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My two cents: It’s a great and invigorating piece (of course). But I don’t think it’s particularly helpful for critics of the McCain amendment because it puts the emphasis back on torture. Whatever may be the finer morals points about torture that Andy, Jonah, and Ramesh have been discussing, torture is already illegal (and should be in my view). The real practical question here is whether the McCain amendment would ban all coercive techniques that are often conflated with torture (with varying degrees of justification).

This goes to what is Krauthammer’s “exception number two” (the other exception is the mush-discussed ticking bomb). And here he really scores telling points I think:

As for exception number two, the high-level terrorist with slow-fuse information, Stuart Taylor, the superb legal correspondent for National Journal, argues that with appropriate legal interpretation, the “cruel, inhuman, or degrading” standard, “though vague, is said by experts to codify . . . the commonsense principle that the toughness of interrogation techniques should be calibrated to the importance and urgency of the information likely to be obtained.” That would permit “some very aggressive techniques . . . on that small percentage of detainees who seem especially likely to have potentially life-saving information.” Or as Evan Thomas and Michael Hirsh put it in the Newsweek report on McCain and torture, the McCain standard would “presumably allow for a sliding scale” of torture or torture-lite or other coercive techniques, thus permitting “for a very small percentage–those High Value Targets like Khalid Sheikh Mohammed–some pretty rough treatment.”

But if that is the case, then McCain embraces the same exceptions I do, but prefers to pretend he does not. If that is the case, then his much-touted and endlessly repeated absolutism on inhumane treatment is merely for show…

McCain should make it clear in his legislation whether he means to ban all coercive measures or not. Are water-boarding, cold rooms, loud rock music, uncomfortable positions, etc., etc. all banned? If not, which are permissible and in what circumstances? I might not agree with where McCain comes down, but at least then we could have a clear debate where everyone knows that we are taking about the same things. My guess, however, is that he will prefer to stick with the evasive preening.


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