The President’s Prerogative to Torture

Tom Palmer links to this truly remarkable clip of a recent presidential press conference.  In it, David Gregory asks the president what his reaction would be if a US operative were captured in Iran or North Korea and subjected to the type of treatment the administration is currently arguing for.  The response is typical Bushian avoidance and obfuscation, but the president over and over makes one point that I think is totally wrongheaded.

He repeats (I’m paraphrasing) that “you cannot ask a young intelligence officer to violate the law.  They will not violate the law…And that’s why we need to clarify and codify [our new] Common Article 3 interpretation so that officers have a defined standard to go by.”

The answer, of course, had nothing to do with the question, but I think President Bush isn’t making sense here.  Bush is trying to play to the ”ticking nuke” scenario that we’ve heard so much about.  (Whenever somebody starts with an absurd hypothetical and then starts reasoning backward in order to make policy, you know you’re in trouble.)

Mark Bowden, author of Black Hawk Down, took up this issue in the Wall Street Journal the last time the president was trying to defend torture.  Bowden argues that apropos of John McCain’s last attempt to pass a law prohibiting American torture (successful, but arguably negated by a signing statement from Bush)

Cruel treatment of prisoners is already banned. It is prohibited by military law and by America’s international agreements. American citizens are protected by the Constitution. I see no harm in reiterating our national revulsion for it, and maybe adding even a redundant layer of legal verbiage will help redress the damage done to our country by pictures from Abu Ghraib and reports of widespread prisoner abuses in Iraq and Afghanistan.

But Bowden got to the bottom line about torture, too, without any doe-eyed illusions about the nature of war:

The point the White House is missing here is that even with important captives like Khalid Sheikh Mohammad, official authorization for severe interrogation is not necessary. Just as there is no way to draw a clear line between coercion and torture, there is no way to define, a priori, circumstances that justify harsh treatment. Any attempt to codify it unleashes the sadists and leads to widespread abuse. Interrogators who choose coercive methods would, and should, be breaking the rules.

That does not mean that they should always be taken to task. Prosecution and punishment remains an executive decision, and just as there are legal justifications for murder, there are times when coercion is demonstrably the right thing to do.

That, it seems to me, is an essential point, and totally runs against Bush’s current protestations.  The president is arguing that, in the ticking time bomb scenario, the intelligence officer will just stand there, twiddling his thumbs and waiting for the Sears Tower to implode, because he doesn’t have preauthorization to slap around the terrorist.

That’s absurd.  People commit murder in extreme circumstances, and they have the chance to explain the extreme circumstances in a process of law.  Sometimes the circumstances are so extreme that they’re exonerated.  The point is that most murders don’t occur under such extreme circumstances, and you want the law to govern the broadest possible swath of situations.  The guy who beat up the terrorist–in contravention of the law–and in so doing defused the ticking time bomb and saved Chicago is going to be a national hero, should that ever happen.  No judge would convict him, no president would refuse to pardon him, and it’s hard to believe there’d even be much international outrage.

But Bush’s approach is to assume a lifeboat ethics hypothetical, and then reason backward to make the law.  (Bush even concedes during the interview that as to an intel officer in the ticking time bomb scenario, ”I know nobody’s gonna prosecute ‘em.”)

Bush should worry less that an intelligence officer is going to sit on his hands and watch the time bomb tick, and worry more about what writing torture into law would do for everyday interrogations.