There are a number of people who believe, deeply and honestly, that torture is a necessary tool in the struggle against terrorism. These folks do not value torture as such, a point that many on the far left would do well to keep in full view. Instead, these Americans believe that when high value terrorists are caught, the United States must use every possible avenue to unearth intelligence about future terrorist operations. Now, it is worth pointing out that this view comes in different flavors, so to speak. Some believe that there must be a “ticking time bomb” if torture is to be justified. On this view, there must be some immediate threat to the security of the United States and its citizens that warrants setting aside prohibitions on torture. Some, however, believe that the threat need not be strictly imminent; it need only be serious, that is, it need only involve serious future peril for the U.S.

I do not personally subscribe to this view. But that does not mean I think it can be dismissed out of hand. It sounds in utilitarian moral theory, like much of our social policy and contemporary law: Where the benefits of a practice outweigh (or would under normal conditions) the associated costs, there is a presumption that the practice should be socially acceptable or lawful (or both). There is, of course, one fundamental caveat: Even where the benefits of a practice outweigh its costs, if it runs afoul of some fundamental right or constitutional privilege, that practice is – from a legal perspective – anathema. It cannot be done. And that’s the case because where fundamental rights are in play, there simply is no room for utilitarianism. Or is there?

I raise these heady issues of moral philosophy and legal theory because at this moment our government is determining how to proceed with an investigation of CIA operatives who may have gone beyond what they were officially permitted to do when interrogating suspected terrorists.

The standing Attorney General, Eric Holder, has chosen John H. Durham to conduct this investigation. Before you indulge yourself in a sigh of relief, step back and consider how this investigation will really play out. First of all, Mr. Durham’s mandate is very narrow: he is only authorized to investigate whether individual CIA agents exceeded their authority during interrogations by using techniques not approved by the U.S. government. This means that Mr. Durham’s charge does not include – at least not officially – considering whether the architects of the interrogation protocols (i.e., the OLC “Torture Memos”) should be held accountable for the actions of individual CIA operatives.

Second, Mr. Durham is supposed to take the Torture Memos as gospel and then determine whether individual CIA operatives operated outside the boundaries articulated in those memos. Got that? Low-level CIA operatives face potential criminal penalties, but only if they really went “rogue,” where rogue means (1) threatening to sexual assault a detainee’s family, (2) staging mock executions, (3) placing pressure on the carotid artery to trigger loss of consciousness, or (4) threatening to execute the detainee, among other things.

This is a ridiculous, farcical attempt to placate those American patriots who want to bring the architects of torture to justice. As Dahlia Lithwick of Slate.com so astutely observes:

“The American legal system isn’t just about crime and punishment. It’s a set of guideposts to direct us in the future and to send a message about our values to the rest of the world. This proposed Holder-Durham regime of semi-accountability—we’re sorry for that whole torture thing but not sorry enough to investigate seriously how it happened in the first place—serves the dangerous dual purpose of allowing us to reinstate the Bush-era torture rationales, should they be necessary again in the future, and advising our allies and enemies that under desperate circumstances, they can plausibly do the same. Opting to be only halfway responsible means that torture is, going forward, only halfway reprehensible.”

I find myself agreeing with much of what Ms. Lithwick says above. But I would add the following. Our Constitutional tradition is, in a very important sense, an absolutist tradition. Once we decide that a certain right is fundamental – protected in our Constitution or through its interpretation by the courts – it is usually not possible to abridge such a right. Put another way, fundamental rights deserve absolute protection.

Now, for people who believe that harsh interrogation methods (up to and including torture) are necessary to protect the United States, modern terrorism poses a deep challenge to the absolutist view. After all, what is so clearly prohibited in relation to treating a non-terrorist detainee should not be prohibited for suspected terrorists. And this is a critical point that many miss about why our government’s key intelligence agencies have violated domestic and international law by torturing detainees: By the lights of those who see torture as a tool of national security, it is not so much that suspected terrorists do not “deserve” a certain bundle of constitutional protections. These hated souls could never be entitled to such protection. They are not human beings, and instead lie far beyond the ambit of moral consideration.

That suspected terrorists rotting away in exotic places like Guantanamo Bay have been stripped of their humanity may seem too obvious to mention. But the point is that if there are entire swaths of humanity that could never be entitled to the full range of constitutional protections the rest of us enjoy, our constitutional tradition is in practice (if not in theory) no longer an absolutist one. What is to be made of this, is, I am afraid, too difficult an issue for this author to hold forth on. I leave it to the reader to decide.

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