A great smack down of another flawed torture argument.

[ProSense]

April 20, 2009

Revisiting the Posner and Vermeule Argument for the Legalization of Torturous Interrogation

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Barring any evidence, Posner and Vermeule fall back on the lawyer’s second favorite argument: since we just don’t know, let’s simply use the system we use everywhere else. Let’s just legalize and regulate as we do for the police when they use deadly force. The problem here is that that’s not what we do! In the criminal law of assault and homicide, we predominantly use an affirmative defense of necessity—across the board. In criminal law, we outlaw behavior (e.g., assault, homicide) and we provide a web of narrow necessity defenses in extreme cases, such as self-defense, lesser of evils or necessity, duress, use of force for protection of property, etc. That is not “legalize and regulate”! It’s just not even close.

The use of force in law enforcement is a good example. It is an affirmative necessity defense spelled out as a justification that protects the officer against a charge of assault or homicide. The conduct is prohibited—assaulting or killing a person—and the justification serves as an affirmative defense to a prosecution. We do not legalize police officers shooting suspects. We afford a necessity defense in extreme cases. How would this be any different than a necessity defense in the case of torturous interrogation? It wouldn’t be. The fact is, their characterization of criminal law is erroneous.

The way to properly style the question, then, is whether there is any reason to have a separate necessity provision for torturous interrogation? Is there any reason that the traditional necessity defense, codified in most penal statutes, should not suffice? (And note, we can’t simply fall back, ourselves, on the status quo argument).

So it is here, I would argue, that the release of the torture memos adds something important to the debate we were having. These memos are the reality check that prove the central benefit of the necessity approach: 20/20 hindsight. Yes, 20/20 hindsight! You may laugh and respond that ‘hindsight is 20/20.’ But that is precisely the point. And it is something we need to exploit, rather than mock. The necessity approach does just that: it uses the fact that hindsight is 20/20. It allows us to weigh evils when we actually know what we are talking about. We are not speculating anymore. We are not in the classroom throwing out hypotheticals. We can now see, with hindsight, both sides of the ledger. We can see which waterboarding techniques were actually used by interrogators, we can see that they were used 83 times in August 2002 against Al Qaeda suspect Abu Zubaydah and 183 times in March 2003 against Khalid Shaikh Mohammed, and we can determine with great precision what was obtained from those torturous interrogations—apparently very little in the case of Abu Zubaydah. We do not need to pass judgment ahead of time or protect anyone who acts in good faith. We can look at all the evidence dispassionately after the fact and determine who was right and who was wrong.

The torture memos are, in my opinion, conclusive evidence that a backward looking legal regime is far superior to Posner and Vermeule’s proposed idea of legalizing and regulating torturous interrogation. Now, to the more pressing questions of impeachment and prosecutions. .. but I have to run to class now where I am teaching, believe it or not… the necessity defense!