The New York Times asked a number of big name lawyers to suggest questions for Attorney General nominee Eric Holder’s confirmation hearings. UCLA professor and right wing blogger Eugene Volokh offers this question:
What may American military and law enforcement do to extract information from terrorists, especially in a “ticking time-bomb” case?
I’m going to go ahead and answer this for Holder. Hopefully he reads my blog.
The correct answer is to reject the hypothetical. First of all, I don’t know that the “ticking time bomb” scenario has ever occurred in the history of our nation. Let’s say that we do have special rules for dealing with terrorists in a ticking time bomb scenario. How do we apply these rules.
Not only must we capture a terrorist, but we must already have reason to suspect that the terrorist has sufficient knowledge of an impending attack. When does this actually happen? It’s far more likely that authorities attempt to invoke the time bomb rules whenever they capture a suspected terrorist and wind up subjecting them all to the “time bomb” treatment.
Chances are we will never have both the right captive and the knowledge we need to know that we have the right captive. In the end you wind up torturing all sorts of people, just as we do today. (Make no mistake, the essence of Volokh’s question is to see if he can get Holder to agree that torture is necessary in some cases.)
Here’s the real point, though. Let’s assume that we have captured a terrorist who has operational knowledge of an impending attack, and that we know this terrorist has such knowledge. So the task is to somehow get this terrorist to disclose what he knows, enabling us to prevent the attack.
In this situation, it does not matter what the terrorist says. They only need to buy time for the people who will be executing the attack. I learned this on an episode of 24.
In one episode, Jack Bauer captured a terrorist who knew about an attack that would occur at the top of the next hour. With 10 minutes left, he shot the guy in the leg, and he immediately spilled his guts. For some reason, he told the truth. But given that he only had to stall for 10 minutes to enable the attack to be launched successfully, he could just as easily have lied.
So I would propose that for any time frame short enough to qualify for the “time bomb” scenario, it is impossible to extract truthful information from all but the dumbest terrorists, regardless of the means used.
Ignore the question.
Update: Texas Republican Senator John Cornyn (this idiot) asked Eric Holder this question today. I’ll post the transcript when it’s available.
Update II: Here’s the transcript and video of Cornyn presenting his hypothetical to Holder.