“Silly” Arguments Against Hate Crime Laws?

Responding to what I take to include my criticisms of laws defining “hate crimes” against the homeless, Ordinary Gentleman Will writes:

Obviously, intent matters. If someone is attacking people of a particular religious, ethnic or sexual orientation in an effort to harass, provoke or intimidate members of said group, it may be a good idea to assess additional punishment, particularly if a history of animosity and violence is involved. There may be practical reasons not to take this approach – federalizing enforcement is frequently ineffective; racial and religious animosity has subsided in recent decades – but it seems to me that special conditions can justify special enforcement strategies.

Remember that motivation isn’t the issue here – intent is. Attacking a black person to coerce or intimidate other black people is materially worse than randomly assaulting some unfortunate passerby. The later is aimed at only one person; the former targets a (potentially vulnerable) community.

I’m not sure that I can explain myself without getting rather deep into the philosophical weeds, but this seems importantly mistaken. In short, the reason that doing violence or otherwise committing crimes “in an effort to harass, provoke or intimidate” is certainly more serious, and possibly deserving of more serious punishment, than doing the same violence or committing the same crimes without such ends in mind, is that the former behaviors constitute different actions than the latter, in much the same way that waterboarding a CIA agent as a part of SERE training isn’t an act of torture while doing the very same thing to an unwilling al Qaeda member clearly can be. True, attacking someone as a means to coerce or intimidate or – perhaps – harass or provoke is reasonably regarded as a more serious crime than “mere” random assault, and it doesn’t seem inappropriate to include within the law a category that defines it as such; we do just this sort of thing, after all, in differentiating murder from manslaughter. But obviously it shouldn’t matter at all whether such a behavior was gone in for as a consequence of hatred for some vulnerable group rather than, say, some other sociopathic tendency or perhaps the desire to draw attention to some political cause.

Hate crime laws have got, in other words, everything to do with “motivation” rather than “intent”: just as it’s possible to intimidate or attempt to sow severe unrest on the grounds of something other than hate, so someone who attacks a homeless person because he hates or resents his homelessness clearly need not have in mind any of the wider goals that Will alludes to. And it’s those goals, rather than the particular sorts of subjective affections that motivate them, that are relevant to the determination of the seriousness of a crime.

Filed under: government/law, morality, philosophy

The Body World and The Machine

by JL Wall

[EDIT: I really need to be better about remembering to sign my posts over here when I first put them up.  For future reference, if they talk about being in Chicago and being Jewish, it's probably me. -- JLW]

I remember when the “Body Worlds” exhibit was in Chicago a few years ago and ads for it were plastered all over the city – there was one night in particular that I couldn’t get away from them (I think I was waiting on a bus) and I couldn’t bear to look at them – not because I thought it was gross, or dirty, or anything like that, but because, even though these were the bodies of “donors,” I felt it was disrespectful to them to ogle the dead body. I’ve always felt those taboos particularly strongly (and, contra Van Hagens, I don’t see anything wrong with that). Anyway, at risk of repeating what’s already been said, we now have this:

A new exhibition featuring preserved dead bodies having sex opened in Berlin on Thursday with critics saying a maverick German anatomist dubbed “Doctor Death” has gone too far this time.

The couple, part of Gunther von Hagens’s exhibition “The Cycle of Life”, is the “low point in his tastelessness”, Michael Braun, culture expert from the conservative CDU party, told AFP.

Von Hagens said his copulating couples show the sexual act in “bracing clarity”.

The exhibits, of four “consenting donors”, are in a separate room accessible only to over-16s.

But it is, in a sense, the inevitable extreme if there’s an insistence on dividing the body and the soul, the worldly and the spiritual, and declaring the former base and unworthy and the latter alone sacred or noble. If we are prisoners in our bodies, why not conquer and imprison the prison itself, to free ourselves, as one might say the name of an incubus to defeat it?

The religious case against it is easier—to point out the role of creature and Creator, to remind one that such subjugation of the body is, in fact, to forget that, in the words of Rabbi Heschel, man “is the knot in which heaven and earth are interlaced”: that the body and the soul are essential to state of being human.

A more secular case is harder, especially for me; I’ve been raised to think that there are just certain things one doesn’t do: that the taboos are there for a reason; that even if there is nothing behind them, they are good for the order and structure and survival of society? That this “liberation” from the bodily prison, the so-called subjugation of the guards is actually the subjugation of the human body to the fruits of human technology—only reinforcing Wendell Berry’s dichotomy between the organic and the mechanical, and that it is a dangerous symptom of the growing dependence on that which cannot be sustained inevitably? That, in other words, we would liberate ourselves from one prison into another? (Are these even truly “secular” anymore?)

I don’t mean to imply that there isn’t a good non-religious case against what I’d term the body’s desecration; but any argument against it must be founded on the belief that there is something unique in mankind. The moment a human being is literally “just another animal,” anything is permitted.

Filed under: morality, religion, science/tech

Thought Experiments, ctd.

Damon Linker has up a response (check the second update) to my latest post at the Scene, in which he grants the importance of “hard-nosed analysis of whether the Bush administration was justified in torturing terrorist suspects in the specific, concrete circumstances it faced after 9/11”, but then objects:

… I think thought experiments like the one I lay out above also have their place, not because we should be open to torture (and other nastiness) in the abstract, but rather because such experiments might help us to understand and empathize with the moral complexity of statesmanship in times of genuine crisis (as opposed to during bouts of media-driven hysteria). And this understanding and empathy just might lead some to temper a bit of their indignation-fueled self-righteousness when they set out to judge the decisions of those who acted (and yes, perhaps erred in acting) to defend the common good.

I think we can read what Linker is saying here in two ways, neither of which seems to me to constitute an especially forceful objection. On the one hand, he might be saying that the mere fact that there are some situations in which a given behavior is permissible or obligatory shows that in any situation, whether such a behavior is permissible or obligatory is a complex question. But of course that’s false: having sex, for example, is sometimes okay, sometimes not, and sometimes in a morally gray area. But that there are situations in which it’s actually or questionably okay doesn’t show anything at all about the range of situations in which it demonstrably isn’t.

The other way to read Linker is as saying that awareness of the possibility of an agent’s misdiagnosing an actual situation – i.e., of mistaking, say, a situation in which torture is unjustified for one in which it is or might be – should be enough to bring us to sympathize with people who did something that we regard as unjust. But this is only plausible if the misdiagnosis in question was itself an understandable one, and so once again it seems that it’s the particulars of the actual case that really need to do the work: we need to look at the specifics and see, for example, whether the relevant actors in the CIA or the Bush administration could really have reasonably believed, say, that they faced anything like a ticking time-bomb scenario. It’s true enough that the question of why someone acted unjustly is relevant to determining the exact way in which he’s culpable – but there can be culpable ignorance, too, and even “honest” stupidity isn’t usually regarded as an exculpation.

Filed under: morality, philosophy, torture

“Against Thought-Experiments”

At the Scene, I explain why thinking clearly about torture means thinking clearly about real circumstances, rather than imaginary ones.

Filed under: morality, personal, philosophy, torture

Torture and Bad Faith, ctd.

A lengthy e-mail exchange with a reader who took issue with the tone of this post and some others made it clear to me that I ought to state my position on the relevant issues a bit more clearly (and calmly). In no particular order, then:

(1) I do think it’s possible for people of good faith to have reasonable disagreements over whether the legal advice provided in the OLC memos could have been offered in good faith, and indeed over whether it was as shoddy as many have claimed.

(2) I also think it’s similarly possible for such people to have such disagreements over whether the specific tactics approved in those memos, carried out as the memos stipulated, constituted torture. The same does not go, though, for the question of whether the tactics constituted cruel, inhumane, or degrading treatment, at least in the moral sense – it may be, though I would be surprised to find out, that these latter terms have a much narrower definition under the relevant national and international laws.

(3) I find it much harder, though, to think that there can be reasonable and good-faith disagreements over whether the sorts of tactics that the OLC memos approved were ones that would have a tendency to encourage torture and otherwise abusive and illegal behaviors down the line. There perhaps can, however, be some such disagreements over whether the right response to this tendency would be an outright banning of the tactics in question (which is my position), as opposed to the imposition of careful oversight of and clear legal consequences for those who were employing them.

(4) I absolutely don’t think it’s possible for people of good faith to have reasonable disagreements over whether what was in fact done by agents of the US government to significant numbers of detainees amounted to torture. It was really this point that I was driving at in the post in question, where I was trying to argue for the disjunction: either you have looked at the accounts of what we did and concluded it wasn’t torture, in which case you’re arguing in bad faith; or you’ve ignored the accounts, in which case your ignorance is culpable. Or, of course, you may have looked at the accounts and concluded that we did torture, in which case nothing short of head-splitting outrage is appropriate. And it’s only against the background of such outrage, I was further suggesting, that debates about the niceties of (1)-(3) above and (4)-(6) below can seriously be carried out, as opposed to functioning – as I think they often do – as attempts to keep people distracted from the underlying moral horrors.

(5) Granting (4), and granting the systematic and widespread nature of the abuses that have been revealed, I find it very hard to see how people of good faith can reasonably believe that responsibility for those abuses lies only with low-level agents and officers; it seems clear that a broader policy of torture was coordinated, even if – as seems unlikely to me, but see (1) and (2) above – the OLC memos weren’t intended to provide legal cover for it.

(6) Granting (5), I find it similarly hard to see how there can be reasonable and good-faith disagreements over whether there should be an investigation aimed at uncovering the relevant sources of authority and then punishing them as the law permits. And just as the Nuremburg Defense does not exempt the torturers themselves for responsibility from what they did, so appeals to legal cover or the circumstances they face does not exempt those who gave or ordered the giving of the orders.

(7) I do, however, think it is possible for there to be such disagreements over exactly what form such an investigation should take: whether a special prosecutor, or a truth commission, or a congressional committee, etc. The truth needs to be uncovered and the responsible parties prosecuted, but not without unnecessarily destroying innocent reputations or careers along the way.

Finally: It’s worth emphasizing that, as Mark Thompson has movingly written, all of this is about love for this country, and not – as so many have absurdly suggested – any sort of “hatred” for it. While I wouldn’t style myself an exceptionalist in the vein that Mark describes, it remains that I’m an American, and have as such a great love for this country. And it is precisely this love that leaves me so sickened by what we have done, and so committed to bringing to justice those who have committed such evil in our name. Sometimes it’s only by really, truly hating the sin that one can really, truly love the sinner.

* Edited to insert the new point (3) above – JS.

Filed under: government/law, morality, patriotism, torture

Fairness Claims vs. Justice Claims vs. Immigration Policy

by JL Wall

Last week, a Northwestern University Police Department officer pulled over a man on suspicion of drunk driving; in the process of trying to identify him, it came out that he was in the United States illegally. So they turned him over to the proper federal authorities for a deportation hearing. This has become a minor deal here, what with letters-to-the-editor and a march planned for tomorrow. This, of course, to be expected; immigration policy is hardly something every agrees with. In fact, the Evanston City Council disagrees with it so much that they’ve directed the Evanston Police Department not to engage in or cooperate with investigations into immigrant-status.

This resolution, of course, has been brought up. But since the City Council’s authority does not cover NUPD (which, apparently, is a real police force more than a campus-wide security-guard staff), it has to be a more “spirit of the law” kind of argument. And NUPD violated this spirit by failing to act “on a humane and just basis” by reporting an immigration violation – the phrase has become both an argument and a refrain. It’s not entirely the fault of certain students that they’re using that phrasing; it’s from the title of the City Council resolution.

Nevertheless, because of it, the entire outcry has been based in large part on a conflation of justice claims with fairness claims. Though the means of enforcing an immigration policy could theoretically be unjust, the fact of its enforcement is not. (And in this case, the means of enforcement appear pretty clearly not to have been “unjust.”) So long as we are presuming that a nation has the right to an immigration policy – that is, to control its own borders – then it follows that it has a right to enforce that policy. Those now claiming that justice was violated are attributing it not to any quota system, or border policy, or mass rounding up of illegal immigrants (this is the isolated case of a man initially booked for drunk driving) but that the law calls for its own enforcement – that there be some punishment (deportation) for violating it.

This is not unjust. You can make a case that this is unfair: “He came here for a better life,” etc., and I’m not without sympathy for that line of thought; my grandfather’s first language was Yiddish, after all. So it’s unfair: “He came here for a better life,” and, “He wasn’t harming anyone by being here,” (we’re ignoring the DUI for the moment). The fact that he was in violation of the law by being in this country was not disputed: unless it has become a violation of justice to enforce a law that is not inherently unjust, this is a fairness claim. It’s not fair that immigration restrictions should make it so difficult to immigrate to America, it’s not fair that those who come in search of a better life should have to live in fear of deportation even if they are present in violation of the law: but so long as a government has the right to control its borders and the right to enforce its own policies, it is not “unjust” to deport someone present in violation of the law. One may enter a country illegally and attempt to live a life there, though if caught, one may not complain that being punished for it is inherently unjust – it’s part of the bargain, as with any refusal to obey a law with which you don’t agree.

So some people think justice should always be fair and what’s fair should always be just. Big deal. But conflating the two terms leads to a confusion of what we’re talking about, and a degredation of the debate. If that which is unfair is unjust, then anyone who disagrees with your fairness claim is actively promoting injustice. Which is why words like “bigot” and “racist” and “profiling” have been flung around on campus in the past week, and why the group organizing that march I mentioned a little while back has decided to advertise with a Youtube video that comes dangerously close to making the claim that enforcing an immigration policy quickly leads to mass murder and genocide.

Finally, I just want to say: shouldn’t calls for those charged with upholding the laws to pick and choose which laws they feel like enforcing make us all pause and think pretty hard at this point in our history?

(A closing note: yes, there are certainly situations in which upholding and enforcing a law is unjust. But immigration policy and, say, the Fugitive Slave Act are not the same thing: only one of them treated certain members of humanity as no more than chattel.)

Filed under: government/law, immigration, morality

Reductio ad Historiam

How would history have judged a man who could have saved thousands of American lives but chose instead to adhere to some misplaced and misguided sense of idealism? – Michael Goldfarb

I’m sure that there are others who could do a better job of this than I, but for the time being how about: likely by way of the same morally repugnant rubric through which “history” “judges” as courageous and heroic a man who ordered the slaughter of thousands of innocent Japanese? Which is to say, only by ignoring those judgments which mark as “a crime against God and man” any act of war “directed to the indiscriminate destruction of whole cities or vast areas with their inhabitants”, or as a crime of war the “attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended”. Such judgments, however, have no purchase on the verdict of History, which moves undaunted toward the exculpation of the victors with the sort of disregard for elementary principles “idealism” that appeals to such empty abstractions are invariably intended to effect.

If the basic standards of ius in bello governing conduct toward civilians and prisoners of war do not apply to us, then they do not apply to anyone – and this is true no matter the cramp such standards may put on our desired modes of operation, or the corrective they may be to our typically congratulatory self-assessments. Sometimes it’s only by overturning the myths of our past nobility that we can face up to the sins of the present.

Addendum: Sorry, but while I’m on the subject:

I have not fully formed my thoughts on torture, yet. I think I am against it but with this one exception: if I have a choice between saving say, 5 million lives in a nuke-contaminated Chicago or being able to say, “but at least we didn’t waterboard that guy,” I am inclined to think I would go for torture. The 5 million might still die, it’s true, but at least I won’t have to answer for standing idly by and watching it so that my morals might remain intact. I will take the chance that my moral failing in that instance will simply join my other moral failings in life, and then God and I will work that stuff out.

Actually, you have to work out your moral failing, in either case, don’t you? If you torture, you have to work it out. If you allow millions to die because you’re “too good” to torture, that’s another moral failing you have to work out. And what is the moral failing? Not trusting that God will help you work that out.

Maybe when you don’t have an idea that you and God can work out your moral failings, you have a tougher time dealing with them? I don’t know. But “who saves a life saves the world, entire” may come into play here. I don’t want to kill the guy I’m torturing. But I want to save 5 million lives.

(This from a prominent Catholic blogger, mind you.) So far as I can make it out, the “reasoning” – such as it is – goes like so:

1. People who refuse to violate inviolable moral principles are really being selfish, by keeping themselves all pure just so that they can brag about it; so
2. It’s okay to violate inviolable moral principles; and furthermore
3. Even not violating an inviolable moral principle is a moral failing, both because of (1) above and also because
4. Really trusting God means trusting that he won’t hold you to account for violating inviolable moral principles; so
5. Torture away, the Church’s categorical proclamations to the contrary notwithstanding; since after all
6. The best way to “form your thoughts” on moral matters is just to ignore the relevant Christian doctrines and agree instead with your Republican friends.
   

Which, in short, is how we end up with this. Casuistry would be too kind, really.

Filed under: morality, religion, torture, war

Crimes of War, Now As Then

Via Will, Julian Sanchez tries to explain to Michael Goldfarb that the fact that Harry Truman was a war criminal does not mean that Bush and Cheney weren’t. Here’s key graf:

I realize it’s probably not a position taken often at the offices of the Weekly Standard, but the suggestion that the bombings of Hiroshima and Nagasaki were war crimes is not, in fact, crazy or rare.  A Japanese legal review concluded as much two decades after the fact, Albert Einstein claimed before the fact (in a letter to Roosevelt) that the use of an atomic bomb would be a war crime, and indeed, the Wikipedia article devoted to the debate serious people have been having for 60 years contains a lengthy section titled “the bombings as war crimes.” To the extent it’s a controversial claim, it’s controversial because we don’t like calling U.S. presidents war criminals, not because it’s a difficult question whether obliterating entire areas inhabited by large civilian populations with the flimsiest of military targets as a pretext should now be regarded as a war crime.

Anyway, read the whole thing, and see this post for a first-hand account of what Truman wrought. I addressed the dangers of mythologizing the past at some length in this post, too.

Filed under: morality, torture, war

Plantitarian Thoughts

by JL Wall

Rod Dreher wants to hear the stories of vegetarians. Well, dear readers, I’m one of them and haven’t eaten meat in either almost two years, or almost sixteen months, depending on how you want to count it. (I’ll come back to that later.)

I don’t, however, have a strong ethical objection to eating meat; at least not like I did when I first stopped. You see, I’d been a “vegetarian sympathizer” for some time, and then I found myself involved in a college charity fundraiser that involved selling hotdogs. So to help out/support the cause, I was (in addition to grilling and serving and cashiering and impersonating the hot dog guys who work at Wrigley Field), I was also eating hot dogs – and only hot dogs – for lunch and dinner for a week. I knew, of course, that a plate or silverware or oven could be made “fleschig” (the kosher designation of, essentially, “meaty-ness” as opposed to “milkhig,” or “dairy-fied”), but up until then I didn’t realize that one could feel fleschig, and that the feeling is disgusting (and, unlike grill smoke, long showers are not a solution). So, more or less, I couldn’t stand the sight of meat for a week. And then it somehow stretched out into another week. Then, I realized, I had no reason to start eating meat again.

Back to that odd distinction from the first paragraph: “meat” so far only designates what comes from mammals and birds, not fish. That happened eight months or so later. The reason, of course, is that kashrus doesn’t treat fish like other meats: you can mix it with dairy. (And it tastes better than other meats. Have I mentioned that I didn’t really like red meat to begin with – until I stopped eating it and started fantasizing about filets.) So fish isn’t meat, right?

But I don’t have an ethical objection any more, right? Well, you see, the matter is that resuming eating meat would involve making a value-judgment about rightness of eating meat, which I never actually did when I gave it up (I just kind of stumbled into it, like studying Classics and blogging – do you sense a pattern here?). So I don’t have an ethical objection to eating meat because I haven’t been able to decide whether there is one – but resuming eating meat in the meantime would be, essentially, the judgment in itself. So I’m stuck.

Even then, there are pragmatic reasons for me: it’s certainly healthier (at least when compared to the American norm) to reduce intake of meat (and, in a family with a history of heart disease, the traditional hunk-of-read-meat I grew up with for dinner each night was probably not the best of ideas in the long run). And there’s the problem of ethical treatment of animals, and sustainable livestock habits. (Doing both at once isn’t as easy as it sounds: see here, and be sure to read the comments.)

There’s still one more reason I haven’t mentioned. Way back when I still ate meaty things, I’d essentially stopped eating any meat except fish that came from outside my own home’s kitchen. I could trust that my mother was keeping the meat and the dairy straight for me, but that steakhouse my brother loves so much? Yeah, I doubt it. And, honestly, there are times in secular Jewish society when it’s less awkward not to eat something because you’re a vegetarian than because you kinda-sorta-try to keep kosher (confession: my dishes, and my kitchen surfaces, are technically not kosher, and I still haven’t reached the point where I give too much thought to them – but it isn’t as big a concern when I’m not eating meat off of them).

Which brings me to Agriprocessors. In and around Chicago, I was finally living somewhere with regular access to kosher meat. The dining hall with the kosher station happened to be right next to where I was living – and, for assorted complicated reasons, all the food had to be made to-order, so it was far and away the best on campus. What this means is: by the end of the year, the only time I was eating meat that hadn’t been kosher from start to finish (as opposed to the supermarket meat at home which was treated more or less kosherly once purchased, for my sake) was when I ordered Chinese take-out. I’d grown so used to it, I wasn’t (and wouldn’t be) comfortable eating meat that hadn’t come from a kosher butcher/slaughterhouse.

But Agriprocessors might follow the laws well enough to get certified, but how they treat their animals, the land nearby, and their employees, is despicable. It’s big agribusiness with beards and kipot. But the worst part is that the rabbis who were in charge of granting certification didn’t care: to say anything, to report it, to try to stop it. Which is to say: I don’t trust that a kosher certification on my meat would mean it meats my standards of the type of meat I should be eating, which limits quite drastically my potential options.

So if I were to give it all up, and eat meat again, I’d still be faced with a question: short of whatever I kill myself, what meat can I eat?

In the end, despite my mother constantly offering rather large bribes to my friends if they can get me to eat meat again, it’s just easier not to.

You, however, are free to go on your happy carnivorous ways without any complaint from me. Well, just try to give factory farming as little of your money as is humanly possible, and we’ll call it a day.

Filed under: food, morality, religion

Christians, Conservatives, and Torture

Rod pronounces the Pew Forum’s finding that Christians – and Catholic, Evangelical, and frequently churchgoing ones in particular – are more supportive of torture than non-Christians to be “shocking”, but of course it’s not that at all. There are plenty of data showing that Christians’ attitudes toward abortion, contraception, and the rest don’t differ very significantly from those of the rest of society; the real factor, of course, lies in political affiliations, and I have little doubt that most of the relevant findings can be explained in terms of the fact that frequently churchgoing Catholics and Evangelicals are especially likely to identify as Republicans.

“What on earth are these Christians hearing at church?!” asks Rod. Perhaps it’s had something to do with there being a moral obligation to support the GOP in the face of the Democratic menace.

Update: Razib’s got the data. He concludes:

Politics & religion matter [in] shaping opinions. But to me it looks like religion has a much stronger independent effect on abortion than the death penalty. If I had to bet, I think torture would be more like death penalty.

Filed under: morality, politics, religion, torture