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• Friday, December 5, 2008 04:06 AM

  @DCLaw

  The only possible way to avoid this is to create clear and unequivocal legal rules that would make torture a crime regardless of context, and then simply allow the potential failsafes of jury nullification, prosecutorial discretion, and perhaps even the doctrine of necessity to withhold punishment of a person who engaged in the illegal acts and did in fact procure intelligence that directly contributed to ameliorating or preventing an atrocity.

  If necessity is available as a defense, then torture is not criminal "regardless of context." Your larger point, however, I do agree with. You have recognized the ethical/legal dilemma presented to a president in such emergency circumstances, and you have proposed a practical manner in which a president might resolve it: Act contrary to the law for the greater good but take the risk that your justification may not be accepted after the fact. That's a reasonable position. To make this concrete: If Bush had waterboarded high-value AQ captures during the first week after 9/11 in an effort to discover whether other plots were imminent, then most Americans would have excused him, I believe. And rightly so. My focus in this discussion has been upon what the president SHOULD DO, not what the law SAYS he should do. The personal consequences for the president are another matter and, frankly, of less interest to me. That's why they get the big bucks.

  Ondolette:

  Thanks for the AFM info.

  I'm glad I checked this thread again. Thanks to all for an illuminating discussion of a very difficult issue.

  —wbgonne Read wbgonne's other letters
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