Why should we pass a law that forces someone to choose between breaking the law (thereby risking his/her own freedom) and saving a city? How absurd? John McCain argues his law should be broken if it might prevent the successful interrogation of a detainee and protection of a city. There are a number of practical problems with this as well. How does an interrogator know in advance that a detainee has information about a ticking time bomb? He may or he may not. If he believes he may, what then? Torture? Aggressive interrogation? How does an interrogator know the difference between torture and aggressive interrogation since McCain provides the interrogator with no guidance of any kind. (As Rich has said, where are McCain’s definitions?) And yet, doesn’t the McCain Amendment outlaw both torture and aggressive interrogation by including such phrases as “undignified treatment,” whatever that means? And won’t these terms be defined after-the-fact, when some lawyer representing a detainee sues an interrogator and ultimately drags him/her before a civilian court? And is there any evidence demonstrating that existing (military) law and adjudicative processes are unsound or ineffective? If so, let’s see it.

And where is all the evidence that U.S. armed forces and intelligence serves are engaged in torture? Is it widespread? Where is this occurring? McCain hasn’t made the case. We get mostly the same kind of platitudes he was famous for during the campaign-finance reform debate, e.g., the system is “corrupt,” money equals corruption, and so forth. Shouldn’t we stop beating up ourselves over this until such evidence is presented? We seem to be making law here based on hypothetical arguments, or worse — left-wing and enemy propaganda.