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.
January 15, 2009 at 1:44 pm
I believe this is the guilty vs. innocent problem. http://en.wikipedia.org/wiki/Blackstone's_formulation
Instead of facing the question of whether you should torture a (possibly innocent) person, Volokh is attempting to justify the means with the ends. The rule of law is that you must have a trial to prove guilt, there is now allowance in the law for “I know he knows where the bomb is”.
I think the correct answer is if someone makes themselves judge and jury, and tortures a suspect, even if they suspect a bomb scenario, they can expect to be prosecuted to the full extent of the law.
If I personally decided I had to do something outside the law to accomplish something like saving the city or something, I would do it knowing the law will put me in front of a group of my peers. If my judgement was wrong, I will face the consequences. Even if I was right, I might face the consequences. That would mean I would accept the personal responsibility of sacrificing my freedom when I made that decision. I think that’s the kind of sacrifice people make to save their country and/or fellow man. Not everyone can step in front of a bullet, and the law cannot make exceptions prior to unknown events happening.
January 15, 2009 at 1:46 pm
Since it is impossible to determine the quality or validity of information in such a situation, it is inherently useless. Therefore, the methods used to extract the information are irrelevant.
January 15, 2009 at 8:50 pm
I have always thought and still think that it’s strange that this is being discussed at all.
The ticking time-bomb scenario is a movie plot. Nothing else. It hasn’t ever occurred with terrorists. We would certainly know. However, there was a much-discussed case in Germany where a psychopath had buried a girl in a wooden box (IIRC) and the police had him in custody. What did he do? He stalled and the girl died. Later it was revealed that a policeman beat him to get the information. That didn’t help at all. However there was a big discussion if the Police should be allowed to extract information from ticking-bomb prisoners, even though they tried illegally and failed. I have no words for that event’s stupidity.
24s’ writers are literally full of shit. The terrorists will not divulge information to anyone but Jack Bauer. However, if he just hits them hard enough he will get all the information he needs. I watched the first 3 seasons only (then I stopped) and I always felt that the program was really a torture-wish-it-were-so advertisement.
I think that the main problem is that most people can not distinguish between what they see on television and reality. I really feel that the only reason that this is discussed publicly is because it’s a plot device that the renegade good guy uses to get the information he needs to save the girl.
January 16, 2009 at 10:39 am
I recently heard an expert on interrogation, and an opponent of torture (he wrote a book on it all) interviewed on NPR and he approached the question a little differently: 1) he claimed that in essence, we’re perpetually in a time-bomb situation, since there are roadside bombings and other attacks in Iraq and elsewhere almost every day, so you could theoretically apply that justification to anybody you capture, and 2) that even under time pressure, non-torture methods elicit more reliable information. if you want to prevent attacks tomorrow or later today (as opposed to delay-for-ten-minutes scenarios), you’re still better off treating the suspect with respect, trying to gain their trust, etc. he gave the example, “if you torment the guy, he might answer your question — where are the guns stored. but if you give the guy some respect and earn his cooperation, he’ll not only tell you that, but he’ll also warn you that the place is booby-trapped.” throughout the discussion he asserted you always get both better and more information by legal ways than by duress, type of suspect and pressure of time being whatever.
January 16, 2009 at 1:20 pm
I believe the book in question is How to Break a Terrorist by Matthew Alexander. The bottom line is that there are a ton of reasons why torture is unjustifiable for reasons of morals, common sense, diplomacy, and efficacy, and yet we are still deluged by arguments in favor of it every day.
I assume the problem is that our lizard brains tell us that you can beat information out of people, and for many people, the lizard brain is the only thing they listen to.