David (and Jim), it doesn’t follow that if we allow torture against terrorists we should also allow it against all manner of domestic criminals. The premise of the best pro-torture argument is: while torture is normally reprehensible, there is one instance in which it clears the moral bar: if by torturing one person we can prevent the deaths of many others. So torturing a mugger or robber wouldn’t pass muster.

What’s been difficult for me about torture is that I can envision circumstances in which — theoretically — torture would be morally justified. In fact, I’ll bet that every single Democratic candidate, deep in the recesses of their private brain, would be prepared to break the law and torture a terrorist if they had strong evidence that doing so would save thousands of lives. One of the frustrations of this debate (and an advantage the Republicans have) is that the Democrats cannot say what I just wrote publically without unravelling the rationale for their position. The one who came closest to this candor was Bill Clinton, when he said he’d authorize torture in a ticking-time-bomb scenario (though he then retracted that when it conflicted with Hillary’s postion).
The problem with the government authorizing torture is not that torture isn’t theoretically defensible, it’s that no government — even ours — can be trusted to make that judgment correctly without scrutiny. In another part of the interview, (Bill) Clinton gave a curiously non-political idea for solving that problem: have the government be anti-torture but wink at the Jack Bauer’s of the world to proceed with torture but also suffer the consequences of punishment. At first this sounds insanely, well, Clintonesque. Let the guy torture the evil doers on our behalf but refuse to back him up? Immoral torture plus political cowardice in one policy!
But there’s something to this. If the person doing the torture knew that he’d be held accountable, he’d be very careful. And that got me thinking: what if we said that torture would be acceptable if the President authorized it, and if it was video taped, and everyone knew the videotape would be released — along with details of case — within 12 months of the torture. Watching someone be tortured would be unimaginably grotesque and horrifying. Most people would find it repulsive unless it actually saved thousands of lives. If it actually did, the President would be able to survive such a disclosure. It would become like Truman’s decision to drop the bomb — a rare, terrifying step that could only be used if the evidence for it was so strong that it could withstand public scrutiny. Crazy?