To me the justifications for legalizing torture have always seemed extremely strained. Experts in the field have pointed out that circumstances in which brutal treatment might be justified – the famous ‘ticking time bomb’ scenario – happen so rarely that for all practical purposes they essentially don’t happen. So why institutionalize abuse for the one in ten million chance that it might be needed? Once we permit abuse interrogtors will always use it, in fact they will be expected to do so. The gulf that separates America from the countries that we claim to hate will grow that much smaller. Are we really in a clash of civilizations? Maybe so, although that sound simplistic to me. But if we are then gratuitously degrading our detainee standards will hand the terrorists a victory without them having to fire a shot.
At any rate for basic practical reasons the debate always struck me as completely misguided. When that once-in-a-decade event comes arounds where an interrogator does bend the rules and save a million lives that person can pretty much count on a presidential pardon, if the prosecutor even bothers filing charges. Codifying this rare, arguably effective and unquestionably degrading behavior into law seems like a perfect case of throwing the baby out with the bathwater, at least as far as the debate is currently framed. In that vein Josh Marshall has a reader who more or less sums up my feeling about what is actually happening:
Besides prosecutorial discretion and jury nullification, there is always the presidential pardon option. To me, this demonstrates that Bush doesn’t have in mind rare cases of torture- which, if proved vital, or event useful, could be pardoned. He wants it to be a regular procedure, for which pardons would be unwieldy given the number of people needing them.
The president does not want to reserve the right to torture on the rare occasions when it might help. He wants torture to become who we are.