Ticking time bomb scenario is meaningless

[Asgaya Dihi]

Since Hillary recently refused to sign an anti torture pledge based on this threat and since we've heard the arguments from others so often I thought I'd point out one detail that seems to be missed in the shuffle. The "Ticking time bomb scenario" is meaningless for lots of other reasons but in the end torture doesn't NEED to be legal. Ever hear the term "no jury would convict"?

Jury nullification has a history older than this nation and has been a part of it since the beginning, upheld the whole way to the Supreme Court though they also upheld that nobody has to inform the jury of that right. All it takes is one person to get a hung jury, in a real ticking time bomb scenario they'd probably get them all and an outright acquittal.

There never has been anything stopping anyone from doing what they had to do if the situation ever came up, if it's real they won't just say "better not" and wait to die with a million of their friends and neighbors and they won't be punished for the act. There has been something to stop us from doing it when it's not needed. The fact that we know it's wrong and that there are penalties. Those who argue for exceptions we don't need for a theoretical "what if" are asking us to pay too big a price for nothing more than false peace of mind, a security blanket of their own illusions that will cost us more than it could ever be worth.

We don't need exceptions, we never have.

[Dems Will Win]

1. Thanks for saying this, I think people were confused.

This should never even be a question in a debate, any candidate who takes it as a real question instead of rejecting it and dissing the reporter for asking it, is a sucker.

[NanceGreggs]

2. Precisely!

:kick: and REC'D!!!

[frogcycle]

3. roger that

in such a scenario, police, military, CIA, you-name-it could and should do what they had to do. Most people would applaud a presidential pardon, if they were even prosecuted. But it would not go that far. Hell, we just heard that the Justice Dept won't press charges in hte contempt of Congress cases! All that would happen in the "time bomb" scenario is the DA with jurisdiction would say "torture? what torture?" and that would be that.

[scarletwoman]

4. Very well said. You've gotten straight to the heart of the matter.

The "ticking time bomb scenario" is a fallacious argument all the way around.

sw

[Igel]

5. I'll play devil's advocate.

I'll claim the question isn't just whether a jury would convict the law enforcement agent--or even the intelligence guy--of torture. That's half the scenario. There's another half, and, to my mind, the more important half.

I'll ask whether a jury would, or even could, convict the alleged perpetrator and conspirator or the guy that was tortured, since no evidence produced when he was under torture would be admissible, and no evidence derived from evidence obtained under torture would be admissible. The FISA court might not even consider it admissible, since "jury nullification" isn't really something that a court should engage in.

In other words, it's likely there wouldn't be enough evidence to convict the would-be terrorist or his/her comrades. It's likely there wouldn't be enough evidence for the judge to even let it get to a jury. Knowing that they have no admissible evidence against them, and therefore no legal case, the law enforcement people (or intelligence service) would have palette of choices, all bad, and some arguably worse (either for moral or pragmatic reasons) than the torture itself: If you break up the plot and get the guys with the ticking bomb, do you execute them on the spot? Round them up and keep them indefinitely in secret prisons or military prisons under some trumped up designation like "enemy combatants"? Establish military tribunals for them? Round them up for a little while and then give their home goverments (assuming they're not US citizens) the info and turn them over for torture and execution, acquittal, or pardon? Just detain them for a while and then let them go on their way?

Or do we want to try to argue that somehow "jury nullification" can presumptively override a court's--and the appeals court, and SCOTUS'--concerns, so that a case can somehow "quantum tunnel" through the first evidenciary hurdle.

Of course, you have the same set of problems with people captured "in the field" by soldiers, except then it's not a case of evidence inadmissible because an illegal procedure obtained the original information, but because of things like chain of custody for the evidence and being able to locate witnesses and present them in court for questioning. But that also involves trying the alleged terrorists, and not those acting as agents of the US government or military.

[Asgaya Dihi]

7. I'll give it a shot

though it's slightly off the basic premise of ticking time bomb itself and more into later field work and prosecution. Under current law as far as I know evidence shouldn't be permissible if obtained under torture but then again under current law and running back years before * we could just send them elsewhere to be prosecuted. It's a tricky enough issue but as far as I can see not one that requires us to legalize torture. Rendition for prosecution rather than torture is already legal and has been for years, they'd likely be tougher on them than we would anyway. I'm not sure that wouldn't be our preference in a case like that even if our courts could take them.

Jury nullification isn't something a court takes part in so that concern we can just sidestep. A jury does that and the court doesn't get to say a thing about it, that's already been challenged to the highest courts and upheld. If it never makes it to trial then it's not an issue, if it gets to a jury that's their right and the court can't retry an acquitted defendant for the same crime twice just because they don't agree.

We already have systems in place to deal with most of these issues and we just had 30 or so Generals and Admirals tell our reps to outlaw torture for the nation as a whole for a reason. It just puts us a greater risk, we don't need it. We can always come up with scenarios to try to excuse it in one circumstance or another and some of them might even be valid, but then again the solutions for them are valid as well. Extradition, rendition, nullification and a host of other means have been developed over a couple of centuries of trial and experimentation to walk us out of a world that tortured. It's only with the distance of time and a lack of understanding of the true costs that we can now consider it an option. Just because they talk that doesn't make it reliable or the truth, they'll say anything to make it stop. Other methods are more reliable and it was with that knowledge that we stopped using it in the first place.

[Richard Steele]

6. Kicked and recommended

[starroute]

8. There are several other arguments as well

One is that the limited time-frame of the ticking time bomb scenario would make it all too easy for the prisoner to say, "Oh yeah, it's hidden in an old warehouse on 11th street, behind a wall, I think it was on the east side of the second floor -- or maybe the north side of the third. Well, just hunt around and you'll find it." So the cops go ripping up every old warehouse on 11th street -- and a half hour later, while they're still knocking out walls, a used car lot on 27th street goes nuclear.

Another is that there has never to my knowledge been a government that gave itself the power to torture its prisoners that didn't use it far too routinely and easily. So the question becomes: Which do you think poses a greater actual danger to you and your loved ones -- the hypothetical ticking-bomb situation (which has never actually occurred) or a government run amok? And which one are you more willing to risk to prevent the other?

A third might be to point out that this whole scenario really derives from World War II-style battlefield situations, where a captured enemy prisoner might potentially have some key information that could protect you or your fellow soldiers. There actually might be a serious moral argument to be had about whether it's justifiable to crank up the field telephone in a case like that. But it's an argument that applies *only* to the special conditions of the traditional battlefield -- which is why the ticking time-bomb legion never actually admits that's where they're getting the paradigm.

Among other things, on a battlefield you're already likely to be aware that there are tanks and guns and other dangerous toys sitting around and presenting a danger to you. But how are you going to know there's an imminent danger in an ordinary urban setting unless your captured terrorist tells you about it? And if they're already telling you about all their secret plots, why would you have to torture them?

[TahitiNut]

9. Yup ...

http://journals.democraticunderground.com/TahitiNut/423

[krispos42]

10. Or a presidential pardon

President sez "Plead guilty. I'll personally be in the courtroom with a signed pardon to give the judge before his signiture on the sentencing paper is dry. And I'll expunge your record of this, too."

I discussed this back in March

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=132x3144180

[meowomon]

11. I don't care if my family's life is at risk.

Torture is wrong. Immoral. It is the symptom of a great sickness in this society.

Sure, I would want to personally pound that person, tear them apart with my fingernails. I am not a saint. I am just a human being with feelings.

But, I believe it is not for the government or any agency of the government to use state sanctioned torture. We must be a rational people with high standards of morality. Or we might as well just start having public be-headings like the other nations who sanction torture.