Tortured legal reasoning

The cato blog has an excellent (and short) post on Bush’s apparently imperiled pet legislation regarding torture.

It’s frustrating to me that the vast majority of media outlets fail to discuss issues like this with the clarity and simplicity of this cato post. The basic issue is a straightforward bit of legal philosophy.

Most people would agree that, generally speaking, torture is immoral. However, we can all imagine extreme circumstances in which we might be willing to sanction torture, cases in which the alternative is much worse. We’ve been hearing a lot about the ‘ticking time bomb’ scenario lately precisely because this is the kind of extreme circumstance that would cause most of us to reconsider an otherwise reasonable aversion to inhumane treatment of a prisoner who may well be innocent.

So, is it better to have a law that prohibits or authorizes the immoral act? The severity of prohibition would be alleviated greatly by the fact that, in the truly extreme case, it is likely that punishment would be minimal, while authorization for the sake of the rare extreme case opens a pandora’s toolbox for the everyday interrogator.

It all revolves around due process. In the case prohibition, due process (e.g., the protections granted by the 6th amendment) would help to ensure that extreme circumstances can be presented and explained in an attempt to justify a possible violation of a different bit of due process (e.g., the 8th amendment). In the latter case, this violation of due process would be codified.


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