Tuesday, May 15, 2007
you can do what you like, there'll be no reprisal:
McCain merely flirted with the idea of taking executive "responsibility" for torturing terrorism detainees. (Sorry, for applying "enhanced interrogation techniques.") Mitt Romney pledged to do so outright, as did Tom Tancredo and I think Duncan Hunter. It's worth thinking this through.

It seems something of a corruption of Michael Walzer's "dirty hands" argument, which, applied to torture, stipulates that if, under extraordinary circumstances, a president must break the law, he or she is obligated to -- after the crisis passes -- publicly acknowledge the lawbreaking and submit to the mercy of the judicial system. Does anyone think for a second this would happen? Just today, James Comey testified that in 2004, as acting attorney general, he refused to reauthorize the warrantless surveillance program on grounds of illegality, but President Bush personally overrode the de-authorization. No one learned of the program until the New York Times disclosed it. Only today did Comey publicly confirm the incident, which is an unambiguous case of a president deciding his prerogative outweighs the law.

This is a much more likely template for future presidential action than the "dirty hands" case. Now that Bush has established the reprisal-free precedent that national-security emergencies allow a president to dispense with the law, his successor possesses little incentive to even acknowledge such excesses, and practically none to voluntarily accept adjudication or punishment. President X would expose him/herself as an angel, inadvertently weakening the value of the rule of law simply by example of his/her virtue, which refutes the need for the law in the first place. If Romney et al believes there are circumstances that demand torture, he needs to propose changing the law to allow for those cases, and see if the country accepts the contention. That -- rather than wrapping illegality in cloak of declaratory virtue, or debasing virtue by conflation with illegality -- would be "taking responsibility."
--Spencer Ackerman