Larvatus Prodeo

Predictably, Gerard Henderson has jumped in to defend Downer’s attack on the ALP as appeasers (sort of - it’s “polemic, not history”, Hendo writes):

What’s surprising is that some leading Liberals are now contesting Labor’s dominance over the Australian political debate. Downer’s speech should be read and debated - not just dismissed as a product of (alleged) ambition and/or stupidity.

“Labor’s dominance over the Australian political debate”? We wish, Gerry.

Will conservative commentators ever acknowledge that their discourse is in fact hegemonic these days?

Elsewhere: The longer Hendo is at Tim Dunlop’s place.

There’s something a bit odd about the torture “debate”. Peter Faris complains about the liberal meejah and pc and freedom of speech:

My main reason in setting up the Blog in the first place was because I found my conservative political views were not represented in the media. Further, the media were not interested in my views. The rule of Political Correctness means that issues like torture or the death penalty cannot even be discussed in public.

Yet Mr Faris gets a front page story in The Age, far more attention than his blog would normally warrant, and apparently he also has a radio show on 3AW for 2 hours every Sunday morning.

Would it be unreasonable to suspect that Mr Faris might be seeking to make a bit of a media name for himself?

Unlike Professor Bagaric and Ms Clarke, who at least mounted some argument in favour of their position (albeit argument characterised by rather simplistic ethical reasoning and a seeming lack of understanding of the realities of interrogation and anti-terrorism methods), Faris QC doesn’t trouble himself by engaging in any sustained argument. Rather, he uses scenarios drawn from Dirty Harry to suggest that torture could be a normal part of criminal investigation technique.

You have to wonder about his moral seriousness, and also about his motives for this intervention. It’s certainly succeeded in gaining him some media attention.

The standard of argument on Mr Faris’ blog can best be described as juvenile. In response to what was an obviously satirical comment, Faris replies:

You represent everything in the Left that is disgusting. I exercise my right to freedom of speech and you threaten me. Stalinist.

Other comments on the blog reach these heights of erudition and ethical engagement with a debate ostensibly about doing deliberate harm to people:

Boy oh Boy!!!

Such nastiness from the peace loving left…Now I REALLY can’t wait for tomorrow. I might even get up before midday just so I can get stuck into them!

It’s fantastic that just one person’s point of view can cause so much anger! AWESOME!

It’s difficult to take Faris’ opinion seriously when it is not supported by any reasoned argument. It’s disturbing in the extreme that serious issues regarding national security and, I repeat, the doing of deliberate harm to persons are “debated” in such a flippant manner. In fact, it’s morally disturbing in the extreme, as well as intellectually bereft.

So let’s leave the QC to his conspicuous indignation about freedom of speech and raise some questions about the publication of Bagaric and Clarke’s article in the San Francisco University Law Journal. As far as I’m aware, the media coverage has yet to mention that this publication is a student edited and managed journal. This in itself is not unusual within the discipline of Law - a long tradition modelled on such publications as the Harvard Law Review exists in Law Schools. Such journals often carry serious and scholarly papers, though of course, as with any other discipline there’s a hierarchy of prestige and quality among them. Such rankings are normally determined through the citation of articles - a measure of their influence. The most respected citation index does not track articles in this particular publication. None of the faculty at SFU appear in a list of the 120 most cited American legal academics. The school itself is apparently so little known that it is not listed in a compendium of US Law Schools ranked on various criteria.

I’m grateful to Ken Parish for drawing my attention to this argument from reknowned legal scholar Richard Posner on the system of publishing academic articles (rather than case notes for instance) in student edited Law Reviews:

The system of scholarly publication in law is starkly different. With a few exceptions, law reviews are edited by law students rather than by professors or other professionals. The law reviews are numerous, are published bimonthly or at more frequent intervals, are edited without peer review, and are seemingly unconstrained in length. Their staffs are large, but the members, being students, are inexperienced both in law and in editing. With such abundant manpower and no reliance on peer review, law reviews do not forbid simultaneous submission or insist on brevity, and the interval between initial submission and final publication is much shorter than in other scholarly fields. The size of law review staffs enables them not only to check the author’s citations but also to make many substantive comments and to engage in line-by-line copyediting

A legal academic himself, Ken tells me that in Australia, law journals are peer reviewed. Similarly, in the United States, there are many serious journals which deal with questions of legal and moral philosophy which have a rigorous and high standard of peer review. The question then becomes - were Bagaric and Clarke reluctant to submit their paper to a review process? Would it have survived peer review?

Some clues to the motivation for publication in the San Francisco University Law Review come from this email to Melbourne journalist Katherine Wilson from the editor of the journal, Megan K. Rosichan (permission to cite has been given):

Indeed, in the spirit of this debate, the Law Review sponsored a symposium at our school in April, entitled “Torture: When, If Ever, Is It Permissible?”. Our keynote speaker was former Gen. Janis Karpinski, the general who was in charge of the military police at Abu Gharib prison. The symposium included a panel discussion that featured Professor Bagaric, as well as two other professors, one of whom does not support torture in any circumstances (Prof. Marcy Strauss of Loyola School of Law, Los Angeles) and one of whom supports torture under somewhat more limited circumstances than Professor Bagaric (Prof. John T. Parry of the University of Pittsburgh School of Law).

We have substantiated all the sources cited in the final version of Professors Bagaric and Clarke’s article, and we believe that they fairly and accurately stand for the proposition for which they were cited. Beyond that, we believe that Professors Bagaric and Clarke are entitled to make a welll-reasoned, scholarly argument, regardless of the viewpoint that they support. For these reasons, the U.S.F. Law Review stands by our decision to publish their article.

This confirms that all the editors have done is check the references in the article. It also answers the question of why this obscure journal from a small Law School at a private Jesuit University was chosen.

But Bagaric and Clarke need to answer the bigger question - can their arguments be taken seriously by scholars and thinkers who are experts in legal and moral philosophy and anti-terrorism methods? Without the peer review process, we will never know.

Elsewhere: Tim Dunlop raises similar questions about Faris’ “freedom of speech” claims.

Update: Rob Corr points out that in Dirty Harry, the torture failed to save the girl’s life.

What did Bagaric and Clarke start? All the torture advocates are coming out of the woodwork now, the latest being former NCA head Peter Faris QC:

Mr Faris said it would be acceptable to use torture in criminal investigations.

“A psychopathic murderer has buried a teenage girl alive and he is captured by the police,” an example on Mr Faris’s web blog says.

“He refuses to say where she is. He taunts the police with his knowledge. Torture is acceptable to find the girl and to save her life.”

The example was taken from the film Dirty Harry, Mr Faris said.

Well, that’s a realistic scenario.

So now we have serious debate in this country from people arguing beyond the terrorist examples to the use of torture in criminal investigations:

But the Crime Victims Support Association said police should be able to torture criminals if they were certain they had information about other crimes.

“Anyone who is a serious offender like that, they [the police] should have the right to do it,” said association president Noel McNamara.

Faris has some legislative ideas:

He said there were no guarantees that torture would work - “if you don’t get the information, you don’t get the information”.

However, “to pull out a fingernail of a terrorist in order to save a couple of million lives” was morally right, he told AAP.

“I’m not saying `let’s legislate immediately’,” Mr Faris said.

“What I’m trying to establish is that this is a legitimate issue to be on the table for debate… but people start saying you’re a Nazi because you want to debate it.”

Mr Faris said legislating for torture was not an ideal situation, and standards of acceptable torture, including “the reasonable application of pain”, would have to be set if it were to be used.

Fortunately there are some lawyers against torture:

The Chairman of the Criminal Bar Association, Lex Lasry, QC, today rejected Mr Faris’ attempt to open debate into the use of torture in criminal investigations.

“Mr Faris’ suggestion that the use of torture could arguably be an acceptable tool in the investigation of some serious crimes, based on the film Dirty Harry, is bizarre and we, of course, reject it,” Mr Lasry said.

“There are a number of important issues affecting the criminal justice system being debated at present without being diverted by some ludicrous concept of introducing legalised torture by police as an investigative technique.”

Postmodernity or premodernity? Pick the difference.

Talk to the QC: Should you wish to do so, you can comment on Mr Faris’ blog. His blogroll contains the usual RWDB suspects - might be worth watching to see if any jump on his bandwagon.

Elsewhere: Graham Young picks up on the Bond fantasy element of these tortuous desires at Ambit Gambit, while David Tiley is disgusted at Barista, and Tim Dunlop comments on Faris’ comments sensitivities.

Sparked off by a column by Michael Duffy (of which more at Troppo), Tim Dunlop writes about the success of bloggers in subjecting Bush’s social security revamp to sustained criticism and analysis, a success which has had some impact on the broader public policy debate in this field. Tim suggests, that with the absence of any countervailing power to the Howard government after 1 July, that Australian bloggers could play a similar role. I agree. There’s certainly the talent and experience in public policy in the Ozblogosphere. Perhaps it would be worth thinking about a collaborative blog for such analyses. Sustained public policy analysis is time consuming, and it would be hard for one blogger alone to do it, and it might also be incompatible with the style and feel of currently existing blogs. I’d welcome any input on this idea.

I must confess to an almost complete ignorance regarding matters agricultural and climatological. However, watching Robin Batterham on Lateline the other night, in the context of a story about the drought and climate change, reminded me of a study I heard of a while back which suggested that when Australia was settled by whites in the 19th century, levels of rainfall were historically high compared to long term averages over millennia. The conclusion was that many districts thought suitable for farming then are only marginal at best. Add to this the projections of the CSIRO regarding climate change and I start to wonder whether we are barking up the wrong tree by pouring money into relieving farmers during a drought which may in fact be something more like a normal weather pattern in the future.

As Crikey observed back in February, to ask such questions is to go against the grain of persistent Australian ideological motifs:

Yet when anyone raises questions about drought relief policy they get howled down as anti-Australian, anti-farmer and biased against the hard-working country folk who are the backbone of our country.

The reality is that, while many of the folk are hard-working, drought relief is probably one of the most irrational policies — on social, environmental and economic grounds — around.

I’d be really interested in hearing from anyone who knows much more than me about this subject and what the best way to proceed in terms of policy is.

Elsewhere: Rafe Champion looks at the economics of the drought at Catallaxy. Andrew Leigh proposes a HECS-style repayment scheme for drought aid at Imagining Australia.

Update: Phillipa Murray discusses the responses of some farmers to drought assistance in The Age:

The same school of “hard” farmers who champion less government assistance believe the pictures of starving stock in bare paddocks underline the case for an overhaul of drought assistance. They propose, for instance, that land in long-term drought be locked up for several years to allow regeneration.

Part of the problem lies in the lingering misconception that drought in Australia is an aberration. Once considered a natural disaster, it is now a common occurrence and must be managed like any other business risk.

Doling out dollars to the bleating few to achieve a short-term fix will only result in a long-term headache.