Kent Pitman

Kent Pitman
New England, USA
Philosopher, Technologist, Writer
I've been using the net in various roles—technical, social, and political—for the last 30 years. I'm disappointed that most forums don't pay for good writing and I'm ever in search of forums that do. (I've not seen any Tippem money, that's for sure.) And I worry some that our posting here for free could one day put paid writers in Closed Salon out of work. See my personal home page for more about me.


Editor’s Pick
APRIL 26, 2009 9:07AM

Disobedience, Civil and Not-So-Civil

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Disobedience of the Civil Kind

I have a beef with certain people who enagage in civil disobedience and then expect to be treated as if they did nothing wrong. Should they be treated with human decency and respect? Of course. But should they be treated as if they did nothing at all? No, I don't think so. I want to say why.

It's not the idea that people should be allowed to walk free that bothers me. There are reasonable arguments made about why we might sometimes not want to punish someone who commits an act of civil disobedience. We all know that's true. We tell people not to kill one another, but there are times when we all agree that it's legitimate to do so—certain cases of self-defense, for example. So my gripe here isn't about that.

“Non-violence, publicity and a willingness to accept punishment are often regarded as marks of disobedients’ fidelity to the legal system in which they carry out their protest.”

  —Civil Disobedience

(Stanford Encyclopedia of Philosophy)

My gripe is that people who commit acts of civil disobedience seem to have come to expect to be let off. It's almost as if they see civil disobedience as a right, and they are morally indignant (not to mention surprised and terrified) if they are arrested.

When I was in college at MIT, I attended a meeting in which activists who were concerned about the Seabrook nuclear plant trained others on how to protest. (I think I was there as a reporter covering the event, by the way. I wasn't especially political back then.) Among the things they explained was how to behave if people wanted to be arrested. That wasn't the main thrust of the protest, it was like an extra credit aspect they said some might want to do. In fact, it was pretty carefully explained that not everyone should do this, that only people who really understood the consequences of being arrested and were willing to pay that price should do. They weren't planning anything violent, but they did think it was a legitimate choice to be more-than-average obstructionist if the person was willing to pay that price of being arrested and having a mark on their record. In fact, it was the price they would pay that made the action noteworthy.

Refusing to move when instructed by the police was not seriously going to keep the nuclear plant from being built. But their willingness to spend time in jail peacefully might get them time on the news, since it would arouse sympathy in the population, who might think it awful they'd had to make such a sacrifice just to be heard. But once such a penalty is removed, or routinely waived, why is it be noteworthy? Sacrifice is only sacrifice if you lose something, and if you're assured you won't, you're not making one.

Disobedience of the Not-So-Civil Kind

I want to turn now to another issue that I will ultimately tie in with the above, and that's the issue of ticking time bombs. And no, in case you're worried, I am not going to suggest that these are some good form of civil disobedience. But the discussion of their existence at all will set up something else that I want to talk about.

As you probably know, the ticking time bomb scenario involves the notion that there will be imminent harm to many people very soon, that you are the one who must interrogate a suspect, and that everyone is depending on you to avert a catastrophe. “What would you do to get the needed information?”

And, indeed, here on Open Salon, DJohn posted such a question just the other day in a thread to which I responded. I've lifted my response to him into this post here (with very light editing) to make sure my thoughts on the matter didn't get lost in the shuffle.

The fallacy here is that you think this problem is unique to torture. It is not. Consider any law we have. There are laws against driving fast on highways, against breaking into buildings, and against killing people. We know, for example, that there are sometimes extraordinary reasons why good decent people need to drive beyond the speed limit, break into buildings, and even kill other people. And we do not say, therefore, that there must not be laws against driving beyond the speed limit, against breaking into buildings, and against killing one another. Rather, we expect brave souls to do in extraordinary times what needs to be done, consequences be damned. In some cases, we will exonerate them afterward for breaking a rule because we agree that circumstances warranted it. In some cases, we will not, and we will hold them accountable and they will console themselves knowing that they sacrificed themselves for something they believed was more important.

The situation of national security is no different. Were there really a case where millions could die and there was a chance torture might work, I expect someone would try the torture. If it worked, I imagine he'd be found a hero and forgiven. If it failed, I imagine he'd be court-martialed for his foolish notion. That's not much reassurance, but it ought not be. That's what it is to be illegal, to say that the risk of doing the thing is entirely to be engaged at a personal level. It's what we heard every week in Mission Impossible growing up: Should you or any of the IM Force be caught or killed, the secretary will disavow any knowledge.

It's an uncomfortable truth but an honest one. It doesn't just give a wink to someone saying “it's ok, we know you'll need to do this and we'll forgive you later” it says “if you think this is your only option, you'd damn well have examined every other one and it better really be because this is not one we'll forgive lightly.” For things that are truly (rather than merely rhetorically) one's only option, who asks for permission?

Anyone who tortures should never do it as a matter of process. He should do it as a last resort knowing that he is potentially sacrificing his life or freedom. That's a nice high bar that I'm comfortable won't get misused. Anything less, I'm not so sure.

Kent Pitman
April 19, 2009 01:22 AM

Checks and Balances

The traditional argument goes that “The Constitution is not a suicide pact.” Fair enough. That's a theory that goes quite a ways back in history, well before its recent formulation in words. But it was always about “above board” (pardon the unfortunate waterboarding pun) action. The problem isn't that the Bush administration wanted to change the policy, the policy is that they did so without informing the public and without subjecting themselves to trial. Having seen the need to do it, they should have done what they needed to and then marched straight to court demanding a trial. In the worst case, they should have told the public what they were doing so that the public could decide.

The claim by Bush echoed claims made by Nixon, who in turn quoted Lincoln when he was interviewed by David Frost: “Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation.” I don't even propose to debate that here; it might well be right. Let's assume it is. The critical difference between Lincoln and Nixon on this point is that Lincoln's actions were public and subject to scrutiny by the electorate. Nixon was secretive, and so was Bush.

Secrecy matters a great deal because the Constitutional foundation of allowing the Executive this much power is not that we like trusting the Executive with this much power, but rather we understand that some decisions must be made quickly, before the populace or perhaps even Congress could offer advice. And some decisions must be made coherently to avert the effect of Congress tearing our nation limb from limb by each Congressperson going in a different direction. A President must know when he acts on his own that he is still doing so at some risk of being judged harshly, and if he does it in secret, that risk is averted. The essential check on Presidential power is the option to impeach or at least not to re-elect. And even for those who will not be re-elected, we have the option to publicly discuss with new candidates for the office whether they subscribe to such doctrine. We are robbed of all of that when such actions are taken in secret, and we end up making decisions about the Presidency without critical information that would allow us to make good decisions.


And so I'll close with the point I opened with, that there is a relationship between civil disobedience as it has become and this kind of not-so-civil disobedience. In both cases, the actions have become so comfortable that the high bar of sacrifice has been removed. With that bar removed, the acts in question are too easy to do and too hard to later judge. We must repair that.

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The high bar of sacrifice was removed long ago, Kent. BUt our attention spans barely allow us to focus on the immediate, let alone the recent past. We're too busy waiting for the next best thing and believing what we are being told.

Read Paul Levinson's post where he aptly describes our century of lawlessness:
You do a nice job of avoiding the horns of the dilemma in regard to your take on the use of torture. I agree with your assessment, but the problem is that our elected officials have an aversion to taking responsibility, let alone the kind of responsibility you describe. How did we get here? How do we repair it? How do we put the bar back up? Term limits?
This is an important conversation. Well done.
Very thoughtful post. Those in high places in the Bush administration have argued all along that their actions are beyond judgment by mere mortals. Cheney, Addington, Yoo and others argued quite plainly that the law doesn't apply to those who "protect" us. But there was nothing new in their legal gobbledy-gook, they were merely rehashing the same old tyranny: The king can do no wrong.
Cartouche, I took a look at Paul's piece (your URL got truncated, but people can click here). He doesn't come out and say it, but this issue of when a war is declared is related because there are consequences to declaring a war and by not declaring one, one seeks to avoid them; yet there are benefits to having a war going on, for a leader, and the leaders have sought to claim those benefits even without taking the consequences, by simply saying there's a war but not formally declaring one.

Aaron, it's the front we have to tend to. See my post Is Democracy Dead? to see the issues spelled out in what I think is a clear way. I've written other posts on transparency, but that post in particular addresses the even more fundamental issue of, effectively, whether it's our right to even ask for transparency.

MJ, thanks. Not sure what the right thing is, but I assume everything starts with consciousness-raising that there even is a problem (at the bottom end) and leadership (at the other top end). From my youth (maybe JROTC) I recall seeing some three steps for the problem solving process that were something like "recognize that a problem exists", "characterize the problem", "devise a solution". All I remember is that you couldn't solve the problem until you knew you had one and had characterized it. Individuals knowing there is a problem is not society knowing, so it may be that some of us know, but the consensus-building step in society is about promoting individual awareness to societal awareness. Many of our key issues are presently in that mode. And I think this is why transparency is so key, because it affects the latency time between when an individual might react to something and when society might. We're caught in that trap right now on climate change, for example, with scientists knowing for a while but society as a whole and government with it being the last to become aware. Term limits are a blunt device for accommodating change even when we don't know why we need it; we need more active tranparency/interaction measures if we're going to exploit the intelligence our nation is rich with at the individual level.
Kent, your post sets up a bit of a strawman in implying that only a trial can validate an action. The reality is that courts and prosecuters make decisions all the time before, during, and after trials that impact the outcome. The jury is not the only participant in the process who interprets and applies the law.

In the case of the alleged torture by the CIA, the CIA did in fact go to the Justice Department and seek an opinion before the activities were undertaken. I read two of the four memos and I have to admit they were much more thorough than I was expecting. They show people endeavoring to document the facts and then apply logic to what the law means and how the facts fit the law. Yes, it is possible for people to disagree with the reasoning. But, if law debates were all simple, we would not need all the lawyers and judges that we have.

Back to the premise of your post, it is hard for me to conclude that the CIA believed they were acting in civil disobedience. In fact, based on the advice they got, I think the CIA would say that they broke no laws. And, had they gotten different advice, they would have followed it. Therefore, they would say that asking them to sacrifice for their choosing civil disobedience is an in accurate interpretation of the situation since they did not choose to disobey.
Tom, you're right. An interview with a sitting President discussing re-election is often little more than “But enough about wiretapping and torture. You know I'm not taking questions on that. What do you think of my hair, darling?” They manipulate the questions, and so the candidate looks good based on the questions they make us ask, not on the questions we'd like to ask. Supreme Court appointment discussions are little better, which is why I proposed a 3-3-3 Supreme Court.
If even we on the left cannot be vigilant on the FACTS, how can we expect the slime on the right to see ANYTHING:

"But even aside from that, there is a very strange factual issue here. President Obama says that we shouldn’t prosecute them because they relied on these memos. But a factual review is going to show that the CIA was using these techniques from April 2002, and these memos were commissioned and written, the first of them, in August 2002, so it’s quite clear, in fact, that CIA agents were out in the field doing these things, not relying on these memos, with the memos not even being in contemplation at that time. So, this argument is a fallacy." (Scott Horton, New York attorney specializing in international law and human rights.)
Steve, I don't trust the Attorney General nor the DOJ to be sufficiently apolitical to render good judgments on such matter because they report to the President and consequently have a massive conflict of interest ... which the trial system does not.
By the way, Steve, I didn't say the CIA did say they were acting in civil disobedience. Maybe you misread my post. I was making a comparison between civil disobedience and something else, something incidentally that is not what happens now, but that I want to happen. I want (a) torture to be illegal and (b) if people really need to torture in this bizarro circumstance they seem so caught up in, they should break the law and take the consequence. Torture is not civil so it's not civil disobedience. I'm advocating that in that very rare circumstance where the only right thing is to engage in an abominable practice to save us from another abominable outcome, then the person should step outside the bounds of the law at personal peril to himself and his future and do what needs to be done, then take what comes to him in return. But we must offer him no guarantees (this is the same for civil disobedience, and the reason for my analogy) because we don't want to incentivize people to do this. I'm simply pointing out that what we don't want to do is water down the law by saying because there is a reason to break any rule, there must be no rules.
Mark, I don't know what to conclude about the intentionality or not of the issue you raise in your post (click here for those interested who have trouble pasting the URL mark gave above). I think part of the reason for a trial is that trials have the time and interest in pursuing such details. I think it's reasonable to assume that Obama is pressed for time and either could have overlooked this detail or been the unwilling patsy of someone feeding him plausible-looking data in capsule form.

David Brin, in a post this morning, makes some good points about the necessary pragmatics of Obama's position; I disagree with some of his conclusions but not with the fact that there do exist time-use trade-offs where Obama cannot personally afford (does not have enough hours in the day, enough political capital, etc.) to pursue everything. I want him to pursue this because I think it can be done in parallel with other things and in fact it will be off his personal desk faster if he just says “follow this up, leave me out of it” than if he continues to be the bottleneck.

But I don't deny that at the micro level, when he makes a statement like you quote in your article, he may be the victim of just not enough time. It's a terribly tricky area and I stop well short of using verbs like “pulls one over”—I thought that was excessive in your title. He might have but you cannot know without being inside his mind. I dislike/distrust it when people assert as a matter of fact what another's mental state is, since it is hard to verify.
Today I ran across a very nice discussion of this issue between Martin Luther King Jr. and NBC's Meet the Press (1965). Particularly beginning at position 9:40 is the question and the answer gets particularly interesting around 11:30. He really nails the issue of willingness to accept penalty in such an eloquent way.