indeed “confront . . . the rare exceptional case” where “retrospective forgiveness” would be the proper response to that person’s decision to use torture in that particular situation. This willingness to forgive at least one (hypothetical) torturer, places him closer, I believe, to Michael Walzer (and, therefore, to me) than to Thomas Nagel.

Where we disagree, then, is on the relative merit of before-the-fact permission and retroactive exculpation. Shue fears that adopting anything like Alan Dershowitz’s proposal for “torture warrants” would inevitably take us down the road to accepting torture as relatively routine-since supine judges would grant the entreaties of overly aggressive security agencies. Anyone who doesn’t share this fear is a fool. But my greater fear is that reliance on retrospective assessment will have much the same effect, as potential torturers realize that the actual prospects of punishment are very low indeed, for reasons given in my article. I may be wrong, of course. This is something about which people of good faith can disagree. Where I hope we agree is that it is better to have this conversation in public than to avert our eyes to what is actually going on.

I am not sure that my good friend Richard Weisberg agrees with this last sentence. One way of reading his argument is that the only proper response of a decent person is to proclaim that torture is always wrong, period, and to refuse to give the slightest countenance to any argument that suggests that the “always” should have an “almost” in front of it. For the reasons given in the essay, I can’t really agree. Part of the reason is that I do not accept in full the analogy between the collaborator with Vichy and one who decides, with a heavy heart, that there might be an isolated circumstance where torture would be defensible. Perhaps this is a difference between ends and means. What made Vichy contemptible was its willingness to share at least in part the Nazi vision of the proper end-state of European society. I suppose that the ...