Tuesday, April 01, 2008

The "Ticking Time Bomb" as a legal defence

I've posted in the past about the "Ticking Time Bomb" argument for engaging in torture (here and here, for starters).

Today, the OLC memo of John Yoo comes out, and -- lo and hehold! -- Yoo thinks that the argument that we "need to" (and therefore should) torture is not only a policy argument, but above and beyond that, also a legal defence!!!:
In part IV, we discuss defenses to an allegation that an interrogation method might violate any of the various criminal prohibitions discussed in Part II. We believe that necessity or self-defense could provide defenses to a prosecution.
(from Yoo's torture memo, page 2)

Another gem in the first footnote on page 2:
The Fifth Amendment further provides that "No person [...] shall be compelled in any criminal case to be a witness against himself [...]" These provisions are plainly inapplicable to the conduct of interrogations.
But of course not. Who could have thought that interrogations might be intended to produce confessions? (Note: Before you scream that the Fifth protects only against such in the context of an Article III criminal prosecution [or potential one], I know that ... but I also know that the maladministration is about to start military commission trials against six detainees in Guantánamo, in part based on such coercive interrogations...)

I'm sure I will have more to add later ... stay tuned.

(h/t to Prof. Lederman at Balkinization for the links to the PDFs)

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