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October 13, 2006

Torture, Necessity, and Senator Hillary Clinton

A
ndrew Sullivan asked yesterday if Hillary Clinton is back-sliding in her opposition to U.S. government-sponsored torture of suspected unlawful enemy combatants, as expressed on the Senate floor during the debate on the Military Commission Act. In an interview with the editors of the NY Daily News, Senator Clinton apparently suggested that when faced with the so-called "ticking time bomb" scenario, the use of techniques that may constitute torture would be okay -- so long as whoever is president approved them and reported their use to Congress, even secretly.

It seems to me that Senator Clinton is just voicing a version of the long-recognized Anglo-American legal principle of "necessity" -- also called the "choice of evils" defense. When faced with imminent peril, a person may use deadly force against another person to protect himself or others.

So I don't see her back-sliding at all. What I see her doing is articulating a rational, morally defensible exception for the use of otherwise unacceptable interrogation tactics in extraordinary circumstances. It's the type of exceptional standard that should have been adopted in the first place -- not the general rule that abusive interrogation tactics are acceptable in all circumstances.

[A quick side note. During the Vietnam war, two individuals -- Francis Kroncke and Michael Therriault -- broke into their local Selective Service office in July 1970 to steal draftee registration cards to save those draftees from being sent to Vietnam and possibly killed or maimed. They were prosecuted for violating the Selective Service Act and creatively but unsuccessfully invoked the "necessity" defense. Kroncke acted as his own lawyer. Therriault was represented by Kenneth E. Tilsen, who just one year later coordinated the legal defense for the leaders of the Wounded Knee incident. ]

Posted by shertaugh at October 13, 2006 1:20 PM

Comments

She'd better not have me as a trier of fact.

Because the basis of that defense is based on a set of premises which I can't see being met.

1: We know there is a bomb/buried baby/whatever

2: We know the person in question has the information.

3: Torture can sucessfully be used to extract the information.

4: Such extraction can be done in a manner timely enough to solve the problem.

I'm an interrogator. The odds of (2) being met are damned slim, the odds of three... lets just say that in my, professional, opinion, the odds against that happening are somewhere between .99999999999999999999, and 1.0.

Torture doesn't work. It gets the interrogator the answers he wants to hear, and in a situation where there is a time limit, it gets no results (because the victim can ride it out), or it gets false results, adequate to prevent the desired outcome from being stopped.

To sanction it, at all, even in so limited a sense, is to authorise it.

And that's not acceptable.

Posted by: Terry Karney at October 14, 2006 12:02 AM