People v. State

Mark Bennett at Defending People has one of the most sensible and succinct takes on the issue of torture that I’ve seen. Here’s the take-home line: “If Jack Bauer can show that torture was the least of the available evils, he shouldn’t be convicted. But that’s for him to prove. This puts the torture memos in new light, incidentally. ‘Imminent’ harm isn’t harm that’s going to happen sometime after you seek legal advice.”

We all can imagine a scenario (e.g., ticking time bomb, terrorist in custody who knows the code) where we would be hard pressed to find fault with a government agent doing whatever was necessary to protect innocent lives. Heck, there was a Law and Order episode where one of the detectives kept shoving a kidnapper’s head in the toilet until he revealed the location of the child he was known to have kidnapped, and my opinion was that the detective should have been given a medal and that the kidnapper’s “confession” and the evidence resulting from that confession should have been admissible at his trial for kidnapping.

There are a lot of variables in these imagined scenarios. How grave is the harm we’re trying to prevent? How sure are we it’s going to happen if we don’t do something now? How sure are we that the person in custody has information that if extracted will prevent this grave and imminent harm from happening? This variability doesn’t lend itself to pre-established legal rules demarcating when it’s okay to torture. But we already know, or should know, that just being at war, with all the danger to civilian and military lives that that entails, doesn’t justify torturing captured enemy combatants in the hopes that they may have information of value, no matter how much they may “hate our freedoms.”

The laws don’t exist to cover government butts. “I was just following orders” is no excuse. The mantra in the minds of U.S. intelligence operatives should be “we don’t torture, period.” The situations in which this prime directive might be overridden should be so grave, clear-cut and extraordinary that the personal consequences to the agent should be the furthest thing from his mind. If he has to think about it, if he has any doubt about whether what he’s doing is necessary and justified and is concerned about what a jury might think, he almost certainly shouldn’t be doing it.

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