Abstract
If one of the lessons of the ubiquitous and highly problematic “ticking bomb” scenario is that torture may be justified under certain narrowly specified situations, why would we not want it made available as a weapon in the government’s anti-terrorist activities? This is not a new question. It has been hotly debated, and a number of arguments have been made against the idea of formulating the torture policy on the basis of the ticking-bomb hypothetical. The question that this Essay addresses is related but narrower: if one starts from the proposition that the ticking bomb scenario demonstrates that a government official facing prosecution for torture may have available the necessity defense, what implications, if any, should the government be able to draw from the existence of the defense as it formulates its torture policy? This Essay discusses, and rejects, one common answer to this question—that the nature of the necessity defense is such that it can generate no forward-looking prescriptions. This Essay then advances a new argument on the basis of the nature and function of the necessity defense as not only spelling out morally permissible instances of harm infliction but also effecting a division of power between the state and citizens.
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Notes
For cogent criticisms, see Christopher Kutz, Torture, Necessity and Existential Politics, 95 Cal. L. Rev. 235 (2007); David Luban, Liberalism, Torture, and the Ticking Bomb, in The Torture Debate in America 35 (Karen J. Greenberg ed., 2006); David Luban, Unthinking the Ticking Bomb, in Global Basic Rights (Robert Goodin & Charles Beitz eds., forthcoming 2008).
For a collection of representative essays, see Torture: A Collection (Sanford Levinson ed., 2004). For a useful summary of positions, see Oren Gross, The Prohibition on Torture and the Limits of the Law, in Torture: A Collection, supra, at 232–36.
Henry Shue, Torture, 7 Phil & Pub. Aff. 124, 141 (1978).
Ibid. at 141. For similar arguments, see Luban, Liberalism, Torture, and the Ticking Bomb, supra note 1, at 44–51; Elaine Scarry, Five Errors in the Reasoning of Alan Dershowitz, in Torture: A Collection, supra note 2, at 281, 284; Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 Colum. L. Rev. 1681, 1715 (2005) (“[T]orture is seldom used in the real world to elicit startling facts about particular ticking bombs; it is used by American interrogators and others to accumulate lots of small pieces of relatively insignificant information which may become important only when accumulated with other pieces of similar information elicited by this or other means.”).
See Luban, Liberalism, Torture, and the Ticking Bomb, supra note 1, at 47–51.
Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625 (1984).
Richard A. Posner, Torture, Terrorism, and Interrogation, in Torture: A Collection, supra note 2, at 291, 296 (“If legal rules are promulgated permitting torture in defined circumstances, officials are bound to want to explore the outer bounds of the rules; and the practice, once it were thus regularized, would be likely to become regular.”); Shue, supra note 3, at 143 (noting that there is “considerable evidence of torture’s metastatic tendency”); Waldron, supra note 4, at 1716 (“What we know … is that against the background of any given regulatory regime in these matters, there will be some enthusiasts who are prepared to ‘push the envelope,’ trespassing into territory that goes beyond what is legally permitted.”).
See, e.g., Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror 143 (2004); Jean Bethke Elshtain, Reflection on the Problem of “Dirty Hands,” in Torture: A Collection, supra note 2, at 77, 84; Sanford H. Kadish, Torture, the State and the Individual, 23 Isr. L. Rev. 345, 352–56 (1989); Steven Lukes, Liberal Democratic Torture, 36 Brit. J. Pol. Sci. 1 (2005); Waldron, supra note 4, at 1715. Cf. Alon Harel & Assaf Sharon, What Is Really Wrong with Torture?, 6 J. Int’l Crim. Justice 241 (2008).
While I assume in this Essay that, in certain situations, the necessity defense may be available for a defendant facing prosecution for torture, this is by no means a foregone conclusion. First, the choice-of-evils analysis might always come out in the direction of prohibiting torture no matter how much evil is avoided through torture if torture is thought to be an absolute evil that outweighs whatever evils may be on the other side of the scale. Second, the Model Penal Code comment has stated that “[t]he harm sought to be prevented by the law defining the offense may be viewed broadly” to include the negative impact of recognizing the defense on general law enforcement interests. Model Penal Code and Commentaries § 3.02 cmt. 2 at 12 n.5 (1985). Under this reading of the law, the concern that recognizing the defense for the crime of torture would have on the rule of law generally, see, e.g., sources cited in supra note 8, can be counted as one of the “evils” in the choice of evils calculation. For a criticism of this way of applying the necessity defense, see Alan Brudner, A Theory of Necessity, 7 Oxford J. Legal Stud. 339, 343 (1987).
H.C. 5100/94, Pub. Comm. Against Torture in Isr. v. Gov’t of Israel, 53(4) P.D. 817, as reprinted as Supreme Court of Israel, Judgment Concerning the Legality of the General Security Service’s Interrogation Methods, in Torture: A Collection, supra note 2, at 165.
There are actually two “torture memos” from the Office of Legal Counsel, one dated August 1, 2002 and the other dated March 14, 2003. The first is entitled “Standards of Conduct for Interrogation under 18 U.S.C. §§2340–2340A” and the other is entitled “Military Interrogation of Alien Unlawful Combatants Held outside the United States.” Memorandum from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, U.S. Dep’t of Justice to Alberto R. Gonzales, Counsel to the President, White House (Dec. 30, 2004); Memorandum from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Dep’t of Justice to William J. Haynes II, General Counsel, U.S. Dep’t of Defense (Mar. 14, 2003). The first was addressed to the White House counsel Alberto Gonzales, and the second was addressed to the Department of Defense. In this Essay, by “Torture Memo,” I mean to refer to the first memo, but the substance of the legal analysis relevant to the topic of this article – the relevance of the necessity defense for interrogation practices – is the same in the two memos. Both memos were eventually withdrawn. See generally Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration 141–76 (2007).
Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment of Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 100–20 (1988), 1465 U.N.T.S. 113.
18 U.S.C. §§ 2340–2340A.
Goldsmith, supra note 11, at 141–76. The memo was later replaced by the so-called “Levin Memo,” dated December 30, 2004, which asserted that no interrogation practice approved under the old memo needs to change under the new memo. Memorandum from Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel, U.S. Dep’t of Justice to James B. Comey, Deputy Attorney General, U.S. Dep’t of Justice (Dec. 30, 2004); see also Goldsmith, supra note 11, at 164–65. The Levin Memo does not discuss the necessity defense, stating that consideration of defenses to the crime of torture “would be inconsistent with the President’s unequivocal directive that United States personnel not engage in torture.” See Memorandum from Daniel Levin, supra, at 2.
See, e.g., David Luban, Legal Ethics and Human Dignity 176–80 (2007); Luban, Liberalism, Torture, and the Ticking Bomb, supra note 1, at 55–68.
Cf. Eric A. Posner & Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts 171–80 (2007) (criticizing what they call the “outlaw-and-forgive approach”); see also ibid. at 294 (describing the Israeli Supreme Court’s distinction between defense and authorization to be “a rather subtle one”).
Supreme Court of Israel, supra note 10, at 178.
Ibid. at 179.
Ibid.
Alan Dershowitz, Is It Necessary to Apply “Physical Pressure” to Terrorists – and to Lie about It?, 23 Isr. L. Rev. 192, 197 (1989).
Mordechai Kremnitzer & Re’em Segev, The Legality of Interrogational Torture: A Question of Proper Authorization or a Substantive Moral Issue?, 34 Isr. L. Rev. 509, 538 (2000).
Model Penal Code and Commentaries § 3.02 cmt. 1 at 9–10.
Cf. George Fletcher, The Individualization of Excusing Conditions, 47 S. Cal. L. Rev. 1269, 1275–76 (1974).
Cf. Kremnitzer & Segev, supra note 21, at 535–37 (discussing the significance of justification-excuse distinction in this debate)
George Fletcher, Rethinking Criminal Law 810 (2000); Paul Robinson, Criminal Law 54 (1997); Peter Westen & James Mangiafico, The Criminal Defense of Duress: A Justification, not an Excuse – And Why It Matters, 6 Buff. Crim. L. Rev. 833, 864 (2003).
See John Gardner, The Gist of Excuses, in Offences and Defences: Selected Essays in the Philosophy of Criminal Law 121, 128–30 (2007).
R.A. Duff, Rule-Violations and Wrongdoings, in Criminal Law Theory: Doctrines of the General Part 47, 61–68 (Stephen Schute & A.P. Simester eds., 2002).
For a discussion of necessity as an excuse in the torture context, see Jens David Ohlin, The Bounds of Necessity, 6 J. Int’l Crim. Justice 289 (2008).
See Mitchell N. Berman, Justification and Excuse, Law and Morality, 53 Duke L. J. 1, 6–17 (2003) (criticizing what he calls the “Standard Account,” which treats the justification and excuse distinction in criminal law to be equivalent to the justification and excuse distinction in morality).
See, e.g., George P. Fletcher, Domination in the Theory of Justification and Excuse, 57 U. Pitt. L. Rev. 553 (1996); V.F. Nourse, Reconceptualizing Criminal Law Defenses, 151 U. Penn. L. Rev. 1691 (2003); Malcolm Thorburn, Justifications, Powers, and Authority, 117 Yale L. J. 1070 (2008).
For an example of this approach, see Kimberly Kessler Ferzan, Self-Defense and the State, 5 Ohio St. J. Crim. L. 449 (2008).
Larry Alexander & Emily Sherwin, The Rule of Rules: Morality, Rules, and the Dilemmas of Law 28–32 (2001).
Wayne R. LaFave, Criminal Law § 10.1(a), at 524 (4th ed. 2003).
Model Penal Code § 3.02.
Cf. Kent Greenawalt, Conflicts of Law and Morality 293 (1987) (observing that the Model Penal Code necessity defense “contains no express restrictions in terms of evils avoided and crimes committed” and that it “does not require that the harm avoided be very serious”).
Brudner, supra note 9, at 342.
Joseph Raz, The Rule of Law and Its Virtue, in The Authority of Law: Essays on Law and Morality 210 (1979).
Model Penal Code and Commentaries § 3.02 cmt. 2 at 13.
Greenawalt, supra note 35, at 289–90; see also United States v. Schoon, 971 F. 2d 193 (1992) (“In some sense, the necessity defense allows us to act as individual legislatures, amending a particular criminal provision or crafting a one-time exception to it, subject to court review, when a real legislature would formally do the same under those circumstances.”).
Cf. Joseph Raz, The Morality of Freedom 77 (“It is not that the law claims that one ought to obey the law come what may. There are many legal doctrines specifically designed to allow exceptions to legal requirements, doctrines such as self-defense, necessity, public policy, and the like. The point is that the law demands the right to define the permissible exceptions.”).
LaFave, supra note 33, § 10.1(d)(5). Although the Model Penal Code version of the necessity defense does not contain the imminence requirement, imminence is commonly required. Fletcher, supra note 25, at 795–96.
In Nelson v. State, for instance, taking a government owned truck without permission to remove defendant’s truck that was stuck in mud was not justifiable because the legal option of calling a tow truck existed. Nelson v. State, 597 P.2d 977 (1979). Also, attempts to raise the necessity defense to justify trespassing by protesters have failed because “lawful political activity to spur [legislative] action [to reform a law or policy] will always be a legal alternative” and “the fact that [a protester] is unlikely to effect the changes he desires through legal alternatives does not mean … that those alternatives are nonexistent.” United States v. Maxwell, 254 F.3d 21 (2001).
See Fletcher, supra note 30, at 569–70; Nourse, supra note 30, at 1713; Thorburn, supra note 30, at 1108, 1126.
John Gardner, Justifications and Reasons, in Offences and Defences, supra note 26, at 91, 106–07.
Fletcher, supra note 30, at 569.
Ibid. at 570.
Nourse, supra note 30, at 1712.
Ibid. at 1713.
Thorburn, supra note 30, at 1126.
Fletcher, supra note 30, at 570.
Raz, supra note 40, at 38–69.
Goldsmith, supra note 11, at 67–70.
Memorandum from Jay S. Bybee, supra note 11, at 2.
Acknowledgments
Thanks to Sandra Marshall, Julie Suk, Ian Weinstein, and Ben Zipursky, and participants at the “Criminal Law in Times of Emergency” conference at Hebrew University in May, 2008.