The Bush Heuristics

As you may have heard, Jose Padilla has finally been indicted---but not on a charge of attempted dirty bombing. Now, this may come as a shock, but it turns out that the evidence for his being a dirty bomber was worthless, and also obtained through torture, which we do not do. Jack Balkin notes:

The Bush administration is desperate to avoid accountability on its detention and interrogation policies not because of what it may need to do in the future but rather because of the illegality of what it has already done. As a result, Administration officials dropped any mention of the previously touted "dirty bomb" plot against Jose Padilla, because prosecuting that theory would lead to inquiries about what exactly it had done to get the information that formed the basis of the accusation.

This suggests a rule of thumb. There's no denying that some members of the administration might believe that torture works, even if they're wrong---or, more likely, only care about maintaining unfettered executive power and are indifferent to whether or not torture works. So the rule is this: anytime a member of the administration argues for or acts in favor of a pro-torture policy, it's as likely that his pro-torture position is about limiting legal liability for the administration as it is about holding sincerely pro-torture beliefs (the two are not exclusive). This is not calling the pro-torture argument defective because of the motives of its advocates (that would be genetic fallacy); this isn't about the merits of the pro-torture argument at all. It's about administration officials using a theoretical debate about torture to immunize themselves from prosecution. When they talk about "protecting the country from future attacks," they're referring to covering their own asses from accountability for crimes---let's not mince words, crimes against humanity---they committed or abetted.