Charles Fried and Gregory Fried, the father-and-son authors of “Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror” (Norton, 2010), value simplicity of expression. So it is fitting that they begin their book with a rhetorical shortcut: a painting by 20th-century artist Leon Golub called “Interrogation I.” It depicts a man, nakedly exposed, hands bound, roped and swaying upside down from the ceiling. He is flanked by two soldiers in knee-high jackboots, one poised to strike him (again) with a bludgeon, the other (perhaps) shouting orders. It’s a sickening image of political might wielding pitiless power over a helpless human form. It does not matter what this prisoner has done. In our gut, we know this is wrong.
Professor Charles Fried, who writes extensively on moral and political philosophy and the law, began his career at Harvard Law School in 1961. He also served as President Reagan’s solicitor general, and as associate justice of the Supreme Judicial Court of Massachusetts. His son, Gregory, a philosophy professor at Suffolk University since 2004, focuses his scholarship on classical liberal thought. Both men are steeped in the history of political philosophy and are keenly attuned to current events. “Because It Is Wrong” grew out of conversations they began after the attacks of Sept. 11 that picked up steam again after the revelations of torture at Abu Ghraib in 2004.
The book explores three issues presented by Bush administration policies, primarily from ethical but also from historical and legal perspectives: torture; eavesdropping, surveillance and the right to privacy; and executive prerogative. The authors conclude that torture is wrong, period. For Charles it’s a question of human dignity. “If anything at all can ever justify destroying the dignity of a human being, then our capacity for valuing ourselves … and others is undermined,” he says.
Extending his father’s thought, Gregory adds, “We are a republic founded on the idea that there are inalienable rights and that dignity is an essential part of what the government is there to protect—that dignity precedes government.” He continues, “If you do grant government the power to engage in the most intimate invasion of freedom of the person, turning their body against them to break their will, you have granted to the government a power that we think is completely inconsistent with a free republic.”
In contrast to torture, the Frieds maintain that invasions of privacy through eavesdropping and surveillance are justified under certain conditions and circumstances. Coming to that realization surprised Gregory. “That’s not a position that I would have taken before thinking through the topics in this book,” he says. “I think we as Americans tend to have an instinctual absolutism about privacy. I now believe privacy cannot be an absolute.”
Charles, too, found himself changing his mind as he wrestled with the issues. “To my surprise, I came to conclude that arguments against torture, why torture is absolutely wrong, had a carry-over to the death penalty, which I had not expected,” Charles says about his conclusion that just as it is morally wrong to torture a person who is totally within the state’s power, it is also morally wrong to kill him. Beyond capital punishment, the Frieds explore related issues, including the relative evil of killing compared with torture (they think torture is worse: “Killing just ends the life,” says Charles. It is worse, he believes, to destroy human dignity), and targeted killing (justified, they say, as long as the target is acting as an enemy soldier).
It’s clear, both from reading the book and from interviewing its authors, that father and son, despite their political differences, hold each other in the highest intellectual esteem. In today’s atmosphere of debased public discourse, this book—and their relationship—shines with intellectual integrity and generosity. Through argument, reflection, and the act of writing and rewriting each other’s words, Charles and Gregory worked their way to agreement on every point and issue—save one.
In the final third of the book, the authors address the question of executive prerogative: Is it ever permissible for an American president to violate the law, and if so, when? Their discussion weaves through the lofty works of Aristotle, Locke and Montaigne, as well as bringing in the more mundane example of a husband slapped with a ticket as he drives his wife—who has gone into labor—down a highway breakdown lane.
Most of us would agree, the Frieds say, that the state trooper who ticketed the husband was wrong, because in an emergency, it should be a government official’s prerogative to suspend what the written law requires. They apply the principle to compare Presidents Bush, Jefferson and Lincoln. All three violated the Constitution under emergency circumstances: Jefferson, when he appropriated funds for the military in the face of an imminent British attack; Lincoln, when he suspended habeas corpus at the start of the Civil War; and Bush, when he authorized torture and warrantless wiretapping in the wake of Sept. 11. The difference, Charles and Gregory write, is that Jefferson and Lincoln subsequently submitted themselves to the legal regime: They openly declared what they had done, admitted that they violated the law and sought the approval of Congress, which legalized their actions after the fact. Bush, in contrast, as commander in chief acting for the sake of national security, claimed the power to ignore and violate the law. (The Frieds note that Congress did eventually ratify Bush’s wiretapping program, which in their eyes legitimated his actions there. Congress never ratified torture.) “That is an absolutely radical departure from our national traditions and from constitutional control of the executive around this question of the gray area of the law,” Gregory says.
Charles agrees. Where he splits from his son is in what to do about it. Gregory sees prosecution of those Bush administration officials who ordered torture as the only way to redress, once and for all, the damage done to the Constitution. Charles believes that prosecuting, far from putting the issue to rest, would unproductively drag the issue forward for years. “The idea that a democratic government peacefully took over power to start criminally prosecuting their predecessors leads to a terrible chain of pursuit,” says Charles, citing the independent counsel investigations that weakened one modern presidency after another. He further believes that prosecuting would be disproportionate to the crime—Dick Cheney, he says, was not Stalin, Hitler, or Pol Pot.
And there “Because It Is Wrong” ends—but the conversation does not. Justifications for torture are still on the books—“like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need,” in the words of Justice Jackson in his Korematsu dissent—and the people who ordered torture are publicly unrepentant. “So, there’s a dilemma,” Charles acknowledges. “How do you signal the repudiation of such behavior short of criminal prosecution? I understand the strength of Greg’s argument—only a prosecution can make that statement—and that leaves me casting about for alternatives.” Before our eyes, father and son consider alternatives, such as presidential pardons and congressional commissions, but remain unsatisfied.
“So the loaded gun is still on the table,” Charles says.
“Still on the table,” echoes Gregory.