In an interview on BBC radio yesterday, Associate Supreme Court Justice Antonin Scalia, when asked about the legality of torture, pulled up everyone's favorite example of the "terrorist who knows where the nuclear bomb that's going to destroy Los Angeles is hidden" (otherwise known as any episode of 24). He suggested that it would be ridiculous to limit people in what they could do, under these circumstances, to extract information from that person. From there, he reasoned that there's a sort of sliding scale, whereby you can abuse someone more if their information is more critical.
No.
There may someday be this situation, where thousands to millions of lives are at stake, and someone on our side is confident that the person they have in custody, right now, knows enough information to prevent a disaster. They may even make the decision to torture that person to get that information.
And if and when they make that decision, I want them to make it knowing that they will go to jail for doing it.
I want the bar for torture to be "Am I willing to go to jail for this?"
After all, ask me any day of the week, and I will happily go to jail for two to four years (that's for assault with bodily injury, under California law) to save thousands or millions of lives. I believe that our police officers and Federal agents would make that same decision. And I really want them to have to.
There can be no sliding scale. Sometimes, the bar simply must be set at jail time. If you're willing to trade a few years of your freedom for the outcome, then you may have possibly given enough thought to what you're about to do to another human being. We don't want it to be any easier than that.
Comments (2)
So if there's a penalty for acting to save lives (in this specific example), is there any penalty for failing to save lives?
Posted by cshell | February 13, 2008 12:36 PM
Posted on February 13, 2008 12:36
Unless it falls within your specific job description, under American law we have a tradition of not penalizing people for inaction, even if by their action they could have saved lives (for example, just because I'm first aid trained, I can't be compelled to offer assistance -- but once I start that assistance, I may be committing a crime if I subsequently abandon the person). I've thought about this a lot before in other contexts, and this seems like the most rational approach, as it becomes ever trickier and more subjective to try and evaluate when people /could/ have saved lives and didn't.
The biggest penalty, in this case, is the individual's knowledge that they failed to save lives by deciding not to break the law (assuming they did everything else that was legally allowed and mandated by their position -- otherwise, they may still be up on charges of negligence, and liable for large civil penalties). The alternative, of penalizing people for not torturing someone to save lives, leads to a world that I don't want to live in.
Posted by parakkum | February 13, 2008 01:48 PM
Posted on February 13, 2008 13:48