Torture's Terrible Toll

John McCain writes in Newsweek about torture and our policies related to it. I am no fan of McCain, but on this subject he certainly has unique insights and considerable authority. Overall, I agree with the article and highly recommend it. I do think that there is one section he gets wrong, or perhaps a better term is that he should have gotten this section better:

Those who argue the necessity of some abuses raise an important dilemma as their most compelling rationale: the ticking-time-bomb scenario. What do we do if we capture a terrorist who we have sound reasons to believe possesses specific knowledge of an imminent terrorist attack? In such an urgent and rare instance, an interrogator might well try extreme measures to extract information that could save lives. Should he do so, and thereby save an American city or prevent another 9/11, authorities and the public would surely take this into account when judging his actions and recognize the extremely dire situation which he confronted. But I don't believe this scenario requires us to write into law an exception to our treaty and moral obligations that would permit cruel, inhumane and degrading treatment. To carve out legal exemptions to this basic principle of human rights risks opening the door to abuse as a matter of course, rather than a standard violated truly in extremis. It is far better to embrace a standard that might be violated in extraordinary circumstances than to lower our standards to accommodate a remote contingency, confusing personnel in the field and sending precisely the wrong message abroad about America's purposes and practices.

I think that McCain is wrong to place the responsibility of determining whether or not an urgent and rare instance justified extreme measure and hope that they will be exonerated. Acknowledging that there will be times when it is ok to violate such a law, and that in those instances it is better to ask forgiveness than permission seems to me to profoundly hurt the rule of law, and place an undo burden on the people who are in the front lines of protecting us. I believe instead that we should codify into law a method of granting an exception, probably via a Presidential Order. In the interest of assuring that this exception is not abuses, I would include a provision that all such orders must be declassified and published within a certain amount of time, perhaps 3 or 4 years. Update: Wretchard at the Belmont Club has this post up in which he claims that the McCain ammendment would not reduce torture, it would simply move it to other nations. It is an interesting perspective, and one that deserves some thought. I will say that a clear definition of what is, and is not, torture needs to be made in regards to any law. Avoiding making detainees feel bad is going to far in my opinion, but McCain has persuaded me that mock executions and waterboarding may indeed be going to far the other war. The real problem in all of this, is that for the most part partisan attacks (and defenses) seem to be quelling a serious debate that needs to be had over what we will and will not do, why, and what price we are prepared to pay for it.