Conservatives Without Conscience

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]