Legislate for every possibility and the law becomes meaningless.

Alan Dershowitz discusses what he believes could be a flaw for the Democrats in demanding accountability on torture in today’s Wall Street Journal. He is wrong, because he has two flawed assumptions:

There are some who claim that torture is a nonissue because it never works–it only produces false information. This is simply not true, as evidenced by the many decent members of the French Resistance who, under Nazi torture, disclosed the locations of their closest friends and relatives.

This is fair enough, but it assumes that we’ve only tortured, or would only seek to torture, those who are guilty of some atrocity. What is the potential for collateral damage, to use a poor euphemism for torturing an innocent person? How many of the suspects we have in captivity are guilty? Will we ever find out, since the Bush administration shows no interest in bringing any of them to trial? I’m not interested in abandoning centuries of legal and ethical principles that every individual is innocent until proven guilty. Especially when that justification is expressed with a “do you want us all to die?” extreme, as Mr. Dershowitz provides:

The members of the judiciary committee who voted against Judge Mukasey, because of his unwillingness to support an absolute prohibition on waterboarding and all other forms of torture, should be asked the direct question: Would you authorize the use of waterboarding, or other non-lethal forms of torture, if you believed that it was the only possible way of saving the lives of hundreds of Americans in a situation of the kind faced by Israeli authorities on the eve of Yom Kippur? Would you want your president to authorize extraordinary means of interrogation in such a situation? If so, what means? If not, would you be prepared to accept responsibility for the preventable deaths of hundreds of Americans?

The proper question is whether or not the members of the judiciary committee, on a jury during a trial, would convict the president for authorizing torture in this unlikely scenario. People who oppose torture are not demanding punishment for every imaginable instance in which torture might be used. But demanding that every imaginable instance of torture be held to some minimum standard of accountability – with justice imposed where necessary – is the sane position.

The president should torture a suspect in the ridiculous, unlikely reality that he’s facing a suspect who he “knows” has the information he needs if time is essential and the suspect won’t talk. But if he is wrong, no amount of protest that he only intended to protect America will suffice. President Bush has justified every abuse of the last six years with this notion that any and all measures are good for us if we stay safe. No. Anyone who can’t understand that forfeits the opportunity to discuss saving a country he does not believe in.