A Second Reply to Harcourt
Harcourt makes four distinctions: (1) outlaw-and-forgive; (2) outlaw-and-excuse; (3) legalize and regulate; and (4) outlaw. We made two distinctions: (1) outlaw-and-forgive; (2) legalize; and (3) outlaw. The confusion that has hampered this exchange arises because Harcourt’s distinctions do not track the ones that we used. We argued that outlaw-and-forgive proponents classified the necessity defense as outlaw-and-forgive whereas in fact it falls under legalize. Harcourt agrees that the necessity defense does not fall under outlaw-and-forgive but argues that it does not legalize but outlaws-and-excuses. The “outlaw-and-excuse” term is a misnomer: the necessity defense justifies, it does not excuse in the legal sense. But it is evident that the real distinction Harcourt is making is between laws that create criminal liability and laws that create affirmative defenses. This distinction splits our category, “legalize,” into two—legalize through the liability rule and legalize through the defense. Harcourt thinks that the purpose of our paper is to redefine various crimes (say, battery) so as to contain exceptions for coercive interrogation, while he appears to believe that the necessity defense remains adequate for addressing the ticking-time bomb scenario.
In fact, our paper does not come down on one side or the other of the question whether coercive interrogation in the ticking time bomb scenario (the paper did not address the Bush administration’s practices) should be authorized through a defense or in some other way. Indeed, we say that perhaps it is appropriate just to treat coercive interrogation as the model penal code treats any use of deadly force (“It seems sensible to limit coercive interrogation in the same way deadly force is limited,” p. 701 & n. 81), albeit with whatever adjustments that are needed to address the differences in setting. We go through a number of considerations touching on how the legal regime might be structured but do not come to a conclusion because our argument was limited to the claim that regulating coercive interrogation through “forgiveness,” properly understood to mean immunity created ex post by popular or political pressure, is unwise.