President Barack Obama prefers to put the past behind us and move on. Defenders of the George W. Bush officials agree. In this view, enough is enough; we should avoid scapegoats and witch-hunts. For new administrations to come to office and indict their predecessors could lead to spiraling mischief. Electoral politics already took its measure of past governmental action. Besides, many of the officials whose actions are known already have suffered sanctions through public criticism and obloquy. Indictments, civil suits, impeachment or disbarments would be tough to secure, and not worth the inevitable distracting political difficulties.
Critics fear that forgetting the past creates a bad precedent for future presidents. If torture was considered acceptable in the past, it would be in the future too, arguably. If offenders are not held accountable, their conduct can be deemed to have been approved, albeit implicitly and after the fact. Thus the demand for investigation — criminal, congressional, a private or quasi-public blue-ribbon commission to evaluate what happened. I subscribe to the latter option.
Behind this dilemma is a historical conundrum. At times of peace and tranquility we are inclined not only to enunciate high-minded principles, but also to adhere to them. When our national security is threatened — on Dec. 7, 1941, or Sept. 11, 2001, for example — we are inclined to compromise principles for pragmatic reasons. The Constitution isn’t a suicide pact, the prolific conservative legal commentator Judge Richard Posner argues; the “law must adjust to necessity born of emergency” and allow occasional disequilibrium of constitutional rights. If the Constitution does not bend, it will break, Posner posits.
More principled advocates argue that it is at precisely these times of stress and pressure when we most need to be guided by our constitutional principles.
Bad hypotheticals lead to worse rationalizations. The classic ticking-bomb argument has been advanced to justify “enhanced” interrogation techniques, torture being the most drastic. Suppose, the syllogism goes, your child is kidnapped. If a ransom is not paid, your child will be killed. One of the kidnappers is arrested. To find out where the child is, so that rescue is possible, do investigators start breaking the captive’s bones? Or, a terrorist is captured. There is proof that a building is about to be blown up in a busy urban center. Do investigators do nightmarish things to him in order to elicit information necessary to prevent mass murder?
The problem is that the “ticking bomb” argument is made to justify potential situations. If such an experience actually occurs, the extraordinary measures might be proffered after the fact to justify them. But if they are used to justify action where justification cannot be demonstrated in advance, the extraordinary measure should not be condoned. Laws perforce are designed before facts, not after them, when all the facts to which the law will apply are known.
There is an alternative to meet the “ticking-bomb” argument, one that honors ideals yet recognizes the conundrum created by extraordinary exigencies. The premise: Laws must be followed at all times. Violating them, regardless of the provocation, is civil disobedience. Moral people sometimes perform civil disobedience — the Rev. Martin Luther King Jr. is a classic example. He never claimed that he wasn’t in violation of some of the laws he violated. He believed, and history has shown he was correct, that those laws he violated were either bad or inappropriately applied laws. At times, the circumstances surrounding events may warrant exceptions to their enforcement in limited cases. But those who take such a chance risk that their actions ultimately may be viewed as offenses for which they are responsible.
In the recent torture cases, when facing a ticking-bomb situation, only supercilious, if not suicidal, citizens would stand in the way of investigators doing everything necessary to find and destroy it. However, to date no one has demonstrated any true ticking -omb situation — only the argument that these are dangerous times and that investigators should be able to do prospectively whatever they need to do to meet these dangers.
The problem with this view is that there is no end to this road. Who decides when and under what circumstances to apply exceptional standards? It is too easy to adopt the better-safe-than-sorry approach of self-preservation. If there were a true ticking-bomb situation, most people would consider taking extreme measures to resolve it. The problem is that we never know prospectively whether this is so, yet some have proposed a free pass from laws by simply asserting it, even in situations where there was not a ticking bomb. The situations are subjective and tend to spread, and we never have had proof that a potential bomber actually was caught before his bomb went off as a result of applying “illegal” practices.
If the law we followed invariably were that anyone taking illegal steps would be accountable for disobeying the law, two results would follow. 1) If they were right about saving us from a true ticking bomb and could prove it, they would likely be acquitted, or their sentence suspended, a sort of nullification because they were demonstrably moral wrongdoers acting in an extraordinary situation; or 2) if their self-righteous claim could not be proven to be correct in fact, however noble their motivation, they would be guilty of violating the law and punished. They could argue self-defense, good faith, whatever case they wished to make, in justification of their acts. What standards apply would be up to the presiding judge — did their acts shock the public’s conscience, or violate relevant statutory or international laws? The appropriate punishment would be up to judges and juries in the sentencing phase of criminal trials or the damages phase of civil trials.
That approach would be a deterrent to misguided misconduct, but a potential escape valve for those whose “moral misbehavior” was demonstrated to have been in the public interest. The actor must be prepared to commit civil disobedience regardless of the outcome.
This article was published in the Nov. 23, 2009, issue of the National Law Journal.