UUnniivveerrssiittyy ooff SSoouutthh CCaarroolliinnaa SScchhoollaarr CCoommmmoonnss Faculty Publications Law School 2-2008 TToorrttuurree,, wwiitthh AAppoollooggiieess Thomas P. Crocker University of South Carolina - Columbia, [email protected] Follow this and additional works at: https://scholarcommons.sc.edu/law_facpub Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Human Rights Law Commons, and the National Security Law Commons RReeccoommmmeennddeedd CCiittaattiioonn Thomas P. Crocker, Torture, with Apologies, 86 Texas L. Rev. 569, 569-613 (2008). This Book Review is brought to you by the Law School at Scholar Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Scholar Commons. For more information, please contact [email protected]. Book Review Torture, with Apologies TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS. By Eric A. Posner and Adrian Vermeule. New York, NY: Oxford University Press, 2007. Pp. 328. $29.95. NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY. By Richard A. Posner. New York, NY: Oxford University Press, 2006. Pp. 208. $18.95. Reviewed by Thomas P. Crocker* Torture has become a topic of pressing national concern.' The specter of torture haunts both popular culture and policy debates over how best to * Assistant Professor of Law, University of South Carolina School of Law. J.D., Yale Law School; Ph.D., Vanderbilt University. I would like to thank Holly Crocker, Scott Hershovitz, Patrick Hubbard, and Anthony Jarrells for their helpful comments and conversations. I would also like to acknowledge the helpful research assistance of Kristina Cooper and Reynolds Elliott. More than is ordinary, I would like to stress that all the remaining errors are mine alone. 1. See, e.g., Jonathan Alter, Time to Think About Torture, NEWSWEEK, Nov. 5, 2001, at 45, 45 ("We can't legalize physical torture; it's contrary to American values. But... we need to keep an open mind about certain measures to fight terrorism, like court-sanctioned psychological interrogation.... Nobody said this was going to be pretty."); Alan M. Dershowitz, Is There a Torturous Road to Justice?, L.A. TIMES, Nov. 8, 2001, at 19 ("When, if ever, is it justified to resort to unconventional techniques such as truth serum, moderate physical pressure and outright torture?"); Michael Hirsh & Mark Hosenball, The Politics of Torture, NEWSWEEK, Sept. 25, 2006, at 32, 32 ("The question is whether waterboarding, however effective, is torture-and whether Americans ought to be doing such things at all."); Anthony Lewis, The U.S. Casef or Torture, N.Y. REV. BOOKS, July 15, 2004, at 4, 4 ("Reading through the memoranda written by Bush administration lawyers on how prisoners of the 'war on terror' can be treated is a strange experience. The memos read like the advice of a mob lawyer to a mafia don on how to skirt the law and stay out of prison."); Jane Mayer, The Black Sites, NEW YORKER, Aug. 13, 2007, at 46, 56 ("Among the few C.I.A. officials who knew of the details of the detention and interrogation program, there was a tense debate about where to draw the line in terms of treatment."); Jane Mayer, Outsourcing Torture: The Secret History of America's "ExtraordinaryR endition " Program, NEW YORKER, Feb. 14 & 21, 2005, at 106, 108 ("By holding detainees indefinitely, without counsel, without charges of wrongdoing, and under circumstances that could, in legal parlance, 'shock the conscience' of a court, the [Bush] Administration has jeopardized its chances of convicting hundreds of suspected terrorists, or even of using them as witnesses in almost any court in the world."); Ends, Means and Barbarity, ECONOMIST, Jan. 11, 2003, at 18, 18 ("If, in their efforts to defeat al-Qaeda, American officials are moving towards a policy of using torture on a systematic basis ...t his would be a remarkable and ominous reversal of policy."); Is Torture Ever Justified?, ECONOMIST, Jan. 11, 2003, at 9, 9 ("How can democratic governments best fight an enemy like al-Qaeda... ? In ways that uphold the values democracies stand for, is the answer one would like to give. Yet faced with the sort of threat al-Qaeda poses, this line is not always so easy to draw."). HeinOnline -- 86 Tex. L. Rev. 569 2007-2008 570 Texas Law Review [Vol. 86:569 provide for national security under threat of potential terrorist attacks.2 In the eyes of many, the practice of torture stands as an exemplar of official abuse. Legal and moral prohibitions against torture focus attention on institutional commitments to fundamental human dignity and liberty. In the eyes of others, engaging in torture, and its descriptively milder forms of cruel, inhuman, and degrading treatment, would be justified under conditions of national necessity. In the choice between adhering to principle in the face of a potential loss of many thousands of innocent lives or resorting to torture, the tough-minded pragmatist claims that torture is the lesser evil.3 In the hands of those who prize consequences over principles, "ticking-bomb" hypotheticals-imagining officials confronting a suspect they know can reveal the location of a large bomb about to detonate in a crowded.city-are designed to wrench from even the most ardent opponent of torture a reluctant admission that the practice would be justified under such exceptional circumstances.4 Moreover, among those who prize principle over consequences, under extreme, ticking-bomb scenarios, many would none- theless defend the actions of a public official who would be willing to act outside the law to do whatever is necessary, including torturing suspects, to 5 protect national security. 2. The television show 24 is perhaps the most relevant example of how the threat of terrorism has been represented in popular culture. See Jane Mayer, Whatever It Takes: The Politics of the Man Behind "24," NEW YORKER, Feb. 19 & 26, 2007, at 66, 68 (discussing how the television show 24 "sends a political message" and makes viewers confront threats to American national security by playing off "the anxieties that have beset the country since September 11 th"); Teresa Wilz, Torture's Tortured Cultural Roots, WASH. POST, May 3, 2005, at C1 ("If you're addicted to Fox's '24,' you probably cheered on Jack Bauer when, in a recent episode, he snapped the fingers of a suspect who was, shall we say, reluctant to talk. ... Torture's a no-brainer here. Jack's got to save us all from imminent thermonuclear annihilation."). 3. Indeed, with regard to the issue of brutality and torture, Eric Posner and Adrian Vermeule claim that "[w]here coercive interrogation can save lives, not engaging in it might seem the more brutal choice, especially to those whose lives are at stake." ERIC A. POSNER & ADRIAN VERMEULE, TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS 205 (2007); see also MICHAEL IGNATIEFF, THE LESSER EVIL: POLITICAL ETHICS IN AN AGE OF TERROR 18 (2004) ("In the war on terror, I would argue, the issue is not whether we can avoid evil acts altogether, but whether we can succeed in choosing lesser evils ...".);J ean Bethke Elshtain, Reflection on the Problem of Dirty Hands, in TORTURE: A COLLECTION 77, 87 (Sanford Levinson ed., 2004) ("Far greater moral guilt falls on a person in authority who permits the deaths of hundreds of innocents rather than choosing to 'torture' one guilty or complicit person."). 4. See David Luban, Liberalism, Torture, and the Ticking Bomb, 91 VA. L. REV. 1425, 1440 (2005) ("The ticking time bomb is proffered against liberals who believe in an absolute prohibition against torture. The idea is to force the liberal prohibitionist to admit that yes, even he or even she would agree to torture in at least this one situation."). 5. See Oren Gross, Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience, 88 MINN. L. REV. 1481, 1528, 1526-34 (2004) (proposing "an absolute legal ban on torture while, at the same time, recognizing the possibility... of state agents acting extralegally... and seeking ex post ratification of their conduct"); Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 YALE L.J. 1011, 1023 (2003) [hereinafter Gross, Chaos and Rules] ("This Extra-Legal Measures model.., informs public officials that they may act extralegally when they believe that such action is necessary for protecting the nation and the public in the face of calamity, provided that they openly and publicly acknowledge the nature of their HeinOnline -- 86 Tex. L. Rev. 570 2007-2008 2008] Torture, with Apologies A choice therefore seems to be unavoidable once the topic of torture is introduced: adhere to a principle prohibiting the practice of torture in the face of potentially dire risks or admit that circumstances and consequences matter to one's assessment of the legitimacy of torture. Two recent contributions to the growing literature on the purported clash between civil liberties and na- tional security, Eric Posner and Adrian Vermeule's Terror in the Balance and Richard Posner's Not a Suicide Pact,6 eschew the practice of principle, articulating instead consequentialist apologies on behalf of official actions ranging from the suppression of dissent to the practice of torture.7 In their hands, constitutionally protected civil liberties become luxuries to be upheld only when conditions are thought normal but are to be substantially ignored when security threats are perceived as high. Both projects maintain the proposition that "[a] national emergency, such as a war, creates a disequilibrium in the existing system of constitu- tional rights,"8, requiring that the balance between civil liberties and national security be recalibrated in a way that favors security over liberty. Because, on their view, civil liberties impede effective security policy, "[t]here is a straightforward tradeoff between liberty and security."9 Indeed, Posner and Vermeule claim that "[t]here is no reason to think that the constitutional rights and powers appropriate for an emergency are the same as those that prevail during times of normalcy,"1° whereas there is ample reason to think that increased national-security benefits justify relaxing constitutional norms. Given the background practice of balancing rights against governmental needs, a second issue arises regarding which institution is best situated to make judgments about the optimal balance of security and liberty. Both projects adopt the view that judges should defer to executive decisions and "that judicial review of governmental action, in the name of the Constitution, should be relaxed or suspended during an emergency.''" According to Richard Posner, "That is the pragmatic response, and pragmatism is a actions."); Sanford Levinson, "Precommitment" and "Postcommitment": The Ban on Torture in the Wake of September 11, 81 TEXAS L. REv. 2013, 2053 (2003) ("[A]nyone who accepts the necessity of line-drawing.., must then, presumably, be willing to defend, both as citizens and as potential lawyers for the state, quite awful conduct that comes right up to the line."). 6. RICHARD A. POSNER, NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY (2006). 7. Posner and Vermeule claim: "If dissent weakens resolve, then dissent should be curtailed. If domestic security is at risk, then intrusive searches should be tolerated." POSNER & VERMEULE, supra note 3, at 16. Richard Posner similarly claims: "Even torture may sometimes be justified in the struggle against terrorism .... POSNER, supra note 6, at 12. 8. POSNER, supra note 6, at 147; accord POSNER & VERMEULE, supra note 3, at 16 ("The reason for relaxing constitutional norms during emergencies is that the risks to civil liberties inherent in expansive executive power-the misuse of the power for political gain-are justified by the national security benefits."). 9. POSNER & VERMEULE, supra note 3, at 12. 10. Id. at 16. 11. Id. at 15. HeinOnline -- 86 Tex. L. Rev. 571 2007-2008 Texas Law Review [Vol. 86:569 dominant feature not only of American culture at large but also of the 12 American judicial culture., It may well be the case that pragmatism is embedded in both American legal and cultural practices.'3 It is far from clear, however, that pragmatism or American culture at large ever requires abandoning deeply held commit- ments to principles, such as the prohibition against torture, in order to pursue consequentialist aims.14 Undoubtedly, not all constitutionally protected rights are absolute. The state may constrain the exercise of some rights, such as the right to free speech or the right to personal liberty, by providing ap- propriate justifications and by acting within carefully circumscribed limits. Courts review government actions that infringe on the absolute enjoyment of some rights through a method of tiered scrutiny under which the more an ac- tion invades core values protected by a right the greater its justification and narrower the infringement must be.15 By contrast, other rights, such as the right not to be enslaved, admit of no justified derogations. Any attempt to balance state need against asserted rights must therefore take place against a background of prior judgments about what kinds of specific rights and liber- ties are in fact appropriately subject to balance. In the post-World War II era, a growing consensus has developed that some state actions, such as torture, are simply inconsistent with civilized so- ciety and broader principles of human rights.16 Through what Harold Koh calls a process of transnational legal process, human-rights norms, including the norm prohibiting torture, have taken root not only in international instru- ments but also in domestic law.'7 Federal courts, addressing claims brought under the Alien Tort Claims Act, have stated that the prohibition against 12. POSNER, supra note 6, at 147. 13. Richard Posner wears the mantle of the modem pragmatist, claiming that "pragmatism is the best description of the American judicial ethos and also the best guide to the improvement of judicial performance-and thus, the best normative as well as positive theory of the judicial role." RICHARD A. POSNER, LAW, PRAGMATISM, AND DEMOCRACY 1 (2003). 14. For an excellent criticism of Posner's brand of pragmatism, see Michael Sullivan & Daniel J. Solove, Can Pragmatism Be Radical? Richard Posner and Legal Pragmatism, 113 YALE L.J. 687 (2003). 15. See United States v. Virginia, 518 U.S. 515 (1996) (reviewing gender-based government action under intermediate scrutiny); Romer v. Evans, 517 U.S. 620 (1996) (reviewing sexual- orientation-based government action under rational basis); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (reviewing racial classifications under strict scrutiny). See generally G. Edward White, HistoricizingJ udicialS crutiny, 57 S.C. L. REV. 1 (2005). 16. International treaties to which the United States is a signatory, such as the International Covenant on Civil and Political Rights, adopted Dec. 19, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (approved by the United States Senate on Apr. 2, 1992), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. TREATY DOc. NO. 100-20 (1988), 1465 U.N.T.S. 113, and the Geneva Conventions, see, e.g., Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, opened for signature Aug. 12, 1949, 6 U.S.T. 3517, 75 U.N.T.S. 287, all prohibit the use of torture. Domestic implementation of the Convention Against Torture includes the Torture Victim Protection Act of 1991 (TVPA), 28 U.S.C. § 1350 (2000). 17. Harold Hongju Koh, On American Exceptionalism, 55 STAN. L. REV. 1479, 1502 (2003). HeinOnline -- 86 Tex. L. Rev. 572 2007-2008 2008] Torture, with Apologies torture is a jus cogens norm under which the "torturer has become-like the pirate and the slave trader before him-hostis humani generis, an enemy of all mankind."18 Yet in the years immediately following the events of September 11, 2001, this trend towards greater respect for human rights, which included a near-universal consensus on the prohibitory norm against torture, has been subject to question as a matter of state policy in the face of terrorist threat. Although officials have both defended and committed acts of torture,'9 at least in official declarations, "[f]reedom from torture is an inalienable human right, and we are committed to building a world where human rights are respected and protected by the rule of law.20 Despite official commitments to the prohibition against torture, both projects take a tough-minded pragmatist approach and conclude that official state torture is permissible under appropriate circumstances.2' Such circum- stances are determined by balancing civil liberties against national security. Their version of pragmatism becomes an apology on behalf of tough security measures, including official use of torture. If torture works to provide greater security benefits, on the apologists' view, torture is justified by em- ploying a simple calculation weighing security gains against losses to liberty. In such situations, "[c]onstitutional rules do no good, and some harm, if they block government's attempts to adjust the balance as threats wax and 22 wane." A primary goal of Posner and Vermeule's book is to "restrain" civil libertarians, philosophers, and other lawyers from "shackling" the government in its pursuit of the proper balance of liberty and security.23 With regard to the prospect of "transferring large chunks of power to the ex- ecutive during emergencies[,] ... [t]he real risk is that civil libertarian panic about the specter of authoritarianism will constrain government's ability to 18. Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980); see also Kadic v. Karad~id, 70 F.3d 232, 243 (2d Cir. 1995) (restating Filartiga's holding that "official torture is prohibited by universally accepted norms of international law"); In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994) (stating that the right to be free from torture is ajus cogens norm); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 717 (9th Cir. 1992) ("Given this extraordinary consensus, we conclude that the right to be free from official torture is fundamental and universal, a right deserving of the highest status under international law, a norm of jus cogens."). The Supreme Court affirmed the narrower approach taken by Filartiga to private rights of action for claims involving piracy or torture under the Alien Tort Statute in Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004). 19. See Mark Mazzetti & Margot Williams, In Tribunal Statement, Confessed Plotter of Sept. 11 Burnishes Image as a Soldier, N.Y. TIMES, Mar. 16, 2007, at AI5 ("The Bush administration has long denied that any of the harsh techniques it used on high-value detainees could be considered torture. But some of the techniques used on Mr. Mohammed, including 'waterboarding,'... have since been abandoned by the C.I.A."). 20. Statement on United Nations International Day in Support of Victims of Torture, 41 WEEKLY COMP. PRES. DOc. 1074, 1074 (June 26, 2005). 21. POSNER, supra note 6, at 81-86, 152; POSNER & VERMEULE, supra note 3, at 191. 22. POSNER & VERMEULE, supra note 3, at 31. 23. Id. at 275. HeinOnline -- 86 Tex. L. Rev. 573 2007-2008 Texas Law Review [Vol. 86:569 adopt cost-justified security measures. ,,24 Although ours is a government of enumerated powers designed to restrain and channel the exercise of national powers to avoid any prospect of tyranny, according to Posner and Vermeule, under emergency conditions, it is a composite creature, the "civil libertarian," that must be feared and restrained.25 Tough-minded consequentialists stay focused on the goal of protecting national security, while the supposed more tender-minded civil libertarians place principled impediments in the pragmatist's path. Each of these projects provides apologies on behalf of torture. Each of these projects also presents powerful arguments in favor of unilateral execu- tive action in the face of national-security emergencies, but neither reflects the considered judgments of our constitutional tradition, which views with suspicion unchecked and unbalanced exercises of power. Moreover, their proposals are deeply problematic, not merely because of panic or democratic failure, or the fear that officials will ratchet up their intrusions on civil liberties,26 but also because the pragmatist tradition requires intelligent policy proposals, which under our constitutional tradition means policies made with broad deliberative participation under conditions of checks and balances among institutions. Traditions may be slow to change, and new directions may be difficult to achieve. In the face of new security challenges, Posner and Vermeule as well as Richard Posner each provide powerful arguments for meeting these challenges by balancing security and liberty free from principled constraints. Their arguments for abandoning principle in favor of consequences, however, are misguided, and their proposed renewed emphasis on executive balancing has all the dangers of authoritarianism with none of the advantages of pragmatic institutional design. What is presented as a fair-minded act of balancing, designed to provide an optimal equilibrium of liberty and security, under closer scrutiny becomes a rhetorical trope that obscures the underlying purpose of advancing security interests at the expense not only of civil rights and liberties, but our constitutional tradition. I argue that we should abandon the image of balancing security against something so broad as "civil liberties," take seriously our constitutional tradition's institutional design of checks, balances, and suspicion of unilateral action, and encourage the widest possible discussion of ways to harness both our pragmatist and constitutional 24. Id. at 39. 25. Posner and Vermeule write: Consider the public letter signed by over 700 law professors on December 13, 2001, just three months after the 9/11 attacks, that criticized an executive order establishing rules for military tribunals in terrorism cases. This sort of civil-libertarianism, which applies even when the emergency is red-hot and indisputable, is our principal target. Id. at 44 (footnote omitted). 26. These are all arguments Posner and Vermeule attribute to civil libertarians who oppose unilateral executive decisions that diminish or violate civil liberties. Id. at 6. HeinOnline -- 86 Tex. L. Rev. 574 2007-2008 2008] Torture, with Apologies traditions in order to create lasting structural solutions to the twin goals of fostering liberty and providing security. I. Recalibrating the Scales: Is Trade-off Necessary? Justifications for the use of torture, or more euphemistically, "coercive interrogation, ,27 depend on accepting the principle that there is an appropri- ate balance between liberty and security that may include depriving individuals of their human dignity by subjecting them to torture or cruel, inhumane, or degrading treatment. Posner and Vermeule claim that "the tradeofft hesis holds that governments should, and do, balance civil liberties and security at all times" and that "[d]uring emergencies, when new threats appear, the balance shifts" to favor security over liberty.28 Accordingly, much turns on the legitimacy and the scope of the trade-off thesis. Posner and Vermeule offer no argument to justify the necessity of the trade-off. They believe it is unlikely that in a modern liberal democracy, governments will have failed to identify ways of increasing security without burdening liberty.29 Thus, there will be an unavoidable need to balance the two in the form of a trade-off. Richard Posner presents a theory of judging, at least at the constitutional level, in which judging proceeds "by balancing the anticipated consequences of alternative outcomes and picking the one that creates the greatest preponderance of good over bad effects."30 One rea- son for thinking that liberty and security must be traded "is that without physical security there is likely to be very little liberty."31 This is undoubt- edly true but perhaps proves too much. For of course, without existential security there can be no commerce, no contracts to enforce, no exercisable property rights, or quite simply, no life itself. But just because security is a necessary condition for the operation of civil society does not in itself show why it is the collection of rights called civil liberties that must unavoidably be traded off to ensure that security. A. Trade-offs Are Not Inevitable Neither project proffers arguments explaining why, after an increase in security risk, redoubled efforts to use existing methods will not work just as well as the automatic resort to a liberty-security trade-off. Posner and Vermeule dismiss this consideration because they believe it implausible that we are not ordinarily operating at a "Pareto frontier" with regard to the 27. Posner and Vermeule are interested in defending "coercive interrogation that (by virtue of its severity) counts as torture or as cruel, inhuman, and degrading treatment." Id. at 184. 28. Id. at 5. 29. Id. at 26. 30. POSNER, supra note 6, at 24. 31. Id. at 47. Posner and Vermeule also write that "[1]iberty cannot be enjoyed without security, and security is not worth enjoying without liberty." POSNER & VERMEULE, supra note 3, at 26. HeinOnline -- 86 Tex. L. Rev. 575 2007-2008 Texas Law Review [Vol. 86:569 balance of security and liberty-that is, operating at a position in which further gains in one value cannot be achieved without costs to the other.32 This belief ignores the fact that a Pareto frontier assumes a certain set of background conditions that under conditions of emergency, as opposed to times of normalcy, will change. Changed background conditions may alter the relationship between security and liberty, thereby altering the shape of the Pareto frontier and potentially providing new ways to improve both secu- rity and liberty without trade-offs. For example, background budget restraints may be loosened as a result of a new political environment in the wake of an emergency event. Moreover, because security can be purchased at the expense of other goods, it is not clear why, in the aftermath of a ter- rorist attack, additional security must be purchased at the expense of liberty alone. Before an emergency develops, it may be infeasible to spend more on airport security; after the emergency, greater expenditures may become not only politically feasible but actually demanded by popular pressure. An easy example of such changes in politics and opinion occurred after September 11, 2001, when increased funding for airport security became a budgetary reality.33 The tendency for events to alter budget priorities is a common fea- ture of political life, illustrated also in the increased willingness of Congress to allocate funds for New Orleans's levees after Hurricane Katrina.34 Posner and Vermeule argue that inflexible and principled protection for civil liber- ties will lead to less security than is optimal, but they assume in the process that events do not alter the political calculus. It is more plausible, however, to think that given an inflexible background rule prohibiting further erosions of civil liberties, even if the cost of providing an optimal level of security increases, political flexibility will prove at least as efficacious at meeting the security needs as will seeking exceptions to the rule of law. In fact, in most situations it is implausible to think otherwise. No doubt it will often be cheaper and easier to diminish liberty to increase security, and thus as a con- tingent matter "[a]s threats increase, the value of security increases," and "government will then trade off some losses in liberty for greater gains in increased security., 35 But this trade-off depends on background rules, political will, and the fact that shortcuts through liberty are usually cheaper than more costly redoubled efforts that continue to respect existing levels of liberty. 32. POSNER & VERMEULE, supra note 3, at 26-27. 33. See, e.g., Dean E. Murphy & Joel Brinkley, Rethinking the Security at Airports, N.Y. TIMES, Sept. 19, 2001, at BI (reporting on the environment in which airport security budgets were increased significantly). 34. See, e.g., Edmund L. Andrews, Emergency Spending as a Way of Life, N.Y. TIMES, Oct. 2, 2005, § 3, at 4 (reporting on the $51.8 billion in emergency assistance appropriated following Hurricane Katrina). 35. POSNER & VERMEULE, supra note 3, at 27. HeinOnline -- 86 Tex. L. Rev. 576 2007-2008 2008] Torture, with Apologies It is unlikely, however, that the costs of national security are unique in this respect. Adhering to constitutional principles is often more expensive than employing incommunicado coercive interrogation on criminal suspects36 or conducting random searches for contraband on mere hunches.37 Indeed, when considering the forcible removal of evidence from a suspect's stomach by the police, Justice Frankfurter stated that "[n]othing would be more cal- culated to discredit law and thereby to brutalize the temper of a society.'38 "They are methods too close to the rack and the screw .. . .39 Such is the general price of constitutional commitments to principles over consequences. Though from a consequence-only orientation, the rack and the screw may in fact be far easier and more efficient. Moreover, with regard to the necessity of balancing security and liberty, both projects beg the central question. If one simply assumes that security and liberty must be balanced, then it would seem to follow that they ought to be balanced in order to maximize social welfare. After all, one ought to do whatever one must to protect security. Two considerations undermine the necessity of balance as each project presents it. First, the real issues are about the nature and degree to which trade-offs are appropriate under a constitutional commitment to the rule of law. Merely asserting necessity does not make everything possible.40 Constitutional gov- ernment must always act within constraints, whether the constraints are constitutional, institutional, political, or practical. It is true that we make many decisions under conditions of uncertainty. Though by contrast, government does not ordinarily derogate from constitutional rights without articulating specific reasons for doing so. One feature of judicially recog- nized derogations from constitutional rights is that the government be able to justify its specific need along a continuum from rational reasons to compel- ling reasons and within limits in relation to the end sought on a continuum 36. See Miranda v. Arizona, 384 U.S. 436, 461 (1966) ("An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion... cannot be otherwise than under compulsion to speak."). Even if some methods produce useful confessions more quickly, constitutional constraints remove them as options for police. See Chavez v. Martinez, 538 U.S. 760, 783-84 (2003) (Stevens, J., concurring in part and dissenting in part) ("[A] functional equivalent of an attempt to obtain an involuntary confession from a prisoner by torturous methods... [is the] type of brutal police conduct [that] constitutes an immediate deprivation of the prisoner's constitutionally protected interest in liberty."). 37. In City of Indianapolisv . Edmond, 531 U.S. 32 (2000), the Court held that city roadblocks for narcotics searches were unconstitutional because the Fourth Amendment requires individualized suspicion under these circumstances, reasoning that "[w]e cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime." Id. at 44. 38. Rochin v. California, 342 U.S. 165, 173-74 (1952). 39. Id. at 172. 40. Richard Posner, by contrast, claims that "law must adjust to necessity born of emergency." POSNER, supra note 6, at 158. HeinOnline -- 86 Tex. L. Rev. 577 2007-2008