He discusses the torture justification used by Charles Krauthammer--if there's a ticking bomb and you have captured someone who knows its location but won't talk, you must torture.
He mentions the idea, which Kevin Drum has also used--you can justify a law against torture because in such extreme circumstances the law will be violated. I like it. We have laws against speeding without written exceptions for speeding accident victims or pregnant women to hospitals. Recently an officer was acquitted of murder in a case where he killed an Iraqi, rationale was that the Iraqi was mortally wounded and it was a mercy killing. Kinsley doesn't like it, and IMO dismisses it too quickly.
But the gist of his argument is this:
"But college dorm what-ifs like this one share a flaw: They posit certainty (about what you know and what will happen if you do this or that). And uncertainty is not only much more common in real life: It is the generally unspoken assumption behind civil liberties, rules of criminal procedure, and much else that conservatives find sentimental and irritating."In other words, in the real world there's much we don't know, including as Rummy says, what we don't know we don't know. See Cromwell to the Scottish Parliament. Laws and rules must be made for uncertainty, not certainty.