Wednesday, December 14, 2005

Should there be exceptions to a ban on torture?

Charles Krauthammer wrote a controversial article in last week's The Weekly Standard arguing the case that torture should be permitted when a suspect possesses information on an imminent attack or is a high-level terrorist. Because he wants to make these exceptions, he opposes John McCain's proposed absolute ban on torture that passed the Senate by a wide margin but has been stubbornly opposed by President Bush.

Mr. Krauthammer, having no experience with torture like Senator McCain (nor, of course, do I) suffers from the same delusions that many Americans do: they've seen too many episodes of "24". Such scenarios can actually happen, and Mr. Krauthammer cites Israeli experience here, but on the whole are extraordinarily rare. What is much more common is a bunch of men get rounded up from a village in Iraq or Afghanistan, some of whom may be terrorists while others may have been in the wrong place at the wrong time. Those that are terrorists may know some sensitive information, but likely nothing on an imminent nuclear attack. The uncertainty of such common situations is the flaw in Mr. Krauthammer's scenario. It rests on the assurance that the person being tortured is absolutely known to be a terrorist and absolutely knows critical information. In a vague situation, it is better to have very clear ethical boundaries.

Mr. Krauthammer criticizes Senator McCain's stance that if a true ticking bomb situation ever actually occurs, then the President and intelligence officers should break the law to do what they have to do. If that's the rationale, he asks, why not codify it? The answer is that by codifying it, you institutionalize it, and once things are institutionalized, they tend to grow and spread. Instead of having it codified in law, the President should have to undergo an excruciating decision of whether to break the law and save innocent people or not. Making is such a tough decision will help guarantee that it is not done except in extreme situations. We do not need to go building the bureaucracy for torture in order to make it easier to make a difficult decision in the future.


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