Torture, the Law, and the Executive

I don’t support a policy of torture, but I don’t support the McCain Amendment either. The latter would undermine the Executive unnecessarily by introducing legal processes into a matter more properly left to executive discretion.

Wars are complicated things in which numerous judgment calls must be made at every level of command. The executive rightfully has a great deal of inherent authority to conduct operations. I do not favor the McCain Amendments for the same reason that I would not favor Congressional legislation mandating that our military uses Napoleonic tactics, conducts an invasion on a particular day, or should conduct torture under judicial oversight (as Alan Dershowitz has argued).

Torture degrades the torturer as well as the victim. It creates a race of monsters living in one's society and tends to erode the esprit de corps of the military in a liberal democracy--an esprit based in part upon the moral superiority of such a military over most of its opponents. The case for torture is most often made in the instance of the "ticking time bomb," the individual who, if tortured, can reveal information that will save millions of lives. But the problem of ticking time bombs is that they do not reveal themselves as such. One never knows if a particular detainee is a ticking time bomb. Torture becomes addictive to an organization that resorts to it on the principle that no stone should be left unturned.

Torture should not be permitted in military manuals or otherwise. It is not permitted today in military intelligence manuals, for instance. There is presently no lacuna in military or CIA doctrine requiring an anti-torture statute, nor a complicated torture manual, complete with Alan Dershowitz's seal of approval. But, there should not be a law specifically regulating the military and CIA's interrogation techniques. The McCain Amendment as written goes beyond torture. It could open to judicial review basic psychological pressure techniques that are time tested, cause no permanent harm, and work effectively. Some sleep deprivation, threats, psychological pressure, and techniques of disorientation are appropriate in the war on terror. Not only do they work, but they are controled and lack the cruelty of genuine torture. I would not want to see judicial or congressional meddling in these areas, and that's what the McCain law would create. Further, it would open up the door to more vexatious interventions by other branches of government in the preeminent executive task, waging war.

But what of torture? Is it never necessary? Perhaps it is, but the law should not say so, as it represents an across-the-board community judgment, that is, a generally applicable rule. It is something that we approve wholeheartedly and endorse. Such an awful decision to torture should be made, if ever, by the military interrogator or operative on the ground, aware of the potential legal consequences, and steeped in the military's traditions of respect for the law of war. That is, as a true last resort. This is why an executive pardon power exists. Certain acts should not be socially condoned and should most often be punished. But under the right circumstances, they can also be forgiven. Far from requiring prior legal approval, such acts can be deemed necessary only when undertaken against the letter of the law. Any other approach would make their use too frequent and too degrading, both to the participants and to the broader society--a society whose moral authority would be undermined by any formal permission for torture.

In spite of these prohibitions, the operations of the law should not be too rigid. Particularly in war time, a broad use of the pardon power prevents the law and its mechanical application from inflicting too much injustice on those making these touch decisions. Without the escape valve of a pardon, such prosecutions would undermine respect for the law for the opposite reason, an absence of mercy towards those placed in impossible situations by events.

Posted by at November 10, 2005 3:32 PM