The hoo-haw over torture

From today's WaPo, reporting Bush's comments on how the War on Turr requires us to be free from legislation preventing torture so that we can continue not torturing our enemies (apparently Bush has no compunctions against torturing rhetoric):

Q Mr. President, there has been a bit of an international outcry over reports of secret U.S. prisons in Europe for terrorism suspects. Will you let the Red Cross have access to them? And do you agree with Vice President Cheney that the CIA should be exempt from legislation to ban torture?

"PRESIDENT BUSH: Our country is at war, and our government has the obligation to protect the American people. The executive branch has the obligation to protect the American people; the legislative branch has the obligation to protect the American people. And we are aggressively doing that. We are finding terrorists and bringing them to justice. We are gathering information about where the terrorists may be hiding. We are trying to disrupt their plots and plans. Anything we do to that effort, to that end, in this effort, any activity we conduct, is within the law. We do not torture.

Bush is dancing around the issue of torture, threatening to veto any legislation explicity banning it, but claiming that we don't torture in the first place. If we don't torture, then where's the harm in codifying the fact?

The idea here is that some people are so bad and so dangerous that we have to retain the right to fuck with their minds and bodies to extract information to the safety of the American public.

If that's the case, fine. Many would assert that certain people need torturin', because they're so dangerous, and because they harbor such incendiary information that will be unearthed by no less drastic means. But why not force our government to prove it? To hold officials to a very high standard before torture could be countenanced would not categorically preclude "appropriate" torture. In fact, it may actually create the only climate where we can have some reasonable safeguards against an overzealous exercise of toture.


Consider the concept of a self-defense rejoinder to a charge of murder. Killing is wrong, but you are allowed to present an affirmative defense to a committed homicide that you were acting inself-defense. It's a post-hoc analysis of whether you had a reasonable apprehension that you were going to suffer serious bodily injury or death at the hand of another, had you not exacted deadly force on your assailant. And the burden is on the accused to raise it and prove it.

What prevents us from treating the prosecution of torture similarly? That is: forbid torture by law. Prosecute those who break the law and torture others. Should the
prosecutor succeed in proving beyond a reasonable doubt that you tortured another person, you're guilty, unless you can put forth an affirmative defense of a reasonable belief in exigent circumstances, which left you with torture as your only reasonable recourse for extracting the information you sought.

Thus, the presumption going into any torture situation is: If I am caught, I will be prosecuted. And if I'm not damn-well sure that (a)there is overwhelming evidence that I have a bad guy (b) with specific knowledge of a plot to kill or maim other people and (c) that there is a reasonable likelihood that the plot can be overcome (d) with information the bad guy possesses, then I'm screwed, because there sure as hell going to be able to prove torture. Why can't we have something like
that? If you pre-emptively allow torture under certain circumstances, and inoculate the perpetrator from prosecution, you're going to have people manufacturing evidence, creating the pretext that warrants the torture in the first place. If you keep it as a criminal act, which can only be averted with a very specific affirmative defense, you'll go a long way into effecting the end that most people have in mind when they hesitate to endorse a categoric ban on torture, because, however unpalatable, there are occasions when it is the only recourse available to protect innocent lives.