Re: [asa] Torture

There are several very significant problems with your ex ante vs ex post
analysis:

-- before the bombing, you don't know the offender is in fact an "offender"
because the accused has not yet been convicted of any offense after due
process of law. In a constitutional democracy, we presume innocence until
guilt is proven.

-- terrorist activities tend to be highly decentralized. It is unlikely
that any one person will possess all the information required to stop the
attack. Therefore, multiple suspects will have to be tortured. This highly
increases the likelihood that at least some innocent people will be detained
and tortured.

-- information extracted under torture is notoriously unreliable. People
will say anything to stop the torture. It is very unlikely that torture of
a suspect will, in fact, lead to reliable facts about the impending attack.

In short, the ex ante vs. ex post argument gives broad powers to the police
/ military authorities to detain and torture large numbers of people, many
of whom will be innocent of any crime, without due process of law. I don't
think either Christian or democratic principles should tolerate this kind of
thing.

On Thu, Aug 7, 2008 at 10:31 PM, huiyiing@juno.com <huiyiing@juno.com>wrote:

> Regarding the peripheral point I made on Deuteronomy 25:1-3, should we
> punish the offender after the whole city and its inhabitants are destroyed,
> or should we threaten/force the information out of him to prevent the
> bombing? There's a higher reason to execute one above the other.
>
>
>
> **********************
>
> Well, then any punishment, including imprisonment, is "torture," because
> social isolation can also be a form of "torture" under the UN standards.
> The emotional pain of imprisonment is also excruciating.
>
> With the punishment of flogging, the ethical issue isn't "torture," it's
> whether the punishment is excessively cruel. The distinction potentially
> makes an important difference, because "punishment" is a just reward for a
> crime after appropriate judicial proof, while "torture" is presumptively
> unjust because the victim receives no due process.
>
> As to whether flogging is excessively cruel, I think we'd agree that in the
> contemporary context flogging is never an appropriate punishment even if a
> criminal offense has been proven. The Deuteronomic and Levitical criminal
> laws concerning corporeal punishment, IMHO, are in this case descriptive and
> accommodated to the ANE context rather than proscriptive.
>
> On Thu, Aug 7, 2008 at 9:13 AM, huiyiing@juno.com<http://webmaila.juno.com/webmail/new/8?folder=Inbox&msgNum=00002OW0:0018ak3Z000024ww&block=1&msgNature=all&msgStatus=all&count=1218162086&content=central#>
> <huiyiing@juno.com<http://webmaila.juno.com/webmail/new/8?folder=Inbox&msgNum=00002OW0:0018ak3Z000024ww&block=1&msgNature=all&msgStatus=all&count=1218162086&content=central#>
> > wrote:
>
>> That's punishment in the form of torture. Alright, we may differ in the
>> use of terminology, but in both cases, excruciating pain is inflicted on the
>> individual. Regarding the offense which the criminal is punished for in the
>> context of the Old Testament, I wonder how that compares with allowing an
>> entire city and its inhabitants to be bombed to ruins.
>>
>
>
> ____________________________________________________________
> Click here for great computer networking solutions!<http://thirdpartyoffers.juno.com/TGL2132/fc/Ioyw6iighEIUKRaGvARjMU3SoUOlvwLlWq6JmSBxOhuHrE3DbJ6U2r/>
>

-- 
David W. Opderbeck
Associate Professor of Law
Seton Hall University Law School
Gibbons Institute of Law, Science & Technology
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