Perceptions of Necessity and the Choice Between Killing and Detaining/Interrogating Terrorist Suspects

A truly terrific comment thread has developed in response to my post below that asked why a lot of people have less problem with just blowing up a terrorist suspect together with his family than detaining just the suspect and perhaps interrogating him. I wanted to offer a few thoughts on what the comment thread suggests, and the possible lessons to draw from the very insightful and interesting reactions of our readers.

The lesson I draw from the comments is that perceptions of necessity drive a lot of our reactions to the different policy choices. We’re okay with the government doing extremely bad things if they seem necessary, but we’re outraged by the government doing less bad things if they don’t seem necessary. In other words, our reactions are governed not by the actual extent of the harm our government inflicts but instead by the implicit moral claims made in inflicting even a much smaller harm when it isn’t needed.

Take the case of blowing up the house and killing the suspect with his family. In our minds, we imagine that there is no plausible alternative to stop the suspect. We adopt a time frame of the one instant before the U.S. officials pulled the trigger, and we figure that — at that moment — there is no real choice. If we don’t pull the trigger, the bad guy goes free and lives to plan a future attack against us. At that moment, we imagine, you gotta pull the trigger. So we’re okay when we hear that the government launched a drone attack that killed a bunch of people, some of which were civilians. We imagine that instant and remember that you gotta pull the trigger.

Now switch to the alternative in which only the suspect is detained, and he his brought to Gitmo and then at some point waterboarded. Now we adopt a new time frame. Whereas before we imagined the need for an instant decision to be made, now we have all the time we need. Whereas before we imagined the bad guy going off and killing a bunch of Americans, now we start from the premise that the detainee is a threat only if he is released and he actually does turn out to be a bad guy.

At this point our sense of necessity is quite different. The only necessity is detaining the suspect if he is actually an Al Qaeda member. The way to find out if he is really an Al Qaeda member is through Due Process and hearings with lawyers, in order to learn if the detention is necessary. And interrogation isn’t necessary unless you are quite confident that the detainee has information that will save lives that only a particular interrogation technique will yield. The more skeptical you are about particular interrogation methods, the less necessary the practice is and the more it becomes mere gratuitous infliction of pain. The necessity calculus is totally different.

Let’s assume I’m right about this, and these perceptions of necessity explain the two reactions. In that case, I think we’re overlooking the really key step: The policy choice, made ex ante, as to whether to try to detain and interrogate suspects or whether to just try to kill them. The proper time frame has to include that early decision, too. Exactly how often this choice is genuine is a good question, and it requires expertise in military affairs that I just don’t have. But my understanding is that these policies are made, and they have a very real impact on our practices. We had a lot of detainees after 9/11 because the Bush Administration decided that it could best find out about threats by detaining people and interrogating them. At some point the policy switched, and we stopped taking on new detainees in any serious number. (UPDATE: This op-ed by Jack Goldsmith, former OLC head, gives you some idea of how the policy choice looks from the government’s perspective.)

That policy choice of whether to try to detain and interrogate is critical because it manipulates our sense of necessity and yet itself seems hidden. The policy determines whether we end up in one situation or the other. It therefore determines when and whether we end up in a position to perceive our acts as necessary. But there has been little focus or attention to that policy in the press, as far as I know. If we are really concerned with necessity, I would think we need to start with that policy choice and get a sense our realistic options. We then need to decide on a policy of when to detain suspects and when to blow them (and everyone nearby) to smithereens. I suspect if we had a sense of that choice, we might have slightly different (or at least better informed) reactions to our government’s choices.

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