Drawing the line on torture and interrogation

(JJ, are Scalia’s comments persuasive?) Not so much to me. This is an interesting law school hypothetical but one that doesn’t arise in the real world. The CIA never knows if it has the right prisoner, it never knows if the prisoner has information and then it doesn’t know if the info is reliable. In law school you can rule away that uncertainty but you can’t do that in the real world and it would be irresponsible to build public policy on the basis of a pattern that never actually arises in reality. (JR, what’s your reaction?) I agree that the ticking time bomb scenario is unrealistic. I part from him in that we have some important questions to answer. We have captured important terrorists and we need to determine what tactics are permissible on those kinds of people we have in detention. One view is we’re going to abide by the criminal justice system. Under that model we’re not allowed to smack anyone, sensory or sleep deprivation. Scalia is pointing us to this debate. We have pulled back and we’re not supporting water boarding. JJ: I agree there is a real debate to be had here, but this is not a useful way to introduce the debate. I’m actually quite troubled that the current debate about torture is so disconnected from actual practice and actual experience. We shouldn’t be so obsessed with hypotheticals. (What have we learned from countries that have practiced torture in the past?) JJ: They always start off that torture should be used only in an exceptional case but it’s not possible to limit that and then torture becomes rule and not exception. We saw that with the Bush administration in 2002 and hundreds of prisoners were subjected to these practices. We’re not talking about the exceptional case and talking about hypotheticals gives people the impression that we’re talking about the exception. (Why do we have different rules for someone suspected of terrorism and someone suspected of, say, planning a bank heist? Why is torture allowed with one and not the other? Why is it appropriate ever?) JR: I’m not saying it should ever be allowed but the shift since 9/11 with the Bush administration has been that bringing people to court and their Miranda rights and giving them a counsel that that was inadequate for a threat such as Al Qaeda. If we don’t use these more aggressive tactics then we’ll have to answer when we have another attack and if we had someone like KSM in our custody, they’d need to answer why we had him in custody and didn’t get info that could prevent attacks. We’ve moved from a prosecution model to a prevention model.