Defuse the ticking time bomb

Defenders of torture inevitably raise the dreaded "ticking time bomb" scenario.  Leaving aside questions about the plausibility of such a scenario (I have my doubts, but I'm not privy to classified intelligence), there is an obvious solution that doesn't involve legalizing torture.

At common law, courts have long recognized the defense of necessity (sometimes called "choice of evils".)  For example, a jury may refuse to convict a criminal defendant if: 1) he was faced with a clear and imminent danger; 2) he reasonably thought his action would abate the danger; and 3) there was no legal alternative.   See Commonwealth v. Pike, for example.  In the context of torture, see the opinion of the Supreme Court of Israel in Judgement on the Interrogation Methods Applied by the GSS. 

If instructions on the necessity defense were allowed in prosecutions for torture, no jury would convict a defendant who could show he was faced with a true "ticking time bomb" scenario.  Yet this is very different from prospectively legalizing torture, since the putative torturer, faced with the prospect of a criminal prosecution, would be less likely to proceed without a genuine justification.

Unfortunately, the Supreme Court effectively ruled out a general necessity defense to federal criminal law in United States v. Oakland Cannabis Buyers' Cooperative.  But there is nothing to stop Congress from enacting a necessity exception to the federal torture statute.  Provided the government aggressively prosecutes torture cases (including those involving the CIA), I would support such an exception.  I'm guessing it would get used quite infrequently, if ever.

UPDATE: Just to be clear: When I suggest that Congress enact a necessity exception to the torture statute, I mean an exception that allows for a necessity defense to be raised by a criminal defendant, not an exception that prospectively precludes prosecution.

Comments

[S.cotus]

This would have the virtue of allowing the courts – or Congress to specifically identify what constitutes a real “emergency.” Perhaps Congress could provide specifically for torture warrants where such information would really be needed. Or maybe they could provide for immunity from prosecution if certain procedures are followed.

Most of the people who bring up the “ticking bomb” theory are just nuts that want to allow a bunch of rednecks to torture anyone they want. They don’t care about accountability. They don’t care about oversight of the torture, and they don’t even care about whether it resulted in the accurate intelligence. (I have never met one who thinks otherwise. And I know I am going to meet a lot of people at the Federalist Society Convention coming up this weekend, and I am pretty sure that none of them agree with me on this.)

So, what I would like to see is, perhaps, a model affidavit, to be signed by at torturer, at the time of the torturing which includes:

1) an explanation of why all other methods were unavailable (including a grant of immunity);
2) a video of the torture;
3) an explanation of how successful the method was at preventing some evil;
and 4) a description of the harm inflicted and how it was the minimum necessary to extract the needed information.

But, the fact is that the pro-torture crowd just wants to let local cops torture minorities and kids at will. Never have they suggested any sort of congressional or judicial oversight, because they are happier giving their favorite kind of people a license to bully.

Indeed, the last thing they want is public discussion of the methods applied. It would be quite easy to redact any sort of “national security” details from the above-mentioned affidavit, and release it to the public, so we could have (before or after the torturing) sane discussion of whether it is really worth going down this road. But this isn’t what the pro-torture crowd wants.

[Mahan Atma]

"This would have the virtue of allowing the courts – or Congress to specifically identify what constitutes a real “emergency.” Perhaps Congress could provide specifically for torture warrants where such information would really be needed. Or maybe they could provide for immunity from prosecution if certain procedures are followed."

Personally, I prefer putting it in the hands of a jury. I have a great deal of trust in juries; less so in the government!

[Aaron]

How did Senator Levin put it - in a ticking timebomb scenario, "Obviously, some president is going to say I'll take the responsibility in that case to go against our usual criteria."

[Mahan Atma]

I heard that remark too, but I wasn't sure exactly what Levin meant by it. It could be interpreted a couple different ways:

1) The President would authorize torture in such a situation. Probably, but part of the scenario is that time is of the essence. Besides, that doesn't mean the torturer is off the hook, as some guy named Eichmann once discovered.

2) The President would pardon anyone convicted of torture in these circumstances. Maybe, but that seems like an awfully distant prospect, and one that requires getting convicted first. I'd prefer take my chances with a jury, were I the savior of Manhattan.

You know, juries are incredibly astute. I made it onto a jury once, despite my being a lawyer. After 30 seconds of the plaintiff's opening argument, I knew how the case should turn out. And I can easily say that none of my fellow jurors knew a fraction of the relevant law that I did. Taken individually, they were utterly clueless.

Yet, when you put twelve people together in a room, and prod them to come to a consensus, an amazing thing happens: they figure it all out! That's just what happened when I sat as a juror. Once the evidence was presented, I literally had a precise number in my head, representing the defendant's percent of responsibility, and I'll be damned if the first juror to open his mouth in deliberations didn't match that number exactly! Sure enough, that's how the jury eventually decided it.

When I was clerking, my judge had the unusual practice of speaking with jurors after the verdict was rendered. It was extremely educational. Almost always, they would make salient observations that never occurred to me. (They usually occurred to my judge, but she'd been on the bench for 27 years!)

As a great actor once said, "God bless juries!" I couldn't think of a better way to settle the ticking time bomb question.

[markm]

Whoa there. Do you actually expect a government official to risk actually taking responsibility for his actions, to include a possible criminal conviction?

Adding the necessity defense to the torture statute sounds like a very good idea. I just don't expect to ever see it used, unless we can somehow start selecting better government officials.

[Mahan Atma]

"Do you actually expect a government official to risk actually taking responsibility for his actions, to include a possible criminal conviction?"

If that's your premise, then I don't know what possible solution there is to the problem. What would you propose?