As I said, I'm not entirely sure that I agree with Bowden on the last point - if we are going to say that some sort of physical coercion has to be allowed the most extreme circumstances, then part of me thinks that the allowance has to be built into the law in some sense, rather than being "handled with a wink, or even a touch of hypocrisy," as Bowden puts it elsewhere in the piece. But certainly his description of the slippery slope that follows from offering a broad "yes" to torture-lite looks awfully prescient today.
Now I gather that what Douthat means it that torture, if it is to be practiced at all, should be legally constrained. And at first glance it would seem that a system of legalized torture, where torture is limited by law to exceptional circumstances, is better than an ad hoc system where torture is practiced in the shadows when individuals either believe it's necessary or they can get away with it. But for an example of how this might work in practice, one need only look to Israel (via Andrew Sullivan):
In 1999 Israel’s Supreme Court prohibited issuing the General Security Service (GSS) with instructions on how to inflict what was euphemistically called “moderate physical pressure” on Palestinian detainees, as had been the custom until then, and ruled that GSS agents cannot be authorized to inflict such “pressure”. The Court cited the absolute prohibition on torture in international law. So far so good. However, when it comes to “ticking-time bomb” situations, the Court ruled that the case of a GSS interrogator who tortures (the Court too preferred a euphemism: “applied physical interrogation methods”) would then be considered by the Attorney-General, and if need be by the courts, where “his potential criminal liability shall be examined in the context of the ‘necessity’ defence” – a criminal law defence which, as currently held in Israeli law, justifies actions in extreme situations if they produce the “lesser evil”.
The result has been predictable. Within a couple of years the GSS itself was admitting it was torturing – oops! – euphemism time again: using “exceptional interrogation measures” – in dozens of cases annually. All were cases of “ticking bombs”, of course. Figures from human rights NGOs, such as the Public Committee Against Torture in Israel, have been much higher. Number of GSS interrogators convicted of torturing (or any other offence)? Zero. Prosecutions? Zero. Criminal investigations? Zero. Once introduced as a means of legitimizing torture, the “ticking bomb” and its legal corollary, the “necessity defence”, have overwhelmed the system.
Note, the Israel Supreme Court did not make torture legal. In their opinion they merely gave legal sanction to the use of the defense of necessity in torture prosecutions. Which according to Yuval Ginbar, apologists for torture then used to justify failing to even prosecute anyone for committing acts of torture. What should have been a rationale for defending interrogators from prosecution instead became a justification for torture itself. A legal concept with limited utility in courts of law (not only in Israel but here in the U.S.) because of the high standard that must be met, is transformed into some amorphous justification for not even bothering to prosecute interrogators, since in the court of public opinion almost any circumstances can justify the "necessity" of torture. Interrogators, knowing that they can concoct almost any scenario in which not torturing someone could cost lives, knowing that such concoctions will justify their torturing, are now free to torture as if it were completely legal.
Something similar happened here, as the Senate Armed Services Committee report makes clear. A list of specific techniques provided by top officials like Rumsfeld, turned into a torture free-for-all in interrogation rooms in Gauntanamo, Abu Ghraib and Bagram. Chaining someone backwards over their bed for a few hours is only one step beyond chaining them to floor in freezing room, after all.
And not incidentally, the legal rationales for torture provided by men like John Yoo and Jay Bybee, were never intended to truly survive judicial review. There were intended to be merely good enough for interrogators who might face future prosecution. They were counting on a court never being able to say "Well, the legal memo that you you, a non-attorney interrogator relied upon, is clearly legally insufficient and so now you will go to jail." They were betting that a court, faced with the prosecution of someone who relied on bad legal advice when following (or giving) orders to torture, would never be willing to send that person to prison for what they did. Maybe at some point we shall see if they were right.
The point is, a legal justification for torture merely provided an opportunity for interrogators and their bosses to find bright lines...and cross them. Each new technique was only incrementally worse than the technique used before it, and regardless, they could cite to legal memos justifying any and all techniques just in case they ever had to answer to a court for what they did. The end result was a regime of "legal" torture that resulted in numerous detainee deaths, questionable or useless intelligence, and a stain upon our reputation as a nation that it will take years to undo.
What Douthat fails to understand or accept after years of having seen torture in action, is that torture is a rot that spreads throughout whatever institutions that it touches. Once you permit the torture and abuse of detainees, no one can say where it should stop. Once you can say that one person can justify torturing another, who's to say who can't justify torturing another? Once you say torture can be applied to one person when necessary, when can you justify not applying it to anyone...when necessary? Once you permit the torturer to decide when it's necessary, when is it ever not?
Torture is outlawed, and should remain so forever. Every man or woman who commits acts of torture should know that they will face eventual prosecution, and be forced to justify to a court of law why it was truly necessary to torture, or face prison if they cannot. Only in this manner can we prevent torture from rotting our democracy, and our integrity, from the inside out. Conservatives like Andrew Sullivan understand this, even if conservatives like Ross Douthat do not.
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