[LINK] RFI: Scroogle

Karl Auer kauer at biplane.com.au
Sat Mar 24 14:16:15 AEDT 2007

On Sat, 2007-03-24 at 08:08 +1000, Robert Hart wrote:
> > And this from a *law* professor! It just goes to show how even the most
> > well-trained thinker, can build the most appallingly, embarrassingly
> > wrong conclusions at times.
> Hang on a minute - whilst I find some of this individual's writings 
> seriously problematic, I have just spent a few hours reading a number of 
> his articles and I have to say that whilst I do not agree with much of 
> what he writes, he argues for the most part cogently.

Well - no, he doesn't. If he did, I'd not have been so amazed; I have no
problem with people that can frame a good argument for any position, but
the point here is that he's a *law* professor. He should be expected to
have a better than average grasp on the principles that underlie items
like habaeus corpus, the presumption of innocence, due process and so

He should be able to see the distinction, to take his favourite
"example", between an immediate hostage situation and the situation
where someone is being tortured for information. He should be able to
see that the suspension of a person's rights needs to be in proportion
to the societal benefit to be gained. He should be able to understand
*why* we have presumption of innocence. 

> For example, he is not pro universal torture - he argues that torture is 
> justified where it will (?may) save one or more innocent lives that are 
> immediately threatened.

This begs the question of the subject's innocence. The presumption of
innocence requires that this torture be done only after a duly
constituted court had proven beyond reasonable doubt that the subject is
privy to the desired information AND that the information is of such
value that the subject's rights may be set aside. If this requirement
for due process is not there, then anyone can be tortured on the whim of
a police officer or other suitably empowered individual. Bagaric uses
urgency to set aside the presumption of innocence, a step I consider
highly questionable because of the extraordinary possibilities it poses
for abuse.

Sometimes a person's rights may be set aside for the societal good -
brief incarceration while it is proven that you didn't do something,
phone tapping etc. But we are talking here about a process that can -
and often does- result in complete loss of personal, psychological and
even physical integrity (i.e., it kills people, or can drive them mad).

If a court can order torture, we have what amounts to "cruel and unusual
punishment" being ordered by a court. Not only that, but we have people
being tortured and punished not for what they DID but for what they
KNOW. This is Bagaric's second rhetorical leg - he makes the torture
subjects in his examples criminals, so that it's "alright" to torture
them. But the object of torture is information. If it's alright to
torture for information, then innocence and guilt are simply not an
issue. What you know (or worse, are merely believed to know) is enough
to get you tortured. Note well - *even with due process*.

That is, merely suspected knowledge becomes, effectively, a crime. Do
you really want that?

> His article on torture has made me stop and think

Well, I suppose that's good. I hope my notes above have made you stop
and think again.
> don't like the idea that even limited/* */torture can be justified but I 
> have yet to come up with a cogent reason against it other than the ones 
> he dismisses in his article.

It's easy to "dismiss" things. Look at *how* he dismisses things -
chiefly by comparing apples to oranges, and by appealing to a sense of
urgency to divert attention from the actual argument. Sales techniques,
devices of rhetoric, and they have no place in this sort of argument.

Here are some cogent reasons that he hasn't dismissed at all, if by
"dismiss" you mean "offer actual argument":

- torture as he describes it is without due process
- torture as he describes it is without the prumption of innocence
- torture as he describes it punishes for knowledge, not action
- torture is as a means utterly out of proportion to the end
- torture is not a thing that stops - once begun, the subject
  is typically irrevocably harmed. There is no possible recompense
  for incorrect application of torture. This makes it akin to the
  death penalty. 

And these are just my lay-person's arguments. I haven't read any of the
voluminous literature on torture in the modern world.

Regards, K.

Karl Auer (kauer at biplane.com.au)                   +61-2-64957160 (h)
http://www.biplane.com.au/~kauer/                  +61-428-957160 (mob)

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