Revisiting Posner and Vermeule on Legalizing Torturous Interrogation: A Reply to Posner
A few preliminary clarifications in reply to Eric Posner’s post responding to mine, before reaching the thornier question whether a necessity defense is ever appropriate in the case of torturous interrogation.
First, in their article arguing for the legalization of torturous interrogation, Eric Posner and Adrian Vermeule specifically identify the necessity defense as one type of an “outlaw and forgive” approach. In Part III.A, under the heading “Outlaw and Forgive,” they write: “This ‘outlaw and forgive’ (‘OAF’) approach, as we shall call it, comes in two flavors. The first places the responsibility to forgive with political officials such as prosecutors, governors, or presidents. The second places the responsibility with judges or juries” (104 Mich. L. Rev. at p. 694). Posner and Vermeule then go on to critique the political pardon flavor in their subpart (1) at pages 694-697 and the necessity defense approach in their subpart (2) at pages 697-698. In fact, one need not read any further than their introduction to see clearly that the authors do not embrace a necessity defense as a form of “legalize and regulate.” In the very introduction, Posner and Vermeule refer to the necessity defense as a “trick.” They write:
“Among legal academics, a near consensus has emerged: [torturous] interrogation must be kept ‘illegal,’ but nonetheless permitted in certain circumstances. How is this trick accomplished? There are two popular suggestions. First, interrogators can use the necessity defense… Second, interrogators can throw themselves at the mercy of the political process…” (p. 673).
Now perhaps Posner has changed his view. Perhaps Posner now believes, as he writes in his post, that “the necessity defense is just a way to ‘legalize and regulate.’” But that would raise a different problem, which takes me to my second preliminary point.
Contrary to what Posner now contends, the necessity defense is not a “legalize and regulate” approach! Not even close. To be precise, it is also not an “outlaw and forgive” approach. It is, to be exact, an “outlaw and excuse” approach that can take two forms. If it is an incomplete defense, it serves in mitigation of the sentence imposed in connection with the conviction of an illegal act; alternatively, if it is a complete defense, it serves as a justification for an otherwise illegal act. The necessity defense does not “legalize” a category of conduct, such as intentional homicide or aggregated assault. In many jurisdictions, it does not even “legalize” an instance of prohibited conduct but serves only in mitigation of sentence. A necessity defense excuses, under very narrow circumstances, one instance within a category of illegal acts or reduces the punishment for that specific illegal act.
Third, the rules-standards debate is a red herring. There can be rules or standards ex ante or ex post. Absolutely nothing turns on that distinction. Courts make bright-line rules in necessity cases. So, for instance, the Ninth Circuit ruled in United States v. Schoon that a necessity defense is unavailable in a situation of indirect civil disobedience. That’s a rule! The California Court of Appeals set forth, in People v. Lovercamp, a detailed five-prong rule as to when an inmate has a necessity defense on a charge of escape. Again, there are clear cases of rules in the necessity context. Other courts in very similar situations, however, have articulated broad standards. Naturally, the exact same thing is true in the case of ex ante regulation of conduct. It comes in two flavors as well: rules or standards. So the rules-standards debate is not at play in this discussion and adds nothing of interest.
Fourth, there are important differences between the “legalization and regulation” of torturous interrogation and the more conventional and conservative “outlaw and excuse” approach. The five most salient differences include:
(a)> em>Burdens of Proof: Generally, the burden of production and persuasion on a claim of necessity rests on the defendant. If torturous interrogation were made legal but regulated, it is likely that the burden of disproving necessity would fall on the prosecution. As I noted in my earlier post, the burden of proof argument is the lawyer’s best friend and so this first difference is crucial to the effectiveness of any legal regime.
(b)> em>Immunities: Legalizing torturous interrogation in all likelihood would go hand-in-hand with immunity for interrogators and their superiors who claim to have been following the guidelines in good faith. As Posner and Vermeule argue in their article, their preferred “legalize and regulate” regime includes “immunity for officials who obey the rules” (p. 675). Richard McAdams has an excellent post on a related question, where he points us to the American Law Institute’s Model Penal Code provision, § 2.04(3), which affords a defense based on “reasonable reliance upon an official statement of the law.” As McAdams observes, this defense may be available to interrogators who relied on the recently released torture memos. In our discussion here—which raises a slightly different question—the ex ante legalization of torturous interrogation would undoubtedly extend immunity and as a result serve as an umbrella that would expand the contours of any necessity defense.
(c)> em>Authorizing body: It should not come entirely as a surprise that the “legalize and regulate” approach sits very comfortably with a theory of a unified executive. Although the legislative body would be the one that would have to legalize, in all likelihood the accompanying regulations would come from Homeland Security, the C.I.A., the Department of Justice, or the Office of Legal Counsel. In contrast, under the conventional necessity defense, the contours of excused behavior are set by judges, in some jurisdictions appointed, in others elected. The institutional implications have been well developed by legal scholars.
(d)> em>Timing and Evidence: A fourth difference is that the conventional necessity defense is decided, in each case, on a full factual record after the incident has occurred, with full knowledge of the evils avoided (or not). Each instance of torturous interrogation and claim of necessity is ultimately judged on its own factual record. Although rule-making may also be based on evidentiary hearings, the ex ante decision-making process is inevitably more hypothetical. Moreover, if torturous interrogation were legalized, each case would not necessarily be judicially reviewed ex post, only those that clearly fall outside the umbrella of immunity.
(e)> Expressive Dimension: Finally, and most important, legalization conveys a very different message than “outlaw and excuse.” To many in this debate, such as Brian Tamanaha at Balkanization, this single difference is determinative: “torture is a horrific act that destroys human dignity and therefore should not be legalized,” Tamanaha writes.
In all this—and in my original post—my purpose has not been to argue for a necessity defense in the case of torturous interrogation, but rather to set forth the important distinctions between “legalize and regulate” and “outlaw and excuse.” If it was not clear before, hopefully it is now: the necessity defense is not the same thing as “legalize and regulate.”
With those clarifications out of the way, we can now turn to the two central normative questions. First, should torturous interrogation be legalized? Second, should a necessity defense apply in the case of torturous interrogation?
On the first question, I confess that I find the very idea of legalizing torturous interrogation to be, frankly, bizarre. It’s not much different than asking whether we should legalize intentional homicide. If the general idea is that we need to get rid of the “criminal law model” across the board, I think that would be an interesting debate. It could well be that we should indeed abolish the penal code and adopt instead an ex ante regulatory behavioral framework that structures all personal interactions—social, sexual, commercial, etc. A fascinating idea! But that is not what Posner and Vermeule are proposing, I take it. So on the first question, I would simply say that there are a lot of things we should legalize before we get to torturous interrogation and intentional homicide. That’s just not on the top of my list. Call me conservative if you like! On this first question, as I suggested in my original post, I think we can put the Posner and Vermeule proposal to bed.
The more interesting, challenging, and difficult question is whether there should be either a necessity or a lesser of evils defense in the case of torturous interrogation—in other words, whether we should transpose the conventional necessity defense from the criminal law onto the international level. That is precisely what Gabriella Blum discusses here (though she ultimately rejects the humanitarian necessity defense in the case of torturous interrogation because it does not serve the welfare of one's enemies), and there are many important contributions to this debate, several assembled in Sandy Levinson’s excellent collection, but other articles as well by Jens Ohlin, Christopher Kutz, Scott Horton, Kim Ferzan, Thomas Crocker, Youngjae Lee, and others.
This is, as we all know well, the “ticking time-bomb” puzzle and in all honesty there is no easy answer on that normative question. I have no doubt that if a law enforcement officer used torturous interrogative methods to obtain information from a known terrorist that succeeded in preventing a World Trade Center-type attack, that the officer would be treated by most people as a hero entitled to a necessity defense.
In class this past Wednesday, my criminal law students had what I considered a fascinating debate over whether Dražen Erdemović was entitled to a duress defense (a type of necessity) at the International Criminal Court for the Former Yugoslavia for his participation in the Srebrenica Massacre. As you may recall, he participated in the mass executions there but claimed that when he voiced his opposition he was told he could either shoot or be shot. Should he have been entitled to a duress defense? Should we use him as a way to educate the world that there is no excuse for genocide? Is there any deterrent value given his circumstances at that moment? Would his case really have any effect on the eradication of crimes against humanity?
These are hard questions and, frankly, they are far too important to resolve in a blog post. My intuition is that the subjective feeling of necessity should certainly be entitled to some weight in the sentencing context and perhaps in determining the degree of culpability at the conviction phase; but I am hesitant to embrace the more robust type of utilitarian calculus that one finds in the lesser of evils defense (as opposed to the more subjective necessity defense). I would need a lot more room than a blog post to treat this question properly. All of the human beings involved—the accused and the victims—deserve a lot better than a blogged opinion. So let me, instead, offer three final observations.
The first is that everyone in this conversation should be painfully aware that we are not talking about whether a necessity defense would apply in the multiple waterboardings of Abu Zubaydah. From the facts that we know at this point, the immanence of any harm does not come close to the ticking time-bomb situation. The debate that we are currently having on the airwaves in this country about whether the torturous interrogations were effective in eliciting information is essentially orthogonal to the debate over the necessity defense. The fact that torturing a captured enemy combatant or soldier in a time of conflict could help prevent, say, an assault at Verdun, an air raid on London during WWII, an attack on American soldiers in Vietnam, the fall of a district in Pakistan to Taliban fighters, or a suicide bombing in Baghdad does not justify the use of torture. If it did, then we would simply have no qualms about using torture during periods of conflict and torture would be entirely commonplace.
The second is that even if one comes down against the necessity defense in the context of torturous interrogation, we should not rush to judgment regarding the authors of the torture memos—John Yoo, Jay Bybee, Steven Bradbury, or anyone else in the OLC who had their hand on those torture memos. They, like everyone else, are entitled to a presumption of innocence and a zealous defense. Ironically, in this debate, I’m probably the only person who would actually go to court to defend them. I spent many years representing death row inmates accused of intentional homicides and often they were accused of torture.
My third and final point is more a reference and reading suggestion than anything else—especially for my students in criminal law and political theory. Jack Katz, a sociologist at UCLA, has a brilliant book that explores the emotional dimension of deviance. It is called The Seductions of Crime and if I recall correctly, it actually begins with an analysis of the emotional desire of interrogators during the Vietnam war. It asks us to think about violence and deviance through categories of self-righteousness, excitement, thrill, and other human emotions. I think it has a lot of bearing on torturous interrogations more generally and on the necessity defense. It is essential reading in this debate.