From the records of the Old Bailey in London, of a case of petty theft in the 1700’s
606. (L) Edward Cain ; otherwise Can , was indicted for stealing handkerchief value 6 d. the property of unknown, September 16. ++
William Paine. On the 16th September I saw the boy at the bar and three others with him take a linen handkerchief out of a person's pocket; I went to the person and said, Sir you have lost your handkerchief; his wife was there, I had the prisoner by the collar the hand the handkerchief down) the wife said that's my husband's property; the other three boys ran away, the man would not stay, but walked on about his business; I prosecute at my own expence.
Prisoner's defence. I was along with other boys, one of them took the handkerchief, and this man laid hold of me and said I picked the man's pocket, but I did not, I am but thirteen years of age.
Guilty . Transportation to Virginia.
Why does this story distress us? It happened long ago, to a person we don’t know. A thirteen year old boy is found guilty of stealing a handkerchief and is sent to Virginia to provide servant labor. We know that worse things have happened before and since.
We are angered because of the extreme lack of proportion. Yes, it is theft, and yes, he probably did do it, but good heavens, man. For a handkerchief? Sent at a tender age across an ocean, all alone? Yes, yes, I’m sure he was of an age where he should know better, but a single handkerchief?
We might even think the law was the greater criminal for imposing such a punishment.
Proportionality is a moral principle enshrined in both law and custom. We may think the person going 5mph over the speed limit and the guy doing 80 in a 35 zone are both technically “speeding,” but we view it differently and treat it differently. We recognize that it is a bad thing to yell at your wife, but a worse thing to hit her, and worse still to injure her. Shoplifting, grand larceny, and robbing a bank at gunpoint are all “stealing,” but we make distinctions – sometimes fine distinctions – in law and in our approach to people. Having sex with underage females is rape, but we look at it differently if it is a 20 year old having consensual sex with a 15 year old than if it is a 30 year old having forcible sex with a 5 year old. We have taboos against incest, but treat having sexual relations with a sibling differently than with a second cousin. Cutting across someone’s yard is technically trespassing, and we may in certain circumstances even prosecute it. But building a road across someone’s property is viewed as a more serious offense.
This is not morally complicated. There is a time of life when children try to make everything technically equal because it violates a rule, but even they don’t mean it. A 12 year old boy might go blue in the face trying to insist that his father is breaking the law just like any common criminal by taking a rolling stop at a corner, but that same boy will go equally blue complaining if someone thinks his taking a pencil from a classmate’s desk is the same as stealing a laptop. Children even younger than 12 understand proportionality in principle.
Not only do we allow for proportionality, we consider it morally reprehensible at worst, and suspect at best, when it is disallowed, as in the example from the Old Bailey above.
In that context, let’s talk about torture. Several of the leftie sites featured on Pajamas Media (which I imagine confers some level of respectability), such as Andrew Sullivan, firedoglake, and obsidian wings, have tried to claim that proportionality makes no difference. If what the US does fits under someone’s definition of torture, then it’s torture, and we have no moral standing for criticizing our enemies. To such people, it’s all the same. Hell, Teddy Kennedy said it outright. Kerry, Reid, and a dozen others have made the accusation with wiggle-room.
The proof that they regard it as the same is in their protestations. There is always an obligatory comment that what has been done by Saddam or Al-Qaeda is horrible, terrible, no-good, very bad, with insistence that they are not drawing a moral equivalence. Then they draw a moral equivalence, for we are to regard the American actions no differently. Foreign madmen make the accusation of torture and we are to just hang our heads and take it silently.
There is a second dodge, finer-sounding at first blush, but ultimately more contemptible. “It’s not good enough to just say we’re not as bad as Saddam. That’s a ridiculously low standard,” or the related statement “we’re not responsible for what others do, we’re only responsible for what we do.” This is the language of therapists, of marriage counselors whose clients are dealing with at least semi-reasonable people. It sounds so wise, so adult, so objective, and above the fray. The sentiment is entirely true, of course. But it is relevant to only part of the question.
Because it is a truth misapplied, it is thus more base. Things can only fall as far as they have risen, and devils are made of bad angels, not bad kangaroos. If the worst actions of the US guards and interrogators were only marginally less bad than AQ, if we were cutting off one finger instead of two, then the excuse well, we’re not as bad as Saddam would of course be impossibly weak. But that is not the context. You cannot rip moral actions from context and see them clearly. Should you ever shoot a man in the back? Of course not – unless he is pointing a gun at a third person. In this instance, we are speaking of acts that are orders of magnitude in difference.
That doesn’t make our actions right. We should punish our own for evil acts. But attempting to draw equivalences is not relevant. They should not be paired in the same paragraph for discussion.
The people who make these comparisons are able to know this. It is a moral principle they learned in elementary school, though they may talk themselves out of it now. Because they acknowledge the principle in their protestations, they cannot claim ignorance of it. They are aware that the tortures of Saddam greatly exceeded anything the CIA or the military is doing. And yet they use the analogy anyway. They know the principle well enough to use it, and then proceed to disguise its misuse. That is far worse than ignorance.