Guantanamera

There is a group of Guantanamo inmates that, though evidence that they've committed acts of terror is insufficient/flawed/lacking, has been deemed by the Pentagon to be "too dangerous" to be released -- the argument seems to be that if they were given some measure of due process, they may very well go free and then try to launch a terrorist attack.

I think a commitment to the rule of law means we actually have to be okay with that. We should and will still try to interdict them, of course, but it could very well happen that the above nightmare scenario actually takes place. Scary, for sure. But the whole point of the rule of law is to cut against fear and caprice, and though a fear may turn out to have been warranted, it's not a good enough reason, if we care about the rule of law, to bring down the power of the state on someone. Civil liberties would be meaningless if they perfectly overlapped with our emotions and instincts.

That is actually why I'm a little sketched out by the "don't torture because it doesn't work" argument. It takes honoring civil liberties and lines them up perfectly with our emotions and fears - we're saying, "uphold civil liberties because you're not giving up any safety to do so."

Because it could be that torture does work. In fact, no one is seriously saying that the reason torture doesn't work is that people are resistant to it. No one is resistant to it. From what I can tell, the "torture doesn't work" argument works like this: if you torture 10 suspects, you'll have 9 false leads and only one good one - and you won't have the manpower to track down which is which. So, don't torture, because we don't have the manpower for it.

I'm not suggesting that people who make this argument believe they're making a moral justification of a prohibition of torture. It's just a pragmatic reason not to torture. But it seems to me that persuasion-wise, we're putting a lot of eggs in the pragmatism basket, and hearing less often that torture is just plain wrong. Even if it were to work.