Gonzo and Duhbya in a rowboat

Torture and the death penalty are in the same boat. And Alberto Gonzales is rowing Duhbya around in both of them. (What an ugly twist on The Life of Pi!)

Certainly, there are convicts who deserve death, for whom even death may be too good. There are also easily imagined scenarios where torture is obviously and overwhelmingly utilitarian and thus has a claim to morality and even obligation.

Alan Dershowitz has argued that we need torture warrants and a legal review process to approve them sparingly and justly. I look at our attempts to administer the death penalty justly and fairly (and I'm just not relying on the banality of evil seen in Gonzo and Duhbya), and I don't have great confidence in the usefulness of a legalism that permits torture.

In fact, the central problem of torture under the Bushists is that they made it the policy of their regime. They didn't just wink at it or tolerate a few excesses; they wrote memos justifying it legalistically (note: not legally) even while, for public consumption, they claimed that 'torture' meant only 'maiming or killing', which allowed them to make the Orwellian claim that they were not, oh no, torturing. And they promoted successful practitioners from Gitmo to Iraq.

In extremis, torture may be permissible, but it's not permissible to legalize it. Those who are closest to the need must take the risk if they think it is worth it, and we must have the right to second guess them and even punish them if we disagree. That's the harsh reality. (24, by the way, even agrees, or it did in Day 4 anyway; I found Day 6 unwatchable.)

A good analogy is how we handle cannibalism. We don't legalize it and define the circumstances when it is appropriate (Alive!, say). We recognize that it is illegal or at least immoral but accept a necessity defense. So it should be with torture.

Not every act-utilitarian moral act is subject to rendering into rule-utilitarian law.

The precedent punishment for torture in pursuit of war, particularly war of choice, is the death penalty. Reason forces me to acknowledge that both Gonzo and Duhbya are eligible for prosecution, along with Rummy and Darth Cheney, among many others.

It was for reasons such as this that the Republicans during the Clinton years refused to join the International Criminal Court at The Hague. When out of office, the Bushists also might want to consider not travelling to Belgium, for example, to avoid its almost American sense of its own jurisdiction. No ex post facto problem there!

If these alleged war criminals are ever duly convicted convicted, I'd be satisfied with them receiving the same punishment as Rudolf Hess. Hell, I'd be ecstatic.

(Originally a comment on Philosoraptor.)