Saturday, January 03, 2009

Further Reflection on Torture and "Public Necessity"

I should add a qualification to my post on torture and necessity. It overlooks a critical legal distinction. The affirmative defense of necessity generally applies in cases of "private" necessity. The lost hiker breaking into a cabin in a blizzard, the convict escaping a cell on fire, the Katrina looter and so forth are acting out of necessity for their own personal protection, or, at most, the protection of a few family members or friends. Public necessity is a different matter.

Public necessity is the act of someone, usually a government official, taking necessary action to protect the general public, such as a firefighter destroying a house to prevent the spread of a forest fire, police damaging a private house to capture a criminal holed up inside, or, for that matter, the Air Force if it had shot down United 93 to prevent it from hitting its target. Generally speaking, public necessity is not an affirmative defense, but a grant of immunity. In other words, the public officials undertaking these acts would escape prosecution altogether because they were acting in an official capacity. Clearly this is not what I am advocating in the case of torture.

However, this should not be an insurmountable obstacle. The privilege only extends so far. Police are, after all, sometimes prosecuted for shooting people, even in their official capacity. I would therefore propose an absolute ban on torture, with no immunity for public necessity, but with an affirmative defense of necessity in such cases.

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