Torture for Dummies

Michael Kinsley on the torture debate.

"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...

Drawing bright lines in foggy situations is what the law does. But good rules need to be defensible against salami-slicing in a more general way. The strength of an absolute ban on torture—or an absolute rule of any sort—is its relative immunity from salami-slicing, both in theory and in practice...

Will you eschew torture even when a few minutes of it, applied to a very bad person, would save a million lives? One answer is that the law wouldn't really be enforced in such an extreme situation...

There is yet another law-school bromide: "Hard cases make bad law." It means that divining a general policy from statistical oddballs is a mistake. Better to have a policy that works generally and just live with a troublesome result in the oddball case...

Of course a million deaths is hard to shrug off as a price worth paying for the principle that we don't torture people. But college dorm what-ifs like this one share a flaw: They posit certainty (about what you know and what will happen if you do this or that). And uncertainty is not only much more common in real life: It is the generally unspoken assumption behind civil liberties, rules of criminal procedure, and much else that conservatives find sentimental and irritating...

morality does not require us to build a general policy on torture around a situation that is not merely unlikely in real life, but different in kind from the situations we are likely to face in real life. What we would do or should do if this situation actually arose is an interesting question for bull sessions in the dorm, but not a pressing issue for the nation.

That's a pretty good rule for any policying - we should not 'build a general policy on [anything] around a situation that is not merely unlikely in real life, but different in kind from the situations we are likely to face in real life.'