The discussions about the responsibility of high-ranking federal officials in the Defense Department, CIA and vice president's office, and the lawyers who advised them about the legality of torture, seem to be going nowhere. How we define torture and when it is permissible seem to be more appropriate questions for philosophers than politicians. Reading the lawyers' analyses about the legality of throwing someone against a wall or for how long it is OK to pour water down someone's throat makes for some weird jurisprudence. Behind the torture question is the provocative "ticking bomb" rationale.
President Obama prefers to put the past behind us and move on. Defenders of the Bush officials agree. In this view, enough is enough; we should avoid scapegoats and witch hunts. For new administrations to come to office and indict their predecessors could lead to spiraling mischief. Electoral politics already took its measure of past governmental action. Besides, many of the officials whose actions are known already have suffered sanctions through public criticism and obloquy. Indictments, civil suits, impeachment or disbarments would be tough to secure and not worth the inevitable distracting political difficulties.
Critics fear that forgetting the past creates a bad precedent for future presidents. If torture was considered acceptable in the past, it would be in the future too, arguably. If offenders are not held accountable, their conduct can be deemed to have been approved, albeit implicitly and after the fact. Thus the demand for investigation — criminal, congressional or a private or quasipublic blue-ribbon commission to evaluate what happened. I subscribe to the latter option.
Behind this dilemma is a historic conundrum. When our national security is threatened, as on Dec. 7, 1941, and Sept. 11, 2001, we are inclined to compromise principles for pragmatic reasons. The Constitution isn't a suicide pact, the prolific conservative legal commentator Judge Richard Posner argues: The "law must adjust to necessity born of emergency" and allow occasional disequilibrium of constitutional rights. If the Constitution does not bend, it will break, Posner posits.
More principled advocates argue that it is at precisely these times of stress and pressure when we most need to be guided by our constitutional principles.
Bad hypotheticals lead to worse rationalizations. The classic ticking-bomb argument has been advanced to justify "enhanced" interrogation techniques, torture being the most drastic. Suppose, the syllogism goes, a terrorist is captured. There is proof that a building is about to be blown up in a busy urban center. Do investigators do nightmarish things to him in order to elicit information necessary to prevent mass murder?
The problem is that the ticking-bomb argument is made to justify potential situations. If such an experience actually occurs, the extraordinary measures might be proffered after the fact to justify them. But if they are used to justify action when justification can not be demonstrated in advance, the extraordinary measure should not be condoned. Laws perforce are designed before facts, not after them, when all the facts to which the law will apply are known.
PRESUME TORTURE IS ILLEGALThere is an alternative to meet the ticking-bomb argument, one that honors ideals yet recognizes the conundrum created by extraordinary exigencies. The premise: Laws must be followed at all times. Violating them, regardless of the provocation, is civil disobedience. Moral people sometimes perform civil disobedience — the Rev. Martin Luther King, Jr. is a classic example. He never claimed that he wasn't in violation of some of the laws he violated. He believed, and history has shown he was correct, that those laws he violated were either bad or inappropriately applied. But those who take a chance face the possibility that their actions ultimately may be viewed as offenses for which they are responsible.
When facing a true ticking-bomb situation only supercilious, if not suicidal, citizens would stand in the way of investigators doing everything necessary to find and destroy it. Yet, to date, no one has demonstrated any such situation — only the argument that these are dangerous times and that investigators should be able to do prospectively whatever they need to do to meet these dangers.
The problem with this view is that there is no end to this road. Who decides when and under what circumstances to apply exceptional standards? It is too easy to adopt the "better safe than sorry" approach of self preservation. The problem is that we never know prospectively whether it is a true ticking-bomb situation, yet some have proposed a free pass from laws by simply asserting it, even when there was not a ticking bomb.
If the law we followed invariably was that anyone taking illegal steps would be accountable for disobeying the law, two results would follow: (1) If the perpetrators were right about saving us from a true ticking bomb and could prove it, they would likely be acquitted, or their sentence suspended, a sort of nullification because they were demonstrably moral wrongdoers acting in an extraordinary situation. Or (2)if their self-righteous claim could not be proven to be correct, however noble their motivation, they would be guilty of violating the law and punished. They could argue self defense, good faith, whatever case they wished to make, in justification of their acts. What standards apply would be up to the presiding judge — did their acts shock the public's conscience or violate relevant statutory or international laws? The appropriate punishment would be up to judges and juries in the sentencing phase of criminal trials or the damages phase of civil trials.
That approach would be a deterrent to misguided misconduct, but also a potential escape valve for those whose "moral misbehavior" was demonstrated to have been in the public interest. The actor must be prepared to commit civil disobedience regardless of the outcome.
Ronald Goldfarb is a Washington attorney and author, and a former Justice Department prosecutor under Robert F. Kennedy. He can be reached at RGLawLit@aol.com.
