A reader writes:
One further point to your post on Mukasey: when we make laws against certain things - let's take the example of murder - we recognize that there may be certain circumstances where murder may be justified. We handle this in 2 ways:
* We write special-case exceptions into the law, e.g. self defense.
* We conduct trials where the guilt and punishment are determined by a jury of peers, who can refuse to convict if their collective conscience tells them that the crime was justified.
But more importantly, we create serious legal consequences for murder because we don't want anyone to commit murder unless they're willing to accept the consequences. This sets a 'threshold of seriousness' so that when a person considers murder, they must determine whether their justification is dire enough that they are willing to put their own liberty at stake. This sounds like a great standard for the president to have to meet when considering torture of an individual, doesn't it?
Yes. And, moreover, to turn a one-in-a-million emergency exception into the rule, and to pretend that we need to know any more specific details to know that waterboarding is both torture and plainly illegal is to turn the rule of law on its head. The notion that you have to explicitly make waterboarding illegal - or even more absurdly that if the Congress hasn't done so, it has essentially accepted the legality of waterboarding - is a little like saying that the law against murder doesn't apply to someone who suffocated someone with a pillow, because that particular method hasn't been specifically outlawed.
Murder is murder. Torture is torture. The latter is the application of any "severe mental or physical pain or suffering" to force an individual to say what he otherwise might not say in captivity. The point is the coercion - however it is applied. It is illegal and unconstitutional - and that applies not just to waterboarding but to any such tactic that has that effect. To give the president the power to order this against the law as a routine matter and to declare that s/he has that power permanently and with respect to anyone is tyranny.
The last time I checked, conservatism is not a defense of tyranny. It is a defense of the Anglo-American tradition of freedom that this president and the current GOP have been abusing for six years. Conservatism must now mean resisting this president's abuse of power, not enabling it.