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.