Toobin: Don't Torture Zazi

Let's give Zazi a scholarship to Harvard. As for Toobin, let's use him to test for effective and acceptable persuasive techniques. Sigmoidoscopy might be a place to start. How about five minutes every half hour.

OK, lsernoff, are you advocating attendance at Harvard as a method of torture (maybe true if he is forced to attend an eternal series of critical theory seminars), or are you suggesting that there is no space between automatically torturing suspects and giving them sweet rewards?

After agonizing over this for days now here are some techniques, while clearly torture, I would approve if I were the president:

1]

piping in segments of Glenn Beck bawling like a baby on Fox news

2]

reading transcripts of Marty's posts from The Spine

3]

showing videos of the Detroit Lions playing football

4]

letting Muammar Qaddafi entertain them in his tent

5]

paying Christopher Hitchens to mock religion while they prayed

6]

telling them Osama bin Laden was just arrested for indecent exposure

7]

making them watch True Lies over and over and over

8]

feeding them Hebrew National franks

9]

sending Keifer Sutherland into the interrogation room

10]

pasting posters of Dick Cheney all over their cells

gw

The guy arrested posed the greatest concrete terrorist threat to the U.S. since September 11, 2001.

He had the competence, training and material to carry out some very heavy duty destruction.

I would extract something like the analysis Dershowitz breaks out in Preemption: a Knife That Cuts Both Ways and erect a statutory framework for analyzing and deciding on the tailored and discriminate use of certain techniques along the lines of water boarding.

The line of reasoning on this thread that can be encapsulated thus: ...To live in a Democracy that sometimes tortures. It's impossible to live in a free country and be guaranteed safety complete safety.... is way too binary.

Then I would subject this guy to such adjudication

sorry basman, but we have a Constitution that is explicitly against torture, it is even in our original Bill of rights:

* Fifth Amendment – due process, double jeopardy, self-incrimination, eminent domain.

No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

* Sixth Amendment – Trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

* Eighth Amendment – Prohibition of excessive bail and cruel and unusual punishment.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Torture would essentially nullify these Amendments. You can argue that foreigners in other countries in time of war do not possess these rights, but it is pretty damn explicit that is applies in America. If he were tortured he would walk. I would rather risk death a thousand times over than do away with the Constitution. For Americans this is about as binary as you can get, we either adhere to the Constitution or we join the savages.

It's not so simple Blackton. I'm not so very knowledgeable about your country's constitutional law but here's a synopsis and paraphrase a friend of mine prepare for other purposes of a debate amongst American constitutional law professors
on the constitutionality of torture. It's long and a bit meandering but interesting and to the point here nonetheless."

"...Is the 8th Amendment relevant? I'm not sure it is, since torture in this
context isn't a "punishment." (It's like deportation, legally speaking.)
It's not being imposed because of what one did; rather, it's an instrument
to gain useful information, perhaps like immunity grants that are viewed as
not violating the 5th amendment because the testimony doesn't lead to
"self-incrimination." (Perhaps a Dershowitzian warrant would have to
include such an immunity grant to take care of 5th amendment problems.

So then presumably we'd turn to the due process clause of the 5th
amendment. Would Scalia and Thomas need to be assured that torture was
thought to be an unacceptable abomination as a possible means of
controlling crime and meeting threats to national security in 1791? Is
there any evidence one way or the other? We know of the Framers' fear of
illegitimate prosecutions for Treason but the Constitution seems silent on torture.
Surely the Framers were aware that torture had been used with some regularity in Europe.

But even if the Constitution did say "no torture," would the court
inevitably read a "compelling interest" exception, as
with free speech and impairment of contract, which are notable in
the Constitution for their absolutist phraseology?

What if, contrary to fact, there *had* been some
attacks in California and there were good reason to believe that a
Japanese-American citizen was collaborating with those planning future
attacks? Can we be sure that the Korematsu majority wouldn't have
swallowed very hard and justified torture as well as everything else that
they justified (constitutionally)? Or might it have adopted Jackson's logic
and simply said, "The Constitution is suspended and we have nothing useful
to say about its application in time of war"?

Moral high grounds are all well and good, and all else being equal
of course we'd like to have them. But lots of very sensible and decent
people argue that sometimes we need to sacrifice the moral high ground in
order to, well, save the lives of thousands (or more) of people -- and that
maybe a moral high ground that strips us of the power to do this isn't so
moral after all. Simple appeals to "keeping the moral high ground" just
don't effectively respond to this argument.

Likewise, the argument that "Once we start using torture as a means
to an end, are we any better than al Qaeda?" strikes me as fundamentally
misplaced. You bet we'd be better than al Qaeda; while means are important,
ends are important, too. Using torture to save the lives of innocents, even
if it's morally flawed, is surely better than killing thousands of innocents
in order to install purer Islam in the Middle East.

To take one analogy, lots of people have criticized the firebombing
of Dresden and the nuclear bombing of Hiroshima and Nagasaki, on the grounds
that we shouldn't have deliberately targeted urban populations in order to
cow the enemy into submission. I'm not sure that this criticism is right,
but it's certainly plausible. But the answer to "Once we start deliberately
killing civilian populations as a means to an end, are we any better than
Hitler?" is "Of course we are." Whatever the right or wrong of the matter
may be, it can't be decided simply by claiming that ends are irrelevant and
that means are all that matter.

Treating terrorists in ways which do them little or no
physical harm, but which may coax useful information out of them, seems
a specific and unique case. Britain was periodically rebuked by
the European Court of Human Rights for its treatment of IRA terrorists,
on the ground that techniques like sleep deprivation and drugging are
torture. To the extent that international law, reflected in various
multilateral treaties, has embraced a broad conception of torture, it may
be possible to advocate a more precise (and narrow)
definition. That definition must, of course be something with which we are
content to live when the issue is foreign governments' treatment of our
citizens.

We shouldn't underestimate torture’s utility. Torture often gives unreliable
information, and I think there's therefore good reason to automatically
exclude all *statements* gathered under torture from all trials, either of
the subject or of others. Likewise, torturing someone merely so that he
confesses his own guilt seems all minus and virtually no plus. But if the goal is to get,
say, the location of a bomb, or of other evidence that points to a bomb, then the situation is different: There the
torture (even serious, painful, physically harmful torture) may well provide
some valuable -- sometimes, with the location of a bomb, immensely valuable
-- information.

Now again, maybe we should still have a per se ban on torture,
despite this. But I think that we do have to recognize that such a ban
would operate *despite* the possibility that torture can indeed provide very
useful information, and not because somehow torture, even hard-core torture,
is useless.

Torture may be effective in cases where the information extracted can then
be quickly verified (e.g. - the location of a terrorist still at large, or that of a bomb).
In such a situation, the prisoner has a strong incentive to tell the truth because
lies can be quickly discovered and punished. It also seems to me that torturing
a captured terrorist to reveal certain types of information is not per se evil, or
at least not more so than any other use of force against combatants (in a just war).
If we have the right to kill that terrorist if necessary to prevent him from carrying out
an attack on innocent civilians, I don't see why we do not have the right to torture him
in order to extract information necessary to prevent one of his associates from doing the same thing.

That said, there may be strong prudential reasons to ban torture even of captured terrorists.
The slippery slope reasons are significant, as is the danger that we may torture someone who
is not actually a terrorist but merely believed to be. In principle, I would favor permitting torture in
a narrow class of extreme cases where it is necessary to extract information from captured terrorists
on ongoing and future terrorist operations.

The relevant constitutional provision may be the Due Process Clause.
As recently as 1998, in Sacramento v. Lewis, seven members of the Court
reaffirmed the Rochin "shocks the
conscience" analysis for denials of life and liberty through excessive force
or other grave abuses of official authority. This is Justice Kennedy's
rendition of the principle in his concurring opinion: "The Court is
correct, of course, in repeating that the prohibition against deprivations
of life, liberty, or property contained in the Due Process Clause of the
Fourteenth Amendment extends beyond the command of fair procedures. It can
no longer be controverted that due process has a substantive component as
well. As a consequence, certain actions are prohibited no matter what
procedures attend them." The phrase "certain actions are prohibited no
matter what procedures attend them" indicates that--at least as a matter of
constitutional principle--the Court would not be willing to countenance
certain actions no matter how compelling the government's justification.
Likewise, when Justice Frankfurter rejected the government's methods in
Rochin itself, he noted that they were "methods too close to the rack and
the screw to permit of constitutional differentiation." The clear
implication is that the Court would not permit the government to use the
rack and screw in any circumstances for any purpose. With regard to the
constitutionality of the particular manifestations of torture, therefore,
the means are all that matter. So we are left debating methods. The devil is in the details.

That is the question, isn't it -- is it the case that "the means ARE
all that matter" here? It's easy to assert that, but I don't see how it's
proven.

And the contrary claim, of course, isn't that an act becomes "less
unjust simply because it is undertaken by a generally virtuous actor."
Rather, the claim is that an act becomes less unjust if it is done to the
guilty (or even perhaps to those who are likely guilty) in order to save the
lives of thousands of innocents. Now there are strong arguments that can be
made against this -- but simply saying that all torture is morally
equivalent to the mass slaughter of innocents hardly proves it.

Likewise, I'm not sure how much mileage we can get out of the "shock
the conscience" test -- the pro-torture argument is that things that
normally shock the conscience become less shocking when they are needed to
save the lives of thousands (or more) from weapons of mass destruction; and
it might even shock the conscience to *abstain* from normally prohibited
action when the lives of thousands of innocents are on the line. So, sure,
"certain actions are prohibited no matter what procedures attend them" --
but this doesn't resolve the question whether those actions are prohibited
no matter what other circumstances, such as a hidden nuclear bomb in
Manhattan, might attend them.

Dershowitz clearly believes that 1) torture actually does (or
will) occur and 2) that any that does (or will) occur should be "public,"
as it were. Some of his critics, I take it, agree with 1) but believe that
2) would be absolutely dreadful because of slippery slopes. Of course,
"non-transparency" leads to a lot of collateral issues, including, e.g.,
the propriety of governmental lying (e.g., to the question, "Are you
torturing Mr. Padilla?")

No process can make conduct which shocks the conscience of court constitutional, which, in the
context of this discussion, means only that otherwise unconstitutional
torture cannot be made constitutional by judicial process. Though
it bears noting that different judges have
different consciences, and some are more easily shocked than others. For
that reason,
I am not confident that a majority of the Court would necessarily agree in
particularly because the issue
presumably would arise only when someone who has been tortured sues for
damages, or when someone who has tortured has been indicted for a crime.

One can argue that we should never ever ever try to torture people we think are innocent
even when thousands of otherinnocent lives are at stake. But why does it follow from
that that we should also never ever ever try to torture people who we think are
guilty, even when thousands of other innocent lives at stake? True, l
ikely guilt alone may not be enough to allow torture; the need to save innocent lives
alone may not be enough to allow torture; but it seems to me that the two put together may
well be a different story.

I wonder how much we can get
out of pointing out that torture was abused in various regimes, Communist,
Nazi, fascist, authoritarian, or what have you. *All* crime-fighting tools
were abused in those regimes -- imprisonment, searches, and so on.

Likewise, of course no-one can "really be sure that torture would be
confined to the 'legitimate' purpose of extracting information from a
terorrist to prevent a future attack." But we can't really be sure that
anything would be confined to its legitimate purposes; in fact, we can
positive that all tools -- again, including imprisonment, searches, and so
on -- have been, are being, and will be misused by someone.

This does remind us, of course, that we should worry, and worry a
lot, about the slippery slope. But again, the maintenance of prisons,
police departments, and a criminal justice system more generally is a step
onto the slippery slope towards a police state; and quite a few nations have
slipped down that slope. But we maintain police departments (which can be
and have been used to oppress) because we must; we maintain courts and
prisons (even though we're guaranteed that *some* innocent people will be
wrongly convicted) because we must; we arm police officers (even though we
know that this sometimes leads police officers to kill innocent people)
because we must; we maintain armies (even though we know that all wars kill
some innocent people) because we must.

I'm not sure that the risk of a slippery slope, by itself,
without some explanation for why this particular slippery slope is
particularly likely, demonstrates that torture can never be used even in the
hidden bomb scenarios.

Here's this man who I'm highly
confident is engaged in a *conspiracy to murder thousands of innocent
people*; and I think there's a chance that I can get the information
necessary to stop this simply by beating him, breaking his arms, and
threatening to kill him. I'm supposed to allow thousands of innocent people
to die in order to spare this would-be mass murderer -- and to spare myself
the discomfort of having to torture him?

I would count myself as having acted deeply immorally if I
had the opportunity to try to beat the information out of him and *failed*
to do so. I suspect that I would contemplate committing suicide, out of
shame at allowing thousands of innocent lives to be lost as a result of my
squeamishness.

Briefly summarizing my conclusion, it seems to me that torturing
a captured terrorist solely for the purpose of extracting information
probably does not violate the Constitution, though it may violate US
statutory law and/or international law. Let's consider various types of
torture and how they fit into the Constitution.

1. Using torture to extract a confession is surely forbidden under the Fifth
Amendment. At the very least, the confession would not be admissible in court.

2. Using torture to break down a suspect's resistance in ways intended
to increase the probability of a conviction probably violates the Due Process
Clause (in its "procedural due process" form), even if the resulting confession
(if any) is not used in court.

3. Using torture as punishment for a crime probably violates the
Eighth Amendment (though perhaps this may not be true for very mild
forms of torture that are similar to punishment techniques widely used in
US prisons; e.g. - isolation of troublesome inmates).

However, I cannot think of a constitutional provision that plausibly forbids
torture for the sole purpose of extracting information not intended to be used
in a criminal trial. Of course, one could try to shoehorn a prohibition in under
some sort of penumbral framework or under the Ninth Amendment. I doubt that such
arguments could be made compelling enough to persuade anyone who does not already
agree with the conclusion that torture should be forbidden in virtually all circumstances.

Of course, the fact that torture to extract information seems not to be
unconstitutional does not mean that it is a morally defensible policy, or even an effective one.
We like to think that everything that we find deeply abhorrent is also unconstitutional, but
sometimes it just isn’t so. I do, however, think that it is not forbidden by the Constitution
when used solely to extract information from captured terrorists. However, a statutory ban
on the practice might well be justified...."

basman, the biggest problem (at least in the zazi case) is that there is almost zero chance any information extracted will be useful, the FBI already know the names of all his associates, they just don't know where they are. They know Zazi is under arrest so the likelihood that they would continue with their original plans is very, very low. It has already been a number of days since Zazi was arrested and nothing has happened anywhere. Now if we had tortured Zazi and he talked whatever information he possessed was useless the second his arrest was public.
I simply find the scenario where torture could conceivably be justified to be too outlandish. For one, the state has to know 100% the victim is guilty and possesses unique knowledge, the only way they can do this is by compiling evidence beforehand (wiretaps, bugs, undercover agents, informants, etc.). The likelihood that they can gather such evidence without themselves being aware of that unique knowledge is highly unlikely. Imagine a conspiracy to rob a bank with an undercover cop inside the group, a few days before the event there is an inadvertent tip off so the ringleader is arrested and the rest go into hiding. Even if the undercover cop didn't know the name of the bank, how likely is it that the remaining members of the conspiracy would go ahead with the plan to rob that same bank, at the same time the ringleader laid out?

However, I cannot think of a constitutional provision that plausibly forbids
torture for the sole purpose of extracting information not intended to be used
in a criminal trial. I can: The Fifth Amendment to the United States Constitution (part of the Bill of Rights) codifies the right to silence. The Supreme Court has ruled that suspects questioned while in police custody must be told of their rights in what have become known as Miranda warnings. Miranda warnings are not required to be given during the questioning of a suspect prior to actual arrest, for example during the execution of a search warrant.

However, if the state feels the need, a suspect or subpoenaed grand jury witness may be given a grant of immunity and compelled to give testimony under oath.

I simply can not imagine how you can state people have the right to remain silent while you are in the process of torturing them. Now you state that whatever information is gained shall not be used in trial but to pretend that gained knowledge will not become public is crazy. The trial will be hopelessly tainted. ie A man is arrested who the cops believe knows where a bomb is located, he is tortured and tells them it is on the GW bridge, they find it and disarm it, and the public never finds out, and the cops can not ever mention that the bomb was found?
And, of course, you are saying we can nullify the right to remain silent.

I think Dershowitz is dead wrong, the farthest I am willing to go is to embrace hypocrisy. Hypocrisy is a wonderful thing, it will save us from codifying savagery. I find the chances of it working in a hidden bomb scenario to be exceedingly small, however it probably has worked countless times with kidnappers, rapists, etc. I doubt even the public defender of John Gacy would have cared if he screamed police brutality. Criticize the illogic all you want, but chances are this is what the majority of Americans want.

by the way, the captured IRA gave up names of people whom they knew to be innocent, imagine what it would have been like to have been one of those innocent Irish.

by the way, to be clear I don't think cops roughing up a suspect constitutes torture, it constitutes assault and battery. the hypocrisy I am referring to is overlooking that. To call assault and battery torture would be to classify every bar fight as people engaging in mutual torture.

Don't forget the 5th Amendment, which is buried in the long text there -- there is an explicit right against self-incrimination, and following two centuries of precedent. There is no way any information gained through torture is going to be admissible in court, as it would either violate the 5th Amendment (if you try to use info from torture against the person tortured), or hearsay (if you try to use info from a different person you tortured). I suppose one could argue that using information from torture outside of court might not be unconstitutional, but it is worth cutting through the legal theory and thinking clearly about what kind of society it would be if you do that. Can anyone be tortured? On whose say so? You can't detain a US person (as the wording goes) without charge, so are we going to torture and release, or simply shred other parts of the Constitution as well? Is it better to torture and release (because we could not then convict), or to actually detain, charge and convict?

Allowing torture in any form only sets up a shadow judicial system, where you quickly end up with people you cannot try in court because the evidence against them is tainted, yet may not ever be willing to release because they are dangerous (and perhaps more so after being tortured). This is the god-awful mess that Bush left us with Guantanamo, and I would have hoped that we would have learned our lesson after making the mistake once.

Basman, one can debate the finer points of using torture to save thousands of lives that are imperiled right now. Problem is, the nice scenario you describe where you have someone in custody who knows of a bank heist that's about to take place, (vs. one that already has, or one that will take six months add'l planning), or someone who knows the location of a nuke that will get launched in the next couple of hours, just doesn't happen. And, who are we or anyone to "know" someone's guilty without having done thorough investigative work? We "knew" about plenty of guilty people at Bagram, Gitmo, secret CIA prisons whom we or our proxies tortured, disappeared and in a few cases murdered.

"Knowing" a detainee's guilt in those cases takes on a life of its own. If you read the stories of former interrogators of Abu Zubaydah, or those who worked in Gitmo, many of them say it became clear their suspects weren't terrorists, but they had to keep up the harsh interrogations because persons higher up decided that person was guilty. Just like a Soviet style kangaroo court.

I don't buy your slippery slope comparison of torture to normal mechanisms of law enforcement such as police or prisons. The latter have relatively sound rules and practices that do evolve over time and can be subject to interpretation. The types of abuses cops commit might be beating up people at the station, tying them to radiators (Jon Burge in Chicago in the '90s). Or, demanding a blow job from some crack 'ho because she's quite unlikely to report it, or be believed if she did. But these abuses stem from a breakdown in the chain of command that creates a police gang type atmosphere. It isn't because these actions could realistically be interpreted as falling within the guidelines of any official police handbook. On the other hand, a torture policy would have to be so very narrowly defined. Can one shock genitals? How many volts? Dunk someone's head underwater? How long? Body blows? How many times? If cutting is permitted, should it be with a razor blade or dull knife? Is witholding medical care even allowed? This begs a slippery slope.

Speaking of shock the conscience, a common theme is that torturers initially might feel reluctant, but then increasingly get a sense of power and enjoyment from their deeds. Torturing doesn't shock the conscience as much as remove it. And even if you're not personally torturing people, but accept it as a society for "special" circumstances, it will be like a cancer in our nation.

I can only take up point made right now and only glancingly.

The synopsis acknowledges that torturing someone for a confession is off the table. The analysis goes to the extraction of information. The fifth amendment woud be satisfied by a grant of immunity, though how that works with preventative detention I don't know.

I'll try to answer more fully when I have more time.