"If it's December 1941 in Casablanca, what time is it in New York? I bet they're asleep in New York. I bet they're asleep all over America."
- Humphrey Bogart as Rick in "Casablanca"
Everybody knows there are certain moral principles engraved in stone: Thou Shalt Not Kill, for example. Except of course in self-defense. Or war. Or in other cases of justifiable homicide. Don't lie, either. Except of course when the Gestapo is knocking on the door looking for the neighbors you've hidden in the attic. And torture is bad. That should go without saying, which is why every high-minded editorial page in the country seems to be saying it, for they all seem to have a knack for pointing out the obvious: Torture bad.
Ah, but what's torture - short rations? Being hooded day and night? Solitary confinement? Where does torture begin, just after harassment and just before death? Today's favorite example, issue, and shibboleth: Waterboarding! Is it ever, ever permissible? Even if it's not, do we tell our enemies they need not fear it? Such are the questions now holding up the confirmation of an exceptionally well-qualified judge named Michael Mukasey as the next attorney general of the United States.
The judge refuses to break down and say the magic words - "I won't allow waterboarding" - no matter how hard he's pressed by that Senate committee. Why not? Maybe because he suspects that, after reciting that pledge, others will be required of him until, step by step, he finds himself in the position of poor, beleaguered and mentally outgunned Alberto Gonzales.
For as counsel to the president, Mr. Gonzales found himself approving step-by-step torture memos specifying just how much torture/abuse/human degradation/minor irritation could be legally permitted. That way lies a lot of embarrassment and not much enlightenment - because it divorces such decisions from context, and therefore from reality.
Judge Mukasey may be wise enough to know that in practice the various Thou Shalt Nots depend on the circumstances, like the application of any other sacred principle. But what circumstances could possibly justify scaring a terrorist almost to death?
To cite the classic hypothetical: What if thousands of innocent lives could be saved by waterboarding one terrorist? Consider the case of Khaled Sheikh Mohammed, the mastermind behind the September 11th attacks. Word has it the he revealed al-Qaida's whole table of organization in Europe after being waterboarded.
Is there any ethically acceptable response to what has become The Great Waterboarding Question? Yes, there is: Don't deal in hypotheticals. Yes, by all means, outlaw torture, which is what the U.S. government has done, but why define it overmuch?
Instead, well-groomed senators in coats and ties and clean fingernails sit in their nice, spacious air-conditioned hearing room and tell CIA interrogators, military judges and all those whose duty it is to prevent another September 11th - and who have been remarkably successful, so far - what they may do and what they may not do when it comes to the care and feeding of terrorists.
Just where are the boundaries in this war on terror? That war has been so forgotten that some that some even object to its name. They'd much prefer to slip back into the dream of security that the country enjoyed during the 1990s as one attack after another was left to the usual criminal proceedings - before September 11th shook America awake.
How are we now to handle the terrorists that, through the great exertions of dedicated Americans and our allies, have fallen into our hands? As ordinary criminal defendants with all the rights and privileges appertaining to? What should the law say? What should the next attorney general of the United States say?
My answer: Not too much. Such questions are why we have judges and courts and the saving common law - to weigh the context of each case rather than pretend we can foresee each and every circumstance that will arise and draw up rules and regulations to cover every one of them in some comprehensive Napoleonic code of interrogation. A short word for that approach is folly.
There's a reason why the greatest of legal guides - like the Ten Commandments and the Constitution of the United States tend to be written in general terms.
The fabled case in good old Anglo-Saxon law is that of the British admiral who won a great victory by breaking the line of battle against orders. What was to be done with him? The court decided to decorate and hang him, not necessarily in that order. Those of us who think the administration of justice should consider context, and prefer to be guided by actual outcomes rather than abstract theory, can hope the admiral was pardoned while still drawing breath.
Surely such a solution would be satisfactory to all, with the possible exception of the enemy. Should some interrogator torture a highly illegal combatant in U.S. custody in the course of saving the Republic, he could be presented his reprimand, medal and pardon all at the same time. But if it turns out he's been torturing some innocent camel driver from the Hindu Kush, let's throw the book at him. All the books. Let's go by results.
Rather than start compiling a list of non-negotiable Thou Shalt Nots, the distinguished senators in that hearing room should come out against torture and leave it at that, which is what this administration finally did. The alternative is to follow the hapless Alberto Gonzales into the step-by-step mire of deciding just what is unallowable torture and just what is "only" degrading and inhumane treatment. Go down that road and we could wind up outlawing basic training.
Somebody needs to remind these senators, not to mention the various literati and glitterati that are so concerned about the lives of terrorists - no, the comfort of terrorists - that we're at war (remember?) and can debate these fine points after victory is won, maybe decades from now, just as we now debate Abraham Lincoln's suspension of habeas corpus, not to mention freedom of the press. Mr. Lincoln had a way of putting first things first, like the preservation of the Union.
Going back to first things tends to put such questions in perspective. So does remembering a little history. Like December 7, 1941. And September 11, 2001. Instead, they're still asleep all over America.