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Trump Inauguration Day

On Torture, Will Trump Choose the Broad or the Narrow Way?

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At a joint news conference with British Prime Minister Theresa May, Donald Trump frankly admitted that he and his recently sworn in Secretary of Defense James Mattis disagree about the use of torture as an intelligence gathering tool. As one story reported it, Trump said:

“I don’t necessarily agree, but I would tell you that he would override because I am giving him that power…I am going to rely on him.” Trump has in the past suggested he would defer to Mattis, who is firmly opposed to reinstating torture… Still, in a significant moment, Trump proclaimed during the news conference that he believes torture “does work.”

In an article last week, I took note of the fact that, in his inaugural address, President Trump mischaracterized the oath of office he had just taken. He referred to it as “an oath of allegiance to all Americans; and later said that the “bedrock of our politics will be a total allegiance to the United States of America.” As I point out in the aforementioned article, the Presidential oath is, in fact “an oath to preserve, protect and defend the Constitution of the United States.” Obviously, this is not an oath of allegiance to Americans who reject the U.S. Constitution as an obsolete artifact of a bygone era. Nor is it an oath simply to submit to the power of the United States when it comes to matters the Constitution’s 10 th Amendment reserves to “the States, respectively, and to the people.”

Judging by his views on torture, one would be tempted to conclude that Mr. Trump misses the point of his oath as President. For the Constitution (in view of its 5 th and 8 th Amendments) clearly prohibits subjecting people to punishing assaults with a view to procuring self-incriminating information. Since, for example, failing to report knowledge of criminal activity can be and is punishable by law (particularly where terrorism is concerned), people who knowingly do so are guilty of a serious crime even if they themselves are not planning or carrying out the criminal activity.

The whole point of torture is to be cruelly and unusually punishing; so much so that the torturer’s true expertise is to prolong an individual’s experience of pain, avoiding death, or even the loss of
consciousness, as a means of escaping it. This expertise is probably what leads to results from torture that statistically verify Mr. Trump’s view that torture works. The problem is that, as President, Mr. Trump is sworn to preserve, protect and defend the provisions of the “Constitution, and the laws of the Unites States which shall be made in pursuance thereof; and all the treaties made, or which shall be made, under the authority of the United States” as “the supreme law of the land.” Even if one chooses to quibble about the implications of the 5 th and 8 th Amendments, the United Nations Convention Against Torture is an international treaty, made under the authority of the United States (i.e., signed by the President of the United States, and duly ratified by the U.S. Senate.)

Given that both the President and the Secretary of Defense are bound by the Constitution, President Trump doesn’t give Mr. Mattis the power to override him. The Constitution overrides them both. As a matter of fact, in extremis existential threats to the United States may, arguably, dictate actions contrary to the Constitution. Though the de facto executive power deployed in such circumstances may for a moment drown out the voice of the supreme law of the land, it does not alter its import. Moreover, the Constitution vests the executive power of the United States in the President’s person (not, as some would have it, in the Presidential office, abstractly understood). Therefore, the President is personally responsible for the judgment that circumstances require transgressing the boundaries Constitutionally imposed upon that power. He may allow a trusted advisor to act as his agent, but that in no way reduces his own responsibility for the action that results. As President Truman said of himself “the buck stops here.”

This is the serious issue involved in the discussion of Mr. Trump’s use of his personal account on Twitter, as well as his reported reluctance to take up permanent residence in the White House during his tenure as President. It appears that he wants to preserve a personality distinct from his responsibility for the executive power of the United States government. As he may miss the point of the oath he has taken, so he seems to miss the reason why he is now supposed to be addressed as “Mr. President”, twenty-four hours a day, even by close associates used to dealing with him on a first name basis. Every word he speaks, every action he takes, from now until he leaves office, represents the executive power of the United States and must be weighed in light of the requirements of the Constitution’s provisions and goals.

This complicates matters in ways he apparently has yet to take into account. On the one hand, he is
responsible for “getting things done”. In that respect, he is right to look for “what works.” But in their preamble to the United States Constitution, the people of the United States set union and justice as the primordial goals of the Constitution. Peace and security come next in order. As a rule, therefore, the first question someone responsible for preserving the Constitution’s priorities must ask is “Does this action correspond to America’s common sense of justice, or not?” The challenge, therefore, is not just to do things effectively, but to make sure that, in effect, our common sense of justice is preserved. This is the common sense reflected in the 5 th and 8 th Amendments to the Constitution. It is the common sense that was preserved when the United States approved the United Nations Convention Against Torture.

President Trump may think that the terrorist threat has now frightened Americans out of their good sense in this respect. Perhaps he has failed to notice that a common thread runs through the
declamations of people on both sides of the great political divide, recently brought sharply into focus by his candidacy. Those against him speak of a woman’s right to choose; they sue and agitate for the right of homosexuals to marry; they inveigh against racism as a violation of every person’s right to be treated with respect for their humanity. Many of the people who support him speak of our posterity’s unalienable right to life; the right of self-preservation, which justifies the 2 nd Amendment’s respect for the right of the people to keep and bear arms; and the other rights the people retain, which the U.S. Constitution cannot be construed to deny or disparage. (cf. the 9 th Amendment) Though they differ as to its substance, both sides are preoccupied with the issue of right and wrong.

Most Americans appear still to concur with Madison’s observation in Federalist 51: “Justice is the end of government; it is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” Now, liberty will be lost if we let go the preoccupation with justice and routinely tolerate abuses of government power rationalized by real or purported threats to our existence. But liberty will also be lost if we fail to defeat the real threats because “conscience doth make cowards of us all.” As Americans, we do not reject torture because it doesn’t work. We reject it because it’s wrong. Nor do we countenance torture, in dire circumstances, just because “it works”. We do so because in certain extremities, the loss involved in refusing to test its efficacy involves the existential destruction of justice, right, and life itself, all which we institute government to secure.

Unless we are willing to surrender our common sense of right, Americans cannot escape the burden of this dilemma. It is the burden of conscience that compels us to distinguish between the right use of freedom, that is the unalienable right of liberty, and the wrongful exercise of choice that betrays liberty to self-destruction. Given their roles, I expect that the exigency of events will inevitably pressure Secretary Mattis to consider the expedient of torture. In any case, agencies not subject to his authority will certainly do so. Either way, President Trump will be responsible for deciding whether to preserve the Constitution according to its terms, as his oath requires, or honor it “in the breach”, in order, in extremis, to preserve its existence.

Given his views and the record of his life prior to taking office, one has to be concerned that President Trump’s “pragmatism” will prejudice his judgment. Because “it works” he may see torture as a short cut, broadly open to success. But if he respects his oath to preserve the Constitution, he will study to respect the narrow way, which lies between the bounds of justice and the deadly assault of its ever-encroaching enemies. That narrow way to victory will never be crowded with contenders, but the victory that results will be consistent with the goal of enduring justice and human right. That goal stands upon the height from which our Creator, God calls the good people of the United States to be a shining hope for all of humankind. No threat has ever induced us simply to surrender that goal. What true greatness would there be in doing so now?



 

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