iPhone app iPad app Android phone app Android tablet app More

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors
Judge H. Lee Sarokin

Judge H. Lee Sarokin

GET UPDATES FROM Judge H. Lee Sarokin
 

Since When Are Moral and Constitutional Violations Judged by Whether or Not They Work?

Posted: 05/ 9/11 03:53 PM ET

It is bizarrely fascinating to me that the conservatives have found vindication for torture, Guantanamo, extraordinary rendition, foreign prison sites and illegal wiretaps in the location and killing of Osama bin Laden. Initially, there is the factual question as to whether any information gained as the result of these policies was instrumental in finding bin Laden or, if so, whether it could have been obtained otherwise, but that determination is irrelevant to the claim of vindication. Since when do we judge the violation of moral and constitutional principles by whether or not they worked -- some kind of risk/benefit analysis? The fact that there may have been some benefit derived from illegal or immoral conduct does not make it right or provide justification for it.

I can envision a limitless number of scenarios in which violating the Constitution would result in benefits. We could have prohibited nutty Pastor Jones from burning the Koran by violating his right of free speech. We could prevent tens of thousands of gun deaths every year if we prohibited the sale and possession of guns in violation of the right to bear arms. We could save billions of dollars annually by ending jury trials. We could find evidence and convict people more easily if we violated the prohibition against illegal searches and seizures. We could obtain more confessions if we didn't have to bother with that pesky right against self-incrimination. Endless benefits galore!

This gloating -- this refrain of "I told you so" -- that torture is right because it works is a syllogism from Hell. I can envision and concede that there might come a time when the government has someone in custody who knows where and when a terrorist plot is about to injure and kill a number of Americans and extraordinary steps may be necessary and allowed. But absent some imminent threat, "enhanced interrogation" is wrong even if it works because it is illegal and immoral. What we sacrifice in committing torture is far greater than anything we gain from it, and any gains derived make it neither moral nor legal.

 
 
 
  • Comments
  • 15
  • Pending Comments
  • 0
  • View FAQ
Comments are closed for this entry
View All
Favorites
Recency  | 
Popularity
10:28 AM on 05/10/2011
Thank you, Judge, for speaking out on this crazy notion that torture works. So what! It's against the very document we live by. As Bill Maher once said "Give our constitution to Iraq -- we certainly are not using it". Not so funny. Hammyl
photo
HUFFPOST BLOGGER
Judge H. Lee Sarokin
Retired after serving 17 years on the federal cour
11:56 AM on 05/10/2011
hammy - Thanks for joining in. Funny that our greatest truths come from a comedian!
11:55 PM on 05/09/2011
Judge, how did we get to the point that we're using euphemisms to describe crimes against humanity? How did we get to the point that we're referring to crimes against humanity as "enhanced interrogation techniques." These are rhetorical questions. Water-boarding is torture, which is a crime under the constitution, as well as the Geneva Conventions and the torture convention. The way I see it, the torture program violates both the eight amendment and Article 6 of the constitution.
photo
HUFFPOST BLOGGER
Judge H. Lee Sarokin
Retired after serving 17 years on the federal cour
12:00 PM on 05/10/2011
wuggaslady - I agree. I suspect giving torture a different name is an effort to make it more acceptable.
This user has chosen to opt out of the Badges program
photo
10:13 PM on 05/09/2011
It's not just the conservatives, Judge. The killing of OBL has become a bipartisan celebration of all kinds of questionable behaviors justified by situational ethics, including their crowning glory, the extrajudicial assassination of people suspected of crimes as well as their indisputably innocent relatives and acquaintances.

This, according to president Obama's own words, should be seen as an expression of our best values and can-do spirit.

Disturbing, to say the least.
This user has chosen to opt out of the Badges program
08:17 PM on 05/09/2011
Hey Judge, how do you feel about someone on a secret government watch list buying a firearm?
photo
HUFFPOST BLOGGER
Judge H. Lee Sarokin
Retired after serving 17 years on the federal cour
10:42 PM on 05/09/2011
kaveman3 - It is totally ridiculous. A condition to receive compensation for first responders injured or ill from 9/11 is that they not be on the list, but those on the list can still buy guns! Apparently legislators fear the NRA more than they fear terrorists.
This user has chosen to opt out of the Badges program
10:59 PM on 05/09/2011
It's so sad that you think Due Process is ridiculous.

You have no business wearing the robe.
04:45 PM on 05/09/2011
I understand your point that the torturing of our enemies, while not prohibited by the Constitution, should nevertheless be prohibited because it is morally wrong. But as for the other, Constitutionally protected rights you mention, when they are determined to have been violated, the remedy is to exclude the “fruits” of that violation from being admitted as evidence at trial. Assuming that, in fact, the information which led to locating Bin Laden was obtained through torture, should the Obama administration, to be consistent with its anti-torture position, have called off the search for Bin Laden, since his capture and/or execution would have been the “fruit” of that poisonous tree?
photo
HUFFPOST BLOGGER
Judge H. Lee Sarokin
Retired after serving 17 years on the federal cour
05:40 PM on 05/09/2011
JDeriter - The answer is obviously "No". Having obtained the information, even if through illegal or immoral means, the administration had no choice but to act upon it. Of course, the decision to proceed did not arise in a judicial proceeding. I suspect, however, that the resistance to civil trials for Guantanamo inmates arises from just that rule
HUFFPOST SUPER USER
Silverpegasus
05:45 PM on 05/09/2011
The torture should have never been done in the first place.
This user has chosen to opt out of the Badges program
photo
04:45 PM on 05/09/2011
Worse are those who argue against torture on the grounds that it doesn't work.
photo
HUFFPOST COMMUNITY MODERATOR
Json
Cynical dreamer, sarcastic idealist...
04:23 PM on 05/09/2011
Judge, I don't know if you caught the republican debate last week, but because of the bin laden killing, the moderator asked the candidate if they would support waterboarding or even harsher techniques.
2 said no. 3 came out firmly in favor and 1 (Cain, I think) said he would support ANY means to 'protect america'.

It's terrifying that how the Bush administration took what had been understood to be torture for decades into something that could be debated. This is truly a sickness that is eating away at america's soul.
photo
HUFFPOST BLOGGER
Judge H. Lee Sarokin
Retired after serving 17 years on the federal cour
05:43 PM on 05/09/2011
Json - And worse yet apparently is the view that favoring torture is a means to being elected President.