he Treaty of Westphalia, which ended the Thirty Years War in 1648, effectively established an entity that most of us today take for granted: the nation-state. In the nation-state, it is the duty of the state to protect the nation and of the nation to remain loyal to the state. When security threats to the nation arise, the state must defend against them, and, in times of danger, liberty is often at odds with security. For authoritarian states, such tension is easily resolved: err on the side of security.
The tradeoff becomes more problematic in constitutional democracies such as the United States. To be sure, our Founders were concerned about security (they wanted to “provide for the common defense,” and so on), but they devoted much greater attention in their debate and draftsmanship to the matter of personal libertythe protection of the individual from the intrusion of the state. One can only imagine the dismay the Founders would have felt if confronted with the arguments of Bush administration officials such as John Yoo and David Addington, who assert that our government has not only the right, but also the duty, to torture American citizens if it feels the nation to be at risk.
Since it is primarily noncitizens who have been subjected to “enhanced interrogation,” however, two more issues arise: one is the practical problem of reciprocity, how other nations treat Americans they take prisoner; the other is the ethical and moral issue of what is right in our dealings with foreign enemies.
Not even the most obtuse partisan (including obtuse partisans with law degrees) could plausibly argue that the United States alone is at liberty to suspend international rules and suffer no consequencesthat we can torture non-Americans captured in combat yet somehow avoid having American captives tortured in return. Since no one can make such an argument, then it follows that adherents of our policy of torture tacitly accept that American prisoners will be tortured in return. And that, I suppose they would say, is just too bad.
Only a willfully ignorant administration would trash international treaties and traditional alliances in the interest of security expediency. There is an obvious price to be paid for such actions, and it is not just that our soldiers are endangered. Everyday Americans, those possessing Jeffersonian “common sense and good judgment,” have virtually from birth believed that we hold ourselves to a high moral standard, that the ideals and principles of our Declaration and our Constitution define who we are. If we abandon those ideals and principles, then our sense of ourselves will be false, and we will be seen as great hypocrites. That is why we have always adhered to international law and convention, particularly the Geneva Conventions, and why we must do so once again. To sacrifice our great principles for an ounce of security is to pay too high a price. Torture is not an instrument in the arsenal of this democracy, nor should it ever be.
