Monday, January 25, 2010


The United States is struggling with the issue of what to do with persons detained in the course of preventing attacks by Islamic terrorists. On the one hand, some people advocate a law enforcement model, replete with due process rights, counsel provided at public expense, right to remain silent, access to writs of habeas corpus, etc. Others find this model unnecessarily stringent, particularly in light of the threat that Islamic terrorists represent.

Before becoming too comfortable with a clear distinction between a law-enforcement and more conventional war model of the issue, it might be useful to recall that law enforcement officials machine-gunned Bonnie Parker and Clyde Barrow in an ambush designed for that purpose. John Dillinger was shot on the spot. In neither case were the deceased afforded the opportunity to plead special circumstances to a court of law or avail themselves of the favorable presumptions of the legal process. Others might recall the MOVE bombing in Philadelphia and the deaths of the Branch Davidians as a result of law enforcement actions gone awry. On the other hand American servicement have been prosecuted and convicted for violations of the laws and codes of war, despite the fact that collateral damage deaths and infliction of misery on non-combatants are accepted as inherent in the nature of warfare. The facile equation of "law enforcement model=protection of rights" and "enemy combatant model= violation of rights" is not validated by experience.

When someone is apprehended in the course of committing a terrorist act against the United States, we have a practical choice as to whether to treat that individual either as a criminal defendant, or as an agent of an ongoing terrorist enterprise, the treament of whom might influence the success of that enterprise. The latter course may involve indelicate treatment, and arouse charges of rejecting societal and cultural values, "becoming no better than the terrorists," in a convenient shorthand, while the former may provide legal sanctuary to information and intelligence beneficial to a continuing threat. The concept of threat is central to resolving this dilemma.

When the typical criminal is apprehended, it is often both reasonable and legitimate to presume that the threat posed by that criminal has abated. Harsh interrogation, for example, would serve only to assist the state in prosecuting the individual, with the attendant risks that the prosecution would be tainted by such interrogation. It is altogether reasonable to forego treatment that has the potential to wrongly secure an accused's contribution to his own conviction. If in fact the threat posed by a criminal enterprise is eliminated, or nearly so, by the apprehension and detention of an isolated suspect, then the social benefits of prosecuting with strict observance of due process outweigh those of using coercive methods to facilitate prosecution. If the purpose of interrogation is only to obtain information for the purpose of implicating the accused in a crime and thereby securing his conviction, and that is the only purpose, then strict observance of due process is proper.

However building a case for prosecution of the accused is not the only purpose of interrogation, and treatment of the detainee is not solely dictated by that interest. It sometimes occurs that capture and detention of a single person or group of persons does not in itself significantly diminish the threat posed by their activities. It is the threat that persists after apprehending the suspects that gives rise to the dilemma of how the captured should be treated. Popular culture presents the "ticking time bomb" scenario, but this is not only dismissed, but ridiculed as far-fetched and hysterical. Opponents of harsh interrogation or other tactics that fall short of Bill of Rights protections claim that some interrogation tactics consititute torture; so in an effort to begin an analysis from a reference of consensus, let us assume that torture is something that should be opposed.

If Jack Bauer provides too incredible a reach by which to ponder the issue, one can at least acknowledge that the names of Jessica Lumford and Polly Klass and Mary Vincent evoke an all to tragic reality. So assume a case where a child has been abducted, and there is reason to believe that child is subject to torture and murder. If police apprehend a suspected accomplice who may have information that would lead to ending the child's ordeal, it is a rather nuanced argument to hold that the child must suffer so that "the system" might pay homage to its due process principles. Even though the person in custody may no longer pose a personal threat, the fact is that the abducted child is still in peril, and a society that would accommodate the torture and murder of a child in favor of a fastidious criminal procedure can not be regarded as just or civilized, or indeed worthy of judging criminals.

Further, if we assume that a policeman happens upon the child's abductor in the process of harming the child, and the abductor does not respond to directives to stop, only a very malformed and intolerant conscience would hold that violence against the perpetrator would infringe his rights. Certainly, the policeman would be justified in defending innocent life by drilling the perpetrator through the head with a bullet, without regard the suspect's ex post facto opportunity to argue his right to harm the child. If the law is therefore justified in depriving a suspect of life to prevent the torture of a child, it confounds logic to hold that the law must forego the same result (preventing the torture and death of a child) by interrogating a person who is safely in custody in a manner that is concerned solely with fifth and sixth amendment jurisprudence. At most, society would have to accpt that information obtained from such interrogation could not be used in prosecutions that arise from the crime. But even then, if a child must suffer so that the law not be offended, then the law must fall.

The propriety of how accused person's are treated must consider basic human rights and human decency. It must respect the protections for the accused's rights and the precedents of our jurisprudence. But it must also accommodate those instances where threats remain, and cannot be subordinated to mindless adherence to detatched procedures at the cost of unnecessary innocent suffering. The whole point of having those procedures is of course to minimize the risk that innocent people will suffer within the criminal justice system. Adherence to procedural protocol is very laudable when a threat expires with detention of a particular suspect, but if the threat is known persist despite the accused being detained, a moral society will sometimes have to choose to eliminate such threat to innocents at the expense of other concerns. Given this, it is difficult to see how conferring criminal procedure rights on "enemy combatants," when the threat of which they are part persists after their capture, benefits any legitimate societal interest.

No comments: