A Torturous Choice
Years hence, in a dark cell with a ticking clock, a police officer will have to choose between doing something awful (then being jailed) or the deaths of thousands. Fair?
14 comments
Greg Greg Greg Greg Greg Greg
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14 Comments:
Perfectly. This is no greater risk than
than the one they take, say, chasing armed drug dealers. This is the same risk they may take breaking into a house without a proper warrant.
They're policepersons, risk is part of their job. It goes hand in hand with the powers they're given over ordinary citizens.
Hmm, perhaps this needs more context. Right now, the Melbourne intelligentsia (such as it is) is horrified that a law academic has argued that we should implement "torture warrants", for the unlikely event that we have a ticking bomb and a terrorist in custody.
Naturally, he has been hounded by everyone for daring to voice this view - and the criticism has been overly personal and vitriolic (hence my earlier post about academic freedom to examine taboos).
This letter was saying that, without
"torture warrants" or other society-wide mechanisms, the decision will fall to a single person to weigh up a jail sentence for torturing a suspect or the death of thousands (a la 24 or Enemy of the State.)
I just wanted to highlight that it's not as cut-and-dried as some people would have it and that there are dangers whichever way we go (in this case, the dangers of creating rogues or martyrs out of police).
FWIW, my view is that the case has not been made for "torture warrants". In principle the state has the (limited) right to silence, fine, incarcerate and medicate me anyway. It can already use lethal force against me to stop a crime in progress: what's different - conceptually - about sticking needles under my nails?
I'm aware of the controversy in Australia, and also aware of the ticking bomb scenario. I think we're in agreement here. If the same rules apply to torture as with other types of (mis)treatment of suspects, no special rules need to be created for dealing with torture.
Are you saying that under the (far-fetched) ticking bomb scenario, should a police officer decide "screw this" and start beating the information out of the suspect AND the officer gets the information and saves the day AND then goes to jail, that this is a just outcome?
Or, at least, an acceptable risk of being a police officer? Like being shot chasing drug dealers.
"Thanks, Officer Plod, for torturing that suspect and saving us from the poison gas strike. But you know that you'll have to go to jail now."
"Sure, I knew they were the risks when I signed up."
Perhaps this could be called the Ollie North Principle.
Yes, that's what I'm saying. If you can think of a legal regime that will be better in this unlikely situation, but will also not allow misuse of power in the far more common scenarios, I'd like to hear it.
Oh right. Well, that's pretty clear then: police carry the risk.
Sort of like charging a fireman with trespass if he breaks into your burning house to wake you up.
I can see that, yes, the incidence of ticking-clock bombs is so slight that a more formal torture process would inevitably lead to abuses. But if we do expect police to be jailed for their efforts in reluctantly torturing suspects on our behalf, the least we could do is give them a damn fine medal.
Question: What is a suitable design for the jailed torturer's medal?
Golden thumbscrews mounted on a brass phonebook, with an inscription "Sorry it had to come to this"?
I'm still waiting to hear an alternative.
Well, at first blush, one might say we should have an independent person make the decision, weighing up the likelihood that the suspect has information, that it would be revealed under duress, and that it would make a significant difference to finding the bomb. Thinking along these lines, we quickly end up with torture warrants.
Now, once torture warrants are formalised, then, yes, inevitably police will want to use them and we'll get function-creep: they will become investigative and coercive instruments and abuse will be rife.
OTOH, if terrorirsts knew that torture warrants existed, it might act as a deterrent, or force terrorists to change tactics thus weakening their effectiveness or efficiency. (See the threat of torture by German police in a kidnapping case.) Of course, this deterrent effect could still be achieved by convincing terrorists that their operatives will be tortured even sans warrant.
So, yes, torture warrants are probably not necessary for achieving the desired result (deterring/weakening terrorists and obtaining ticking-bomb information). And, yes, they would lead to more pain than they would avoid.
Still, it seems harsh to jail the police officer. That's why I think a handsome medal will take the sting out of it a bit.
-Greg.
The case against torture warrants can be made even simpler - the issuer takes on no risk.
The underlying circumstance behind any "legitimate" use of torture is lack of evidence to begin with. This is one of the reasons that confession given under duress is useless in court - people are likely to say any damn thing to get out of being tortured, and for those who don't confess, it is never clear if it's because they haven't been tortured enough or (since there is not enough evidence) whether they just don't have the information to give.
So let us say that someone hands down a "limited torture warrant", the torture is administered and no information is gained. This means one of two things: 1) The suspect is immune to the level of limited torture that an "enlightened" nation like Australia would allow or 2) somebody has made a gross mistake in allowing the torture to be allowed in the first place. How do you find out which is true? And if somehow one finds out it is the latter, how do you make amends? Jail the judge? Buy the suspect a new car and a gift certificate at Country Road?
Incidentally, an easy solution is to put no limit on the torture. This solves a whole slew of problems at once. Simply torture the bugger to death and he can't demand the car or certificate. It worked great during the Punjab terrorism days in the 80s. Sure, hundreds of youngsters turned up dead from "encounters with police while trying to escape", but many thousands more were saved from the real terror.
Hi Taj!
As far as I'm concerned, torture is not okay, but sometimes someone may find themselves in a situation where they may be faced with a decision. I hope it's never me.
Continuing this hypothetical, let's assume that I do get my chance to disgrace myself.
Firstly you could never be proud of resorting to torture to "protect" the public. You would have to admit that there had been failings in intelligence, surveillance, partnerships, etc. So I don't think medals are appropriate even if lives are saved. I think you should question the character of a person who would accept one.
Secondly, I don't think it is up to the average person to make the decision about whether my actions were appropriate - I want a judge and jury thank you! I am sure that some people would "like" to be treated specially though, and some may even be lucky to win through in the end (Sharon the war criminal, Mandela the terrorist), but in the norm you have to expect that you are taking on the risk.
To summarise, I think this is a good issue to be out there because I think there is a big gap between the community’s expectations and the realities of torture. I don't think the academic was arguing for torture warrants, he was just explaining the way that the world works in a way that only a lawyer could do! :)
It's worth noting that the good professor did indeed support torturing (to death) people - even for innocents caught up in the net!
Any torture warrant would, by its nature, have to be limited lest it turn into summary execution. That said, any torture warrant system would have to allow for inadvertent death due to a weak heart, for instance.
WRT a torture medal, yes I think a reasonable person would not accept it. I've discussed the applicability of formal pardons (or "petitions for mercy") to resolve the dilemma of "rule of law" vs "taking all steps" and the view was that this would most likely be handled in sentencing. Ie "you broke the law, were found guilty, but stopped an outbreak of smallpox, so you have to enter a good behaviour bond." NB: this means promising not to do it again!
As for "disappearing" suspects ... that's tough. Jeez, how should the state fight an organised committed group of people willing to go beyond the law or morality? I mean, without becoming worse than terrorists? Has anyone done it well? The British and the IRA, the Spanish and ETA, the Israelis and the PLO? I'm not sure that it's possible.
Maybe it's better to contain institutionally (and in space and time) a pocket of wrongness and hope that one's civil society is resilient enough to recover? Ie setup a pack of murderous arseholes, let them loose in a defined area (with sunset clauses) and pray you can bring them to heal if you win.
I don't think there is any institutional way to contain torture to 'good' or 'necessary' torture. Who decides this? Presumably the Government sets the standard of proof that the police have to satisfy an independent judge has to reach before he/she will issue a warrant. Do you trust the Government to get this burden of proof right? How will they decide what is an extreme threat to society? How will we ensure that 'extreme threat to society' doesn't mean 'threat to the Government' - ie: dictatorship?
Second argument - proportionality. We have a rigorous judicial system for determining (a) innocence or guilt and (b) appropriate sentence. Torture warrants would bypass both of these principles. Therefore, you could have an innocent person being tortured to death, whereas a multiple murderer/rapist/child abuser gets a lesser sentence. Is this fair? Is this the best outcome for society? Are we prepared to undermine the fundamental tenets of our justice system in this way?
Final argument (and strongest) - moral. What makes Australia great is that the state does not (legally) torture people - assualt and murder are criminal offences. We are better than the terrorists. If we legalise torture, we are a terrorist state.
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