Dahlia Lithwick is suspicious of John Yoo’s reasoning:
Yoo, author of the infamous "torture memo" that came out of the Office of Legal Counsel in August of 2002 and became public in the summer of 2004, continues to defend the legality of the president's right to torture suspects. (The OLC subsequently withdrew the memo.) Yoo's argument rests largely on more of this same "greater-power-includes-the-lesser-power" analysis. As he explains to his interviewer, "Look, death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them." He goes on to say, "I don't see how it can be reasonable to have an absolute prohibition on torture when you don't have an absolute prohibition on killing."
. . .
The greater-than-lesser-than argument is nothing more than a "debater's point," says the
's Jody Kraus. It assumes that the speaker has some basis from which to claim that the lesser power is, indeed, well, lesser. You can certainly say that the power to ban speech is lesser than the power to ban gaming. Or you could say the opposite. I, for one, feel a lot more strongly about my right to speak than my right to split eights and aces. So, by what measure, other than Yoo's assertion, is the power to water-board someone "lesser" than the power to kill? Universityof Virginia
I think Yoo is onto something. As terrible and inhuman as waterboarding is, killing someone is much worse. Waterboarding, by all accounts, feels a lot like drowning and is one of the most efficient ways known to force a confession. It’s the torture four out of five evildoers prefer. But when it’s over you’re still alive. And, assuming you are at some point released from whatever secret windowless hole the government is holding you in, you might go on to have a successful career, find love, smell the ocean, or hear the first laugh of your first child. If you are dead, you can’t do any of those things.
And if [the power to water-board someone is "lesser" than the power to kill], why does Yoo draw the line at water-boarding rather than eye-gouging which is, by his logic, still better than death?
Right again. Eye-gouging—still better than death. Especially if only one eye gets gouged. You can still see with one eye. Even if both eyes are gone, you’ve still got four senses left. There’s precious little that’s worse than death.
I guess that makes me a pacifist, which is apparently the only thing worse than being an atheist.
When a group of people, i.e. the “government”, decides to kill a person—whether a convicted criminal or an enemy soldier or an innocent civilian (also known as “collateral damage”, the kind of murder which prompts the least concern in civilized societies since death is accidental and therefore blameless, a regrettable but unintentional consequence of dropping explosives onto a school or hospital or wedding party)—the deceased is no less dead than if she’d been killed by fewer people through a process involving less paperwork and fewer empty platitudes. In such cases, it’s only the size of the lynch mob that varies. The only time a person really deserves to die is when she kills herself.