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.

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"that she still wants a law that mandates the Field Manual as the sole interrogation standard, but that she may be willing to be talked back from that position by the Obama Administration, if it chooses to do so."

How pathetic. If you're willing to compromise on torture, what principle, if any, ARE you willing to stand up for?

A group of retired flag and general officers visited Obama The Divine to urge him to adopt the Army Field Manual as the one and only standard governing prisoner interrogations. I hope they persuaded him.

-- Orville H. Larson

It's one thing to hold Obama's feet to the fire, but it is another to trash him at every turn by pretending that he is in need of being convinced or "persuaded" to do the right thing when has not said that he intends to do anything other than the right thing. Now, the interview of a retired general on Countdown is not The Word on Obama's policy intentions regarding torture, but the general does make himself absolutely clear as to what he believes Obama's intentions are and always have been.

According to the retired general found in the link that RMP posted of a KO interview they didn't visit with Obama "The Divine" to "Urge" him. They spoke with him and then noted to us viewers and listeners that Obama had not wavered from his long held "standard". Which was and has always been that the Army Field Manual is unequivocally the rule on no torture.

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.

But that gets to the futility of what you are trying to prove with the exercise - the importance of the actual reality, not just the abstract hypothetical. The government did in fact waterboard suspected members of AQ in the immediate aftermath of 9-11 (not sure if it was precisely a week after, but certainly soon after), and by nearly all accounts these practices not only did not yield useful intelligence, but in many cases produced bad information (in addition to ruining lives and causing all the other pernicious effects regarding terrorist recruitment, etc.).

Some weeks ago I noted the basic conundrum that the same exigency (ticking time bomb scenario) that someone like you thinks counsels in favor of torture in fact informs us of its lack of usefulness. That is, in an emergency situation where time is rapidly running out, a terrorist could easily provide misleading information that in fact thwarts government efforts to prevent disaster, without enough time to check the veracity of the information.

The dilemma is that sometimes you simply cannot extract meaningful information from a human subject in a short amount of time, using any method. Many people can't seem to come to grips with this, and insist that the only fault is in the physical restraint of the captors. This is an emotional response that I believe is based at least in part in a desire to see a "bad guy" suffer in some way for something that has or might occur.

Gotta go.

Scott Horton posted this update:

Update: Senator Feinstein Was Misquoted

But wait: it gets even better. The Times writers were busy yesterday explaining that the key news value of their story was its disclosure that two senators, most notably Californian Diane Feinstein, the incoming chair of the intelligence committee, were backing off the Obama team’s “no torture” pledge. Spencer Ackerman checked the quote attributed to Feinstein in the Times article, and discovered that one key sentence had been hacked off, creating the false impression that Feinstein was opposing the uniform anti-torture approach for which she had voted in the current session. Here’s the text that the Times elided: “my intent is to pass a law that effectively bans torture, complies with all laws and treaties, and provides a single standard across the government.” So when will the Times correct its distorted reporting? And what exactly were Mazzetti and Shane up to with this very bizarre submission?