The Volokh Conspiracy - The Golden Age:

Andrew Sullivan writes (emphasis added):

Emails are running overwhelmingly in favor of the "abusive and degrading" treatment of detainees, as cited in the Schmidt report. And they are in favor of narrowing the definition of torture to the extremes that the Bush administration has done. Here's a typical email:

"McCain is right -- it's our reputation that matters here.

And, if you're fighting fanatical terrorists, it's good to have a reputation for aggressive interrogation techniques. As long as it's within the law, JUST DO IT. That's what the Administration has done, and more power to them. Degrading treatment and aggressive interrogation techniques designed to open hearts and minds are all admissible under the law, as long as it's not torture, and that's as it should be.

Welcome to America, Andrew. I think you'll find that a vast majority of the American people want our lawyers to tell us the limits of the law. Americans don't want the French or the Swedes or the Germans to define the limits for our interrogation techniques during GWOT. Nor do they want those limits to be defined by the liberal salons in NYC and San Francisco, or their silly liberal op-ed writers. And torture has a legal definition which should not be allowed to be dumbed down by the sensitivities of talking heads, bloggers, literati, and glitterati. That's American, and it's good.

Short of torture, I'm glad that they're doing what they can and should to break these awful men. That's a good reputation to have in the Arab world -- screw the cultural sensitivities of the European softies. They're not with us in this war, so bother them all.

Soon, I think the Paki-bashers in merry old England will blow up a mosque or two. And they will do that because they don't have any faith in their authorities taking a hard line on English terrorists. I don't think that will happen in America, but it may if we get attacked too.

I fear this is the popular view. America is not the America it once was. But a couple of points: much of this is against the law, unless you believe that the president can change the law as he sees fit in wartime. Most do. As another emailer put it, "The Bush Administration will not be harmed by these reports of torture. The country has spoken and it does not mind. The pictures and actions are very American."

Is there really reason to think that once upon a time, Americans were less willing to support harsh treatment -- I haven't read the report, so I don't know how harsh, but let's interpolate from Sullivan's correspondent's message -- of suspected terrorists than they are now? When was this time, and how long did it last?

Perhaps it might have happened during World War II, when the issue involved German soldiers captured during normal operations, fighting in uniform, though I'm not even sure that this is so; but would it have happened as to enemy combatants who are suspected of being involved in clandestine, plain-clothes attacks (which as I understand it describes many and likely most of the Guantanamo detainees)?

My suspicion is that there was no such time, and that if anything the public condemnation of harsh treatment is greater than what we'd likely have seen in earlier eras. But I may well be wrong; I'd love to hear from people who have actually studied this matter.

Incidentally, none of this tells us what the right rule is, and whether Sullivan or his correspondent is right on the merits. My question here is solely related to whether America is worse, better, or the same as it always has been on this point.

	[Eugene Volokh, July 14, 2005 at 7:42pm] Trackbacks The Golden Age: Andrew Sullivan writes (emphasis added): Emails are running overwhelmingly in favor of the "abusive and degrading" treatment of detainees, as cited in the Schmidt report. And they are in favor of narrowing the definition of torture to the extremes that the Bush administration has done. Here's a typical email: "McCain is right -- it's our reputation that matters here. And, if you're fighting fanatical terrorists, it's good to have a reputation for aggressive interrogation techniques. As long as it's within the law, JUST DO IT. That's what the Administration has done, and more power to them. Degrading treatment and aggressive interrogation techniques designed to open hearts and minds are all admissible under the law, as long as it's not torture, and that's as it should be. Welcome to America, Andrew. I think you'll find that a vast majority of the American people want our lawyers to tell us the limits of the law. Americans don't want the French or the Swedes or the Germans to define the limits for our interrogation techniques during GWOT. Nor do they want those limits to be defined by the liberal salons in NYC and San Francisco, or their silly liberal op-ed writers. And torture has a legal definition which should not be allowed to be dumbed down by the sensitivities of talking heads, bloggers, literati, and glitterati. That's American, and it's good. Short of torture, I'm glad that they're doing what they can and should to break these awful men. That's a good reputation to have in the Arab world -- screw the cultural sensitivities of the European softies. They're not with us in this war, so bother them all. Soon, I think the Paki-bashers in merry old England will blow up a mosque or two. And they will do that because they don't have any faith in their authorities taking a hard line on English terrorists. I don't think that will happen in America, but it may if we get attacked too. I fear this is the popular view. America is not the America it once was. But a couple of points: much of this is against the law, unless you believe that the president can change the law as he sees fit in wartime. Most do. As another emailer put it, "The Bush Administration will not be harmed by these reports of torture. The country has spoken and it does not mind. The pictures and actions are very American." Is there really reason to think that once upon a time, Americans were less willing to support harsh treatment -- I haven't read the report, so I don't know how harsh, but let's interpolate from Sullivan's correspondent's message -- of suspected terrorists than they are now? When was this time, and how long did it last? Perhaps it might have happened during World War II, when the issue involved German soldiers captured during normal operations, fighting in uniform, though I'm not even sure that this is so; but would it have happened as to enemy combatants who are suspected of being involved in clandestine, plain-clothes attacks (which as I understand it describes many and likely most of the Guantanamo detainees)? My suspicion is that there was no such time, and that if anything the public condemnation of harsh treatment is greater than what we'd likely have seen in earlier eras. But I may well be wrong; I'd love to hear from people who have actually studied this matter. Incidentally, none of this tells us what the right rule is, and whether Sullivan or his correspondent is right on the merits. My question here is solely related to whether America is worse, better, or the same as it always has been on this point.