Legal Commentary

The New York Times wonders whether history might judge the Bush Administration's repeated use of torture (including 266 applications of waterboarding on two al-Qaeda detainees) favorably if it could be shown that torture yielded high-value information that kept the U.S. safe.  The NY Times reports: "In a twist this week, Mr. Cheney, a fierce defender of secrecy as vice president, called for the release of more classified memorandums that he asserted prove the effectiveness of the coercive techniques."  

The NY Times raises the idea that a truth commission might examine this question.  Admittedly, that kind of a truth commission would differ from the understanding that transitional justice scholars have of truth commissions, or the mandates of any of the truth commissions that have operated elsewhere these past two decades.

Military interrogators generally believe that torture does not produce valuable information. Those tortured in the Spanish inquisition, after all, claimed they were in concert with the Devil, and those tortured by the Khmer Rouge confessed to being in concert with the capitalists.  Independently of the question whether the causation Cheney claims ever could be established, should violations of international criminal law be permissible based on this consequentialist logic? If so, why not extend that logic into domestic police operations? Or as an assessment of the legality of other constitutional violations?

I have long thought that the ban on torture protected not only the tortured, but also the torturer.  The humanity of the tortured and the torturer become intertwined. That, too, is a consequentialist justification, I suppose: namely, refusing to torture protects our collective humanity and dissuades another rallying tool for terrorist recruitment.

Or, perhaps, we might be better served by a return to good-old-fashioned deontology and moral imperatives. Don't torture because ... torture is wrong, point final. What sort of country discusses the possible merits of repeated, systematic acts of torture?