The Cunning of the Hypothetical

Via TPM:

Sen. Joe Biden (D-DE) said that he'd been getting the impression that Mukasey really thought about torture in relative terms, and wanted to know if that was so. Is it OK to waterboard someone if a nuclear weapon was hidden -- the Jack Bauer scenario -- but not OK to waterboard someone for more pedestrian information?

Mukasey responded that it was "not simply a relative issue," but there "is a statute where it is a relative issue," he added, citing the Detainee Treatment Act. That law engages the "shocks the conscience" standard, he explained, and you have to "balance the value of doing something against the cost of doing it.

"What does "cost" mean, Biden wanted to know.

Mukasey said that was the wrong word. "I mean the heinousness of doing it, the cruelty of doing it, balanced against the value.... balanced against the information you might get." Information "that couldn't be used to save lives," he explained, would be of less value.

I saw Gordon Hull give a great paper on precisely this issue at the last SPEP. For Hull, the central issue seems to be the way in which the outlandish Jack Bauer scenarios--with their built in fictions of total knowledge--serve to commensurate the incommensurable. We pretend that Jack Bauer knows:

1. that there will be a catastrophic attack,
2. that the detainee knows where, when, and how the attack will take place,
3. that torture will get this information out of the detainee in time, and
4. that this information will allow Bauer to stop the attack.

Only through this elaborate pretense are we able to get something on the other side of the scale, against which we might weigh the acts of torture. The value of information doesn't hang in mid-air, after all. Shocking the conscience is just a cost to be overridden by the value of the information. That we never know the "value" of information before we have it, and never know that the subject even has the information we imagine him or her to have doesn't need to slow us down, since the thought experiment short circuits our ignorance.

Call it the cunning of the hypothetical...

UPDATE: Digby:

If you don't know what they know, then you can't know in advance if what they know might save lives, right?

I honestly don't know why everybody's so hung up on waterboarding specifically at this point. If this is their legal understanding, then they can use the rack, they can break arms and legs and they can pull teeth out with a pair of pliers. There is no logical difference between any of that and waterboarding if the only moral and legal guideline is that "it might be used to save lives."

UPDATE II: Greenwald:

Mukasey can go and casually tell them to their faces that the President has the right to violate their laws, that activities which everyone knows is against the law are legal, and that Congress has no power to do anything about it. And nothing is going to happen. And everyone -- the Senators, Bush officials, the country -- knows that nothing is going to happen. There is nothing too extreme that Mukasey could say to those Senators that would prompt any consequences greater than some sighing and sorrowful expressions of disapproval.

UPDATE III: Michael "Faster, please" Ledeen:

...the absolutists are legalistic utopians, because they believe it is possible to draft laws, or regs, or guidelines, that will obviate the need for human decision. That is not possible, any more than the bureaucratic manuals or the military manuals on whatever subject will eliminate human error (although they do sometimes make creative enterprise more difficult). Some smart Frenchman once said that the key to good government was to know when to break the rules.

How does doing away with the rules constitute knowing when to break the rules? The absolutists have a far better understanding of decisions than does Herr Ledeen.

1. Cost/benefit analysis is not a decision procedure, but an avoidance of decision. It enshrines the hypothetical imagination as the seat of choice, and strives to reduce decision to a calculus (even if that calculus is wholly fictitious).
2. If breaking the rules is ever necessary, then the breaker ought to be self-possessed enough to admit he or she is breaking the rules, and responsible enough to face the prison sentence that follows with dignity.
3. The whole point of the argument about torture is about whether there ought to be rules or not, so Ledeen's whole post is just nonsense.