I have been reading the same series of articles in the Post with equal parts fascination, horror and disgust. While it’s clear that Cheney is the force behind many of the controversial movements of the Bush regime, I had no idea how far his influence extended. My initial reaction is to ask, “Why hasn’t anyone stopped this?”; however, I think the obvious answer would point to a systemic weakness, even incompetence in the opposition that Cheney and his fellow ideologues have managed to exploit with admirable, if ruthless efficiency.

Yeah, today’s Post has a shorter and funnier version of this story that’s finally being discovered: the man’s just incompetent. That he has enjoyed the credulity and even the respect of people in DC up until this point does, as you note, indict their own weaknesses. If anything, it vindicates the cynical point that if you push hard enough, people will be inclined to give things to you.

I guess Cheney is physically the biggest man in power around there?

HB,

I don’t really see the dichotomy you want me to see between practical judgment on the one hand and modern liberalism on the other. Are laws which constrain ever operative separate from practical judgment? How can laws constrain action without some efficient force provided by practical judgment? Without practical judgment are we not left with John Marshal having no one to enforce his decisions? To me, making a decision that something ought to be prohibited is one thing, and a law is the result of that decision, but then practical judgment is required to follow throw and enforce the law and thereby maintain the decision through time and circumstance. To do otherwise is to have an dead law, which it appears we have in the torture cases because we certainly have laws against such things.

Let me try saying this without a chance of questions. Let me use an analogy instead and I hope it will be relevant and helpful. Some people speak of things happening by chance. While I know what they are saying, I don’t understand chance to be a motive force or efficient cause. Chance is something that modifies our understanding of an event but doesn’t actually contribute to the event itself. Gravity or what not is still operative in throwing dice despite the results being properly spoken of as chance.

Isn’t “modern liberalism” like chance? Modern liberalism can modify our understanding of practical judgment, but it is not efficiently operative in those judgments. Understood in this way, an interrogator who practically judges not to torture and follow the law can be considered modernly liberal, but it was his will and judgment that made matters what they were and not some modern liberalism.

So, in this case I may say that it is Mr. Cheney’s will and judgment being improper which leads to torture rather than him having an insufficient respect for modern liberalism. Is this materially different from your original question?

Freud was onto something.

Read: “Let me try saying this without a chance of questions” as “Let me try saying this without a chain of questions.”

G,

Of course you’re right that judgment is always present in practical things, even when laws seek to constrain its exercise. We are constantly asked to decide whether to follow the law, and in some cases, we even judge it best to break the law. No question there.

I didn’t mean to set up modern liberalism as a motive force, or indeed as outside the reach of judgment. It’s a somewhat sloppy shorthand for a set of opinions about how best to govern and live, which are themselves based on a number of assumptions about humans and the world (I’d call it a weird mix of Hobbesian views of humanity’s essentially base nature and Jeffersonian hopefulness about equality). But I just meant it to be a collection of arguments people make, not a new force that decides things for people.

The dichotomoy I meant to set up was between two different arguments. What I was calling modern liberalism says “we shouldn’t let the government torture people, no matter what,” and we should pass laws saying as much. This is itself based on the judgment that we should be ruled by laws (here, a broad proscription on certain actions), instead of allowing our leaders to judge each instance as it appears best to them. This position it pretty extreme. It doesn’t say, oh do what appears best at the time and we’ll sort it out later. It affirmatively says, “don’t torture, ever, and if you do, you’ll go to jail.” Even if it might in a certain case be right to torture, this point of view says it’s not worth it to allow that instance to go without condemnation.

Cheney, on the other hand, thinks that the Constitution grants to the President essentially the powers of a consul: in wartime, he can do what he thinks best. He wants to let the executive and his agents do what’s necessary, in their considered judgment, to win a war. He further wants these agents to be free from fear that they’ll be prosecuted for their efforts, in the same way a court couldn’t prosecute a President for an exercise of his discretion, even if the result turns out badly. The law does take account for some exercise of relatively unfettered practical judgment. One cannot sue a government official for harm caused by an exercise of his discretionary powers, only for exercising his discretion where he wasn’t authorized, using an improper means to carry out the action he chose, or for not acting when he was required to do so. But if he chose to do it, was required to choose to do something, and didn’t use improper means to carry out his choice, the law protects his exercise of discretionary judgment. Not sure how this maps onto the military, but it’s an example of how ML respects need for broad exercise of judgment.

Perhaps in war we do want to grant broader discretion, such that we don’t prevent an official from using certain horrific means. Cheney might call waterboarding just another weapon in our arsenal, and we don’t outlaw napalm, as much as it hurts people. In some cases it might be right to torture people, he’d say, and we don’t want to lose the opportunity to torture the right man at the right time. Opposing him is a pretty large corpus of military regulations and civilian laws, all based on the idea that it’s practically better (for various reasons) to outlaw certain means of interrogation. Yes, there’s prosecutorial discretion and all sorts of other points in the system that allow for flexibility where it might have been right to do to hurt someone. But this side says that it is better to color the judgment of interrogators towards caution when they consider hurting suspects, rather than leaving them free to decide for themselves whether to use the weapon of torture.

HB,

Thank you for drawing that up for me; I think it helped me to see the true issue that modern liberalism is more of an argument for a type of social conduct than anything else.

Do you have much exposure to just war theory? I know that I have been in major discussions about it, but I have forgotten in which forum they occurred. Nevertheless, it seems to apply here because it (like modern liberalism) is another argument for a type of social conduct. Just war theory states what circumstances must be in place to justify (I like the double entendre) war and then moreover the type of conduct that is permitted during the conflict. Just war theory has been around for a very, very long time (at least as early as St. Thomas) and I think that many of its arguments may have found expression in the newer modern liberalism - though like you say modern liberalism is tinged more with the social calculus of Hobbes than the metaphysics of Thomas and others. The point here though, is that many arguments exist for prohibiting torture and it appears we as a nation have not been forceful in expressing them to our military.