Tuesday, January 23, 2007

Lincoln, Jackson(s), Habeas, and Torture

Abraham Lincoln famously complained that in insisting on the availability of habeas corpus in the midst of the Civil War, his critics were advocating that "all the laws, but one, go unexecuted, and the government itself go to pieces, lest that one be violated." Along with Robert Jackson's "The Constitution is not a suicide pact," Lincoln's line has become something of a motto of those who advocate limiting civil liberties in times of war and other threats to national security. In fact, another Jackson got there first. In defense of his refusal to comply with a habeas order, Andrew Jackson, then the American major general charged with defending New Orleans against British attack in the War of 1812, asked: "Is it wise to sacrifice the spirit of the laws to the letter, and by adhering too strictly to the letter, lose the substance forever, in order that we may, for an instant, preserve the shadow?"

Caleb Crain quotes Jackson's question in a fascinating book review in the current New Yorker. As Crain explains, Jackson imprisoned Louis Louaillier, a state legislator who had written a newspaper piece critical of Jackson's continuance of martial law in New Orleans even after the defeat of the British force in New Orleans and the conclusion of a treaty ending the war (news of which had informally reached New Orleans). Jackson also imprisoned the federal judge who ordered Louaillier freed. After martial law was lifted, Jackson was tried for his acts, resulting in a fine, but almost 30 years later (and after Jackson's Presidency) Congress voted to reimburse Jackson for the fine.

One lesson Crain draws from the episode is that habeas corpus has never been especially popular in times of actual or perceived national crisis. A second lesson we might draw bears on current debates not only about habeas but also torture. The argument against an absolute ban on torture typically relies on the ticking bomb scenario: If you knew to a certainty (or even a high probability) that a terrorist in your custody had planted a ticking bomb in a major population city, it would be immoral not to torture him to find the bomb's location. Some people oppose the argument on deontological grounds, rejecting the utilitarian calculus, but many others think that deontological side constraints lose their force where great harm is threatened and where the object of torture is himself a bad actor. Some of these utilitarians nonetheless resist the conclusion that torture is sometimes justified by pointing out that in the real world, government authorities will be prone to mistake. They also note that torture often leads to faulty information. Whatever the relative force of these arguments, the Jackson episode reminds us of another ground for resisting the ticking-bomb argument: Government officials not only make mistakes but also become drunk with power. No realistic assessment of the threat posed by Louaillier's letter, much less the habeas order of the federal judge, could have warranted their imprisonment. We can expect (and have seen) similar abuses where government officials have the power to torture.