Former VP Cheney and others (including a commenter on this blog) have criticized the Obama Administration for releasing the Bush OLC memos authorizing harsh interrogation techniques but redacting information about the supposed effectiveness of waterboarding, etc., as a means of obtaining actionable intelligence. On its face, the criticism is odd because the legal prohibition of torture is a prohibition of effective torture as well as ineffective torture, as even the Bush OLC memos themselves acknowledge. The severity or permanence of injury that some technique does not differ at all based on whether or not it leads to truthful and actionable intelligence or simply leads to the person being interrogating saying whatever he thinks the interrogators want to hear. Thus, it appears that what Cheney and others are saying is: "Whether or not waterboarding was illegal, it was the right thing to do."
That's not an inherently implausible claim. Just about everyone who thinks about the question will recognize that there are circumstances in which the right thing to do (judged by whatever moral standards one has for assessing rightness) is to violate the law--even if the law is generally a good law. Jurisprudence scholars debate whether there is even a prima facie moral duty to obey the law, but even if there is one, surely that duty can sometimes be overcome by other moral duties. It takes an awfully strong commitment to the act/omission distinction to say that it's wrong to torture the terrorist who has hidden a doomsday device. Of course, such scenarios are highly unrealistic, but the point of such "ticking bomb" examples is to show that categorical opposition to torture must be rooted in something besides the claim that it is always and in principle wrong (although there are indeed people who think, on Kantian grounds, that torture is indeed always and in principle wrong, even if the consequences of not torturing are catastrophic).
The difficulty with the foregoing analysis may be that it gives too much credit to VP Cheney and others, who really do seem to be saying something like "if it worked, it's legal." But we can make some sense of even that sort of claim. The argument goes along the lines of the OLC memos and is rooted in the impulse to resolve legal ambiguity in favor of permitting conduct that looks a lot like torture. If you think that the legal prohibition on torture gets in the way of doing things that are morally best, then you will want to construe that prohibition as narrowly as possible. Although I disagree with the premises of this set of arguments, I do understand their structure.
Indeed, the structure is broadly similar to the structure of arguments liberals (who tend to be on the other side of the torture debate) make in other contexts. Consider the issue presented by the New Haven firefighter case currently before the Supreme Court, and race-conscious affirmative action more broadly. Conservatives argue that the constitutional guarantee of "equal protection" and (even more clearly) the statutory prohibition on "discrimination on the basis of race," forbid all race-based affirmative action and that liberals who favor such programs favor them despite the fact that they are unequal and discriminatory. From the conservative viewpoint, in other words, liberals think it is more important to advance their vision of society (e.g., racially integrated fire departments) than to follow the legal requirement of equal protection and the legal prohibition on discrimination.
But from the perspective of (us) liberals, that's mistaken. We say that the meaning of terms like "equal protection" and "discrimination" is sufficiently open-ended to permit race-based affirmative action. Indeed, we even understand such programs as designed to implement the equality and anti-discrimination norms. In other words, we make the analogous move to the one made by the Bush OLC memos: We see and resolve ambiguity to render our understanding of the law consistent with our vision of morality.
To be clear, I'm NOT saying that the moves are equivalent in all respects. I think that the interpretation of "equality" to permit some race-based affirmative action is much more legitimate than the interpretation of "torture" to permit waterboarding. John Yoo and Steve Bradbury would probably draw the opposite conclusion. But my larger point is that the interpretive moves have the same structure.
Posted by Mike Dorf