A reader writes:
Say it ain't so, Andrew, please. "But more to the point: he and his fellow students were tortured for their political beliefs, not their perceived ties to terrorism." Their perceived ties to terrorism are Cheney's political beliefs, surely. But that's beside the point too. Torture is torture is torture is torture. The point you've been making for so many months is evident. There is no justification for torture whatsoever.
Andrew did not write that post; I - Chris - did. (Like every post during these rare co-blogging days with Patrick, I put my initials at the end of the post, and in this case even referenced Andrew by name.) I think this is worth reiterating because readers sometimes forget.
Anyway, I also published this email as an opportunity to air an argument: while I am firmly anti-torture, I actually think the ticking time-bomb scenario can be justified. But my take is very different from the likes of Krauthammer; I think the TTB scenario can be ethically justified, not legally justified. Torture should always be illegal, without exception. But in the infinitesimally small chance that someone is put in the situation where he or she is utterly convinced a captured terrorist holds the key to preventing the deaths of countless people, torturing one person would be the lesser of two evils.
Nevertheless, the onus should always be on a person who decides whether or not to cross the bright legal line of torture. He or she should be ready to accept full responsibility for the outcome, whether it be imprisonment or even death. But that risk is not new or unique; military servicemembers for ages have suffered far worse fates on the battlefield. Both scenarios - a TTB, a war - are just different ways to sacrifice for one's country.
So let's say an American did decide to torture a terrorist in defiance of the law, and that torture ended up preventing mass murder. No jury would ever punish that person. And even if an absolutist judge did convict, any US president would readily use an executive pardon, fearing no risk of public backlash. On the other hand, if the TTB threat turned out to be false, the torturer, even if acting in good faith, should still face the full brunt of the law. Again, the onus is always on the individual; he or she has to be utterly convinced the threat is real and be willing to face the punishment if mistaken.
So essentially my difference with Krauthammer is that he uses the ethical case for the TTB scenario to justify its legalization; he makes the rare exception the rule. (And with legalization comes bureaucratization, the evils and dangers of which Andrew has exhaustively chronicled on this blog, persuading me at every turn.) But as centuries of civil disobedience have shown us, what is legal is not always ethical, and what is ethical is not always legal. One can be ethically for torture - in the rarest and gravest of circumstances - but still oppose it legally. In fact, I think an ethical case for the TTB scenario actually strengthens the case against Krauthammer and Cheney, because even though torture is illegal, there will always be an American willing to risk death or imprisonment to prevent a major terrorist strike.