The "Emergency Exception"

A reader writes:

It may interest you to know that the New York Daily News has already used the slogan "You have no civil liberties if you're dead" in an editorial endorsing the Bush bill.

And that takes me back to a point I've mentioned before: Bush's supporters will inevitably use the fact that virtually all of us can think of some emergency exceptions to an absolute "no torture" rule. ("Ace of Spades" has been yelling for some time about the need to enable it to expose plots that "endanger thousands of lives", and specifically cites the London airliner bombing plot in that regard.)  This argument has real teeth in it, and the only way to counter it is to point out that - in any case where torture really was necessary to stop such a plot - there is no way in hell that the torturer would ever actually go to jail for it; the jury would certainly not convict him, even if the prosecutor indicted him.  (To say nothing of the President's power to pardon.)  It would fall into the category of "justifiable assault". So it's time we all started bringing that little fact up - and pointing out that therefore the only reason to actually legalize torture is if you want to make its use utterly routine, for cases in which there's a serious chance that a jury would regard its use as indefensible.

The fallback argument that the Bushites may then use is: "We can't allow a public jury trial because it would give away too many intelligence secrets."  In that case, what we obviously need is an equivalent of the FISA Court - with its members being approved by a large super-majority of either the US Senate or the US Supreme Court, thank you very much - to approve torture in those rare cases when its use may be justifiable, rather than letting one man (the President, the Defense Secretary, whoever) decide that entirely on his personal whim.

If the Democrats make that argument and the voters still back the Bush policy, then the country really is doomed.