Imagine we had someone in our custody on September 10 who we knew could tell us how to prevent the murder and destruction of the next day. Now, I think it would be unpleasant, but hardly morally impermissible, to take a cheese grater to his face or make him watch Caddyshack II until he gave up the information we needed.
This seems like a no-brainer to me. But it doesn’t to a lot of readers who chastised me for condoning torture. So I thought I would use this opportunity to offer my grand theory of democracy and explain why I don’t think guilty people should have rights.
First, let me clarify. Guilty people do have rights in our system, and that is necessary and good. But it isn’t necessary and good for the reasons most people think. Guilty people (by which I mean murderers, rapists, practitioners of mopery) have rights only because we aren’t sure they’re guilty. If we were sure, they would have no rights.
The Case For Torture Take this torture thing. Now, I am not “pro-torture.” I agree with numerous readers when they say torture is morally corrupting. Even when we torture those who deserve it — pedophile rapists or the “comedy” troupe “The Capital Steps” come to mind — torture demeans the torturer, and the whole society that condones it.
But let’s keep in mind that there are all sorts of things which are similarly demeaning. Cops have to do things everyday, including kill people, which they find personally degrading. Nobody wants to wake up a homeless veteran and tell him that he can’t sleep on a grate. But sometimes cops have to do that. Occasionally, prison guards are forced to treat grown men with families like animals. But we still need prison guards. And soldiers are sometimes ordered to do horrific things which cause them trauma for years, even decades — but sometimes those horrific things are necessary (and sometimes they’re not). Torture isn’t all that different.
Torture is against the law in Israel (we can’t say the same about most, if not all, of her neighbors). But Israel’s Supreme Court grants an exception, the so-called “ticking bomb” excuse. If Israeli authorities are positive there’s a bomb about to go off somewhere which will kill untold numbers of innocents, they can use “physical pressure” — or some other sanitized euphemism for torture — on someone in their custody, if he has information about how to prevent it.
Imagine if the FBI announced that we were in a similar position on September 10, but we declined to whack the guy around “because torture is always wrong.” Six thousand people die; the country loses billions of dollars which could have been spent more productively. Hundreds of thousands of people lose their jobs, and hundreds of millions live in fear. Do you think the guy who made the decision not to fill a pillow case with a bunch of oranges and make like Barry Bonds would come out a national hero? Do you think the gang at an NYPD funeral would say, “Hey there goes the conscience of the nation!”?
Torture needs to be against the written law, but — like police brutality — it is recognized by the hidden law (see “Restoring the Hidden Law“) as a sometimes necessary tool for protecting society.
Still, we must remember that the written law should forbid torture not because some people don’t deserve it, but because it’s so difficult to figure out who those people are.
The “Rights” of the Guilty This is part of a general misperception — advanced by universities, courts, and Hollywood — that it’s always wrong to be unfair to guilty people. Shows like Law & Order tell us that if a cop uses racial profiling or an illegal search, that means that maybe the murderer should go free. A host of Warren Court rulings (Mapp v. Ohio, Gideon v. Wainwright, and of course Miranda v. Arizona, to name just three) established the notion that if you didn’t catch guilty people according to the rules, they were, in effect, not guilty — or not punishable, which is essentially the same thing.
(Teenagers have a similar philosophy which says that if parents “invade your privacy” to find your stash of pot and dirty magazines, it’s unfair when they punish you because they had “no right” to snoop around the back of your sock drawer. America’s most famous teenager, former president Bill Clinton, subscribed to a similar argument by asserting that he was unfairly caught “mentoring” an intern.)
As dissenters noted, the Court could have punished the cop for breaking the rules, rather than rewarding the criminal. But that’s a topic for another day. The point here is that we give all these procedural rights to guilty people because it’s the only way we’ve come up with to guarantee the rights of innocent people.
Look at it this way: If we discovered that all career criminals had earlobes shaped like human thumbs and that absolutely no innocent people do, it would be entirely just and fair to “profile” all people with thumb-lobes. Cops could stop cars for “driving while thumb-lobed,” and there would be nothing wrong with it whatsoever. Similarly, if cops were psychics and could discern with absolute clarity the guilt of perpetrators, it would be silly to read them their rights.
The problem is that criminals don’t have recognizable birthmarks, and cops aren’t psychics. Which is why we have arguments about which procedures are fair and just, and which aren’t. To the extent that it’s wrong to racially profile, it’s wrong because we shouldn’t hassle innocent people because of their race — not because we shouldn’t hassle the guilty. The guilty are, well, guilty. We give the guilty lengthy and expensive trials only because we want innocent people to have a chance to avoid being unfairly punished. If innocent people were never arrested, there would be no reason to give guilt people trials. We’d move straight to sentencing.
Democracy is a Checklist And if I still have you, let me clarify another thing. In Wednesday’s admittedly sub-par column I mentioned the concept of the “good czar.” Unfortunately, many readers understandably misunderstood the point I was trying to make.
Our democratic republic overflows with all sorts of clumsy and bizarre mechanisms, of which the legal rights granted the guilty are only a subset. Before we make major decisions, we require that the people be heard, mostly through their representatives. This is a very messy system, full of what the Founders called checks and balances.
This would be a moronic way to run a country, except for the fact that it’s the best way to guarantee we don’t do something really stupid or evil. Without this system, innocent people, taxpayers, religious dissenters, entrepreneurs, etc., would get screwed a lot more often (though they still get screwed sometimes anyway).
The democratic process sifts slowly through a lot of useless dirt before it finds gold (Hayekian) nuggets. We have to tolerate the blatherings of idiots and the bloviating of jerks. The Alec Baldwins get to have their say. Furthermore, in a republic, the right decisions are made in some places and the wrong ones are made in others. And sometimes it may take years or decades for, say, California to figure out that Montana is doing things in a better way. But, in a republic, California at least has the opportunity to learn from its mistakes and Montana’s successes.
Think of these rights, votes, debates, etc., as medical precautions. If doctors knew for sure when there was dangerous bacteria on their hands, they would only wash their hands when there was dangerous bacteria there. The thing is, doctors don’t know for sure when that is, so they say “better safe than sorry” and wash their hands all the time. This means doctors waste a lot of time and water washing their hands unnecessarily.
I bet people who conduct safety inspections on planes know what I mean. They “needlessly” take apart planes all the time because they don’t know when the ball bearings are broken (it’s all ball bearings nowadays) and so they have to run through their checklists. If like, the psychic cops mentioned above, these inspectors could “see” in their mind’s eye exactly where the broken doohickeys were, they would save a lot of time, energy, and wear-and-tear by only replacing the broken doohickeys. But they aren’t psychics, so they have checklists.
When I referred to the “good czar” I meant it as an unattainable abstraction. If we could have a God-like leader who could, in his wisdom, skip all of these silly procedures and legal checklists, we could put criminals in jail without trials, make decisions without votes and debates, and muzzle people like Alec Baldwin.
But we don’t have a good czar — so we need to give alleged criminals rights, on the off chance that they’re innocent; we need to have debates, because our leaders might be wrong; and we need to let Alec Baldwin prattle on, because of the improbable chance that he might have something worthwhile to say.