This idea was not a practical deterrent for reasons which at this moment must be all too obvious

Back in the early blog days, I used to read Instapundit regularly. Compared to the neanderthal wingnuts I commonly sparred with on bulletin boards and the like, he was a breath of fresh air. But, after 9/11, like so many, he stopped making sense on a regular basis and I ended up having to put him in the “life is too short” file. Since then, when I do check in over there or follow a link I am quite stunned at how knee jerk he has become, even while there are nuggets of good sense still sometimes tucked between the lines.

Yglesias reminds me today of both why I used to like him and why he is so insufferable today:

I find it hard to respond to these things in terms of cost-benefit. My law school mentor Charles Black once said that of course you can come up with scenarios — the classic ticking-nuclear-bomb example — where torture might be justified. And you can be sure that, in those cases, if people think it’ll work they’ll use it no matter what the rules are. But there’s a real value to pretending that there’s an absolute rule against it even if we know people will break it in extraordinary circumstances, because it ensures that people won’t mistake an ordinary remedy for an extraordinary one.

Well said.

I also think that the rather transparent effort to use this against Bush — often by people who think nothing of cozying up to the likes of Castro, for whom torture and murder are essential tools of governance — has caused the Abu Ghraib issue to be taken less seriously than perhaps it ought to be.

Taking the second part first, when, exactly, did Reynolds decide that he had to ass-kiss the Right with such sycophantic upside downism? It’s “the Left’s” fault because if they didn’t make such a big deal out of it — and hold Bush accountable — people would take the issue more seriously. What Gillepie-esque nonsense. It’s that kind of hackery that makes Reynolds unreadable.

The first part of his analysis, as Yglesias points out with his “well said”, is quite interesting and relevant, however. It’s one that people don’t talk much about, perhaps because to debate it openly would render the concept useless. It’s a bit cynical and even a bit dishonest, but Yglesias can see the utility of it and so can I, Dershowitz’s torture[d] theories notwithstanding.

The idea that the “ticking time bomb” scenario might call for someone to break the law (and face the consequences of doing so) gets to the nub of our concerns with torture and the right of self-defense. As Reynolds points out, people will likely employ torture in a real ticking time bomb scenario whether it is legal or not. It is ridiculous to think someone wouldn’t if the scenario were as straightforward as it’s always presented. But, by outlawing acts of torture in all circumstances you prevent using torture in interrogations that are not ticking time bomb scenarios because you force the person who breaks that prohibition to show that it was a matter of self-defense. The bar is high. It must be so obvious that prosecutors or a jury of your peers can see that your actions directly saved the lives of specific would-be victims.

It would be a transparent legal process that everyone can judge based on the specific facts of the case. Finding that someone acted in self-defense under these circumstances would no more nullify our prohibition against torture than finding a policemen who acted in self-defense by shooting an armed man threatening people at a bus stop nullifies our prohibition against murder. The individual circumstances, reviewed in an open legal process, are all that would ever be required to justify the “ticking time bomb” torture defense. And, since there are an infinitesimal number of ticking time bomb cases, this specific circumstance is interesting but largely theoretical and therefore it’s actually a red herring.

The real problem we face here is determining what does and does not constitute a ticking time bomb and what does and does not constitute self-defense. And, that is where the Bush administration has gone so far off the rails as to be flying.

It’s not just that the torture memos explicitly give the president unprecedented powers to set aside the laws of the land (something the “libertarian” Reynolds should at least get a little bit exercized about), but that after 9/11, the Bush administration decided that the definition of self-defense is unlimited, even including preventive war. Under their definition pretty much anything goes. Somebody looks at you sideways — kill him. Why take a chance he might have a gun and shoot you first? Somebody says somebody might have some useful information? Torture him. It could save lives. In that sense, all threats, real or imagined, immediate or potential, are considered ticking time bombs that we have a right and obligation to diffuse any way we can.

This definition of self-defense is what makes it possible to excuse wanton torture, unprovoked aggression, lying and manipulation and usurpation of democracy itself. And what makes it so dangerous is that it allows it to be done under the rubrik of patriotism and the rule of law.

I have no doubt that many Americans see any act that might prevent further attacks as justified. Perhaps there are even quite a few who believe that if many thousands of innocent people, including children, are swept up in this “preventive” activity, it is a sad but necessary and moral thing. But, in order for this make any sense at all one would have to assume that the government has some idea what the threat is in the first place and knows who can tell them what they need to know to prevent it.

Unfortunately, recent events have just proven on the grandest scale imaginable that our government wouldn’t wouldn’t know a ticking time bomb if it fell into the oval office with a goddamned sign on it. The Bush administration did, after all, just invade a country on the basis of a threat that simply didn’t exist after ignoring people running around with their hair on fire for months about a threat that actually did. I’m afraid I just don’t have a lot of faith in these fellows’ ability to know when we are and aren’t being threatened. So, perhaps it’s best not to leave the definition of what constitutes self-defense in the hands of such incompetents and rely instead on the long established legal definitions that stood us in good stead through 223 years. Human beings, it turns out, aren’t very good at playing God.

The extreme overreaction of the government to the attacks of 9/11, heinous as they were, and its subsequent willingness to dispose of all previously agreed upon limitations to its ability to act in “self-defense” led directly to pictures of torture being shown all over the world — pictures symbolizing American indecency, immorality, incompetence and relentless will to power. And there is a paper trail that leads directly to the oval office where the man who sits behind the desk there says that he never ordered anything illegal and the world should be comforted by that.

If not that man, then who should we hold responsible for the utter vacuousness that has replaced a previously complex system of belief in the rule of law and inalienable human rights with a lizard brain definition of self-defense they wrap in meanlingless terms like “moral clarity?” The only people I see imitating Castro these days are sitting in the White House.