November 30, 2005, 12:53 p.m.
Tortured Debate, Tortured Timing
What and why?

As I try to digest the debate over torture — or is it aggressive interrogation? (not sure, as the terms are not being defined) — I gather that it is sometimes understandable (or is it acceptable?), but not necessarily moral, to torture a potentially culpable detainee who might have information that could save a U.S. city. It is never moral — almost never understandable (or is it never acceptable?) — to torture (or is it aggressively interrogate?) an innocent person who might possess information that could save a U.S. city (although, if one possesses such information, and refuses to divulge it voluntarily, then is one truly innocent?).

Sen. John McCain seeks to codify this treatment (or is it mistreatment?) of detainees, even though the law could be violated in extreme circumstances, although such circumstances cannot be adequately defined by codification. Nonetheless, McCain is credited with attempting to ban “cruel, inhuman, or degrading” treatment of detainees, which appears to go beyond banning torture and will result in the same "case-by-case application of the principle" that exists today — without his amendment. It's the legislative effort that counts, not so much the consequences of the effort. Yet, both the stated objection to torture by the executive branch, and the largely successful consequences of the executive branch's efforts, are to be afforded little credit. Indeed, some have argued that we should pass the legislation in the hopes of quieting America's critics among the European Left and the so-called human rights (a.k.a. antiwar) lobby — as if legislation will persuade virulent anti-Americans that America is good. In any event, false/wrong assumptions and accusations ought not to be a basis for setting detention and interrogation policies.

As a practical matter, codification leads inevitably to regularized litigation, which will lead to (further) judicial intervention in a uniquely executive-branch function — the commander-in-chief's ability to wage war respecting the detention and interrogation of unlawful enemy combatants. In the past, at least up until 2004, the judiciary refused such intervention. Judges are lawyers by training and experience, not military or intelligence experts, and ill-suited in this regard. They don't have access to the same information as the military and intelligence services. They don't have the analytical skills to make better judgments than those trained in war. Besides, that's not their role. I would think conservatives, who argue for originalism, would oppose expanding the judiciary's role on this basis alone.

As the judiciary's role expands, so too will the role of civilian lawyers, who previously had little or no say in the conduct of war, but will now be able to influence (mostly impede) the prosecution of war as they argue for expanded rights and protections for their detained clients. The list of due-process rights conferred on unlawful combatants will expand, as will the burden on the military in the midst of war. The criminal-justice system will swallow up more and more military options as the same judicial activists who use their authority to advance their personal policy preferences in other areas seek to influence national-security decisions.

Why are we doing this? This war has been fought far more "humanely" than any prior major war (including our three greatest wars — the Revolutionary War, the Civil War, and World War II). Where's the compelling evidence that the executive branch has instituted a policy of widespread torture of detainees? Why empower the ACLU and judges to substitute their priorities and views for an elected president and his military and intelligence advisers?

— Mark R. Levin is author of the best-selling Men In Black, president of Landmark Legal Foundation, and a radio talk-show host on WABC in New York.