Jail time or a ticker-tape parade?

Everybody (well; nearly everybody) is aghast at revelations that US troops have been routinely torturing Iraqi detainees. One predictable consequence of the scandal is a return to that much-loved hypothetical, ‘Should torture be permitted where the information it may produce could save innocent lives that are in real, imminent danger?‘.

This we may conveniently refer to as the ‘ticking timebomb’ problem, and indeed (as afoe’s Scott Martens has already noted) John Quiggin does just that at Crooked Timber.

Quiggin concludes that, while torture might sometimes prove necessary, it is never justified. If a law-enforcement official – absent any other less distasteful means – breaks out the thumbscrews, extracts the required facts and saves the day, then hooray; but to do the right thing, the offical must turn himself over to the authorities nonetheless, and face charges.

A plea in mitigation might be considered in cases like the one described above – a proven urgent and immediate danger, followed by a voluntary confession – but even so, the torturer should be removed from their job and spend some time in prison. In any case where a confession is not made, no claims about mitigating circumstances should be admitted.
[…]
Whether or not torture can be justified as a matter of individual morality in some extreme cases, it should be punished in all cases, and severely punished in nearly all cases, as a matter of public policy.

David Bernstein (Eugene Volokh’s least-impressive co-conspirator) disagrees. ‘By contrast,’ opines Bernstein,

I’d give them a ticker tape parade.
[…]

[T]he idea that the physical coercion is so terrible that it should be punished with jail time even when the torturers were in good faith trying to save millions of lives from a ticking time bomb strikes me as one of those ideas only an academic could come up with.

And, I might add, the idea that state officials be given a carte blanche to torture, so long as they act in ‘good faith’, is one of those ideas only a different sort of academic could defend. And Bernstein’s carte really is blanche; his torturers get off the hook even if they fail to produce the goods, and even if they’re wrong about the torturee. (Though he does concede that the shaking and battered prisoner might, in such a case, be offered a bit of compensation as he’s taken down from the rack. ‘Terribly sorry about all that, old chap; but there’s a war on, you know. Here – this should see you right.’)

It may be that, because I am much closer to agreeing with Quiggin than with Bernstein, I am prejudiced in saying so; but Quiggin has done a pretty good job of thinking this through (though I’d question his characterisation of the confession as ‘voluntary’). Bernstein, by contrast, appears not to have thought at all beyond the (unquestionably welcome) result of finding the timebomb. A hint for him, then: in the quest to achieve even undeniably desirable ends, one shouldn’t forget altogether to question the means.

But perhaps you’re thinking, isn’t there something, well, a bit law-schoolish about this whole debate? After all, so far as we know none of the tortured detainees in Abu Ghraib (pace Bernstein’s hypo) has produced information about a ticking nuclear device in the Empire State Building. Isn’t this all a bit like debating when it’s permissible for shipwrecked sailors to eat their lifeboat-mates? The thing is, sometimes shipwrecked sailors are faced with troubling dietary choices. And sometimes policemen are placed in a situation in which an evil deed may appear the only means of averting a deed even more evil.

Here’s one real-life example, though I’m afraid it doesn’t quite reach the dramatic heights of Bernstein’s Empire State Building. In 2002, Magnus G?fgen kidnapped 11 year old Jakob von Metzler, demanding ransom from Metzler’s father, a rich Frankfurt banker. G?fgen was quickly caught, and told the police he had hidden the boy, though he wouldn’t say where. The police raced to find Metzler before he died of asphyxiation, exposure or starvation. Frustrated by G?fgen’s persistent refusal to reveal the boy’s hiding place, Frankfurt’s deputy police chief Wolfgang Daschner instructed his men to ‘inflict pain, but not injury’ on G?fgen to coerce him to talk.

What G?fgen hadn’t told the police was that he killed the boy shortly after abducting him, and all they would eventually find at the hiding place (in a lake) was his dead body in a plastic sack. (He did reveal this fact shortly after learning he might be in for a bit of whacking-about.) G?fgen has since been convicted of murder and sentenced to life in prison. In Germany, a term of life normally can mean as little as 15 years, but because the court ruled that G?fgen’s guilt was ‘especially grave’ (besonders schwer), he will be ineligible for parole. That’s that for G?fgen, then, and I’m sure all of us can join in saying ‘good riddance’.

But what about Daschner? Torture is illegal in Germany. Though the police never actually got round to torturing G?fgen, that’s precisely what Daschner told G?fgen they would do; and threatening torture is also illegal.

Daschner is a model exemplar of Bernstein’s laudable torturer. Though the torture would have brought nothing (Metzler was already dead), Daschner couldn’t have known that. He really believed the boy was in imminent danger of death. The police had exhausted all lawful means in the attempt to make G?fgen reveal his whereabouts. Under those circumstances, is it really so difficult to understand why Daschner made the choice he did? I’d hate to have been in his shoes, but if I were, I strongly suspect I’d have done the same. (Indeed, I might not have been as fastidious as Daschner was to insist that no actual injury be inflicted.) Surely Daschner was caught in a situation in which torture was necessary as an ultima ratio?

He was, I think, and it’s awfully hard to think of him as a bad man. But still, the state was left with the question of what to do with him. There was a bit of a national debate about this at the time, and Bernstein will doubtless be disappointed to learn that the upshot was not a ticker-tape parade for Daschner. Instead, he was formally charged, in February of this year, with illegal coercion (N?tigung) . (Had the torture been carried out, he likely would have been charged with battery as well.) The case is winding its way through the courts, but if Daschner is found guilty, he faces up to three years in prison.

There’s no question that what Daschner did violates a norm of the Criminal Code, nor any question that he did it. His defence, then, will be putting all its chips on an argument of justification by necessity. Paragraph 34 of the Criminal Code provides that

a person who commits an [otherwise criminal] act to prevent a present danger to life … does not act illegally if the legal interest thereby protected substantially outweighs the legal interest thereby harmed.

Here’s the ‘defence of necessity’, then, that Bernstein would allow his torturers. Daschner has a problem, though. The defence of necessity is a very general rule, and as we all know lex specialis derogat legi generali. That is, a law drawn up to cover a specific situation trumps broader laws that might also cover that situation. And ? 136a(1) of the Criminal Code lays down some very specific rules for the police:

The suspect’s freedom of will and decision-making may not be undermined through maltreatment, … physical attack… [or] torture…. Force may be used only to the extent that criminal procedural law permits it. The threat of any measure that is not permitted under such law … [is] forbidden.

It’s absolutely correct that Daschner face trial for his actions. And, though part of me wishes his defence the best of success with what doesn’t look like a winning argument, I could not be too upset if he is found guilty. And, if guilty, he should be punished. I would hope that the court, in meting out a punishment, would take into account the inhumanly impossible position Daschner found himself in (and the Criminal Code does allow for significantly milder penalties for criminal coercion than a three-year prison term). There’s certainly something tragic in the figure of Daschner. But I cannot accept that his deed be dismissed, let alone celebrated with ticker-tape, because he was acting in good faith and sought to achieve a desirable result.

Nor, it seems, can the Germans. Bernstein would probably dismiss them as so many weak-willed Old Europeans. But many Germans will have in mind an earlier regime, one that was not as punctilious as the present state about the rule of law. They’ve been down that road before, and whatever other political differences they may have with each other, most of them are determined never to go down it again.

29 thoughts on “Jail time or a ticker-tape parade?

  1. I’m hitting the hypothetical torture circuit pretty hard. My serious opinion is that this hypothetical is an ill-intended attempt to produce a slippery slope. No one means for torture to be limited to the rather unlikely hypothetical case given. One guy on CT moved all the way over to collective punishment — torturing a guy’s mother — without taking a breath.

    My less serious suggestion is that we develop a Mohs’ scale for hypothetical examples. 12 kids in a pre-school was Yglesias’ example. Call that 10. One single pre-schooler — 9. An average class of 14-year-olds couldn’t be higher than 7. A really annoying class might be as low as 4. (Don’t argue with me unless you’ve been there). Frankly, I don’t think that the 0 grade is limited to my original suggestion (aggressive homeless junkies without the excuse of mental illness).

  2. Excellent post. Great review and does justice to the complexity of the issue. I reamain however somewhat troubled with the ease with which, an otherwise erudite David Bernstein, so callously dismisses Quiggin’s argument. Also I presume the boat and sailor reference is to the UK case of Dudley & Stephens?

    I presume an extension of this discussion could look at discretionary prosecutions, and discretionary sentencing guidlines. Torture is specifically dealt with in the Criminal Justice Act 1988 at sections 134, 135. Oddly enough and i imagine there isnt any (I need to check) case law but lawful justification seems to provide a defence. In any event s 135 makes AG’s prosecution of this discretionary. I presume the point i am driving at is the same as yours, you cannot make exceptional rulings for specific type situations. I am surprised that Bernstein, no doubt a fan of slippery slope arguments, fails to recognize this.

    There seem to be in UK law at least, enough discretionary elements to acts of torture (or if they fall within assault) to protect the ‘legitimate’ torturer. For a great exposition of the common law rules of necessity i strongly suggest looking at the recent UK Court of Appeal decision in Re A (Conjoined Twins) (2001) 1 FLR 1 in the judgment of Brookes LJ (sorry i cant find any free report of the case on the net).

  3. Mrs T. I may be revealing my ignorance here, but isn’t there a UN Convention Against Torture somewhere (1987), all signed and sealed, didn’t the US ratify (with only some reservations and understandings)and wasn’t the existence of this convention the reason Pinochet got delayed by Garzon in London for so long. Just a thought that is going through my mind.

    I know this is rather off the point you are making, but couldn’t all this have rather bigger long term ramifications once the initial scandal has died down?

  4. Rodion Romanovich,

    yes, the Mignonette case is one of those of which I was thinking. I also had in mind U.S. v. Holmes, 26 F.Cas. 360 (C.C.E.D.Pa. 1842). The sailor who was defendant in this American case did not actually eat anybody, but he did throw some people off a foundering lifeboat to save the rest. The prosecution argued that sailors ought to throw themselves into the sea to save passengers; sailors (so he reasoned) should be resigned to death by drowning, whilst passengers should be able to expect such a sacrifice, along with transport, for the price of their ticket. The defence pointed out that it would be difficult for the law to provide adequate incentive for the course of action the prosecution urged on sailors, and suggested that his learned friend might be more receptive to Holmes’s argument of necessity had he himself spent any time in a leaking, overfilled lifeboat on the high seas. In the event, Holmes was given a term of six months (adding to the nine he’d spent in jail awaiting trial) and a fine of $20, later remitted. (Holmes is a fascinating case and the report, unlike so many, makes gripping reading; have a look at it if you can.) I think the court got this one about right. There are some things that the state can never be seen to condone through impunity; but sometimes those things may be done in such extreme circumstances that justice, though demanding punishment, demands a light one.

    Edward,

    yes indeed you are right. For that very reason one commenter (at, I think, Crooked Timber) suggested that those responsible for the Abu Ghraib torture, should they escape punishment by the USA, might be well advised to holiday elsewhere than Spain. (Or at least, I’d suggest, they ought to wait till Garzon retires…)

  5. I must, of course, disagree. Your work-up of the issue contains, I think, at its base the idea that all lives are equally worthwhile to all observers. Given that I no more buy the idea of a privileged moral frame of reference any more than Einstein bought the idea of a privileged physical one, I cannot agree.

    Given the choice between, say, not torturing a captured criminal along the lines of G?fgen and allowing a loved-one to die or participating in torture and saving said loved-one, I must come down firmly in favor of the latter. To simplify the issue, given the option of saving _myself_ by torturing a captured criminal, I must choose my life and well-being over his. Our lives are not of equal utility to me, by a long shot.

    From this starting point, one can see a broader utilitarian argument in favor of torture. If the specific circumstances of the situation mean that a person of little utility to me (i.e. murderous kidnapper, murderous insurgent, etc) might be tortured to good effect in favor of either someone important to me or in furtherance of a generally positive effect that works in my favor (i.e. kidnappers will not succeed, people who shoot at Americans will die, etc.), then I as an individual must be in favor of it.

    The only countervailing point that I can see is that the more common such events become, the more easily they can be used to what I would see as a bad effect. Therefore, most individuals would have an interest in seeing that the circumstances under which torture becomes acceptable are quite narrow.

    As to the idea that the possibility of being _wrong_ makes an overwhelming difference, I find that untenable given that _every_ decision made by a justice or defense system runs the risk of being incorrect. There are two distributions, one of the guilty (or dangerous, in a defense context) and one of the innocent (or harmless). The two distributions overlap to some large extent on the dimension of evidence, and the great majority of decisions to be made as to whether some individual or state belongs to the first or the second distribution run a significant risk of either a Type I or Type II error. That the mere idea that a Type I error might occur should abort action seems to me to be a prescription for paralysis. Damn the Type-Is and Full Speed Ahead!

    “You tell me of the degrees of perfection to which human nature is capable of arriving, and I believe it, but at the same time lament that our admiration should arise from the scarcity of the instances.” ? Abigail Adams

  6. Your work-up of the issue contains, I think, at its base the idea that all lives are equally worthwhile to all observers.

    It’s simpler than that, in fact. At its base, my work-up of the issue contains the idea that the state should not indulge in torture.

    Different observers, you say, may assign different values to different lives. And well they may. But the state is a unique ‘observer’. And its criminal justice system ought to assign to all lives the same value: innocent until proven guilty; to be proven guilty only by means that are consonant with law and, ultimately, constitutional values.

    Given the choice between, say, not torturing a captured criminal along the lines of G?fgen and allowing a loved-one to die or participating in torture and saving said loved-one, I must come down firmly in favor of the latter.

    Well, you’d best not bother applying for Daschner’s old job, then.

    Note well that I do not insist (and nor, I think, does John Quiggin) that, assuming an absolute dichotomy of live boy/untortured G?fgen, the police must choose no torture and a dead boy. (I’ll leave aside for the moment the unlikelihood that any real-life situations will be quite as black/white as this law-school style hypo.) What I do insist (as John Quiggin certainly does) is that a state that has bound itself by the rule of law must not excuse a fundamental violation of that rule. Hard cases, famously, make bad law; and Daschner’s is a very hard one. What’s hard about it, though, is finding a punishment (assuming Daschner is found guilty) that both recognises the extremely unusual pressures he was working under and upholds the state’s rejection of torture as an acceptable tool of law enforcement. It’s not hard at all to conclude that, the state having made that rejection, Daschner should not be accorded impunity.

    I do not wish to live in a state that says the rule of law is paramount except when it’s really useful to break it. You’re perfectly within your rights to disagree. In fact you may readily find such states; whether you would be happy to live in one is another matter.

  7. I’m with Quiggin here, although I find utilitarianism a bit less… useful, if you’ll excuse the pun. Maybe there is a case so desperate, so immediate, and so necessary that torture is required and stands a reasonable chance of producing sufficient goods to justify it. But if so, the goods produced must be so worthwhile that they merit the life of the torturer, or at least the real risk of ostracisation.

    I think this is also an excellent argument for the ICC. Political leaders who are willing to go to war should have the courage to face the risk of prosecution. To order men off to kill and die but huddle in fear of years of prosecution in The Hague is pure cowadice.

  8. As a brief follow up i just wanted to post the three questions Brookes LJ deemed necessary in the Conjoined Twins (2001) 1 FLR 1 to be affirmatively answered before necessity could be invoked. He says:

    [according to]Sir James Stephen there are three necessary requirements for the application of the doctrine of necessity: (i) the act is needed to avoid inevitable and irreparable evil; (ii) no more should be done than is reasonably necessary for the purpose to be achieved; (iii) the evil inflicted must not be disproportionate to the evil avoided.[he goes on to adopt this test]

    Bear in mind of course that this case involved a different fact set, and more importantly factual knowledge of what was to happen: the separation of conjoined twins where one twin was destined to die, and the other had ‘viable’ chance of leading a ‘worthwhile’ life. This judgment has been isolated on its very exceptional circumstances, and to date has not been relied upon in other necessity pleadings.

  9. I think this goes back at least to Socrates. First come the laws, without the law I am nothing.

    Of course we can all go back to a state of nature.

    “Given the choice between, say, not torturing a captured criminal along the lines of G?fgen and allowing a loved-one to die or participating in torture and saving said loved-one, I must come down firmly in favor of the latter.”

    But this Bernard is precisely why we need states, to try and protect us from this kind of comprehensible folly.

    Let’s put it like this:

    “Given the choice between, say, not finishing off the convicted ‘temporarily insane’ killer of my five year old daughter and allowing them to walk calmly in the street after being released on probation I must come down firmly in favor of the former.”

    Many people would. It would be ‘understandable’. But that’s why we need laws. To protect us from such folly.

    As Mrs T says: “the state is a unique ‘observer”

    Scott: actually this is way beyond the ICC, effectively if violators of the convention go unpunished in their own country then the HOL ruling implies they can be arrested and detained in any state signatory of the convention.

    That’s a lot of planet.

    “those responsible for the Abu Ghraib torture”

    Two things: those responsible following the HOL goes right up to head of state and ex head of state…….. and …. this is much bigger than Abu Ghraib. I think some of the big topics are still lurking around in Afghanistan.

    Remember that as these societies evolve towards democracy more and more people are going to come forward with testimony.

    The issue of the Korean refugees who died at No Gun Ri (from the Korean war), was still dragging on in the courts up to quite recently.
    http://www.salon.com/books/feature/2002/06/03/nogunri/

    My point is not what happened there – I have no information on that – but that an issue like this can easily run for 50 years, especially if the society becomes a democracy and not (like Vietnam) a one party state.

  10. Edward – I’m not advocating the ICC as a response to this stuff in Iraq. I;m advocating as a way for political leaders to face the same choices as someone who might decide that torture is justified in some particular case. The torturer can’t stand behind a protection of good faith. He shouldn’t be willing to torture anyone unless he’s willing to face prision even if he turns out to have been right. Going to war should be the same sort of decision – don’t do it unless you’re willing to accept years of court procedings automatically.

    I think it would be wonderful if everyone who went to war had to understand, in advance, that even if they win they’ll spend half the rest of their lives in court.

  11. Everybody (well; nearly everybody) is aghast at revelations that US troops have been routinely torturing Iraqi detainees.

  12. That’s strange, this is what I thought I wrote:

    Isn’t this a lie?

    “Everybody (well; nearly everybody) is aghast at revelations that US troops have
    been routinely torturing Iraqi detainees.”

    I mean the implication is that this is US policy.

  13. I am trying to think of a creative defense for torture in the G?fgen case… Could the official authorizing torture not contend that even though the criminal had been caught and confessed, the crime was still in the process of being carried out, to the best of our knowledge, and that thus action is justified to bring the criminal activity to an end. The same logic would apply to the time bomb scenario. Torture becomes a preventive act, much as how one would shoot a hostage-taker with a gun pointed to the hostage, or inflict pain on a person trying to strangle a victim with the intent of making them release the grip. In the case of G?fgen, we are merely dealing with an abstraction in the causes and effects of what could make the criminal act cease.

  14. Scott Martens,

    (1) The european union is funding suicide bombers in palestine. Somehow I’m guessing
    no one will spend half their lives in court for this, or even one day.

    (2) It turns out that a significant number of people in europe, including some high
    level officials indeed, and also many UN officials were making a great deal of money
    off the Iraqi oil sanctions. They were in fact making money, tens of billions of
    dollars, on the suffering, privations, and deaths of the Iraqis. Will these
    people spend a day in court?

    Item (1) is official state policy covered up by disingenious rhetoric. Item (2),
    given the high level of some of the people involved, might be with some
    justification be considered state policy rather than the aberrant acts of
    individuals.

    What do you intend to do about it? I mean you have little influence over the
    U.S. but if I understand correctly you identify with the EU.

    (3) It was only a few years ago that all sorts of atrocities were being committed
    in the former yugoslovia, and unlike Saddam’s Iraq, that is instead of covering up,
    the european press was actually reporting what was going on.

    Nevertheless for years europe collectively did nothing. Should those that stood
    by and did nothing be prosecuted?

    When europe finally did do something europe’s act was to persuade the United
    States to intervene — to be the bad cop. In the violence that followed the
    United States at minimum killed hundreds of innocent people. Do you think the
    americans involved should be prosecuted?

  15. Mark,

    I’m not certain where in my words you find an ‘implication that this is US policy’. If you’ll go back and look more closely, you’ll find that what I wrote is that ‘US troops have been routinely torturing Iraqi detainees’. If you have a problem with that statement, you had better take it up with that anti-American liar Gen. Taguba.

    As for whether the torture is ‘policy’, I cannot say. You’d have to tell me what ‘policy’ means. If you mean, did Bush announce on television that this is what the US would do, or did Rumsfeld circulate an internal memo setting forth torture as official policy, then no, of course it’s not ‘policy’. Unless you wish to indulge yourself in the notion that all this torture was the independent work of six or seven enlisted soldiers acting utterly without the knowledge of their superiors (and foolish enough to bring a digital camera to the party), however, then we must trace their actions back up the chain (and look into the other allegations as well). It might just be that, yes, this all goes high enough to gel into something that looks a bit policy-like. But absent evidence for that, I’m prepared to concede that it was not US policy to torture; that it was merely US policy to turn a blind eye to widespread torture, until it was publicly exposed.

  16. Thank you for the post.
    Thinking about the torture-issue I remembered the German case too but not in detail.
    In fact I did not remember clearly that the boy was dead already when the murderer teased his interogators with his power over life and death of the boy.
    That ‘detail’ makes the comparison even stronger. The theorists of the accepted torture forget that part to easy.
    But still I think it is a slippery slope already to go into discussing if in some theoretical situation torture is acceptable. Yesterday my newspaper (the NRC, Dutch) had an article by a Michael Manning who worked as an interogator for the US army.
    He explains that in his training he was not teached to torture prisoners but the rules were deliberately left ambigu. The Geneva Conventions were not teached. An instructor even made jokes about them.
    I do not claim that torture is US policy. My point is that it very wrong when we let ourself be challenged to discuss the possible situations were torture could be justified. That is theory. Practice is that more then a few prisoners were treated very very bad by more then a few US soldiers in the prison that knew a lot of torture under Saddams rule. Number one challenge is to regain credibility. Discussing this theories is not contributing to that goal to put it mildly.

    @the ICC.
    As far as I know the ICC is never going to deal with mistreatement of prisoners. The crimes that will be addressed are worse: genocide, and acts coming close to that.
    Making it even less digestible that Bush fights it so strongly.

  17. Mark, you’re point eludes me. I didn’t think I’d offered any sort of defense of European policy. Actually, I think the people responsible for the war in Kosovo should have to explain their reasons for breaking the Vienna Convention, the UN Charter and why they rejected any of several alternatives to a bombing campaign that were offered at the time. Perhaps they were justifed, but if the men who sent bombers out to Kosovo didn’t think they were justified enough to risk their own careers, much less their lives, then they are cowards.

    If the EU knowingly supported suicide bombers, its leaders should have to provide adequate explanations. I presume you are talking about the Palestinian Authorty, so let me make another point: they should do so in the same tribunal where American and Israeli leaders explain their massacres, assasinations and financial support for breaches of all the Geneva Conventions and particularly for ethnic cleansing. Yes, Mark, I think it would be a wonderful place where men who give the order to kill can expect to loose something themselves for doing so, even if their reasons are sound, and even if their responses are appropriate. I think it would be good thing if giving the order to go to war meant that those who gave the orders ended up at best looking as innocent as OJ Simpson. History is too full of the abuse of power to allow the powerful to escape the consequences.

  18. Mrs. Tilton,

    It may be that more than just these six soldiers were involved. In fact my
    guess would be that there are and I have been wondering just how far it
    really goes.

    But it “might be” and “wondering” is a long way from knowing how far it
    goes.

    I think we have a really big problem here. And yes of course what happened
    in Abu Ghraib is a really big problem. But the even bigger problem I’m
    referring to is the reasoning you just demonstrated, one that a lot of people
    share.

    The fact is there an infinitely large number of terrible allegations that
    could be made any people on this planet that meet the criteria they have
    not yet been disproven.

    And most of them never could be disproven (and not because they are true).

    If you really want to see World War III and IV and in fact war without end
    then go down this path of eagerly believing horrible things about others
    on the argument it has not been disproven.

    That in a nutshell is a lot of what bothers me about the european media,
    because I get the impression this is the norm where the US is concerned.

    Further I don’t really believe you believe in this ‘logic’ you advocate.
    If you really did and your compatriots shared the same attitude and applied
    it to their near neighbors then you’d be in the midst of or near war.

  19. Scott Martens,

    Thank you for being consistent and honest.

    Now I’m wondering if any others object to your reasoning.

  20. Mark,

    I think you have some odd notions about Europe and Europeans.

    That said, my post was about the argument for justification of torture. We could talk about that all day. Even if one accepts the argument, though, it doesn’t appear in any way applicable to what went on at Abu Ghraib. I can only conclude that those offering it do not wish that Abu Ghraib be seen as a problem. You do see it as a problem, so I do not think we are in disagreement about anything really fundamental.

    If you really did and your compatriots shared the same attitude and applied it to their near neighbors then you’d be in the midst of or near war

    Oh, we were, we were; albeit in a desultory and sporadic way. All in the past these days, I’m happy to say, save for a shower of madmen off in one corner (and that corner we managed to offload on to the neighbours).

  21. No deep thoughts this morning.

    But may I say that the “24” scriptwriters gave an extreme version of the problem a thought and a half in the second season – and they came up with an interesting twist (it had to be extreme because there are few episodes without torturing of either some good or bad guys). Jack Bauer, the protagonist, is seemingly forced to have the terrorist’s family killed on live tv to make the man reveal a nuclear bomb’s location. When the terrorist believes his first son has been shot he speaks to protect the others. The audience is obviously a little confused by this very unheroic display of ungentlemanly brutality – but before long we learn that Mr. Bauer, from the home of the brave, digitally staged the execution.

    I belive this “solution” illustrates the fundamental problem quite well: We want someone to do everything for the obvious greater good. But we also know that we cannot trust ourselves to be as righteous and creative as Jack Bauer to stretch a lot, but not too much, and so we also want rules that help us, bind us, and get us through a situation that could lead to a slippery slope, should we ever experience one.

    I don’t think there’s a solution to this conflict, well, no theoretical one. I like Quiggin’s argument that if some end justifies torture then the paying a personal price of, say, jailtime should not be too high a price to pay. And everyone tragic enough to have to make that decision then should be willing to drink their cup of hemlock for the greater good.

    Maybe that should be so. But it certainly would not happen in any of the worlds I know, for a lot of reasons.

  22. “this is also an excellent argument for the ICC”

    Both the foreign policy spokesman of the SPD in Germany and Mr. Sch?uble of the CDU – who initially was perceived as having a good chance of becoming Germany?s next Bundespr?sident – have voiced their agreement with you publicly, Scott. You runnin? some think-tank or foundation over there in Belgium? Seems like Europeans are distilling their talking-points from your posts…

  23. Of course, Germany also has its Alan Dershovitz (I hope I am not mixing up names here) in the person of Prof. Michael Wolffsohn.

  24. Karl Popper held in the Open Soc and its Enemies 1 that you cannot rely on a pure utilitarian justification like this because “pain cannot be outweighed by pleasure, and certainly not one man’s pain by another’s pleasure”. I think there is a strong argument that in any realistic application of this, a purely end-justifies-the-means decision to use torture would mean that it would be used more and more often until the free society it was intended to defend was destroyed. The Abu Ghraibh case shows among other things that it’s enough to set a culture in which torture could be legitimate to trigger people whose character flaws make them potential torturers.

    Of course, if the hypo really did happen, you’d have to take into account the possibility – even the probability – that torture-derived information is unreliable.

  25. Alex,

    “pain cannot be outweighed by pleasure, and certainly not one man’s pain by another’s pleasure”

    Says who? Given a properly constructed hypothetical (and it wouldn’t take much), I can easily see myself deriving a great deal of pleasure from many more (likely) years of drawing breath at the expense of somebody who’d like to see me (or my compatriots) dead. I find Popper’s claim to be arbitrary and unpersuasive.

  26. Perhaps a consideration of a ruling by the Israeli Supreme Court provides some insight as to how a country faced with the daily moral quagmire of the use of torture in the ticking bomb scenario has dealt with the question. The court stated (para. 39):

    This decision opened with a description of the difficult reality in which Israel finds herself. We conclude this judgment by revisiting that harsh reality. We are aware that this decision does make it easier to deal with that reality. This is the destiny of a democracy?it does not see all means as acceptable, and the ways of its enemies are not always open before it. A democracy must sometimes fight with one hand tied behind its back. Even so, a democracy has the upper hand. The rule of law and the liberty of an individual constitute important components in its understanding of security. At the end of the day, they strengthen its spirit and this strength allows it to overcome its difficulties.

    Looking specifically at the ex-ante use of the defence of necessitythe court stated (para. 36):

    The ?necessity defense? has the effect of allowing one who acts under the circumstances of ?necessity? to escape criminal liability. The ?necessity defense? does not possess any additional normative value. It can not authorize the use of physical means to allow investigators to execute their duties in circumstances of necessity. The very fact that a particular act does not constitute a criminal act?due to the ?necessity defense??does not in itself authorize the act and the concomitant infringement of human rights. The rule of law, both as a formal and as a substantive principle, requires that an infringement of human rights be prescribed by statute.

    Though it acknowledges on an ex-post basis (at para. 38):

    An investigator who employs these methods exceeds his authority. His responsibility shall be fixed according to law. His potential criminal liability shall be examined in the context of the ?necessity defense.? Provided the conditions of the defense are met by the circumstances of the case, the investigator may find refuge under its wings. Just as the existence of the ?necessity defense? does not bestow authority, the lack of authority does not negate the applicability of the necessity defense or of other defenses from criminal liability. The Attorney-General can establish guidelines regarding circumstances in which investigators shall not stand trial, if they claim to have acted from ?necessity.?

    I am far from an expert on this issue, Yet I find it revealing that a country which more than any other would on practical grounds be compelled to accept a defence of the use of torture, will nonetheless not condone a blanket necessity defence for it. Yet the court leaves open the possibility that necessity could be invoked subsequent to the act, and prosecuted at the discretion of the State. However I?m sceptical whether the distinction drawn results in any practical differences. Anyway thought this might of interest to some.

    I heard the Knesset soon thereafter voted against legislation (or some other legislative tool) that would have legalized torture; I couldnt find any relevant articles, if anyone has an answer to that i’d be interested to hear of it.

  27. I heard the Knesset soon thereafter voted against legislation (or some other legislative tool) that would have legalized torture

    Shortly after the Supreme Court’s decision, MK Reuven Rivlin (Likud) introduced a private bill that would have essentially have overturned it. The bill was later withdrawn and AFAIK nothing similar has reached the Knesset floor since then.

  28. I’m not surprised at the torture or otherwise uncomfortable interrogation of prisoners (not that torture always gets the answers you want, but the repeated near-drowning of Khalid Sheik Mohammed seems to have elicted a mountain of great information).

    What surprises me is the uncoordinated, amateurish way in which people have been abused. One might expect professional interrogators to have tight control over the abuse – what, how, how long, etc. But we see a bunch of junior military police taking home photos with naked Iraqi prisoners, in rather odd sexual situations involving women’s underwear.

    Rather than blame an official policy of interrogation techniques (which may be true, more or less), I would blame a cultural viewpoint that has taken deep root in America, but not in the EU (because no one flew a plane into a skyscraper there yet).

    Americans, in general, will not distinguish between one Arab and another, one Muslim or another, after 9/11. Right or wrong, good or bad, Iraqis, Afghans, and anyone else who wants to step up to the plate is being cast as the “enemy”. And the enemy is a nameless, faceless, godless, inhuman beast with no rights.

    So imagine a group of American soldiers arresting Iraqis at night. They find a gun, or some ammunition. Maybe a large amount of cash. Certainly there might be a reasonable explanation for any of it – an explanation that has nothing to do with terrorism. But that is not going to be taken into consideration because the Iraqi is the enemy – and is by definition less than human. So any preconceived notions we have about how they will be treated, regardless of written orders, go right out the window.

    I’ve warned people here that if there’s another 9/11 style attack (or something of that magnitude) here in the US, the Muslims who live in the US will be in concentration camps by the end of the week. And if an attack like that happens in Europe, well, the world will get just as ugly there, too.

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