Defending Torture

In an op-ed piece in today's LA Times, David Gelertner takes on the daunting task of defending Dick Cheney's efforts to exempt the CIA from John McCain's efforts to "prohibit cruel, inhuman, and degrading treatment of persons in the detention of the U.S. government. " It comes down to this: never say never.

Here's the argument:

Suppose a nuclear bomb is primed to detonate somewhere in Manhattan. . . and we've captured a terrorist who knows where the bomb is. But he won't talk. By forbidding torture, you inflict death on many thousands of innocents and endless suffering on the families of those who died at a terrorist's whim — and who might have lived had government done its ugly duty.

Here's the problem: In the hypothetical Gelertner poses, the law would be irrelevant. Does anyone doubt that torture would occur under these circumstances even if illegal?

The fact that one can imagine a case in which a heinous act might be justified is not a reason for refusing to make that act illegal. If it were, there would be no laws, since one can always imagine a case when breaking any law would be justified. What the law is intended to do is to prevent acts that are almost always wrong. We then rely on the administration of the law -- prosecutorial discretion, jury nulllification, etc. -- to deal with the very rare cases in which the prohibitions make no sense in light of the facts.

The salutory benefit of this apparoach is that it places constraints on those who find themselves in a position to run afoul of the law. Before they act, they must decide whether the harm to be avoided by torture (or any other illegal act) is so great that they are willing to go to jail to prevent it. Such a constraint seems very unlikely to result in preventing a person from doing whatever it takes to find the hidden nuclear weapon in Manhattan. But it might well be enough to prevent the sorts of routine abuses of detainees that have come to light as a result of the war on terrorism.

Update: If you are interested, the text of the McCain Amendment is posted here, on the Physicians for Human Rights website