Brad DeLong makes an excellent point about the torture memo:

It seems to me that Yoo misses a great many points. The hypothetical he describes--Osama bin Laden himself, a ticking nuclear bomb, a city that cannot be evacuated, et cetera--is not a situation in which torture should be legal. It is, however, a situation in which torture is pardonable. If you find yourself interrogating Osama bin Laden in such a situation, you do what you must do--and then you ask the president for a pardon. And the president has the power to give you one.

That's what the procedure is with respect to torture. And I think that's what the procedure should be.

As a nation we have no compunction about asking our defenders to risk death in order to protect us. Why are we so lilly-livered about asking them to risk legal hassles? Is it really worth sacrificing the legal protections that previous generations fought (and yes, died) for in order to spare someone in a highly unlikely scenario from having to ask for a pardon? I don't think so. Not only is the indictment vanishingly unlikely to ever be brought in the first place (since it would destroy the career of the attorney general who brought it), but even if a jury could be found that was willing to strictly construe the applicable law, there is still the presidential pardon available as a final stopgap.

The reason the administration wants to have the rubber hose option legally available has nothing to do with the ticking bomb scenario. The ticking bomb is such an unambiguous case that even a blatant violation of the law is not going to be punished. The scenarios in which the legal loopholes are needed are the ambiguous ones, the ones where finding an AG willing to indict, a jury willing to convict, and a president unwilling to pardon are a real possibility. It is precisely those scenarios where torture should not be used.

The alternative is a legal regime in which torture can slip through the cracks, growing in application to more and more crimes and suspected crimes. Once our expectations are renormalized to allow torture on people suspected of terrorism, it's only a matter of time before major drug crimes are included under the theory that drug money funds terrorism. From there we slouch on to lesser drug crimes, cybercrime, and so on. Perhaps you trust the current administration not to slip down this slope. But do you trust all possible future administrations?

What we give up by not legalizing torture is a small measure of safety. What we lose by legalizing it is not just the moral high ground, but also our own future safety from abuses by our own government.

The instinct to legalize torture comes from the same misguided mode of thinking that wastes time and effort figuring out all possible scenarios in which it's legitimate to violate traffic laws. Nobody is under the impression that it's wrong to blow a stop sign if you've got a guy in the back seat with arterial bleeding and you're headed for the hospital. There is no need for a legal exception, and if a cop stops you he'll more than likely give you an escort. Ditto the ticking bomb - if Alan Dershowitz is around, he'll help you clip the electrodes to the guy's nuts.

Good post.
Josh Marshall made a similar point when the memos came out, reviewing Jefferson's thoughts on the matter of legal limitations on presidential power:

But that wasn't the end of [Jeffereson's] point. Having taken such a [extralegal] step, it would then be the obligation of the president to throw himself on the mercy of the public, letting them know the full scope of the facts and circumstances he had faced and leave it to them -- or rather their representatives or the courts -- to impeach him or indict those who had taken it upon themselves to act outside the law.

The federal government should not be in the business of shortcuts - unless the main road is quite definitely blocked.

All the more reason to keep the 2nd amendment around. One of the primary purposes of the 2nd amendment is that an armed citizen has the potential to protect themself from the egregious injustices of their government.

Also in many ways the current justice system can be called a form of torture. I spent a couple of days in a 3-day hold at the lovely Lou Sterret county jail here in Dallas one time. We had sewer water up to our ankles because of a faulty plumbing system. The leak was coming from an upstairs cell so we had our very own sewage water fall. It took the gaurds about a day to get off their asses and give us a bucket, a mop, and a floor squeegee to clean up the entire hold. Then, after all the water was picked up a couple of guys decided to get in a fight and they started hitting eachother with the mop and squeegee handles. Fun, fun times I can tell ya.

One of the primary purposes of the 2nd amendment is that an armed citizen has the potential to protect themself from the egregious injustices of their government.

I dont think that interpretation has been operational since the Civil War.

Fair point about the prison and detention system though.

The trouble here is definitions.

Ok, fingernail splinters and burns are torture, right enough. What about isolation? Talking nasty? Making the subject stand for a long period of time, or other means of making them tired? Loud music of a type they don't like?

If anecdote is correct, there have been legal rulings to the effect that forcing a jail inmate to do without television is "cruel and unusual punishment." There are a lot of interrogation techniques that are designed to stress the subject; are they all "torture" and therefore illegal, too? (again from anecdote, apparently the Army interrogators have decided to err, if at all, in that direction, and are getting less info as a result. No, I have no links.)

The value of a law, whether it's styled as "legalizing" or not, would be to offer a definition that could be supported. I, personally, would restrict the definition of "torture" to infliction of physical damage, but that probably wouldn't survive; there are (good) arguments that suggest that mental damage is just as bad.

It's not an easy problem.

Regards,
Ric Locke