Torture can be just the ticket ... just keep it illegal, please.

Armando over at DailyKos has a thread about torture under conditions of extreme necessity, where I tossed in my legal two cents worth. Quoth he (from a BBC article):

The outgoing head of the US Department of Homeland Security has said torture may be used in certain cases in order to prevent a major loss of life. Speaking to the BBC, Tom Ridge said the US did not condone the use of torture to extract information from terrorists. But he said that under an "extreme set" of hypothetical circumstances, such as a nuclear threat, "it could happen".

Here's my take on this. The "nuclear option" in any discussion of torture and terrorism is to put forth an extreme and counter-factual hypothetical of a person who knows about a bomb and to posit that you know that you can only get the information from this person by using extreme torture. So you're faced with the terrible decision of engaging in behaviour which you would think would normally be unjustifiable and horrific (at least one would hope so, and such seems to be the tacit assumption of those that use this specific argument), but under the circumstances, necessary to prevent the much greater harm of doing nothing (I'll ignore the obvious fallacy of bifurcation here).

Extreme hypotheticals, of course, make bad law. But even so, here's a good rejoinder to such absurd hypotheticals: If you're convinced that you're doing "the greater good" by torturing the individual and getting the information to save those thousands of lives, go for it. Just don't expect to get off scott-free. Hell, if it's for "the greater good" for the suspect person to be illegally tortured to achieve this great savings of life, then it's also for the greater good for you to lay down your freedom as well, in order to save the masses. Do what you have to, and then take your lumps. You'll have the solace, as you sit and rot in prison for torture, of knowing that you saved all those people ... and you did it without corrupting the rule of law. Kind of like throwing yourself on a grenade to save your buddies ... not really a wise idea in isolation, but under the circumstances, it could be admirable.

The same issues arise in the case of Fourth Amendment law, in searches and seizures. The Fourth Amendment says that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Violations of the Fourth Amendment have generally been discouraged through exclusion at trial of the evidence thus obtained, thus "punishing"the bad behaviour of the law officers (I'd note that one alternative means of deterring such Fourth Amendment violations, making the malfeasors civilly or criminally liable for their illegal actions, would be vigourously opposed by law officers and would stand no chance of passing into law, even if it would make more sense from a deterrent standpoint. I'll probably discuss this side issue later in another post someday).

The requirement that searches be "reasonable" has generally been interpreted as requiring a warrant for any search or seizure. Of course, getting a warrant has seemed to be too troublesome, too time-consuming, or too difficult to at least some people, so various ways have been found to carve out exceptions to the warrant requirement. I list some of these:

• Exceptions have been made in some cases for "good faith" searches based on legally flawed warrants. The assumption is generally that the warrant flaw was technical (and that a valid warrant could have been obtained), and that it serves no purpose to punish such searches as the officers executing them thought that the warrant was valid and thus there is no deterrent effect on future bad behaviour in punishing the search (e.g., through exclusion of evidence).
• There has been a loose definition of what constitutes a "search", such that warrantless inspections are allowed by simply defining them not to be "searches". This might include such things as highway "safety stops" and drug-sniffing dogs in public places.
• There has been some erosion of the requirement that warrants be obtained in some situations where what would normally be a search is considered "reasonable". This is generally done under the rubric of denying that someone would have a "reasonable expectation of privacy" under the circumstances, even if the very same "search" would otherwise be unreasonable without a warrant. An example would be cell searches in prisons. Prisoners are not written out of the Bill of Rights; it applies to them in full force as well. This is finessed by saying that prisoners just can't have a "reasonable expectation of privacy" within their cells.
• Perhaps the lamest incursions on the search requirement are the "exigent circumstances" ones. This would include searches such as the "pat-down" searches by law enforcement officers when stopping people ("Terry searches") and searches incident to arrest ("SITA"), purportedly for the purpose of protecting police officers from hidden weapons or other such things that might endanger the officers. Automobile searches have been some combination of "exigent circumstances" (the car is "mobile" and may disappear while waiting to get a warrant), and "reasonable expectation of privacy" (for some reason, judges seem to think that you shouldn't have as much expectation of privacy about what you keep in your car, as opposed to, e.g., your house ... and if you're driving a motor home, that's the way it goes).
  

I'll look at the reasoning for this latest type of exception in more detail here. The most compelling practical reason for such "exigent circumstances" exceptions isn't that there is some reason why the Fourth Amendment doesn't (or shouldn't) apply; it is rather that public safety considerations, and to a lesser extent prudential reasons (such as "preservation of the evidence") are thought to outweigh your Fourth Amendment rights. By appealing to such more important priorities, the law has decided that your rights are fine, as long as they don't get in the way of government business and efficiency. But by allowing such a balancing in the first place, these "exigent circumstances" exceptions encourage a number of bad tendencies ... and a further erosion of your rights.

The first bad tendency is that it tends to encourage attempts to find more and more "exigent circumstances" and more and more reasons for why the circumstances are "exigent". By not setting a bright line, but rather a fuzzy "balance" of "competing interests", your rights are now at the whim of a judge who decides what is more important (and present trends are, naturally, to find more and more instances where the government's needs come before your rights ... once one starts carving out exceptions, it's easier to find the next and the next). This is further compounded by the inexplicable decision of our justice system to allow all the fruits of such searches to be allowed in court if the search is deemed to be valid. If in fact the purpose of the "exigent circumstances" exception is to protect the law enforcement people and others, then the purpose is served when any dangerous items are found; anything incidental that is found doesn't further the purported government interest, but does encourage those that would seek such exceptions.

The second bad tendency is that it tends to encourage law enforcement officers to lie. Judges tend to take law officers at their word when they claim exigent circumstances. A famous example is Mark Fuhrman jumping the wall at O.J. Simpson's Brentwood estate. The claim Fuhrman made is that he thought that someone might be hurt (or be in danger of being hurt) at the Brentwood estate, and thus he was justified in jumping the fence, rather than going for a search warrant, in the interest of public safety. Of course, Fuhrman was lying; he simply wanted to get on the property, and no coherent claim has ever been made as to why Fuhrman might have thought that such exigencies would be the case. Similarly, when the Communications Assistance to Law Enforcement Act ("CALEA Act"), which has to do with wiretaps on mobile phones, was being updated a few years back, the Justice Department was pushing for an "exigent circumstances" exception to the ability to trace cell phone locations. They wanted to be able to do such a trace for 24 hours without a warrant, if they believed that someone's life or safety was in danger. But I'm reasonably convinced that the government just wanted to get the first few bites of the apple for free, and that they'd find some reason to claim "exigent circumstances" if they wanted the information enough but didn't have the goods to get a warrant.

The purpose of the Fourth Amendment's requirement for a warrant is spelled out in the amendment itself. The warrant must meet some strong evidentiary standards, and the decision as to whether this standard is met is left to a (supposedly impartial) third party, the magistrate or judge, not the law officer in pursuit of the suspect with their own motivations and personal agenda. "Exigent circumstances" exceptions do an end-run around these checks and protections, and leaves it up to the law officer to decide how important your rights are.

I suggest that one very practical response to the claims of law enforcement officers that "exigent circumstances" should be excused would be to say, "sure, go ahead and search if you think you need to, but anything that you find that is not related to safety will not be admissible at trial." If the law enforcement officer truly believes that there is a safety issue, and it's not just a ruse to do a warrantless search, they should be glad to be able to do a public service and save lives. No second guessing the officer (or equally bad, taking their word for it); the officer's decision stands, whether good or bad, and if any evidence is excluded, it was the officer who made the determination, based on the circumstances, that such was a justifiable price. Any officer that doesn't want to make such a decision can go get a warrant, if they think they can meet the the requirements for such.

Which brings us back to the use of torture and the guy with the information about the nuclear bomb: Sure, if you think you can justify an illegal act to yourself as for the greater good, go do it. Then stand up and pay the price; it was you that made the determination, so stand by your decision. And if you have any doubts ... well, maybe you shouldn't. . . .