When a policeman shoots a person brandishing a weapon in a threatening manner at at third party, we recognize that to protect innocent life, it may be necessary to take a guilty one. There are pacifists who will argue that taking a life is never justified, but by and large, most have concluded that it is always regrettable, but sometimes necessary. Indeed, protection of the innocent is not just a preference, but often a moral responsibility.
In general, the world is a lawless place and we grant governmental officials the authority to act violently in our behalf. Of course, the use of force is governed by laws and protocols. Some people believe that as Commander-in-Chief, the President is granted broad latitude in application of force. In an interview with Chris Wallace on Fox News, former President Clinton boasted about his efforts to pursue the chief terrorist Osama Bin Laden,
“What did I do? What did I do? I worked hard to try to kill him. I authorized a finding for the CIA to kill him. We contracted with people to kill him. I got closer to killing him than anybody has gotten since.”
In hindsight the killing of Bin Laden would have been salutary and perhaps even averted the deaths of over 3,000 people on 9/11. Hence, no one complained about Clinton’s implicit assertion that the president has the inherent authority, without judicial finding or legislative action, to order the killing of a person, he judges, poses a severe threat to the citizens of the United States. This is quite a claim and seems to have passed by unremarked upon.
The immediate question before the US Senate is whether to approve the nomination of US District Court Judge Michael B. Mukasey for US Attorney General. There is no doubt about Judge Mukasey’s understanding of the law, experience, and judicial temperament and his confirmation by the Senate seemed assured. This easy ride ended when Mukasey was equivocal on the use of waterboarding to extract information from captured terrorists. Waterboarding is a technique were the person being interrogated is not physically harmed, but made to feel that he or she is drowning. By all accounts, it is very effective is extracting information from reluctant parties. By international definition, torture also includes severe mental suffering. Despite the fact that journalists for background and US military special forces in training have undergone waterboarding, many consider waterboarding to be torture. For our purposes here, we can categorize waterboarding as torture. The moral (though perhaps not legal) arguments below are independent on how waterboarding is categorized. The legal case may affected by this categorization and some argue that waterboarding is not sufficiently “severe” to be defined as torture.
Mukasey did point out that waterboarding is prohibited to the military for captured military prisoners, but was unwilling to draw a more categorical prohibition. In his written response to the Senate, Mukasey wrote that actions like waterboarding may “seem over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans.” However, “hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical.” In short, the judge was unwilling claim that waterboarding would be inappropriate under any circumstance. Indeed, Congress when given the chance could not pass a categorical prohibition against waterboardimg.
The classic argument for use of extreme interrogation techniques is the “ticking atom bomb scenario. ” Imagine that there is an atom bomb about to go off, potentially killing many thousands of people, and someone in custody has information that could prevent the bomb from going off. Virtually everyone concedes that aggressive techniques – even torture – would not only be justified but morally required.
Just as Judge Mukasey opined, hypotheticals are not appropriate to draw general conclusions from. The atomic bomb scenario is unlikely and is just an extreme example to to illicit the concession that there might be times when torture would be necessary.
There are reports that Khalid Sheikh Mohammed, the high-level Al Qaeda leader was waterboarded and revealed information crucial to breaking up terrorists plots. If this is indeed the case, it would be no wonder that Administration authorities are reluctant to relinquish this tool.
The real question is how to make reasonable accommodation with situations in extremis. Do we prohibit extreme forms of interrogation and oblige our leaders to break the law or do we formally recognize that rare necessity of such techniques?
Those in favor of the latter position plausibility argue that the forcing our leaders to break the law would make reticent to use extreme interrogation techniques unless absolutely necessary. However, forcing people to break the law to do what they believe is necessary breeds disrespect for the law and guarantees that each decision will be made with short time for consideration. By contrast, if the use of the extreme interrogation techniques were regularized it would allow us to think through potential situations. Regularizing the circumstances for use of these techniques allow us to prescribe criteria for appropriate application systematically rather than in an ad hoc manner during a crisis.
When an officer uses a gun to protect citizens, he has been trained in the rules for use of lethal force and knows how he will be judged later. We would not want to prohibit use of lethal force and force the law enforcement officer to break the law to save a life. Why would we want the President to have to break the law he is sworn to uphold? If Congress is truly concerned about the use of torture,or aggressive interrogation if you prefer, they would serve us better if the held hearings on when extreme interrogation techniques ought to be legal and appropriate. How extreme can they be? They could provide legal and moral guidelines useful for this and future administrations.
This entry was posted on Sunday, November 4th, 2007 at 9:51 am and is filed under Law, Social Commentary. You can follow any responses to this entry through the RSS 2.0 feed.
You can leave a response, or trackback from your own site.
On the Use of Extreme Interrogation Techniques
When a policeman shoots a person brandishing a weapon in a threatening manner at at third party, we recognize that to protect innocent life, it may be necessary to take a guilty one. There are pacifists who will argue that taking a life is never justified, but by and large, most have concluded that it is always regrettable, but sometimes necessary. Indeed, protection of the innocent is not just a preference, but often a moral responsibility.
In general, the world is a lawless place and we grant governmental officials the authority to act violently in our behalf. Of course, the use of force is governed by laws and protocols. Some people believe that as Commander-in-Chief, the President is granted broad latitude in application of force. In an interview with Chris Wallace on Fox News, former President Clinton boasted about his efforts to pursue the chief terrorist Osama Bin Laden,
In hindsight the killing of Bin Laden would have been salutary and perhaps even averted the deaths of over 3,000 people on 9/11. Hence, no one complained about Clinton’s implicit assertion that the president has the inherent authority, without judicial finding or legislative action, to order the killing of a person, he judges, poses a severe threat to the citizens of the United States. This is quite a claim and seems to have passed by unremarked upon.
The immediate question before the US Senate is whether to approve the nomination of US District Court Judge Michael B. Mukasey for US Attorney General. There is no doubt about Judge Mukasey’s understanding of the law, experience, and judicial temperament and his confirmation by the Senate seemed assured. This easy ride ended when Mukasey was equivocal on the use of waterboarding to extract information from captured terrorists. Waterboarding is a technique were the person being interrogated is not physically harmed, but made to feel that he or she is drowning. By all accounts, it is very effective is extracting information from reluctant parties. By international definition, torture also includes severe mental suffering. Despite the fact that journalists for background and US military special forces in training have undergone waterboarding, many consider waterboarding to be torture. For our purposes here, we can categorize waterboarding as torture. The moral (though perhaps not legal) arguments below are independent on how waterboarding is categorized. The legal case may affected by this categorization and some argue that waterboarding is not sufficiently “severe” to be defined as torture.
Mukasey did point out that waterboarding is prohibited to the military for captured military prisoners, but was unwilling to draw a more categorical prohibition. In his written response to the Senate, Mukasey wrote that actions like waterboarding may “seem over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans.” However, “hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical.” In short, the judge was unwilling claim that waterboarding would be inappropriate under any circumstance. Indeed, Congress when given the chance could not pass a categorical prohibition against waterboardimg.
The classic argument for use of extreme interrogation techniques is the “ticking atom bomb scenario. ” Imagine that there is an atom bomb about to go off, potentially killing many thousands of people, and someone in custody has information that could prevent the bomb from going off. Virtually everyone concedes that aggressive techniques – even torture – would not only be justified but morally required.
Just as Judge Mukasey opined, hypotheticals are not appropriate to draw general conclusions from. The atomic bomb scenario is unlikely and is just an extreme example to to illicit the concession that there might be times when torture would be necessary.
There are reports that Khalid Sheikh Mohammed, the high-level Al Qaeda leader was waterboarded and revealed information crucial to breaking up terrorists plots. If this is indeed the case, it would be no wonder that Administration authorities are reluctant to relinquish this tool.
The real question is how to make reasonable accommodation with situations in extremis. Do we prohibit extreme forms of interrogation and oblige our leaders to break the law or do we formally recognize that rare necessity of such techniques?
Those in favor of the latter position plausibility argue that the forcing our leaders to break the law would make reticent to use extreme interrogation techniques unless absolutely necessary. However, forcing people to break the law to do what they believe is necessary breeds disrespect for the law and guarantees that each decision will be made with short time for consideration. By contrast, if the use of the extreme interrogation techniques were regularized it would allow us to think through potential situations. Regularizing the circumstances for use of these techniques allow us to prescribe criteria for appropriate application systematically rather than in an ad hoc manner during a crisis.
When an officer uses a gun to protect citizens, he has been trained in the rules for use of lethal force and knows how he will be judged later. We would not want to prohibit use of lethal force and force the law enforcement officer to break the law to save a life. Why would we want the President to have to break the law he is sworn to uphold? If Congress is truly concerned about the use of torture,or aggressive interrogation if you prefer, they would serve us better if the held hearings on when extreme interrogation techniques ought to be legal and appropriate. How extreme can they be? They could provide legal and moral guidelines useful for this and future administrations.
This entry was posted on Sunday, November 4th, 2007 at 9:51 am and is filed under Law, Social Commentary. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.