Wednesday, December 17, 2008

The Things You Learn in Law School!

The standard challenge advocates of torture always offer to opponents is the ticking bomb scenario and hypotheticals like this: "If we had credible information regarding an ongoing al Qaeda plot to detonate a nuclear weapon in the continental United States, and we had just taken into custody an al Qaeda militant who was in a position to know where and when the attack was to occur but who was refusing to cooperate, are you saying we would need to let thousands of Americans die rather than harm a hair on the terrorist's head in an effort to extract the information that might save them?"

The standard answer from torture opponents from John McCain to Arne Langsetmo is that anyone on trial for torture in that extremely unlikely event can plead extenuating circumstances. This rarely satisfies torture proponents. They argue that such an answer is condoning law breaking, that it is much better to have a system of "torture warrants" so we can preserve the rule of law and maintain proper checks and balances.

Up until now, my best answer to that has always that (as Arne says) extreme hypotheticals make for bad law, that the law cannot foresee all possible contingencies, that the prospect of a ticking bomb is too remote to be worth writing into the law, that loopholes of that sort have a way of growing, and that I can think of no better check on the use of torture than the prospect of prosecution. But thanks to law school, I can now offer another answer. Condoning law breaking in extreme, highly unusual cases is not some radical departure from long-accepted principles of the rule of law. Rather, common law has long accepted necessity as an affirmative defense to any crime but homicide.

First to the matter of affirmative defense. As everyone knows, at common law, the defendant is presumed innocent unless proven guilty beyond reasonable doubt. This means that the law presumes the defendant did not commit the crime. In order to overcome this presumption, the prosecution must present evidence that the defendant did commit the crime, and must prove every element of the crime beyond reasonable doubt. A defendant who casts reasonable doubt on the evidence, or on any element of the crime, must be acquitted. In an affirmative defense, the defendant does not seriously dispute that he committed the crime, but rather argues that there was some justification (or excuse) for his actions that the law does not presume. The defendant may argue that he was insane, that he acted in self defense, that he was coerced, that he acted out of necessity, and so forth. Once it is proven that the defendant committed the crime, the law does not presume any of these affirmative defenses. Rather, the defendant must present evidence that the affirmative defenses are true. He may also be required to establish the truth of such a defense by a preponderance of the evidence (i.e., that it is more likely than not).

At common law, the elements of the necessity defense are (1) the defendant acted to prevent a significant evil, (2) the harm prevented was greater than the harm caused, and (3) there was no other alternative. The defense of necessity may be used in a wide range of situations. A fire fighter may destroy a house to prevent the spread of a wildfire. A lost hiker caught in a blizzard may break into a cabin. An inmate may escape a prison during fire or flood. A diabetic stranded in New Orleans during Katrina may steal insulin from a pharmacy. And so forth. The law does not try to foresee every possible scenario in which what would other wise be a crime could be justified by a severe enough necessity. Rather, it makes necessity a general defense and lets circumstances determine when it applies.

Thus a ticking bomb torturer may establish necessity by proving that (1) he acted to prevent a significant evil (the ubiquitous nuclear bomb over Los Angeles should rate), (2) the harm prevented was greater than the harm caused (any advocate of torture would assure you that was true), and (3) there was no other alternative. That last one can be tricky. The law, for instance, would excuse a Katrina looter stealing a life-saving drug in a medical emergency. It might be more skeptical of stealing food. After all, help was on the way, and you can live without eating for a few days. (A jury might be more sympathetic). So a torturer pleading necessity would have to meet the high hurdle of no other alternative. The law does not want to encourage otherwise criminal acts by making the defense of necessity too easy. The requirements are stringent, for torture as for any other crime, as they should be.

Our would-be torturer may run into a few other problems in pleading necessity. Traditionally, necessity has been accepted as a defense only when caused by the forces of nature, not by any man-made emergency. But that distinction is weakening. If necessity justifies destroying a house to prevent the spread of a fire, why should it matter whether the fire's origin was natural or arson? If an inmate may escape in case of fire or flood, why not death threats from other inmates, if the authorities will not protect him? I know of no case in which the defense of necessity has been applied to torture in a ticking bomb case, but the principles are the same. If necessity has not been used as a defense to torture maybe it is, after all, because such cases are extremely rare.

The other problem is that the defense of necessity may be denied by statute. Usually, this means that the legislature says that necessity shall not be a defense in a specific instance. It is my understanding that anti-torture laws have a generic no-excuses provision. Even so, a nuclear bomb in Los Angeles might overcome even a no-excuse clause.

In short, contrary to what torture advocates may imply, there is nothing new, radical, or dangerous about allowing necessity as an affirmative defense to a wide range of crimes. If necessity is difficult to establish, that is because we do not wish to encourage law breaking in any but the most dire circumstances. That should be especially so for a crime as heinous as torture.

Next: Why this post is unlikely to satisfy torture advocates.

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