What is the Issue?

and written with an eye to prompting discussion. You can, of course, drift through both Levin's column and my response, and then furrow your brow a little and wait for someone else to say something about them. But I have used Levin's column partly because in my teaching it has proven to be pretty good at getting people mad at each other. I suggest that you watch your back while you make your way through the next couple of pages. In particular, you might pause after reading Levin and ask yourself what the issue is. You might consider whether you like his argument or find it persuasive. Make a couple of notes on what you like or do not like, and then go on. 

     In review, recall that the question, What is the Issue? is often the biggest and most difficult of the questions we answer in describing an argument. We treat issues as questions, and if they really are issues we should be able to state the question in such a way that the opposing sides could agree that, yes, that is the question about which we disagree. If the issue is clear, then we can go on with our other steps to complete a description. But if there is still some uncertainty about why people disagree or what the disagreement involves, then we must immediately slow down and work through some more questions which are meant to help in clarifying issues.

Some of the main ones are the following:

     a. How did this question arise? What is the beginning of the controversy? What history or background will help us understand the question?

     b. Can we make this multiple choice? What are the possible answers to this question--especially the speaker's opponents' answer?

     c. So what? What are the stakes? What difference does it make whether we go with one answer rather than another? What turns on the argument? If the speaker is right, what has to change? What are the consequences if the speaker is wrong or right?

     d. Linked issues? What other issues are related to or distinguished from this one? Is there a big (or small) issue which needs to be answered first or which will be partially decided when this one is settled?

Levin's column is a good piece for trying out these questions. Have at it.

Now, before you go on, take a pencil (not a pen) and answer the  following:

a. Do you think Levin is basically right?

b. Why or why not?

c. What is the issue Levin addresses?

d. Who are Levin's opponents?

e. What difference does it make whether Levin is right or not? (That is, what are the stakes?)

f. Levin talks as though he is writing in response to an increase in terrorism. Could this have come up before the advent of modern terrorism? What background could help us make sense of this piece? Where are there controversies regarding torture around the world today, and when in history have these controversies arisen?

               * * * * *

Now take a look at one possible way of answering the question, what is the issue in Levin's piece on torture?

     We could start by giving Levin's issue, the question he is trying to answer, as "Is torture permissible?" When we work on trying to make the issue clear, we begin to uncover problems with Levin's argument. As we clarify the issue this first way of stating the question looks muddy--it won't do.

     Is torture permissible? One way to ask about the question is to explore the possible answers to it. What positions could someone take on this issue? Here are some.

     There have been governmental agents and church authorities during different times of history who apparently thought torture was a perfectly good method of achieving desirable ends--extracting information or confessions from political dissidents or heretics or providing examples, through horrible punishment, to deter others from straying. And, of course, this is not just history. According to such

authorities as Amnesty International, torture is used routinely by many totalitarian governments around the world, notoriously in Argentina, El Salvador, Guatemala, Nicaragua, Laos, South Africa, Cambodia, Viet Nam, Uganda, Iran, Iraq, and Pakistan. There are live issues centered on the use of torture which show up in the international press on a routine basis.

     Another possible position is that torture is awful but sometimes justified (of course this may be the position taken by those governments listed above.) These positions will differ depending on the methods of justification proposed, but are in an important way the same if the justification is merely to weigh the good to be achieved against the awful means required to achieve it.

     Another possible position is that torture is to be prohibited. Something like this has to be Levin's opponent's position and it may be wise to remind ourselves of what that position is and what is supposed to back it up. One of the barriers to the police using torture in the U.S. is the Bill of Rights of the U.S. Constitution, in particular the Fifth Amendment's protection against compelling someone to testify against himself or herself, and the right to due process and equal  protection. These are part of a package of civil liberties Americans often take for granted, including the right to know what you have been charged with and the right to trial by jury. It may help to remind ourselves how the reasons went. For example, trial by jury, though people seem to think it was meant as a way of reaching an accurate verdict, was viewed as much more likely to result in injustice than a fair, impartial judge—the reason for the right to trial by jury was the fear (sometimes amounting to a cynical conviction) that governments would become corrupt, too powerful, would attack its citizens for not doing what government agents want.

     Trial by jury, habeus corpus, the right to remain silent are protections for citizens against bad government. Jefferson seems to regard free public education as another such civil liberty, something to equip citizens to vote against those who are in power. The motive for the Bill of Rights is less respect for individual citizens than it is distrust of those in power and the cynical or pessimistic conviction that people in power are corrupted by that power.

     Power corrupts, and citizens need ways to fight back and to exercise control over those in power. And this remains so even for Madison and Jefferson, who do not trust ordinary citizens all that much (and so built in limitations on the power of the crowd of citizens along with limitations of power of cops, judges, and congresspersons).

     Another way to help make the question or issue clear is to ask what is at stake. What would change if we buy Levin's argument? What would he do if he had things his way? Some parts of this are difficult to tell. With the background of the Constitution's authors in mind, we want to know just who is authorized to administer torture and who is going to keep watch over them. We want to know, too, just what means are to be used. Torture is an ancient science, maybe more ancient than logic, and there have been devoted researchers, ingenious experiments, and much learned over the years. But it is not an exact science. One of its hardest lessons is that there are no sure-fire ways to torture people. Another is that some people--people who are fanatics or who have strong religious beliefs, strong family relationships (including love/marriage relationships)  or who are crazy or patriots are really hard to crack. Under what circumstances will we use one method rather than another? Levin is vague on methods, assumes torture always works, may assume that electrodes can generate more pain than other methods.

     We might ask about what, exactly, is at stake.  What will change along with making torture permissible?  It changes the atmosphere around the issue, makes it seem a little less sanitary, if we think of particular forms of torture, and ask whether Levin would endorse them if they are more effective than electrodes (they often are--torturers in North Korea found that electrodes are not very effective, though the fear of electrodes may be): breaking off teeth with pliers, applying lit cigarettes to hands

and mouth, bamboo shoots under the fingernails, cattle prods to the genitals, or even the rack. Is any police desk sergeant authorized to decide when and which methods to use? Will some of the tools be in his desk drawer or in every police cruiser’s trunk?

Sometimes the most effective means of torture might be to torture not the terrorist himself but the terrorist's five-year-old daughter. Levin says to torture only the guilty but his argument and his  conclusion leave out grounds, reasons, to torture only the guilty, and his argument works just as well as an argument for torturing the five-year-old in front of father or mother or brother. The reasons he gives for torturing do not stop with torturing only the guilty. What is at stake is shadowy, unclear, at least with regard to what methods will be used, who will use them, and who will enforce limitations once torture is accepted. All we know for sure is that the legal provisions must change--the First Amendment and the Fifth Amendment must be eliminated in order to provide a legal basis for government experts to use torture.

     We might also ask, in order to make the issue clear, just how this question comes up. Levin uses the example of a terrorist with a nuclear device, but doesn't want the issue limited to those sorts of cases. And in a way even these cases are not new. In the past a terrorist may not have had a nuclear bomb, but he sometimes had an army instead, and an army will often serve as well as a bomb. There may be something here of the resentment commonly felt against criminals who seem to enjoy more protection under the law than do victims of crime. It sometimes seems that those protections lead to blunders, as when someone who is quite clearly guilty is freed because the police used illegal methods to collect crucial evidence. Levin undoubtedly would use such incidents to back up his side, but his interest here is not in compensating victims or in deterrence of crime through harsher punishment. It is pretty clearly focused on the rights of people who have come under the power of the police, and on what the police should by policy be allowed to do. Levin's worry is whether the police might have had their hands tied by idealists who are moral cowards, who could not themselves apply the electrodes, who are likely to suffer "paralysis in the face of evil." One gets the impression Levin thinks of himself as hard-headed in the midst of romantic fools, reminding us of the hard and sordid facts of life when we were all starry-eyed and ill-informed. The issue has become,

     how much power should we give the police as a matter of policy or law?

That's a bit long. Should we legalize torture? leaves out that this is about all the limitations on the police and not just about torture, but captures most of it.

     That's the issue. Now think about whether Levin has a chance to make his argument a good one. (At this point the distinction between description and evaluation should be kept in mind, even though we will go back and forth.) This piece could be hilarious irony if it were not so frighteningly ignorant. Because he has not thought about his opponents’ or their arguments, Levin has himself missed the issue as much as any sentimental Sunday-school teacher could. Jefferson and Madison were not starry-eyed romantics but instead had the cynical belief that people with power go bad.  Many of Levin’s mistakes are trivial--thinking that torture always works, that the mother of a kidnapped baby is an appropriate moral spokesperson on kidnappings, that his argument will stop where he wants with torturing only the guilty, that his opponents are softies and cowards. But a couple of his mistakes are crucial: he thinks government can be trusted to keep its own evils under control; and he shows a complete and absurd blindness both toward his opponents' arguments and toward any of the real cases of torture, the policies of torture, carried in the world's news. If there is a man blind to the hard and sordid facts of life, the issues raised by torture (and addressed in the Constitution) it is Levin.

     It is a curious thing that the first and crucial example used to support Levin's argument pulls us in so quickly. We can, I think, with the right details, imagine a case in which a cop, her family at risk, all other routes explored, a terrible time limit pressing, a silent but scared terrorist in hand, finally loses it and starts beating up her prisoner. Think of the police review hearing which follows after the incident is over. Will they charge her with violating the prisoner's rights? Lots of the details will make a difference. How soon did she lose her cool? Did she have a cattle prod handy--she kept it in her car trunk to use in cases like this? How hard did she work on reasoning with him first? Did he say "Never. I'll never tell you, unless you torture me"? Did she have some reason to think torture would work? Did she enjoy torturing him? Did it work?

     With the right answers to these and other questions, with the right details (it is important that details shape our moral judgments of her), we can imagine the case in which she is on good moral grounds. Suppose the case is like that, and those at the hearing decide she has to be charged with a crime anyway. Do we need to change the law? No. We need to provide her in turn with civil liberties, a fair trial, the right to trial by jury. And given those, the current legal system may provide just what Levin says we need to change the law to provide--permission for the police to torture. Except, of course, that it is not permission for anyone else, and it is not policy which lets her off; rather it is the package of civil liberties Levin would axe which paves the way for us to get clear on her moral standing in the case and excuse her even if she breaks the law.