Torturous Polemics

With the Gonzales approval rhetoric heating up in the blogosphere and the MSM the question of the "torture memo" seems to keep coming up (for a "left" take on this, see Mr Schraub's essay). There are three facets to this. First, what are the contents of the memo and their significance to the confirmation process. Second, how do we as a people feel about torture as a weapon in our arsenal used to defend our shores. And finally, how the ideological division will drive the discussion.

As to the memo, from the recent National Review an article (Dec 31st issue "Gunning for Gonzales" subscription required) by Lee Casey and David Rivkin Jr tells us

This memo, which was prepared by the Justice Department's Office of Legal Counsel (OLC), has become more controversial than Gonzales's own memo on the Geneva Conventions. Word on the Washington street is that the opinion was originally demanded by the CIA, which was concerned about its interrogators' facing unfounded criminal charges if coercive questioning methods were employed. The memo concludes that torture is unlawful, that any criminal prosecution would require proof of a specific intent to inflict severe pain or suffering, and that the federal statute criminalizing torture cannot, consistent with constitutional separation-of-powers principles, be applied to the president's detention and interrogation of enemy combatants in wartime. This last point is clearly the memo's most controversial, and although the OLC offers solid legal arguments to support each of its conclusions, they can certainly be honestly debated.

Few of the critics, however, have chosen to wade through the memo's 50 single-spaced pages of text, dozens of citations, and 26 footnotes to contest the substance of the OLC's work.

Damning? Well, IMHO not really. So in the in upcoming weeks as the battle royale is joined, recall if the actual contents of the memo are not discussed the person engaging in the discussion is probably just an partisan hack.

On the second point, the ethics of torture? I'm not going to get deeply into this discussion now. There will be plenty of time in the upcoming weeks during the confirmation hearings. For now, just a few shallow observations to get us started. Any ethical considerations we decide to use as a people must be fairly broadly based to get a national consensus. This may actually make the job of the ethicist in these situations easier as we may restrict ourselves to broader general principles. There is a gut instinct (especially on the left I think) to react with "torture is always bad". But over at Belmont Club (here), Wretchard makes plausible case that this is too simplistic.

Finally, it takes no great crystal ball to foresee partisan pyrotechnics being hauled out on this one. The Democrats and the MSM will try their damnedest to cut down the nominee. Why? Just because. It's quite juvenile actually.

Update: Link to Mr Schraub fixed. Thanks for letting me know about my mistake.