Dahlia Lithwick recently wrote a much cited (blog-wise) article on why the Bush Administration's moves to "clarify" the rules on interrogation and so forth should be looked at warily. She references an article by Jeremy Waldron which is entitled Torture and Positive Law: Jurisprudence for the White House. A draft copy was linked by Balkanization (most likely) sometime late last year, and I found it an excellent read. The core sentiment might be summed up thusly:
Why does the prospect of judicially authorizing torture shock the conscience of a scrupulous lawyer? Is it simply that the unthinkable has become thinkable? Or is it something about the specific effect on law—perhaps a systemic corrupting effect—of this abomination becoming one of the normal items on the menu of practical consideration?
It is simply against "the genius and spirit" of our law. Or, as one Slate frayster noted, we are Americans dammit, we don't do this sort of thing. Well, ought not. Btw as to specificity, perhaps we should also make a list of "cruel and unusual" punishments too. So, the state will know what isn't "cruel." Wink. Simply put, we cannot trust these people. Not that the Senate Republican alternative is ideal ... see here for continual coverage ... but even that is too much for the Bushies.
But, 9/11 changed everything, right? Wrong:
I have heard colleagues say that what the Bush Administration is trying to do in regard to torture should be understood sympathetically in light of these circumstances, and that we should be less reproachful of the Administration's efforts to manipulate the definition of "torture" than we might be in peacetime. I disagree; I do not believe that "everything is different" after September 11.* The various municipal and international law prohibitions on torture are set up precisely to address the circumstances where torture is likely to be most tempting. If the prohibitions do not hold fast in those circumstances, then they are of little use in any circumstance.
I want to add that I find the "everything is different" deal rather offensive. I know that it is considered lame by realistic sorts to rely on the offensive nature of the current bunch as reason to get those other than the choir to listen. But, I do find it offensive that somehow one set of attacks would be akin to a "reboot," starting everything anew. Shoot, even after the end of the world, everything is not supposed to change. You know, God is great(er) still etc. I saw smoke in the sky on 9/11 from mid-town Manhattan, but also saw blue. Like the proverbial rainbow, that gave one hope.
And, honestly, on 9/12, I did not suddenly trust Bush -- the person who I felt stole an election and didn't care for generally -- because basically I had to or something. This is the path of children, not to be snotty about it ... my cynicism (realism) turned out to be fairly on the money. Thus, it sort of annoys me when Al Franken goes on and on how he was sooo upset when Bush failed him afterwards. That there was a window there for him to step up and unite us. True enough as far as it goes, but wishing is not the same thing as a realistic hope. What did one expect from the guy? Did Hoover suddenly have a conversion from his small government philosophy -- honestly held -- when the Depression came?
Everything didn't change. Bush remained Bush. He gave one of his "great" speeches on 9/14 -- I didn't listen to them then either -- wanted more power than Congress wanted to give him, took the honestly no brainer (if in no way uncontroversial) path of invading Afghanistan (though the follow thru left something to be desired), and started on the road to torture, mistreatment, and illiberal (in the classic sense) government that the law review touches upon.
Well worth a read or skim.
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* Footnote here referencing the Committee of Ministers of the Council of Europe (the organization responsible for the European Convention on Human Rights) reaffirming an absolute ban on torture in 7/02 when adopting guidelines for fighting terrorism. Torture is something that is universally banned by international law, even if we deign to ignore it.
Quite honestly, I can foresee Pinochet-like consequences down the road. Not that Bush likes to travel outside the country anyway. Judge Bybee might want to stay away from them international judicial conferences down the road. Who knows what will come in a decade or two.