Hey fellas, I’m slightly off the reservation with you guys on this one. As longtime readers know, I’m a big believer in “hidden law.” This is just a fancy way of saying that written law should reflect the moral ideal whenever possible, but that doesn’t mean a more organic, natural law shouldn’t take precedence sometimes. If the law was the only determining factor, we’d get rid of juries. But we understand that sometimes context matters — a lot. I’m opposed to most “right to die” laws which would allow doctors the right to kill patients they saw fit. But I do think from time to time, doctors should do exactly that given a very complex and painful set of circumstances. I think it should be against the law for cops to smack around suspects. But I think every now and then a cop is doing the right thing when he smacks around a perp to set him straight (see link above).
Similarly, on this torture stuff I’ve always been sympathetic to the idea that we should ban it but wink at torture when we have to. That’s essentially McCain’s argument for the ticking bomb scenario.
That’s why, more or less, I’ve tried to stick to the moral argument about torture as opposed to the legal one. I resist the categorical and righteous insistence that torture — however defined — is existentially evil regardless of context.
I haven’t embraced the hidden law view entirely for a few reasons. First, I have a gut feeling that maybe the war on terror might be an exception to the rule. Second, I think that this whole debate is, to a significant degree, a sign that resolve to win the war is lagging. And, third, since torture is already illegal the new anti-torture push strikes me as an attempt to ban necessary coercion regardless of the context. Oh, and last, because I still haven’t made up my mind. But in principle I have to disagree with Andy that it’s “absurd” to make illegal what we expect officials to do anyway in certain circumstances.