The Corner

Torture: the Clintons & McCain

In the category of “Credit Where Credit Is Due,” there are some very interesting things being said about torture and coercive interrogation, and they are being said by President Clinton and Senator Clinton.

In today’s New York Sun, Alan Dershowitz — who, in the past, has advocated judicial torture warrants — discusses a recent interview in which President Clinton opined on the possibility of carving out a narrow, responsible, accountable exception to the blanket ban on torture for the so-called ticking bomb scenario. 

Meanwhile, earlier this week a report in the New York Daily News noted the barbs being hurled by Senator McCain’s camp at Senator Clinton for, similarly, embracing the possibility of an exception to the torture ban in order to coerce information from a captured suspect who has information about “an imminent threat to millions of Americans.”  In a pious display of chutzpah, a top McCain spokesman claimed to be “shocked Sen. Clinton would try to have it both ways.”  But, of course, Senator McCain himself has been quite adept at having it both ways — arguing for a categorical ban but conceding that he expects the ban to be ignored in exigent circumstances (notwithstanding that — having it yet a third way — McCain also occasionally says torture never works).  (See my article here recounting same.)

There is a serious and very necessary discussion underway here.  A far better exposition of the McCain position (absent the it-never-works-except-when-it-does palaver) has recently been offered by Judge Richard Posner in his intriguing new book about the Constituiton in a time national crisis (Not a Suicide Pact).  Posner — reminiscent of some of Jonah’s observations about the “hidden law” — argues that government will always have the power to torture, regardless of whether we give it the express authority; that it is the tendency of government to push all authority to its limits and beyond; and that the best way of limiting torture is a categorical ban — under circumstances where we can be confident responsible officials will coerce information by force in a truly dire emergency and that they are unlikely to be prosecuted for doing so.  Contra McCain, Posner is not claiming that torture is the worst of all moral evils; he is making a very practical case for how something that is evil but occasionally necessary can best be minimized.

The contrary position is the one I have argued — as have several others including Dershowitz and, now, the Clintons. The bottom line of the theory is that the best way to minimize torture is to recognize that it may sometimes be necessary, strictly regulate it, make a responsible high official sign-off and be accountable for it, and aggressively prosecute anything that falls outside of this legal regime. People have different ideas about how to accomplish it (Dershowitz, for example, favors court involvement and prior approval; President Clinton seems to argue for FISA Court involvement and a post hoc court review if necessary; I favor something more like the finding a president has to make for covert operations, with little if any court involvement). But the central idea is the same.

This is an argument very much worth having.  It is a side issue that you may suspect, based on prior experience, that the Clintons are acting out of calculation rather than conviction.  (For Sen. Clinton, this could be a sort of Sister Souljah moment — taking on Human Rights Watch on an important national security issue.)  The fact is that the media love the Clintons even more than they love Sen. McCain.  Unlike congressional Republicans who, for the most part, were cowed by McCain’s stature and voted overwhelmingly for the flawed McCain amendment last year (as, by the way, did Sen. Clinton), the Clintons don’t need to worry about being caricatured as the Marquis de Sade.  In any event, they are speaking out on this and making sense, and because of that we may be able to have the debate we should have had a year ago.

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