Chilling effect
I respectfully regret this decision by Attorney General Holder [to appoint prosecutor John Durham to investigate CIA torture allegations] and fear our country will come to regret it too because an open ended criminal investigation of past CIA activity, which has already been condemned and prohibited, will have a chilling effect on the men and women agents of our intelligence community whose uninhibited bravery and skill we depend on every day to protect our homeland from the next terrorist attack.
How often does one get to say this--that I hope Senator Lieberman is right for a change?
The hardest part of hoping the Senator is right has nothing to do with the fact that the Senator is a social conservative quasi-right-winger and sore loser whose response to being rejected by his own party was to flip allegiances long enough to secure re-election by courting his home state's reactionaries and then flipping back to enjoy the perks of being a member of the majority party that had attempted to purge him. No, the hard part is that I'm skeptical about the Senator's basic premise that passing and enforcing laws has a deterrent effect. Generally speaking, deterrence fails--most criminals in most situations are frankly too inebriated, too stoned, too desperate, too mentally ill, too ignorant of the law, too emotional or some combination of one or more of the preceding to actually think "the consequence of my next action might be incarceration or worse"; that, or they ineptly perform a crude and off-the-cuff cost/benefit analysis and incorrectly conclude that the consequences of their actions (to themselves or others) are outweighed by real or imagined benefits. Of course, let us acknowledge an error on my part in that previous sentence, too: in fact, the conclusion that the risk is outweighed by the benefits is frequently correct. Crime does pay. Even when a criminal is caught, it still may be worth it: we are only kidding ourselves, for instance, to think that incarcerating Bernie Madoff for his twilight years really balances the scales against the ginormous mounds of cash he stacked up and squirreled away on the other side of the beam; should it happen that early-onset Alzheimer's runs in his family, Madoff should be laughing all the way to the prison infirmary over the rooking he's given all of us.
So, in short, I don't think much of deterrence as a theory or rationale in criminal justice. This is the kind of thing, by the way, you talk about at some length in a Crim Law class in law school. Cracking open my old Crim Law textbook (I happened to be using it recently as a weight for my PT, so it happens to be at hand), the first fifty-or-so pages of the volume deal with theories of why we punish: deterrence at page five, incapacitation at fifteen, rehabilitation at twenty-one (old liberal that I am, naturally I like that one), retribution at twenty-seven, denunciation at forty-three (I'd forgotten that one: "A penalty declares, in effect, that in the society in question the offence is not tolerated," quoth Nigel Walker, Punishment, Danger, And Stigma: The Morality Of Criminal Justice, (1980)). They're not all necessarily exclusive rationales, of course, though they are competing. As I say, I like rehabilitation when it's possible and incapacitation when it isn't, and I don't think much of deterrence for the reasons given previously nor do I care much for retribution (I find it an understandable but primitive goal) or think much of denunciation (though writing this post, I'm reconsidering it).
But perhaps there's an exception. My take on deterrence is formed in no small part by dealing with certain strata of society and certain kinds of misdeeds. True, I think a larger principle applies--I don't deal with the Bernie Madoffs of the world, but it seems fairly obvious to me they're not deterred by the prospect of imprisonment while they're hiding their millions and billions. But consider the CIA operative, making government wages. Tell him that he may be locked up, no, that he will be locked up for engaging in torture, and perhaps he will be deterred from doing so.
Put it into statute and prosecute those alleged to have violated this statute, and perhaps--as Senator Lieberman says--it will have a chilling effect on those who would consider such acts.
And indeed it's already in statute. Here is the text of 18 USCS §2340, defining certain terms used in Title 18, Chapter 113C of the United States Code:
And here is 18 USCS §2340A (helpfully titled "Torture"):
Consider something interesting in §2340A: that the United States Federal Courts have jurisdiction over an alleged torturer if he is an American national, regardless of wherever he or she might have been when he or she was allegedly torturing. I've written about Universal Sovereignty before; here is a related legal concept, scholars, a form of universal jurisdiction. Murder in Montana, and Michigan can't prosecute you for it; torture in Cuba, however, and if you're an American we certainly can prosecute you for it wherever you may go, wherever you may have been. Unless, of course, we lack the will to enforce our own laws. Perhaps because enforcing our own laws is politically inexpedient, perhaps because it will trigger outcries against witch hunts from those who would have supported us in passing healthcare reform if only we hadn't been sidetracked by partisan issues like enforcing the laws. (Oh, wait....)
Here is the difference between myself and the Senator from Connecticut, as if it even needed to be said: I welcome the chilling effect. I somehow, in my obvious and inconsistent naïveté, thought that perhaps having a statute outlawing torture in no uncertain terms would already have that chilling effect; sadly enough, my cynical view that deterrence doesn't work has been vindicated yet again, or so it seems so far.
Something else, I'm afraid: this week we have the declassification and release of a 2004 inspector general's report on the CIA interrogations. Nevermind the tired "debate" over whether waterboarding is or isn't "torture" notwithstanding all the times it's been identified and prosecuted as such: the CIA report informs us that we have threats to kill terrorists' children (torture as defined by 18 USCS §2340(2)(D)), we have people being approached with power tools (torture as defined by 18 USCS §2340(2)(A) and/or (C)), simulated shootings (torture as defined by 18 USCS §2340(2)(A), (C) and/or (D)); there's more, but I've only read the excerpts thus far. Here is a lawyerly exercise for you, one that you can perform with spare mental CPU cycles as you do some mundane task in the relative comfort of your home, office or en route between: pick your theory for prosecuting the case, which act violates which clause(s) of subsection (2) of Federal statutes effective November 20, 1994. The CIA has given John Durham so many ways to make a case should he choose to do so.
As I was writing all of this, I'd started to say I didn't think much of "denunciation" as a rationale for punishment. After all, I started to say, I took it for granted that my culture didn't look kindly upon rape and murder. But I put myself into a hole on that one--I'd have once thought my culture didn't look to kindly upon torture, and here we are, actually arguing over whether or not people who repeatedly, clearly, mercilessly broke the law and/or who conspired to do so (punishable the same as perpetrating the offense as a principle, save that conspiracy to torture is, unlike torture itself, a non-capital offense even if death results (18 USCS §2340A(c)). I take too much for granted, I'm sorry to admit. And so I have to add this as a sort of postscript: that regardless of whether or not enforcing a torture statute deters criminals (and not enforcing it obviously sends the clear message that Title 18 Chapter 113C, is merely a bunch of words from an idiot, full of sound and fury, signifying nothing), perhaps our society needs to engage in denunciation, no, strike the word "perhaps." If we really are, despite all the evidence to the contrary, a moral and virtuous people deserving of the benefits liberal democracy has conferred upon us for more than two centuries, if we are more than the caricature our critics or enemies make of us, if we are not a vile and craven people who deserve the worst we can suffer, then it is a moral duty and responsibility to denounce what we have done and those who did it on our behalf, and not just by flinging invective at them; it is our calling to enforce the laws or admit we have failed as a civilization.
The hardest part of hoping the Senator is right has nothing to do with the fact that the Senator is a social conservative quasi-right-winger and sore loser whose response to being rejected by his own party was to flip allegiances long enough to secure re-election by courting his home state's reactionaries and then flipping back to enjoy the perks of being a member of the majority party that had attempted to purge him. No, the hard part is that I'm skeptical about the Senator's basic premise that passing and enforcing laws has a deterrent effect. Generally speaking, deterrence fails--most criminals in most situations are frankly too inebriated, too stoned, too desperate, too mentally ill, too ignorant of the law, too emotional or some combination of one or more of the preceding to actually think "the consequence of my next action might be incarceration or worse"; that, or they ineptly perform a crude and off-the-cuff cost/benefit analysis and incorrectly conclude that the consequences of their actions (to themselves or others) are outweighed by real or imagined benefits. Of course, let us acknowledge an error on my part in that previous sentence, too: in fact, the conclusion that the risk is outweighed by the benefits is frequently correct. Crime does pay. Even when a criminal is caught, it still may be worth it: we are only kidding ourselves, for instance, to think that incarcerating Bernie Madoff for his twilight years really balances the scales against the ginormous mounds of cash he stacked up and squirreled away on the other side of the beam; should it happen that early-onset Alzheimer's runs in his family, Madoff should be laughing all the way to the prison infirmary over the rooking he's given all of us.
So, in short, I don't think much of deterrence as a theory or rationale in criminal justice. This is the kind of thing, by the way, you talk about at some length in a Crim Law class in law school. Cracking open my old Crim Law textbook (I happened to be using it recently as a weight for my PT, so it happens to be at hand), the first fifty-or-so pages of the volume deal with theories of why we punish: deterrence at page five, incapacitation at fifteen, rehabilitation at twenty-one (old liberal that I am, naturally I like that one), retribution at twenty-seven, denunciation at forty-three (I'd forgotten that one: "A penalty declares, in effect, that in the society in question the offence is not tolerated," quoth Nigel Walker, Punishment, Danger, And Stigma: The Morality Of Criminal Justice, (1980)). They're not all necessarily exclusive rationales, of course, though they are competing. As I say, I like rehabilitation when it's possible and incapacitation when it isn't, and I don't think much of deterrence for the reasons given previously nor do I care much for retribution (I find it an understandable but primitive goal) or think much of denunciation (though writing this post, I'm reconsidering it).
But perhaps there's an exception. My take on deterrence is formed in no small part by dealing with certain strata of society and certain kinds of misdeeds. True, I think a larger principle applies--I don't deal with the Bernie Madoffs of the world, but it seems fairly obvious to me they're not deterred by the prospect of imprisonment while they're hiding their millions and billions. But consider the CIA operative, making government wages. Tell him that he may be locked up, no, that he will be locked up for engaging in torture, and perhaps he will be deterred from doing so.
Put it into statute and prosecute those alleged to have violated this statute, and perhaps--as Senator Lieberman says--it will have a chilling effect on those who would consider such acts.
And indeed it's already in statute. Here is the text of 18 USCS §2340, defining certain terms used in Title 18, Chapter 113C of the United States Code:
As used in this chapter [18 USCS §§2340 et seq.]--
(1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from--
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) "United States" means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.
And here is 18 USCS §2340A (helpfully titled "Torture"):
(a) Offense. Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction. There is jurisdiction over the activity prohibited in subsection (a) if--
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy. A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.
Consider something interesting in §2340A: that the United States Federal Courts have jurisdiction over an alleged torturer if he is an American national, regardless of wherever he or she might have been when he or she was allegedly torturing. I've written about Universal Sovereignty before; here is a related legal concept, scholars, a form of universal jurisdiction. Murder in Montana, and Michigan can't prosecute you for it; torture in Cuba, however, and if you're an American we certainly can prosecute you for it wherever you may go, wherever you may have been. Unless, of course, we lack the will to enforce our own laws. Perhaps because enforcing our own laws is politically inexpedient, perhaps because it will trigger outcries against witch hunts from those who would have supported us in passing healthcare reform if only we hadn't been sidetracked by partisan issues like enforcing the laws. (Oh, wait....)
Here is the difference between myself and the Senator from Connecticut, as if it even needed to be said: I welcome the chilling effect. I somehow, in my obvious and inconsistent naïveté, thought that perhaps having a statute outlawing torture in no uncertain terms would already have that chilling effect; sadly enough, my cynical view that deterrence doesn't work has been vindicated yet again, or so it seems so far.
Something else, I'm afraid: this week we have the declassification and release of a 2004 inspector general's report on the CIA interrogations. Nevermind the tired "debate" over whether waterboarding is or isn't "torture" notwithstanding all the times it's been identified and prosecuted as such: the CIA report informs us that we have threats to kill terrorists' children (torture as defined by 18 USCS §2340(2)(D)), we have people being approached with power tools (torture as defined by 18 USCS §2340(2)(A) and/or (C)), simulated shootings (torture as defined by 18 USCS §2340(2)(A), (C) and/or (D)); there's more, but I've only read the excerpts thus far. Here is a lawyerly exercise for you, one that you can perform with spare mental CPU cycles as you do some mundane task in the relative comfort of your home, office or en route between: pick your theory for prosecuting the case, which act violates which clause(s) of subsection (2) of Federal statutes effective November 20, 1994. The CIA has given John Durham so many ways to make a case should he choose to do so.
As I was writing all of this, I'd started to say I didn't think much of "denunciation" as a rationale for punishment. After all, I started to say, I took it for granted that my culture didn't look kindly upon rape and murder. But I put myself into a hole on that one--I'd have once thought my culture didn't look to kindly upon torture, and here we are, actually arguing over whether or not people who repeatedly, clearly, mercilessly broke the law and/or who conspired to do so (punishable the same as perpetrating the offense as a principle, save that conspiracy to torture is, unlike torture itself, a non-capital offense even if death results (18 USCS §2340A(c)). I take too much for granted, I'm sorry to admit. And so I have to add this as a sort of postscript: that regardless of whether or not enforcing a torture statute deters criminals (and not enforcing it obviously sends the clear message that Title 18 Chapter 113C, is merely a bunch of words from an idiot, full of sound and fury, signifying nothing), perhaps our society needs to engage in denunciation, no, strike the word "perhaps." If we really are, despite all the evidence to the contrary, a moral and virtuous people deserving of the benefits liberal democracy has conferred upon us for more than two centuries, if we are more than the caricature our critics or enemies make of us, if we are not a vile and craven people who deserve the worst we can suffer, then it is a moral duty and responsibility to denounce what we have done and those who did it on our behalf, and not just by flinging invective at them; it is our calling to enforce the laws or admit we have failed as a civilization.
Comments
But I find I do agree with you whole-heartedly on denounciaiton. I thought I was denouncing the commission of terror by my vote for President Obama, not just by the negative support for the incumbent and his party, and the supporters who shought torture was a good way to treat "suspected criminals," but also by the positive support for Persident Obama who, it seemed to me, said he would not support or condone torture. But my denounciation lost a bit of impact with the new administration's decision to continue certain policies, rather then put an end to them.
So I feel I need a stronger method of denounciation. I support those who would seek to enforce the laws of the United States, and those who support and defend the ideals put forth in the Constitution of these United States, which have been erroded in the past several years. We should follow our own laws and our own ideals, because when we don't we put ourselves at the same level as (or below) our enemies, and that is nowhere I want to be.
More seriously, the recent news about freeing the Lockerbie bomber and the hero's reception he got back in Libya ought to speak to denunciation's role (and the negative aspects of the lack thereof).
Some people just don't get it. They really just don't get it.