June 20, 2008

Dahlia Lithwick Raises A Question Bigger Than Torture [9:12 am]

Substitute “Constitution” for “anti-torture policy” in the second excerpted paragraph below and note the even greater aptness of the question she poses: Authorizing torture with the very best of intentions

If we manage to erase one hideously bad idea from our collective memories of the law in the war on terror, please, please let it be this one: Legal questions are neither “hard,” nor “novel,” nor “open” merely because someone at the White House didn’t like the legal answer that followed them. Easy questions don’t morph into tough ones just because you can find some guy willing to argue the other side. And if—as both Sands and Lederman have observed—Haynes and his colleagues shut down efforts by Jane Dalton, the legal adviser to the chairman of the Joint Chiefs of Staff, to review the techniques, then we truly are witnessing something astonishing: Haynes turned an easy legal question into a hard one by avoiding it altogether.

Which brings us back to Attorney General Mukasey, the editors at the Wall Street Journal, and Jim Haynes. Is it enough to say in hindsight that the men who knowingly gutted the American anti-torture policy were genuinely terrified of the next attack, genuinely bending to intense White House pressure, or genuinely behaving in “good faith?” I suspect they were genuinely all of the above. Are we prepared to commit ourselves to a legal regime—particularly in times of great national fear and uncertainty—in which the good faith of those who act, and act in secret, is all that matters?

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