Justice Scalia Steps on Slippery Slope, Fails to Recognize that Torture is ALWAYS Illegal!
Summary: Public discussion on torturing captives who are
suspected "terrorists" has gone off the rails. Torture is always
illegal under (1) international law; (2) treaties to which the U.S. is
a full party; (3) the U.S. Constitution; and U.S. statutes.
The Bush-Cheney argument that torture is legal as long as you don't admit you are using torture has created total confusion in public debates. The argument that torture is ever legal is frivolous. But the "ticking time bomb" hypothetical - extreme and virtually non-existent though it is - is not frivolous.
Most adults can think of situations where violating a criminal law (not a traffic law) may be justifiable because of some value that the adult places above the command of the criminal law. Public debate would be more clear if we addressed the "ticking time bomb" hypothetical from this perspective.
Laws against torture are fundamental to maintaining the human dignity both of the captive and the questioner. But are there circumstances when some value higher than the command of the law against torture justifies breaking that law? This is the framework that we should all start using in evaluating the "ticking time bomb"/Jack Bauer hypotheticals.
Apologists for Torture
Justice Antonin Scalia disgraced his office again this week by suggesting in an on-the-record interview that torturing a captive "for intelligence purposes" might be on a different legal footing from torturing a suspected criminal to obtain a confession.
At least Scalia clearly stated that it is unconstitutional even to rough up a person suspected of a crime; he said police are not allowed to slap a suspect around, much less use torture to coerce a statement from him. But Scalia also clearly stated that "more flexible" standards might apply to methods allowed in questioning a "terrorist" who knows critical facts about a location that the questioner needs to find out in order to save innocent lives. Scalia used the nuclear bomb example, I think. Alan Derschowitz has used the example of locating Israeli soldiers or other Israelis held hostage by a terrorist organization before the terrorists execute the hostages, or locating a suicide bomber to prevent the bomber from detonating his/her bomb. "24" and TV crime programs have used over and over ad nauseum the plot device of the helpless captive who will be killed by the sexual deviate /kidnapper unless the investigators figure out where the victim is being held hostage.
Some of these emergency circumstances occur fairly often (kidnapping victims, for example), but it virtually never happens that a crime victim or hostage is in jeopardy at the same time that a knowledgeable source is in custody and refusing to disclose the facts critical to saving the victim.
Effective Investigators Reject Torture
Prior to the Bush-Cheney administration, all authoritative policies on interviewing prisoners rejected torture. The Army Field Manual rejected it. FBI interrogation policies rejected torture and "coercive interrogation" or "extreme interrogation" techniques; FBI agents who observed the questioning of captives at Guantanamo Bay wrote numerous memos objecting to the extreme techniques the agents saw being used.
The most effective interview techniques involve treating the prisoner humanely (the word "humanely" here is shorthand for a comprehensive set of methods and actions that respect the dignity of the prisoner and persuade the prisoner to trust his captors). Humane treatment prompts the prisoner to access his own feelings of humanity and empathy - both for the questioner and for any potential victims that the questioner may be trying to save.
Do humane techniques always work? I have no first hand experience, but I doubt it. The point is not whether a technique always works, but what techniques have the best track record for obtaining reliable facts. Historically, torture and "extreme interrogation techniques" (if these are distinguishable) have been used effectively to obtain political confessions in the Soviet Union and its satellite states; to obtain confessions of religious heresy in the Inquisition; to compel prisoners to implicate other persons (whether the persons are known to the prisoner or not) in treason, heresy, terrorism, or whatever anti-social behavior the questioner is investigating. As many observers have noted, a physically abused terrorist can relieve the abuse by giving a false location for a bomb, thereby suspending the abuse while the authorities are looking in the wrong place and the bomb is detonating.
When Breaking the Law May be Condoned
The only coherent framework for evaluating when torture might be the lesser of evils is the one I proposed above at the beginning of this post. Torture is always against the law. If there is any ambiguity about whether torture is legal in some exceptional circumstances, the exception will always swallow the rule, and torture and/or "extreme interrogation" will become commonplace, as these did at Abu Ghaireb.
In 1999 the Israeli Supreme Court decided whether existing Israeli law authorized an investigator to obtain prior authorization to use "extreme interrogation" techniques on prisoners alleged to be terrorists. This was an issue much discussed by Alan Derschowitz of Harvard Law School. The Israeli Supreme Court's unequivocal judgment was No! In other words, the Israeli Supreme Court rejected the approach that Bush, Cheney, Rumsfeld, and their (il)legal advisers set up for certain extreme interrogation techniques to be used, but only after approval of each case by Rumsfeld and/or President Bush. (See link below.)
If all torture is illegal, does that mean that the men who waterboarded Khalil Sheik Mohammed should be convicted of war crimes and sentenced to long terms in prison? In the framework I have proposed, the answer is, "not necessarily." I personally believe that they should be investigated for war crimes, but I don't think they should necessarily be prosecuted, or if prosecuted, necessarily convicted.
In the real world, prosecutors often decline to prosecute cases for a variety of good reasons, even where intent to break the law and the breaking of the law are evident. Grand juries often return a "no-bill" in circumstances where the purported victim had brought retribution on himself, even though the undisputed facts provide no adequate factual basis for a legal defense. (For example, the battered wife who kills her abusive husband in a situation that is plainly not "self-defense" under the law, or the homeowner who rigs a shotgun to fire automatically if a wire is tripped by a burglar, after he has had several break-ins, or the father who unplugs the ventilator on his son who has been in a vegetative state for months and whose hospital bills are about to deprive the other family members of food and shelter.)
The common sense assessment in such cases is that even though a law was clearly broken, society should not insist that the penalty be enforced against the law-breaker.
To decide in an extreme case that a law-breaker should not be punished, decision-makers have to weigh many factors. In a case where an interrogator used torture, factors might include the values that motivate the questioner to use torture (e.g., saving lives in an emergency situation), whether legal means of achieving the desired result have been exhausted, considering the situation, and the probability that torture will actually help achieve the valued result (i.e., whether a reasonable person would think torture would actually work).
Among the class of cases where the person who used the illegal technique might not be punished is a category of cases where the illegal conduct can be justified under a traditional defense to a crime - the defense of "necessity." The Israeli Supreme Court in 1999 acknowledged that the defense of necessity might exonerate an interrogator who was prosecuted criminally for torture.
http://www.derechos.org/human-rights/mena/doc/torture.html
Conclusion
Laws against torture must use what judges call "a bright-line rule," that is, rules that are not subject to any ambiguity. The Bush-Cheney-Rumsfeld team set up procedures that explicitly authorized interrogators to use what appear to include illegal interrogation techniques. The attempt on paper to confine these extreme measures to exceptional cases fell apart at Guantanamo and Abu Ghaireb.
Justice Scalia has taken the first step on that slippery slope that Bush-Cheney-Rumsfeld built when they tried to encourage interrogators to use extreme interrogation techniques whenever the questioner thought legal techniques were not bringing out all that the prisoner knew.
If an interrogator truly and reasonably believes that s/he is facing an emergency situation that can be safely resolved by getting a person in custody to talk in spite of the prisoner's resistance, then any experienced interrogator is going to know that the chance of a criminal prosecution being brought is miniscule. If there is a true "ticking time bomb" situation, perhaps illegal interrogation should be condoned. But to avoid the inevitable spread of the use of torture, torture and "coercive interrogation" must be illegal, so that interrogators will not resort to these illegal means of interrogation unless the facts truly fit one of the hypothetical "emergency situations."
The Bush administration has already undermined the moral authority of the United States in international affairs by encouraging interrogators to consider using abusive interrogation. Unless he is brought up short, it looks as though Justice Scalia is ready to go down the same road to undermine the moral authority of the United States Supreme Court.
The Bush-Cheney argument that torture is legal as long as you don't admit you are using torture has created total confusion in public debates. The argument that torture is ever legal is frivolous. But the "ticking time bomb" hypothetical - extreme and virtually non-existent though it is - is not frivolous.
Most adults can think of situations where violating a criminal law (not a traffic law) may be justifiable because of some value that the adult places above the command of the criminal law. Public debate would be more clear if we addressed the "ticking time bomb" hypothetical from this perspective.
Laws against torture are fundamental to maintaining the human dignity both of the captive and the questioner. But are there circumstances when some value higher than the command of the law against torture justifies breaking that law? This is the framework that we should all start using in evaluating the "ticking time bomb"/Jack Bauer hypotheticals.
Apologists for Torture
Justice Antonin Scalia disgraced his office again this week by suggesting in an on-the-record interview that torturing a captive "for intelligence purposes" might be on a different legal footing from torturing a suspected criminal to obtain a confession.
At least Scalia clearly stated that it is unconstitutional even to rough up a person suspected of a crime; he said police are not allowed to slap a suspect around, much less use torture to coerce a statement from him. But Scalia also clearly stated that "more flexible" standards might apply to methods allowed in questioning a "terrorist" who knows critical facts about a location that the questioner needs to find out in order to save innocent lives. Scalia used the nuclear bomb example, I think. Alan Derschowitz has used the example of locating Israeli soldiers or other Israelis held hostage by a terrorist organization before the terrorists execute the hostages, or locating a suicide bomber to prevent the bomber from detonating his/her bomb. "24" and TV crime programs have used over and over ad nauseum the plot device of the helpless captive who will be killed by the sexual deviate /kidnapper unless the investigators figure out where the victim is being held hostage.
Some of these emergency circumstances occur fairly often (kidnapping victims, for example), but it virtually never happens that a crime victim or hostage is in jeopardy at the same time that a knowledgeable source is in custody and refusing to disclose the facts critical to saving the victim.
Effective Investigators Reject Torture
Prior to the Bush-Cheney administration, all authoritative policies on interviewing prisoners rejected torture. The Army Field Manual rejected it. FBI interrogation policies rejected torture and "coercive interrogation" or "extreme interrogation" techniques; FBI agents who observed the questioning of captives at Guantanamo Bay wrote numerous memos objecting to the extreme techniques the agents saw being used.
The most effective interview techniques involve treating the prisoner humanely (the word "humanely" here is shorthand for a comprehensive set of methods and actions that respect the dignity of the prisoner and persuade the prisoner to trust his captors). Humane treatment prompts the prisoner to access his own feelings of humanity and empathy - both for the questioner and for any potential victims that the questioner may be trying to save.
Do humane techniques always work? I have no first hand experience, but I doubt it. The point is not whether a technique always works, but what techniques have the best track record for obtaining reliable facts. Historically, torture and "extreme interrogation techniques" (if these are distinguishable) have been used effectively to obtain political confessions in the Soviet Union and its satellite states; to obtain confessions of religious heresy in the Inquisition; to compel prisoners to implicate other persons (whether the persons are known to the prisoner or not) in treason, heresy, terrorism, or whatever anti-social behavior the questioner is investigating. As many observers have noted, a physically abused terrorist can relieve the abuse by giving a false location for a bomb, thereby suspending the abuse while the authorities are looking in the wrong place and the bomb is detonating.
When Breaking the Law May be Condoned
The only coherent framework for evaluating when torture might be the lesser of evils is the one I proposed above at the beginning of this post. Torture is always against the law. If there is any ambiguity about whether torture is legal in some exceptional circumstances, the exception will always swallow the rule, and torture and/or "extreme interrogation" will become commonplace, as these did at Abu Ghaireb.
In 1999 the Israeli Supreme Court decided whether existing Israeli law authorized an investigator to obtain prior authorization to use "extreme interrogation" techniques on prisoners alleged to be terrorists. This was an issue much discussed by Alan Derschowitz of Harvard Law School. The Israeli Supreme Court's unequivocal judgment was No! In other words, the Israeli Supreme Court rejected the approach that Bush, Cheney, Rumsfeld, and their (il)legal advisers set up for certain extreme interrogation techniques to be used, but only after approval of each case by Rumsfeld and/or President Bush. (See link below.)
If all torture is illegal, does that mean that the men who waterboarded Khalil Sheik Mohammed should be convicted of war crimes and sentenced to long terms in prison? In the framework I have proposed, the answer is, "not necessarily." I personally believe that they should be investigated for war crimes, but I don't think they should necessarily be prosecuted, or if prosecuted, necessarily convicted.
In the real world, prosecutors often decline to prosecute cases for a variety of good reasons, even where intent to break the law and the breaking of the law are evident. Grand juries often return a "no-bill" in circumstances where the purported victim had brought retribution on himself, even though the undisputed facts provide no adequate factual basis for a legal defense. (For example, the battered wife who kills her abusive husband in a situation that is plainly not "self-defense" under the law, or the homeowner who rigs a shotgun to fire automatically if a wire is tripped by a burglar, after he has had several break-ins, or the father who unplugs the ventilator on his son who has been in a vegetative state for months and whose hospital bills are about to deprive the other family members of food and shelter.)
The common sense assessment in such cases is that even though a law was clearly broken, society should not insist that the penalty be enforced against the law-breaker.
To decide in an extreme case that a law-breaker should not be punished, decision-makers have to weigh many factors. In a case where an interrogator used torture, factors might include the values that motivate the questioner to use torture (e.g., saving lives in an emergency situation), whether legal means of achieving the desired result have been exhausted, considering the situation, and the probability that torture will actually help achieve the valued result (i.e., whether a reasonable person would think torture would actually work).
Among the class of cases where the person who used the illegal technique might not be punished is a category of cases where the illegal conduct can be justified under a traditional defense to a crime - the defense of "necessity." The Israeli Supreme Court in 1999 acknowledged that the defense of necessity might exonerate an interrogator who was prosecuted criminally for torture.
http://www.derechos.org/human-rights/mena/doc/torture.html
Conclusion
Laws against torture must use what judges call "a bright-line rule," that is, rules that are not subject to any ambiguity. The Bush-Cheney-Rumsfeld team set up procedures that explicitly authorized interrogators to use what appear to include illegal interrogation techniques. The attempt on paper to confine these extreme measures to exceptional cases fell apart at Guantanamo and Abu Ghaireb.
Justice Scalia has taken the first step on that slippery slope that Bush-Cheney-Rumsfeld built when they tried to encourage interrogators to use extreme interrogation techniques whenever the questioner thought legal techniques were not bringing out all that the prisoner knew.
If an interrogator truly and reasonably believes that s/he is facing an emergency situation that can be safely resolved by getting a person in custody to talk in spite of the prisoner's resistance, then any experienced interrogator is going to know that the chance of a criminal prosecution being brought is miniscule. If there is a true "ticking time bomb" situation, perhaps illegal interrogation should be condoned. But to avoid the inevitable spread of the use of torture, torture and "coercive interrogation" must be illegal, so that interrogators will not resort to these illegal means of interrogation unless the facts truly fit one of the hypothetical "emergency situations."
The Bush administration has already undermined the moral authority of the United States in international affairs by encouraging interrogators to consider using abusive interrogation. Unless he is brought up short, it looks as though Justice Scalia is ready to go down the same road to undermine the moral authority of the United States Supreme Court.
