Inchoate

I interpret Greg’s post as an attempt to goad me into a response. I’m happy to oblige.

The article to which Greg refers is “Make torture legal, say two academics”, which the SMH headlines “Support for torture sparks row”. It’s authored by Mirko Bagaric (apparently a “very dynamic” lecturer) and Julie Clarke. (Greg, it’s a blog—linking in HTML isn’t difficult!) Also, both The Age and SMH have an extended outline of their argument.

(I should note at the outset that I think that making these arguments while a part-time member of the Migration Review Tribunal and Refugee Review Tribunal is a spectacularly bad look. It seems, however, that he agreed to resign from the RRT some time ago: The Age, ABC News.)

Other bloggers have commented, including: Ken Parish, Tim Dunlop, John Quiggin, Robert Merkel, Arthur Chrenkoff, Mark Bahnisch, Ivan Rubinstein, Andrew Norton, and Fair Crack of the Whip. For what it’s worth, my views are that I disagree with their proposition. (I should add that I haven’t had cause to think about torture deeply, so my views are essentially intuitive.) Regardless, I don’t see a problem with them writing about it. Perhaps their scholarship may be shoddy—but that’s something that won’t be able to be determined until their article is published in July. But I’m deeply uncomfortable with the proposition that merely writing about it makes them “ethically bankrupt morons”.

I’m particularly unconvinced that the “legal profession”, of which I am a part, must “stand up en masse to denounce this stupidity before the rest of us conclude that the common prejudice against lawyers is completely justified.” I can only assume this is because Bagaric and Clarke’s arguments are so bad, their attempt to promote them so heinous, that all lawyers are infected with their malaise. Clearly, all us lawyers think as one. We are Borg; resistance is futile.

Is the proper lawyerly response to attempt to curtail their speech? Or is it to, if one disagrees, respond to their propositions, pointing out the errors of their ways. I recall Justice Holmes’s memorable dissent (which Justice Brandeis joined) in Abrams v United States, 250 U.S. 616, 630 (1919):

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

I’m also unswayed that the proposal is “extraordinary”. Eugene Volokh considered and reconsidered some arguments a couple of years ago. A self-described conservative case for outrage (via Orin Kerr) was made at the end of last year. These are important questions, and I don’t think academic or popular discourse is promoted by suggestions of “purge[s]” of those who dare to think differently.

It’s somewhat beside the point, but Alan Dershowitz has previously condoned torture in some situations. His argument is basically that torture happens (Marty Lederman recently explained how), therefore it should be regulated. Dershowitz’s arguments have been criticised by Seth Finkelstein, CounterPunch, and Judge Posner. However, in his review of Dershowitz’s book for The New Republic, Posner writes:

Dershowitz devotes one of his chapters to a specific issue of the war against terrorism: namely, whether torture should be permitted to be used to extract information from suspected terrorists. He makes a point that only the most doctrinaire civil libertarians (not that there aren’t plenty of them) deny: if the stakes are high enough, torture is permissible. No one who doubts that this is the case should be in a position of responsibility. If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used—and will be used—to obtain the information.

Even more tangentially, Eugene Volokh is nobody’s fool, but he openly mused (and was ultimately persuaded to the contrary) that heinous crimes should be subject to “the deliberate infliction of pain, with cruel vengeance”. Is he a “cancer” that UCLA should “purge itself of”? Or should his intellectual honesty, candor, and openness be applauded rather than vilified?

UPDATE 2005-05-19:

UPDATE 2005-05-24: