Torture: The difference between law and judgement
Radley Balko captures my sentiments regarding torture. He adopts a seemingly contradictory position, that torture should not be legal, but in the event it proves necessary, the president can use his pardon to forgive it — almost as if he’s saying it should be illegal, but allowed.
This position is only contradictory, though, if one operates from the assumption that law must cover every possible contingency. That assumption is an unfortunate result of our litigious and increasingly politicized society, wherein right and wrong are barely (if at all) distinguished from legal and illegal.
In reality, that something is legal doesn’t make it right; that something is illegal doesn’t make it wrong.
Another way to look at it is to consider the importance of judgement, in that sometimes you must make a decision using your knowledge, experience and intuition in circumstances that could not have been fully anticipated — in circumstances where the proper course of action can’t be written out in advance.
Thus, it makes sense to proscribe torture in general, because we want to sharply limit its incidence. Expressly allowing torture, even with restrictions, has a variety of negative consequences. I won’t repeat them here.
On the other hand, if some US personnel should find themselves in extraordinary circumstances wherein they believe, in good faith, that torture is the only way to procure information that would save lives, I hope they would do it. I would not want an attack to unfold because some people insisted on following the rules.
Put differently, this means “justified” torture would necessarily entail some risk to those doing it. There can be no blanket immunity: what sort of “public servant” wants special rights to brutalize people, but with no risk to himself? I would only trust someone to do something as awful as torture if that person was willing to put his career, even his freedom, on the line because he was confident there was no other way to prevent an attack. Someone who wants the power, but not the responsibility, cannot be so trusted.
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