THE PUSHPIN PUNDIT

McCain Smarter than Krauthammer on Torture

(posted April 20, 2006)

Should we torture a terrorist to discover where he has hidden a nuclear time bomb? In discussing this hoary hypothetical case, people often confuse two issues: (1) whether torture should ever be done; and (2) whether torture should ever be legal.

Charles Krauthammer exhibits such confusion in a December, 2005 article titled "The Truth about Torture". In this article, Krauthammer criticizes Senator John McCain’s refusal to agree to exceptions to his amendment (now passed into law) banning “cruel, inhuman, or degrading treatment or punishment.” Krauthammer writes:

According to Newsweek, in the ticking time bomb case McCain says that the president should disobey the very law that McCain seeks to pass--under the justification that ‘you do what you have to do. But you take responsibility for it.’ But if torturing the ticking time bomb suspect is ‘what you have to do,’ then why has McCain been going around arguing that such things must never be done?

Here Krauthammer is being obtuse. McCain doesn’t say torture must never be done; McCain says torture must never be legal. This is the correct position. Government officials facing a ticking bomb case should if necessary violate the law – at their peril. But torture should never be legal, because any crack in the prohibition of torture lets in a flood of torture.

It might be objected: what if the government officials are sticklers for legality and refuse to torture, even in the ticking bomb case, unless torture is legal? But since we already know that U.S. government officials are willing to break the law and torture in far less exigent circumstances, that is not a telling objection.

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