Torture Revisited

"I submit that any president...would be acting irresponsibly and immorally, even if his refusal to torture was based on the noblest liberal principles. "

This is a pretty good litmus test for those involved in the debate.  I believe that the ideas trump lives and that we should allow many, many deaths before we judge the principles that underlie modern civil society to be impractical.

Let's take this further Damon.  If it turned out the magic trick to getting a terrorist to talk was slowly torturing and killing the terrorists' children one by one, would the president be acting immorally by not pursuing this?

What about nuking all of southeastern Afghanistan and Peshawar?

So the threshold of American lives lost before Damon is in favor of bailing on civilization and founding principle is about 6000.  We simply need to root everyone who agrees with you out of positions of authority, the best we can.

This is much, much simpler than you make it out to be.  Bush and company broke the law.  There is a possible, although untested, legal defense of necessity in defense against imminent threat to life .  The facts that we know do not provide a basis for this defense.  It is not incumbent upon anyone to prove that there is no circumstance under which torture might be legally and morally justified in order to conclude that in the actual cases that arose it was not.

It is generally considered a bad idea to go too far afield with hypotheticals when trying to resolve such matters.  That tends to lead to an exploration of all law, philosophy, and morality unnecessary to the question, particularly as the hypotheticals can be very removed from any actual experience.  How often, if ever, has any authority encountered the "ticking bomb" case?  We can concede that there may be rare circumstances in which torture is justified.  Then the only question is whether these might be such circumstances.

Let me try to put roid's point a bit differently (assuming I understand him correctly):

Torture can only be approved retroactively.  It can never be approved prospectively.

The objections to the Bush administration's actions are not even to torture per se, since  we can all conceive of the famous (but irrelevant here) "ticking time bomb."

Rather, the objections are to a torture *policy*, to a torture *program*.  Furthermore, this program appears to have a) been employed in large part, if not primarily, to justify a war with (false) confessions, and b) to have spread, *because it was an officially approved program*,  to other areas of our struggle with "terrorism" such as Abu Ghraib, where it clearly caused more harm than good, an outcome that should have been foreseen.

Oliver Wendell Holmes famously said that "hard cases make bad law."  Never was the wisdom of that statement clearer than in this case.  By elevating the emergency device of torture to the level of a law--that is, an officially approved policy or program, and not merely an emergency action of which we would likely have never heard, the Bush administration crossed what should have been a fairly bright line visible  to any but the morally blind.

> If it turned out the magic trick to getting a terrorist to talk was slowly torturing

> and killing the terrorists' children one by one, would the president be acting

> immorally by not pursuing this?

The gap between what the interrogators actually did and the wild hypotheticals composed by some in this debate serves to muddy, not clarify, the problem.

The torturing of innocents can never be justified.

> This is much, much simpler than you make it out to be.  Bush and company

> broke the law.

The one thing this debate is not is "simple."  The legal questions are greatly less important than the moral ones.  

What scon, roi & tim said above.

And this is all presupposed on the efficacy of torture as a means of obtaining useful information.  This is very far from clear.  An interesting case is KSM, as more information becomes available.  If we assume that he knew about the Madrid bombing plans or the cells in Britain, did he tell us?  From what we know, it looks like he pretty much gave out the absolute minimum each time, while being tortured, what, 6 times a day.

And considering the "ticking bomb" scenario is bogus.  If such a real case occured (and history doesn't exactly seem flush with them, if you get my drift), naturally the responsible course of action will be to do whatever you can.  And then submit yourself to judgement afterwards.  To use it as a starting point just allows it to become essentially meaningless;  everything will be justified as a ticking bomb.

On that topic, its curious that you mention Truman's decision to drop the bomb, which on the face it appears to have been a very neccesary evil, one that saved the lives of tens ot thousands of American servicemen.  As decision memos, meetings, diaries and other information have become available over time, its become less clear that was actually the predominant rationale for dropping the bomb.  It certainly did not have the support of his military commanders.

Today it would be a hard argument to make that stopping the Soviets getting a chunk of Japan was not in the long term interest of the Japanese.  Nevertheless, it cost the lives of nearly a quarter of a million Japanese (primarily women and children).  However, the Soviet angle is not the argument that was made at the time;  just that it was "neccessary to save American lives".  Sound familiar?

Shorter Linker: Torture's OK in principle, just not the way the Bush Administration did it. Isn't that basically the current neocon line on the Iraq war?

Hey, as long as we're imagining stuff, why not imagine this: All the shopping-mall bombers, it turns out, were either named "Damon" or used that name as an alias. Wouldn't any president be morally obligated, in that situation, to order a general internment (at least) of everyone in the country named Damon?

And just out of prudence, shouldn't any young parents who recently named a child "Damon" be brought in for questioning, at least until we know what Damons they're acquainted with and why they seem to admire them? After all, they might secretly be members of the terrorist cell themselves.

The point is, you can construct a thought experiment extreme enough to rationalize anything. All you've proven by doing that is that you have an active imagination. In the real world, as Sullivan has repeatedly noted (and Linker ignores), effective wartime leaders like Churchill abjured torture, even when plainly fighting for a nation's survival and with people in custody who might well have had knowledge that could prevent attacks on the homeland -- attacks that were not hypothetical at all, but already ongoing.

And speaking of World War II, the alternative to nuking Hiroshima and Nagasaki was not "sending hundreds of thousands of American soldiers ... to their deaths." It was accepting a negotiated as opposed to unconditional surrender. You can still argue for flattening two cities, I suppose, but it's a straw-man fallacy to pretend that a full-on land invasion was the only other option, i.e. that the demand for unconditional surrender was some kind of metaphysical necessity instead of a policy choice.

Now, either Linker knows this or he doesn't, and neither possibility reflects well on him here. Indeed, look how his rationale has slipped even in the course of a single post; he can't seem to keep it straight even for a few paragraphs. First we're talking about what nations might have to do when they're fighting for their survival; now, suddenly the same logic excuses the actions of the U.S. in mid-1945, when clearly its survival was not at stake but only its opponent's. Thus do last-ditch, thought-experiment exceptions become standard instruments of policy. There's an ugly "permanent dynamics of politics" for you.

What scon, roi, tim. and nari said above about torture.  I agree.  Especially with Nari's point about submitting yourself to legal judgment after the fact.  Torture is something that the law should never ever recognize as legitimate, but there may in hypothetical land be instances where it is justified.  Under such circumstances if torture is used the perpetrator should submit to the law and admit his breaking it and pray for either a lenient sentence or a Presidential pardon.

But I really don't understand this whole Hiroshima analogy to torture.  The situations are completely different.  Jon Stewart made an apt analogy between a chess board and war.  I say that the victims of Himoshima and Nagasaki were pieces still on the board.  They were enemies actively engaged in the war effort against the U.S. (degree of engagement doesn't matter).  As such, the benefit of the doubt as to how they should be treated should be entirely granted to the U.S.    War is hell and bad stuff happens.  As long as a nation aims its wrath against any piece on the war board its wrathful actions should not be second-guessed as war crimes unless there is absolutely no rational tactical or strategic reason however minor for such action.  We can poo poo the action all we want but it is not a war crime.  However, captured enemies are OFF THE WAR BOARD.  The war is over for them and therefore they should not be tortured.  The same goes for the captured criminal terrorists of Al Queda.  Because they are no longer a threat we as a civilized nation have a duty not to torture them and must either try them in court or let them go home after hostilities end.  Of course we don't have to make them comfortable and treat them as lambs.  Harsh interrogation is fine so long as it doesn't cross the line into torture.  Waterboarding unquestionably is torture and the rest of what Bush authorized will have to be judged on an individual basis to determine whether it crossed the line.

Oh, and for the record, everyone is so quick to talk about Hiroshima and Nagasaki being possible war crimes and they ignore the Firebombing of Tokyo that killed more people in one night than died in either city.  Why was it not wrong to bomb Tokyo?  Everyone gets all hyped up about the atomic bomb that they forget that the only thing that differentiates atomic bombings from other bombing raids we did in the war was the efficiency of the atomic bomb and not its overall destructiveness.  In the wake of Dresden, Berlin, and Tokyo the atomic bomb drops were just really more of the same.  So unless you are willing to condemn all strategic bombing as war crimes enough already with handwringing about Hiroshima and Nagasaki.

Sorry, but there's another fallacy in Linker's argument that needs to be pointed out -- the reliance on undefined terms, aka "weasel words." I highlight some of these here:

"Our leaders have a moral duty, a solemn responsibility, to defend the COMMON GOOD -- to defend the NATION against those who would destroy IT -- and when the threat is sufficiently grave, this moral imperative may demand that we diverge from our moral principles. How far should we be willing to go in DEFENDING OURSELVES?"

To see the flaw here, you don't have to go as far as some do and say that defending *America* means adhering strictly to its tradition of constitutional rights. People like Linker would presumably reply that America's existence as a "political community" is separable from and prior to that tradition, which permits the latter to be traded off in some cases for the former.

But that answer begs the larger question, which is: What does it mean to "defend" the "common good" of a "nation"? If there are no limits in principle on what methods that defense might use, are there any limits in principle on how those terms can be defined? If so, on what are those limits grounded, given this "changeability of natural right" that Linker speaks of?

For example: Is it *in principle* wrong to define the nation in racial terms, and to construe its common good as including its racial "purity"? Why? I'm not necessarily talking about Nazism here; there is a whole American literature -- once very popular, thankfully largely forgotten now but not that far in the past (look up Thomas Dixon, for instance) -- that defined America as an outpost of "Anglo-Saxon" civilization whose very *existence* was threatened by "race-mixing." That theory was used to rationalize any number of torture-murders in the bad old days. We all reject it now, but what's wrong with it *in principle*?

If you're Damon Linker, the answer to that can't be that this expansive notion of "defending the nation" harmed the weak or inored the rights of minorities and dissenters, because hey, so do torture, imprisonment without trial, and the other measures you're now excusing, and you've already conceded that "natural right" is changeable and subject to being trumped. The answer also can't be that race-mixing isn't truly an *imminent* threat, because, who says? The people who feared it thought it was; what definition of "imminent" can you offer that *in principle* excludes it?

We could multiply these hypotheticals, as Linker likes to do -- and even more justifiably because, again, they're not all that hypothetical: They're reminders of views that have actually been championed as a matter of historical fact, even here in the U.S. What if a future leader believes that the national political community, in any sense worth defending, effectively ceases to exist if his party loses power? (Many dictators have believed that.) What about people today who think that the threat of gun control negates everything that America stands for? What about the contributors to the notorious "First Things" symposium back in the '90s, who suggested that the American "regime" was illegitimate because it permitted abortion, which they saw an existential threat to the political community as they understand it? Even if we agree that all these people are wrong, what makes them wrong *in principle*? If you insist that no "principle" creates a bright-line rule in one area -- i.e. to rule out torture categorically -- then on what basis do you implicitly draw bright lines in others, i.e. to keep the phrase "defending the nation" from coming to mean too many things?

I once asked a left wing liberal:

If you were forced to shoot a child in a classroom to save the entire classroom (otherwise, the entire class dies), as horrendous as that is, would you do it.

She said no.  And therein lies the problem with insano liberals.

woland: Not sure if you were responding to me, but as JSmith also noted, we're talking about rationales for terrible things, not war crimes.  

You are right that the conventional bombing bombing Toyko (or Dresden for that matter) to killed more people than either of the nukes the US dropped.  However by that point in the war, we knew the Japanese were on the verge of surrender so flattening more cities was not going to help the war effort.

Its difficult to understand the emotions and feelings that must have been present after waging such a horiffic war (and one in which our POWs were treated apallingly), but it is how we act in times of great stress that we are ultimately judged.  However it's also easy to forget that many Americans and Europeans were horrified by the dropping of the bombs, and it was likened to the Holocaust by very serious minded people.

A number of people urged Truman to drop one on an island and take the moral high road saying "See, we could have used this on your cities but didn't" and have obtained the same results (unconditional surrender with no Soviet or Chinese involvement).    Instead they were dropped on real people (whether part of a particuarly nasty militaristic empire or not) and we have since then told ourselves that it was "neccessary", rather than a policy decision.   That is the parallel with today's debate.

And a coda: we know just how effective the bombs were in "containing" or "scaring" the Soviets.  Even before they got their own, they were already blockading Berlin.

"If you were forced to shoot a child in a classroom to save the entire classroom....."

I hope Linker's proud of the company he's keeping here. He and jwl should collaborate on a thriller novel or something.

(P.S. In my example above, race-mixing was *already happening* -- it was therefore not just an imminent "threat" but an immanent one, sapping the nation's will to live along with its precious bodily fluids. Or so said its opponents. Why wouldn't this be as big a threat to the nation as bombs in shopping malls? And if the civil authorities aren't stopping it, why wouldn't those who recognize the threat have a moral duty to take matters into their own hands?)

First, the ticking bomb scenario is quite real, or at least it used to be before Israel built that wall.  They used to routinely get information from informers that a suicide bomber had been sent over the border, but with no knowledge of who they were or where they were going to detonate.  Now that's what they call in basketball "short clock," and I'm pretty sure some innovative interrogation methods may have been used.  

"I once asked a left wing liberal:

If you were forced to shoot a child in a classroom to save the entire classroom (otherwise, the entire class dies), as horrendous as that is, would you do it.

She said no.  And therein lies the problem with insano liberals"

And therein lies the weakness of the "conservative" case.  Packed pretty firmly with anecdotes and strawmen, but utterly bereft of any seriousness.

Also: Looks like JWL is advocating negotiating with and doing as the terrorists ask.

As that's the only scenario under which his whacko question makes any sense.

Second, what's missing in this debate (both the original post and many of the comments) is some sense that this is a multivariate problem.  There's a spectrum of "torture" just as there's a spectrum of potential circumstances.  For instance, I'd be happy to beat up some guys, or push them into walls, or keep them cold for days at a time, if I thought it would save a city of innocent people.  I would absolutely refuse (to take a horrendous example) to slice a guys testicles with a razor blade, or take a power drill to his eyeballs, no matter how many lives were at stake.  Nor would I allow anyone to do these things in my name.  If the gates of hell are to be opened, I'm not going to be the one to turn the key.  

What about the grey area in the middle?  Good question, can't say I know for sure, but I know I have my lines, and as a society we have to come up with our own collective lines.  (That, by the way, is the purpose of thought experiments.)  Did Bush cross our collective line?  Frankly I think he may have with the waterboarding thing.  But I'm willing to have the whole affair sit on ice for 20 years until such time as the full facts can be aired in a calmer environment.  He'll still be around.  

What scon, roi, tim, nari, and woland said above about torture.  It seems to me that we're slouching toward a distinction that's similar to the classical distinction lawyers have drawn between "law" and "equity."  Equity historically existed to permit a *just* result where no remedy existed at law.  (These days, "equity" is just another species of law, equally hidebound.)  To put it another way, the legal principle should always be that torture is prohibited, but in certain exceptional cases we may excuse it after the fact - as a matter of *justice* - where circumstances warrant.  But the *justice* analysis always must be performed retrospectively.

My movie example is probably best suited for the less-rarefied air over at The Plank, but the example that jumps to mind is the penalty meted out to James T. Kirk at the end of Star Trek IV.  In the movie, he disobeys a Starfleet order, for which he is reduced in rank from Admiral to Captain.  Since - however - the result of Kirk's disobedience was to save Earth from a probe bent on its destruction (and the whales! with time travel!  Orr, help me out here...), instead of being drummed out of Starfleet, he's given command of a new starship.

gwolfjr: The Israeli experience with tortute is actually very telling.  I can recommend reading up on it.

Also, on your comment regarding the "ticking bomb" scenario: Did you intentionally use the word "informer"?  If so, then this isn't a ticking bomb scenario where you've captured somenoe who doesn't want to tell you information you think they may have; rather you've got someone whose is giving it up willingly.

Nari, my best source on this is the Mark Bowden article in the Atlantic ca. 2002, still the best examination of the torture issue I've read since 9/11.  And yes, the Israeli experience seemed quite on point.  It must be tough always being the laboratory for extreme ethical situations.  

I may have gotten some of the details wrong, but if I recall correctly the typical scenario might go:

1. informer tells Israeli intelligence agent that he heard through the grapevine that a suicide bomber was sent, but doesn't have details

2.  Israelis mount a very time-sensitive investigation to query all their sources (other informers, incarcerated detainees, new detainees, old intel, whatever) and piece together the necessary info before detonation.  I'm not saying torture was the go-to tool for these situations, but if you had a guy already in jail for some other crime who you think had the missing crucial bit of info (say, where the bomber might have crossed), I bet that guy would get leaned on pretty hard.  

From Linker's latest update: "And this understanding and empathy just might lead some to temper a bit of their indignation-fueled self-righteousness when they set out to judge the decisions of those who acted (and yes, perhaps erred in acting) to defend the common good."

Further sloppy question-begging. Now it's JUST "the common good," not even the existential survival of the nation, that excuses torture. Well, see my comments above on that.

And what exactly is wrong with "indignation-fueled self-righteousness," assuming that's an accurate characterization of Sullivan or others who are angry about American torture? Isn't indignation at those who hurt others or break the rules among our principal motives for enforcing ANY laws? Isn't self-righteousness, by definition, what we're engaged in when we divide people between the criminal and the law-abiding, then declare ourSELVES to be on the RIGHT side of that line and claim a legitimate power to sanction those who aren't?

Clearly, Linker thinks either that the Bush people broke no laws, or did so for such good reasons that vindicating the law is morally wrong in this case. OK, but then he should call for rewriting the relevant laws (and treaties) accordingly, eliminating the language that outlaws torture categorically and instead allowing some kind of presidential certification that special circumstances exist in given cases. Like the authors of the Declaration of Independence, we should have a decent respect for the opinions of mankind, and should declare our true position on the matter instead of, in effect, lying about it by passing laws or signing treaties that promise things we don't really mean.

nari224,

And yet you pointedly fail to answer my question.

You don't like my hypothetical? I'll make it even easier for you by taking out the terrorist.  One kid in class has equine flu which will inevitably infect the 30 others in class, causing all of them to die in 1 week.  You, as a doctor, have one option - kill the kid, spare the others.  Or watch them all go.

These are medical ethical questions that doctors deal with from time to time.  And if you can't answer that you'll save the rest, then there's no point in even beginning to discuss torture to save cities.  We'll all just let the fates (al qaeda) decide who lives and who dies.

nari224,

This isn't some psychology test or game as you would like to think.  There are real consequences to liberal weakness.  You think you're sparing some terrorist pain and discomfort at zero cost.  The cost is innocent lives blown up in street markets as a result of the car bomb-making factory not being discovered.  

OJ may be "technically" innocent but we all know the truth.  If he were a terrorist and knew of plans to kill people, how many idiots would stand on "principle" and defend him as an innocent when actual innocents will die?

jwl:  "I once asked a left wing liberal:  If you were forced to shoot a child in a classroom to save the entire classroom (otherwise, the entire class dies), as horrendous as that is, would you do it.  She said no.  And therein lies the problem with insano liberals."

As Nari's reply touched upon but didn't explicitly state, under what possible circumstances could you be 100% certain that the other kids would be saved by your killing the one?  The problem with these crazy "ticking bomb" hypos is that they never ever occur.  When the hell will you ever know for sure that a bomb has been planted and that your suspect knows where it is?  Making justifications for legalizing criminal actions like torture based on outrageous hypos is just ridiculous.  It's akin to saying we shouldn't criminalize murder because someday someone armed with a gun might walk into a room and kill the unarmed person they find sodomizing their infant child as he screams for mercy (think Brad Pitt in 7).  Sorry dude but that's murder, and although I'd probably do him too my arrest and prosecution must occur.

Nari:  I believe you are wrong about the Japanese on the verge of surrendering.  Even after the bombs were dropped there was a nearly successful coup d'etat of Japanese officers determined not to surrender.  In hindsight it's easy to say dropping the bomb on an abandoned island would have worked, but at the time Japan was full of fanatical people willing to kamakize themselves to save the motherland (Just check out what happened on Saipan).  The Tokyo firebombing didn't even phase them.  Additionally, as for the whole "saving American soldiers lives" point I would point out that the stronger point is that dropping the bombs saved Japanese lives.  I would wager that the number of American troops killed in an invasion of Japan would pale in comparison to the number of Japanese dead.  And this number would certainly dwarf the numbers killed with the A-bombs.   As such,  I believe it was a reasonable decision to drop both bombs.    

dmorehous:  Great Star Trek analogy!

gwolfjr: Check out the thread on the Spine titled "What torture actually looks like"

blogs.tnr.com/.../what-torture-actually-looks-like.aspx

On it boneill refers JWL to Bowden's newer article after concrete information became available (the torture memos, info on the black sites & Red Cross docs etc).  He pretty much recants the 2002 article.

The 2002 article does cite one successful case in beating the crap out of someone in Lebanon, but that's really beside the point.  Given the vast amount of evidence that it doesn't work, the fact that a few individuals break when their bones start breaking doesn't tell us anything.  It most categorically does not provide evidence that the information was only obtainable through torture, i.e. you don't know that you couldn't have gotten it in another fashion.  

The Israeilis also put a stop to torture because it was becoming almost institutionalised (the slippery slope we're talking about here) and (very importantly) it wasn't being effective.  And these are not people who I think can be categorised as having little regarding for their fellow countrymen;  if it was working, can you imagine them discarding it?

Also, on your scenario (2).  Firstly, you are advocating going on a fishing expedition with torture, since the grapevine doesn't provide details.  You then lean on a bunch of people that you already have in custody - why would you expect them to know much?  Once said person is in captivity, don't you think that everyone is vulnerable to what he/she knows is going to change their plans?

And again, you are assuming that leaning "pretty hard" on people gets results.  This isn't "24".

Check out what the Gestapo did in similar cases; they spent a fair bit of time studying the efficacy of it and pretty much gave up on it.  At least until they started running out of experienced interrogators.

AMEN JSMITH125!!!  Hypocritical bastards.

Mr. Linker, I just wanted to offer you a thank you. I am angry at liberal media pudits over the torture issue, but I had to take a step back, and ask myself why, since I am hardly in any degree of sympathy with Cheney's bullyism, or the incompetence of his boss. Your arguments come very close to touching upon my grievance with the entire matter, and I may quote a few lines from you, as I feel compelled to essay this in my own disability-journalist methodology. Free societies, such as the U.S.'s, or modern Europe's, are luxuries, with a price tag, and dealing with the zealous determination of the 9/11 hijackers by waving the Bill of Rights on a flagpole, this is not going to maintain the fluidity of that freedom. Forget Al Qaida.

The video of the destruction of the Twin Towers is now part of cultural memory, serving as a shining example for any terrorist group with a hard on for mass destruction, and maybe, just maybe, if future zealots have to worry about a ruthless response against their motive, we won't all get blown up in clouds of ash. I no doubt sound a bit raw, but my best work usually is, and though it is not my field of expertise, I care about this, and internalized guilt trips aren't going to do it for me, no matter how outgunned I am.

Nari: thanks for the link, I was not aware of the new Bowden article.  Definitely will check out.  

I bring up the Israeli case not to justify it, nor to rationalize harsh interrogation in such a circumstance.  It was an illustration that the much-maligned "ticking bomb" scenario is more than a wild hypothetical.  In fact I think the Israelis actually called those guys "ticking bombs."  Could it happen here?  Damn straight it could.  So if you're in a line of work that might call for interrogating someone in such a situation, it would probably behoove you to think about the ramifications beforehand.  For the rest of us, it's mostly mental masturbation.  

That said, on a slightly separate note, I think the Israelis did get useful information from longtime detainees (not necessarily on incoming bombers, but sometimes).  People are often still hooked into their networks when they're in jail, and it's often to the benefit of the jailers to let them be.  (There's a separate but related point here about the ethics of prolonged detainment without charge, but torture is enough for one thread).  

Jwl2647:  Are you like brain dead or something?  Once again your hypo is ridiculous.  So ridiculous that I'm doubled over laughing!  First, there is nothing inevitable about the kid infecting the 30 other kids so why kill him at all.  Second, it is always possible that the flu is not 100% fatal so no need to kill everyone who has it.   Second, aren't doctors supposed to treat ill patients and not kill them summarily?  Third, why do we have to jump to killing the kid rather than TAKING HIM AWAY AND PUTTING HIM IN QUARANTINE!   I mean how is killing him going to drastically lessen the chance of infection than quarantining him? You are so quick to kill.  You got something against kids or something?

I think the hypo you are grasping for is something like the rage virus in "Seven Days."  In that situation of course you kill the infected because the illness is 100% lethal and supernaturally communicable.  It's self-defense pure and simple.

I bet you're a Palin supporter, right?

Does anyone have a handy link to the recent Bowden pieces?  Are they also in the Atlantic?  I can't locate them.  

Hope I don't have to lean on anyone to get this information...

jwl:

"One kid in class has equine flu which will inevitably infect the 30 others in class, causing all of them to die in 1 week.  You, as a doctor, have one option - kill the kid, spare the others.  Or watch them all go."

Actually, I'd just take the kid with equine flu out of the class and put him in quarantine.  That would seem to fix the problem without needing to slaughter said kid.  But that's presumably liberal weakness at work again.  Or do you have a remotely plausible scenario to discuss?

woland: The Japanese we ready to surrender much earlier (June 1945?), on the condition they kept their emperor (which we let them do in the end anyway).  There were many other options for ending the war.  Note that I'm not advocating any of these different approaches or arguing that they were superior.  The point I'm trying to make is that the decisions that were made were fundamentally policy ones, not existential or even neccessary ones, as they have later been made out to be.

Nari, great points about the ineffectiveness of torture.  Why the Bush Administration started this Torture regime was because those clowns had no appreciation for the interrogation experts in the FBI (the whole anti-intellectual strain comes through) and they instead went with the two dumbass academic psychologists who had never conducted or witnessed an interrogation in their lives who advocated torture because the Bush Administration only listens to people who confirm with their warped view of things (ignoring the evidence once again like with the WMDs).

I'll throw this out there for consideration.  I think the whole crew from Bush on down should be indicted on Conspiracy to Torture  charges and that Obama should then immediately offer them all a pardon upon their pleas of guilt.  Anyone who doesn't want to plea can take their chance in court.  This way Obama seizes the high ground as being more than fair, the Bush people are rightfully humiliated and disgraced, and justice is satisfied.

From Linker's second update:

"And this understanding and empathy just might lead some to temper a bit of their indignation-fueled self-righteousness when they set out to judge the decisions of those who acted (and yes, perhaps erred in acting) to defend the common good."

I think someone above already pointed out some of the flaws in this line of reasoning.  I just want to add my two cents.

Assumption: that the Bush administration acted to defend the common good.  "The common good" is so amorphous a concept as to have virtually no utility in this debate.  What "common good" are we talking about here? Preventing another attack on the homeland?  If that were the aim here, then why set up a torture *program* and get *legal opinions* from the OLC?  By defintion, such actions render the "ticking time bomb" excuse vacuous.  Or was the "common good" finding some excuse, any excuse, to invade Iraq?  I'm sure that Cheney, Wolfowitz and company thought they needed such an excuse.  But that is hardly a ticking time bomb, but rather the subject of political debate.  Ever tyrant of the twentieth century has used the "common good" to justify evil.

In fact, when it comes to "ticking time bombs," this too provides fertile grounds for liars who wish to promote the "common good."  After all, the effort to create "bombs" to justify war was not limited to torture.  Remember Cheney and Rice warning us against mushroom clouds?

People like Linker keep insisting that the torture *policy* or torture *program* must be considered in isolation, and then spin off hypotheticals that are supposed to produce empathy for people in real world situations, lest we judge them too harshly.  But it is those very real world situations, and not hypotheticals, on which we base our judgment.  And in this case the torture *policy* (yes, I insist on pointing that out) was not isolated, but part of a larger project to gin up fear in America so that we could invade a sovereign country that did not attack us and did not threaten us.  That is what we are talking about, or should be, not ridiculous scenarios about school children and men with pistols.

But Tim, it's too much fun ridiculing conservative idiots like JWL.

timteeter, exactly. Linker and the other torture apologists are saying that we should sympathize with ACTUAL Bush officials who ran a torture program over a period of years (with no ticking time bombs involved) because some other, HYPOTHETICAL officials might, theoretically, have to take extreme measures in pursuit of their duty in some imaginary case. It's just special pleading. The hypotheticals can't justify what was actually done unless the conditions of the hypothetical were actually present in the real situation. And in fact Linker acknowledges that they weren't when he falls back on "the common good," a hugely elastic concept that could mean any of a hundred things that have nothing to do with ticking bombs.

Linker's arguments here and in his previous post on this topic have been so weak that it just seems like he really, really wants to explain away American torture if he can. To be charitable to him, maybe he just finds it too frightening to face the possibility that some of the top people running the U.S. government for several years were basically just bad, violent, angry and/or irresponsible people. I can see why a patriot would want to avoid that conclusion, as it certainly would say some disturbing things about our system.

woland says, "Torture is something that the law should never ever recognize as legitimate, but there may in hypothetical land be instances where it is justified."  Yes, I've heard and even made this argument before, but I find it increasingly unconvincing.  Why not simply agree to a legal defense and put it in writing -- a defense about which you could obtain an opinion beforehand.  (Dershowitz has even advocated "torture warrants.")  The torture is either justified or it isn't.  We either want it to happen in some cases or we don't.  Which is it?  It seems like a dodge to say, "DON'T TORTURE," and then say "go ahead, do what you gotta do, but, wink, wink, we don't talk about that."  It also seems like a dodge to avoid the hypothetical questions.  Why are we avoiding them?  Because they're not relevant?  I don't think so.  Linker's hypo strikes me as a relevant one to consider.  It's really because we don't have answers and/or don't like the answers we come up with.  Look, if we want it to happen in some cases, and think it's right in some cases, let's just say when.  We do that for most horrendous crimes, including murder.  In the case of murder, we say that it is justified if acting in self-defense or defense of others due to an imminent threat of death or serious bodily harm.  We could similarly codify a defense to an accusation of torture.  I understand the pragmatic view that allowing some torture under some narrow circusmtances would inevitably lead to more torture, including torture we *don't* approve of -- think, a crack in a windshield starting to run once it's chipped -- but I'm not sure that's right.  Right now, we're advocating *no guidance* and are instead just saying, "do what you have to do, but don't tell me about it; keep it secret."  If there were clear rules, it seems that our standards would be *more* -- not less -- likely to be adhered to.

jhildner, there ARE clear rules.  Torture is illegal.  Period.  It would be up to the judiciary to spell out exceptions, along the lines of "free speech does not mean shouting fire in a crowded theatre," or "it's not murder if the killer is insane," etc.  That's why these matters should go to trial.

Tim, in criminal cases, courts don't typically just make up defenses on a case-by-case basis.  They are well established, and typically contained within criminal codes.  Why not do the same here?  Free speech is not an apt example, because that is a matter of constitutional interpretation.  Legislatures can't define the contours of freedom of speech because they don't have the power to do anything unconstitutional.  Therefore, it always comes down to, What does the Constitution mean?, which is ultimately a question for the courts.    We all seem to agree that there are some defenses out there that we like and that are not currently recognized in law.  If that's true, I fail to see why we don't determine what they should be instead of *pretending* that we think that the real rule should be "torture is illegal, period."

Woland, you're a complete idiot.  First you attempt to ridicule the scenario I pointed out by talking about all the possible other options that are available.  No shit Sherlock.  Any moron would take the kid out of the classroom if that was an option.  My question naturally assumes that that isn't an option, as you clearly point out in your "Seven Days" example.

Were you one of those idiots in grammar school, who, when presented with a multiple choice exam would write-in a response???

By the way, I see in today's paper that the lone surviving Bombay gunman pleaded "not-guilty" to mass murder and fighting the Indian government.  That's one SOB I'd torture the hell out of to get whatever information I can.  And even if he had no info, so what?

This son of a bitch methodically walked around Bombay shooting men, women, and children.  He deserves no mercy whatsoever and any @ssfuck who sympathizes with him more than the victims deserves to rot in hell along with him.

The argument as I understand it is that the legalization of torture by codifying its use is tantamount to its institutionalization and hence legitimation. From that point necessarily torture's use--as kind of necessary dynamic of such insitutionalization--will increase and this change America. So the argument is, better it is to let it happen *extra legally* on only the rarest of occasions. I think this a very troubled argument.

The argument as I understand it is that the legalization of torture by codifying its use is tantamount to its institutionalization and hence legitimation. From that point necessarily torture's use--as kind of necessary dynamic of such insitutionalization--will increase and this change America. So the argument is, better it is to let it happen *extra legally* on only the rarest of occasions. I think this a very troubled argument.

See JWL, you appear to totally miss the point again.

The reason we are ridiculing your scenario is that it is ridiculous.  A bit along the lines of the "when did you stop beating you wife" question.

In your crazy hypothetical, taking any action other than killing the child isn't an option.  What?  This isn't even a thought experiment.  Its just plain stupid.  Assuming you *knew* ahead of time (somehow) that child A would fatally infect or otherwise kill the remainder of the class, but yet you are (inexplicably) incapcitated to the extend that you only had the option to kill or not kill child A (somehow), of course you would kill child A.  However, that's *never* going to be your only option so it's worse than a pointless exercise, its a monsterous one.

I suspect the "liberals" you encouter that answer this question "wrong" are in fact people who are a little more closely attached to reality than you apparently are.  This isn't a clever little question to root out weakness.  It instead demonstrates a detachment from reality and understanding of the real world implications of ones actions that is worrying to behold.  

And regarding the Bombay bomber (who by the way no-one here is sympathising with).  Congratulations, you've found someone we know is a terrorist.  The problem is when you start torturing people you *think* are terrorists.  And even the ones that are, by torturing them, you are intentionally limiting the amount of information you get from them.  But I'm sure you don't get this either.

Basman -- I agree.  Very troubled.  If your view is no torture, period, then you have to be prepared to say, No we don't torture even in all the crazy and not-so-crazy hypotheticals.  That's the Kantian stand.  Most people, if pressed, don't go that far.  They want to reserve, at a minimum, the ability to do what's necessary in the face of non-speculative, immediate-to-near term specific threats of utter catastrophe.  All I'm saying is, let's reserve the *legal* ability to do that.  That way, nobody can say that our law is unrealistic or too strict, and when someone tortures outside of the bounds of the clearly defined defense -- which would probably be the case for Bush and Co. -- we can feel free to throw the book at them without getting into notions of extra-legal blah blah.  Not a big fan of "extra-legal" anything.  Let's just make "legal" something we can live with.

"Congratulations, you've found someone we know is a terrorist.  The problem is when you start torturing people you *think* are terrorists."

Exactly. The thing is, people like jwl are trusting souls who have a very high opinion of government authority. For some reason they believe that an entity that is run by politicians, and that can't even manage a Department of Motor Vehicles efficiently, can nonetheless be relied on to perform flawlessly when it comes to identifying bad people and deciding what extreme measures should be applied to them. Because, as we all know, power DOESN'T corrupt, things never get out of hand, and there's never been a case in history of innocent people being unjustly victimized or persecuted. When the American Founders wrote the Declaration of Indepedence and the Bill of Rights, with all those criticisms and limitations of government authority, they were just wasting parchment, right?

Must be nice to have such faith in political leaders. I imagine jwl must just be a really sunny and optimistic person.

jhildner, what you say is along the lines of my own thinking for some the arguments you mention.

drugged and properly probed as to stimulate pleasure, his other self willingly reveals details of the intended massacre....