Reports indicated that Dick Cheney’s favorite argument—the one he made in trip after trip to closed-door meetings on Capitol Hill to get authority, at minimum, for the CIA to be able to torture—is the old “ticking bomb” gambit. So frequently has this specious argument been employed to justify torture that it deserves to be shot down with more than a passing reference. The argument runs like this: A nuclear bomb has been planted in the heart of a major American city, and authorities have in custody a person who knows where it is located. To save possibly millions of lives, would it not be justified to torture this individual to get the necessary information to stop it? Absolutely. Is not this lesser evil justified? Of course it is. And this argument is a wonderful means to comfort those who have moral problems with torture. Its beauty is that once you concede there are circumstances in which torture might be justified, morally and legally (through what criminal law calls the defense of necessity: that an act is justified to save lives), you are on the other side of the line. You’ve joined the torture crowd. To paraphrase Bush, you have joined the evildoers.
A number of great minds and moral authorities rely on this logic, so Cheney is not alone. Nonetheless, it is a bogus argument, a rhetorical device. It is seductively simple, and compellingly logical. But it is also pure fantasy. The conditions of ticking bomb scenarios are in the same remote category as a meteor or asteroid hitting earth. No one has more effectively probed the fallacies of this line of thinking than Georgetown University School of Law professor David Luban. Writing in the Washington Post, Luban explains why, while it makes good television melodrama, this scenario does not produce critical thinking.[72] Luban surgically dissects this argument at greater length in the October 2005 Virginia Law Review in his essay “Liberalism, Torture, and the Ticking Bomb.” Citing moral philosopher Bernard Williams, Luban wrote that “there are certain situations so monstrous that the idea that the processes of moral rationality could yield an answer in them is insane,” and “to spend time thinking what one would decide if one were in such a situation is also insane, if not merely frivolous.” As Professor Luban noted, “McCain has said that ultimately the debate is over who we are. We will never figure that out until we stop talking about ticking bombs, and stop playing games with words.”[73]
Senator McCain, joined by former military judge and current senator Lindsey Graham (R-SC), called the bluff of the White House, and pushed forward with his amendments. The U.S. Senate approved them overwhelmingly with a vote of 90 to 9 in favor.[*] (Senator Corzine [D-NJ], who was running for governor, was absent.) Not surprisingly, the House of Representatives, as far as the Republican leadership was concerned, was not willing to accept the McCain amendments. A year earlier Speaker of the House Dennis Hastert had tried to slip a provision into a law authorizing the CIA to torture. But he was caught, and the effort died. Senator McCain was negotiating with the House, and with the White House, when Congressman John P. Murtha (D-PA) forced the issue to the House floor, calling for a motion to instruct the House conferees to accept the language of the McCain amendments. “No circumstance whatsoever justifies torture. No emergencies, no state of war, no level of political instability,” Murtha, a heavily decorated and much respected veteran, said. Only one lonely voice dared to speak against Murtha’s motion: Congressman C. W. Bill Young of Florida opposed the McCain amendments because he did not believe terrorists should have the protection of our Constitution. That argument was absurd; terrorists already have that protection, and McCain’s amendments do not change the existing law. Young’s contention went nowhere, and the subsequent vote sent a clear message to Bush and Cheney: The motion carried by 308 yeas and a remarkable 122 nays (all authoritarian).
Bush later invited McCain to the White House and at a photo-opportunity session in the Oval Office appeared to concede and back down. Cheney was not to be seen, for he was no doubt busy making sure the signing statement Bush would issue would make clear that the White House did not believe the Congress could tell the president (read: Cheney) whether he could or could not use torture. The artfully worded statement said, “The executive branch shall construe [the McCain amendment law] in a manner consistent with the constitutional authority of the President…as Commander in Chief,” adding, that by doing so it “will assist in achieving the shared objective of the Congress and the President…of protecting the American people from further attacks.” As the Boston Globe reported, a number of legal scholars read this, as I did, as Bush and Cheney saying, We will do whatever we want, notwithstanding the law prohibiting torture.[74]
Cheney sent a clear signal of his plans for the ongoing efforts to further enhance presidential powers by elevating David Addington, his former counsel, to replace his indicted former chief of staff, Scooter Libby. Addington is a low-profile, high-powered, table-pounding, sarcastic when-not-shouting-in-your-face attorney.[75] Addington is a paradigm authoritarian, instrumental in gathering the team of lawyers who prepared legal opinions for the Department of Justice authorizing American interrogators to engage in torture. Addington teamed up with John Yoo, a law professor who clerked for the most far-right members of the federal judiciary—first Judge Laurence Silberman of the D.C. Circuit Court of Appeals, and then U.S. Supreme Court Justice Clarence Thomas—and who had never met a presidential power that Article II of the Constitution excluded. Together they worked on figuring out how to get around criminal laws that prohibit torture and electronic surveillances of Americans. In doing so they have offered highly specious arguments that start with the end result they seek and twist the law to fit the conclusion they want to reach. Not surprisingly, they have horrified the intellectually honest legal minds of other conservative Bush lawyers, like former deputy attorney general James Comey, who got out of the Justice Department, it appears, as quickly as he could. And former assistant attorney general Jack Goldsmith left Justice when he had had enough of Addington’s power tantrums.[76]
Addington, who was in his early teens during Vietnam and Watergate, reportedly shares the view of his boss that “the executive branch was pitifully weakened by the backlash” to these events.[77] One has to wonder about Cheney and Addington’s motives in seeking to restore the presidency to what they believe to be its pre–Vietnam and Watergate backlash days. Are these men unaware of why Congress clamped down on presidents’ spying on Americans? Have they not read the transcripts of Richard Nixon pounding on his desk to demand a break-in at the Brookings Institution because he wanted documents he believed to be in their vault? Could they be unaware of the record of J. Edgar Hoover’s FBI when it had unfettered powers? Why, if the powers of the presidency are wanting, do they not go to Congress and lay out what they need, rather than violating the law to see if they can get away with it? Do they not realize they are calling for—and are busy implementing—an authoritarian presidency, unchecked by the Congress or the courts? Have they forgotten that the underlying ideal of our democracy is the rule of law—not rule by presidential whim? It is still not clear how far these men want to take their authoritarianism, but I cannot find any examples of authoritarians leading any government where the governed wanted to go.
73.
David Luban, “Liberalism, Torture and the Ticking Bomb,”
*
The nine senators who voted against McCain’s amendment—and