Tuesday, December 13, 2005

Hammering Kraut

Sullivan may have responded to Krauthammer's pro-torture piece, but ain't nobody does it better than Kinsley. I think the best part Kinsley gets about this is the sheer exasperation of having to even argue this point.

Or what if an international terrorist planted a nuclear bomb somewhere in Manhattan, set to go off in an hour and kill a million people. You've got him in custody, but he won't say where the bomb is. Is it moral to torture him until he gives up the information?

Questions like these have been pondered and disputed since the invention of the college dorm, but rarely, until the past couple of weeks, unstoned.

The guts of it is that this ticking time-bomb shit is ridiculous. I responded with the flaws in Krauthammer's argument when Senor C put it forth, but Kinsley does it so much better, and explains why Krauthammer's cautious posturing is more like cartoonish contortioning.

There is yet another law-school bromide: "Hard cases make bad law." It means that divining a general policy from statistical oddballs is a mistake. Better to have a policy that works generally and just live with a troublesome result in the oddball case. And we do this in many situations. For example, criminals go free every day because of trial rules and civil liberties designed to protect the innocent. We live with it.

Of course a million deaths is hard to shrug off as a price worth paying for the principle that we don't torture people. But college dorm what-ifs like this one share a flaw: They posit certainty (about what you know and what will happen if you do this or that). And uncertainty is not only much more common in real life: It is the generally unspoken assumption behind civil liberties, rules of criminal procedure, and much else that conservatives find sentimental and irritating.

Sure, if we could know the present and predict the future with certainty, we could torture only people who deserve it. Not just that: We could go door-to-door killing people before they kill others. We could lock up innocent people who would otherwise be involved in fatal traffic accidents. Civil libertarians like to believe that criminals get their Miranda warnings and dissidents enjoy freedom of speech because human rights are universal. But if we knew for sure that a newspaper column by Charles Krauthammer would lead—even by a chain of events he never intended and bore no responsibility for—to World War II, wouldn't we be nuts not to censor it? Universal human rights would make no sense in a world where everything was known and certain.

It's exactly that two-fold problem with the Krauthammer argument (the last argument, and not a good one) against McCain's legislation. First, that Krauthammer basically wants generally policy to be derived from the most extreme situation possible, and second that it assumes absolute certainty in a case where that's not only completely unlikely but would make the situation all the more clinically-concocted and absurd. Embracing these two assumptions would likely lead to tortured logic and all sorts of psychotic situations described by Kinsley if embraced as the standard for policymaking.