While discussing the marketplace ideas in my 2301 classes, and the related question regarding whether certain topics should be off the table, a debate was ignited over releasing the memos covering just how torture policy was carried out in recent years.
Some wonder whether it is appropriate to even discuss this at all, which suggests that some believe that torture -- whether it should be done, how it should be done and how effective it might be -- should not be part of the marketplace of ideas.
Here's what I think is a neat summary of the dilemma:
Had the torture debate been fully engaged when the Bush team was making the decisions it made in 2001-02, I think it is plausible that the political process would have produced a consensus that would have been far more sympathetic to the Bush position than the present day consensus appears to be. At a minimum, it would have made it impossible for Congressional Democrats to claim, as they implausibly do now, that despite all the briefings they received they just can't remember coming down one way or the other on the issue.
The Bush team erred by not grounding the policy more firmly in the bedrock of the political process that the Framers identified for contentious issues -- namely, in involving Congress and the public -- and, instead, by relying on the penumbra of the Commander-in-chief clause. We non-lawyers have learned one thing from the abortion debate: The penumbra is a lousy place to park contentious issues.
I predict that, for better or worse, the political framework will be the decisive one going forward. At this point, debates about the legal or ethical arguments are probably impossibly entangled with political questions. And, should the larger worm turn -- should the terrorists succeed in launching another attack on the United States -- then I would not be surprised to see the political debate shift dramatically again.
At the center of this debate, it seems to me, is the question whether American can sensible and effectively discuss certain issues. Another question of course is whether elected leaders want to public to discuss certain things. How much of what government does ought to be secret?
