Kinsley on Krauthammer on torture

One of my favorite journalists goes after one of my least favorite. But the whole thing gets bungled in the process, often by referring to clichés of law school (the problem with lawyers talking about ethics -- they speak in clichés inherited from PHIL 101, even as adults). At least Kinsley gets this point right: defenders of torture defend an actual (and apparently widespread) practice on the basis of an impractical and implausible hypothetical. Yes, life is filled with uncertainty, blah, blah. So, absolutes aren't all that absolute, blah, blah (Kinsley calls absolutists on torture "childish"). The "pressing issue" is not the hypothetical that Krauthammer sits in front of his chessboard (and white orchid -- remember, coldly calculating, yet capable of compassion) to contemplate, but the actual practice of torture in which the US is engaged to apparently only negative results (for all you utilitarians out there). The actual practice makes no such sliced up distinctions between innocence and guilt. There is no "ticking time-bomb." There is only submission, domination, and stupid people who obey the commands of a headless horseman.

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.

This is not to say that Krauthammer's killer hypothetical could never happen. It is to say that morality does not require us to build a general policy on torture around a situation that is not merely unlikely in real life, but different in kind from the situations we are likely to face in real life. What we would do or should do if this situation actually arose is an interesting question for bull sessions in the dorm, but not a pressing issue for the nation.

Every day American forces in Iraq and elsewhere probably inflict more pain on guilty and innocent people than officially designated American torturers would do in a year, even if Bush and company were free of any legal restriction. That pain is not necessarily unjustified (although I believe it is). But it makes the whole debate about officially designated "torture" artificial and symbolic, not to say deeply hypocritical. And yet supporters of the administration, the war, and the practice of torture have not leaped to embrace this argument, for some reason.