Responses to comments
1) First off, I agree that it can be a very dangerous precedent to try and figure out the exact moment at which torture is acceptable, because of Prof. Waldron's great point about the danger of underemployed professional torture artists sitting around. However, his answer still seemed elusive to me because he characterized the hypothetical as a corrupt question. Why corrupt? Because he felt like it was unfair that he should be forced to consider extreme circumstances which might push him to accept extreme interrogation techniques (which, incidentally, seemed like something Prof. Yoo was not even pushing for. This slight of hand that so many want to perform, wherein they assume that reservist guards at Abu Gharib were reading internal Office of Legal Council memoranda on international conventions so as to know what they could get away with is beyond absurd, especially in the absence of any proof whatsoever. I am reminded of a South Park episode, where a troupe of underground Gnomes is sure that if step one is stealing clothes, step three will be profit. They just have not yet figured out what step two will be, though they are sure that when they figure that out, steps one and three will be seamlessly connected. But I digress . . .). As Prof. Yoo kept trying to point out, though, we have been attacked already. He pointed out REAL terrorists who had been arrested from whom the United States has acquired real information.
2) The memory that WE HAVE BEEN ATTACKED by international Al Queda should be an answer to the comment that there is no ''morality in all this madness.'' One cannot say the Geneva Convention will never apply. It applies in all conventional wars which served as the mental model for the drafters of the Geneva Convention. However, this situation is different. It is a more extreme version of the conflict that so often arose between rebel groups and entrenched governments in the 1980's, for which (as Prof. Yoo pointed out), President Reagan actively refused to allow expansion of the Geneva Convention. Here is a very simple point of morality: our elected officials are responsible for keeping the nation intact, even if it means infringing on what otherwise would be the rights of those terrorists who have vowed to kill Americans and have already perpetrated many devastating attacks. If this were a criminal law exam, the answer would be easy. All Al Queda members are part of a conspiracy to kill, which has been solidified as criminal by multiple overt attacks. Unless members disavow the conspiracy, they should be considered part of the effort. I am honestly surprised that so many find this, albeit extreme hypothetical, a cause for moral alarm. Even Prof. Waldron gave up the point, saying that in his ideal solution, after letting terrorists execute a massive attack against American soldiers, we would carry moral responsibility for our choices. He was right to point out that the terrorists would be infinitely more subject to damnation, but there is a moral choice in doing what one can to stop harm from occurring.
3) I will let you figure out for yourself the static moral quality of the tax debate. As Louis Armstrong said when asked to explain Jazz, ''Man, if you gotta ask, you'll never know. ''
4) In response to Anderson's comment, I think the issue of whether criminal liability could attach to an executive order to torture in these situations is complicated. For many such complicated points of international law, the international legal order relies on public opinion as its primary enforcement device. The theory is that since most treaties can never be enforced using state sponsored force, the most effective enforcement tool is public opinion. The corollary to this, though, is that if public opinion does not consider an executive action under a treaty a violation, then it is not worthy of enforcement, since mobilization of shame is the weakest international enforcement tool available. Prof. Waldron thinks the torture MEMO (again, not Abu Gharib), has brought internal and external shame to our country. If he is right, then we have been punished, and it would show a real harm to the policy (though perhaps not one which overcomes its benefits, and perhaps also a harm fueled largely by disingenuous opponents of the administration). However, I believe the world is filled with a lot of Senator Schumers, all of whom at some level agree with the need to at least contemplate more-aggressive means of information extraction if the ticking bomb was in their home town.