Sunday, January 16, 2005

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. . . .


At 12:13 PM, Anonymous Anonymous said...

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."

For what it's worth, that's what we were told when I was pulling guard duty in the military. If someone were running off with e.g. top secret materials, we should stop them (on government property) and confiscate the materials.

This would mean that the materials could not be used as evidence in trial, but the would-be thief getting off was better than allowing the materials to be stolen.

At 7:56 PM, Blogger Arne Langsetmo said...


Thanks for your observations. It just makes sense. I've been (pardon the expression) "flogging this idea" for a number of years now on the web, and haven't seen any substantial refutation yet.

FWIW, someone told me that the blog article above has gotten some exposure in a somewhat suprising place. Don't know the circumstances (or results), so I don't know if I should feel flattered....


At 12:58 AM, Anonymous Anonymous said...

What jury of americans do you think is going to convict an american torturer who actually saves american lives? How about this, we make all torture illegal, and in the RARE, UNLIKELY instance where torture actually prevents an attack, the torturers lawyer can claim the defense of “necessity” and he’ll get off. Yes, necessity is a valid legal defense in most jurisdictions for any crime that doesnt involve intentional killing.

Torture is illegal so that we cant torture people willy nilly looking for weapons that dont exist, like saddams WMD. Its so pyschopaths like Cheney + co, will go to jail if they start torturing everyone they dont like without any justification and any real proof. When those people go in front of a jury, their going to go to jail. When people who save american lives go in front of a jury, its going to be a different story.

Tell me, where in america would you find a jury of 12 people (it requires all 12 members of a jury to convict of a criminal offense) who would find a cia agent guity if his actions foiled the sept 11th attacks?

Heck, for that matter, where would you even find a prosecutor to prosecute?

no need to turn centuries of legal jurisprudence on its head to deal with every possibile scenario, jury nullification as it exists in the american legal system works VERY nicely to deal with such improbable events

oh.. AND.. i forgot.. the “justified” torturer would almost surely get a pardon from the president even IF a jury convicted him. what president is going to pass up an opportunity to pardon a national hero? so there you go, yet ANOTHER obsctacle to a “justified” torturer ever serving any jail time…. not only would torture have to be illegal, but:

1) youd have to find a prosecutor to prosecute
2) a jury of 12 random people who would all convict him
3) a president who wouldnt pardon him.

now if the "nuclear bomb" scenario put forward, as ridiculously unlikely as it is, would actually happen, where would you find a prosectuor, 12 random people, and a president who all beleived this guy should be in jail?

At 10:03 PM, Blogger Todd said...

The "ticking time bomb scenario" assumes the investigator "knows" several things.
1. The "bomb" is a nuclear weapon.
2. The nuclear weapon is "ticking" ie. detonation is imminent.
3. The person you have in custody is in fact a terrorist.
4. The above mentioned terrorist is a member of the same terrorist organization that set the nuclear weapon.
5. The terrorist in custody does in fact know the location of the "bomb".
6. The detonation of the weapon is so imminent that torture is the only way to obtain the information (the bombs location).
7. The detonation will be sufficiently delayed so that the detonation can be prevented if the bombs location is found rapidly; thereby requiring torture as in #6 above.
8. The terrorist will not give you the bombs location without the use of torture.
9. The information obtained using torture is accurate and complete, not a false story or giving the interrogator whatever story makes the torture stop.
10. The interrogator will have enough other information to corroborate the information obtained by torture and therefore be able to distinguish true information from false.
11. The interrogators sources that can corroborate the information obtained from torture are insufficient to locate the "bomb" using means other than torture.
12. Under torture the terrorist will only tell one story, not many which would make identifying the true story much more difficult if not impossible.

Thats a very large number of assumptions and all of them must be valid for the "ticking time bomb" scenario to have any chance of happening in the real world. I would say that if all of these conditions were fulfilled, meaning known with 100% certainty, then and only then torture would be justified. Since the real world does not work that way and rarely if ever is even one or two of the above assumptions "known" with 100% certainty then I can find no justification for the use of torture. Since the "ticking time bomb scenario" rests on numerous assumptions, each of which is extremely unlikely to be correct and present in the real world, this scenario is not a valid reason to advocate the use of torture.

At 3:11 AM, Blogger Arne Langsetmo said...

Anonymous: "Yes, necessity is a valid legal defense in most jurisdictions for any crime that doesnt involve intentional killing."

No. Jean Valjean is, while a very honourable man, still a criminal. Steal a loaf of bread, and the law, in its majesty, is still a bit of an ass: You should have gone to a soup kitchen (if you can find one).

At 3:16 AM, Blogger Arne Langsetmo said...

Once again, to be clear: My point is that you can't (or shouldn't, in any case) make torture legal a priori just because you can think up some hypothetical where it might be justifiable. As I said: "KEEP IT ILLEGAL!!!!" You start trying to write 'exceptions' (and even worse, implicit exceptions that can be argued for, even if rather absurd), and all you do is encourage the bad guys to do what we don't want done.....


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