What if you knew for sure that the cute little baby burbling and smiling at you from his stroller in the park was going to grow up to be another Hitler, responsible for a global cataclysm and millions of deaths? Would you be justified in picking up a rock and bashing his adorable head in? Wouldn't you be morally depraved if you didn't?
Or what if a mad scientist developed a poison so strong that two drops in the water supply would kill everyone in Chicago? And you could destroy the poison, but only by killing the scientist and 10 innocent family members? Should you do it?
Or what if an international terrorist planted a nuclear bomb somewhere in Manhattan, set to go off in an hour and kill a million people. You've got him in custody, but he won't say where the bomb is. Is it moral to torture him until he gives up the information?
Questions like these have been pondered and disputed since the invention of the college dorm, but rarely, until the past couple of weeks, unstoned. Now the last of these golden oldies—about the terrorist who knows where the bomb is set to go off—is in the news. Not because it has happened, but because of Sen. John McCain's proposed legislation forbidding the use of torture by the United States government.
It feels strange even to have to use the term "proposed legislation" about a subject like this. When you think of all the things the law forbids, with varying degrees of success, it is hard to believe that torture by public officials isn't on the list. But yes, according to the Bush administration, no law prevents our government from torturing (at the very least) nonuniformed noncitizens outside the United States. And the Bush folks like it that way. But others, including many congressional Republicans, don't.
That hypothetical terrorist with a nuke is central to the most (maybe the only) articulate argument against the McCain bill. The argument, made by Charles Krauthammer in the Weekly Standard, is, in a nutshell: 1) No rational moral calculus could possibly justify sacrificing a million innocent lives in order to spare the would-be mass murderer a few minutes of pain. And 2) once you accept that torture would be justified in one situation, avoiding the use of torture on other situations is no longer a moral imperative. The question becomes where you draw the line.
In law school, they call this second point, "salami-slicing." You start with a seemingly solid principle, then start slicing: If you would torture to save a million lives, would you do it for half a million? A thousand? Two dozen? What if there's only a two-out-of-three chance that person you're torturing has the crucial information? A 50-50 chance? One chance in 10? At what point does your moral calculus change, and why? Slice the salami too far, and the formerly solid principle disappears.
Krauthammer stops at two slices. In addition to the terrorist-with-a-nuke, he also would torture a high-level terrorist to get information that is needed on a "slower fuse." When there is less urgency, he says, "the level of inhumanity" of the torture should be "proportionate to the need and value of the information." He has sundry other requirements involving procedures for authorizing torture and keeping the military out of it. This last one is not because (based on recent experience) he doesn't trust soldiers with truncheons and electrodes, but because he believes that the military should not be tainted by the sordid business of torture.
Krauthammer's proposed rules are fairly restrictive. That is a selling point: They are far from a wholesale endorsement of torture whenever it might prove useful. They acknowledge the humanity, even the human rights to some degree, of torture subjects. They aspire to no more torture than is necessary in any particular case. If these rules were enforced as punctiliously as their author lays them out, the U.S. Government might not find itself torturing a lot more people than it is torturing already, under various legal theories or none at all. And let's face it, we live with what's going on now. Most of us don't like it. But few of us are doing much to stop it.
But where do Krauthammer's rules come from? They have no obvious connection to the reasoning he uses to endorse torture in principle. They are just his opinion. This makes their careful limits more alarming than reassuring. There is no reason to suppose that if Krauthammer's reasoning was accepted, the result would be Krauthammer's rules. Once we are rid of the childish notion of an absolute ban on torture, there is no telling where adult minds may take us.