A terrorist conspiracy to detonate a nuclear device in Manhattan in three hours is revealed. An hour later, an FBI team raids a terrorist hideout on the Upper East Side. No bomb is found, but references to the bomb plot are quickly discovered. The terrorists refuse to talk. The FBI team uses every known measure of physical coercion to change their minds, until one of them finally breaks down and reveals that the bomb is hidden in the basement of the Empire State building. With minutes to spare, the bomb is found, and millions of lives are spared. The FBI team’s reward? Jail, of course!–at least according to Crooked Timber’s John Quiggin. By contrast, I’d give them a ticker tape parade.
I actually might agree with Quiggin that torturers should turn themsevles in and be subject to legal proceedings. But a necessity defense should be allowed, and shouldn’t necessarily be dependent on whether the “ticking time bomb” was defused because of the torture. Let’s say, in the circumstances above, five FBI teams raided five suspected terrorist hideouts, and in good faith exerted physical pressure on the residents of all of them, but only one group of suspects actually knew where the bomb was. Let’s even say some of the suspects were innocent. An apology, and compensation, might be due to the latter. But the idea that the physical coercion is so terrible that it should be punished with jail time even when the torturers were in good faith trying to save millions of lives from a ticking time bomb strikes me as one of those ideas only an academic could come up with. No reasonable jury would, or should, convict under such circumstances.
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