The definitive case for the unconstitutionality of the Mueller appointment, by Professor Stephen Calabrisi

Opinion on the Constitutionality of Robert Mueller’s Appointment

In Defense of Torture

The current Senate Hearings on confirmation of President Trump's nominee for Director of CIA reminded me of an article I wrote several years ago. It is no less important today than it was then. I have added a few current comments in brackets.

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Recently we witnessed Chechen rebels taking over a Moscow theater, capturing hundreds of hostages, and threatening to kill them if the intruders’ demands were not met. Let’s assume the same thing happens in the United States, but with al-Qaeda terrorists. Assume further that we capture one of the terrorists who knows the plans of his comrades, but he won’t talk. Should we use torture to force this crucial information out of him? [I mean real torture, e.g., waterboarding, sleep deprivation, ripping off fingernails.]

 "Torture" – commonly defined as "the inflicting of severe pain to force information or confession" – comes principally in two varieties: physical (e.g., the "third degree") and psychological (e.g., sleep deprivation). The literature on torture is voluminous, most commentators concluding that torture is odious and unacceptable at all times and under all circumstances, especially in a democracy [where, like here, it has been made "illegal". ]

But is it?

Some of the commentators, in their analysis and discussion of the phenomenon of torture, admit being deeply troubled by how a democracy deals with the question of torture generally, let alone in the extreme example of the so-called "ticking time bomb" situation.

Until recently the question was hypothetical. It no longer is.

There are variations on the ticking time bomb situation, but the essence is in this plausible scenario: 

A known terrorist in FBI custody whose information is credible won’t disclose where in Washington, DC, he has secreted a "weapon of mass destruction" – a nuclear bomb – set to detonate in two hours.

The Bureau is certain that the terrorist will never voluntarily reveal the bomb’s location. In two hours our nation’s capital could be wiped from the face of the earth, our government decimated, surrounding areas irredeemably contaminated, and the United States laid defenseless to unimaginable predation by our enemies.

What to do?

Accepting these facts for the sake of argument, arguendo as lawyers say, we have only two choices. Do nothing, and suffer the unimaginable consequences, or torture [really torture] the information out of the terrorist.

There are those among us – Jimmy Carter-like pacifists and Ramsey Clark-type America haters come to mind – who would probably stand by idly and endure an atomic holocaust [in the name of some suicidal principle]. But most people would doubtless opt for torture, albeit reluctantly.

These realists would be correct. They would be entitled to be free of even a scintilla of moral guilt, because torture – of whatever kind, and no matter how brutal – in defense of legitimate self-preservation is not only not immoral, it is a moral imperative.

Unknown to most Americans, one case in two different courts in the United States – a state appellate court in Florida, and a federal Court of Appeals – have, albeit implicitly, endorsed such a use of physical force, and thus of torture, if necessary to save lives. [Yes they have. Read on.]

Jean Leon kidnapped one Louis Gachelin, who was held at gunpoint by Leon’s accomplice. A ransom was arranged, a trap was sprung, and Leon was arrested. Fearing that the accomplice would kill Gachelin if Leon didn’t return promptly with the ransom money, the police demanded to know where the victim was being held. Leon wouldn’t talk.

According to the Third District Court of Appeal of the State of Florida, when Leon "refused, he was set upon by several of the officers. They threatened and physically abused him by twisting his arm behind his back and choking him (and, allegedly, threatened to kill him) until he revealed where . . . [Gachelin] was being held. The officers went to the designated apartment, rescued . . . [Gachelin] and arrested . . . [the accomplice]."

While this was happening, Leon was taken "downtown," questioned by a different team of detectives, and informed of his Miranda rights. He signed a waiver and confessed to the kidnapping. But before Leon’s trial, he sought to exclude his police station confession, arguing that it was the tainted product of the cops’ literal arm twisting, choking, and threats. (No self-incrimination issue arose from Leon having revealed the victim’s location because that information was not sought to be used against him at his trial).

The trial judge denied Leon’s motion to suppress his confession on the ground that the force and threats used on him at the time of arrest were not the reason for his confession. In other words, the conceded coercion at the time of Leon’s arrest had dissipated by the time of his confession, which the trial judge ruled had been given voluntarily.

Leon appealed. The Florida appeals court affirmed, reaching the same conclusion as the trial judge: Whatever had happened at Leon’s arrest, the coercion had dissipated by the time he’d confessed. Thus, it was proper to use Leon’s confession against him at trial.

That ruling should have been the end of Leon’s first appeal because the only question in the case was the admissibility of Leon’s confession. Yet the appeal court’s opinion went further than the facts of the case required. In language lawyers call dicta – judicial reflections in no way necessary for a decision – the appellate judge added, gratuitously, that "the force and threats asserted upon Leon in the parking lot were understandably motivated by the immediate necessity to find the victim and save his life."

Consider the implications. Even though the motive for using force, and the police’s use of it, were irrelevant to the decision, the appellate court’s 2-1 majority saw fit to give its express approval of physical and psychological coercion in this situation, so long as the product of that coercion (the confession) was not used against defendant Leon at his trial.

Lest anyone think that the dicta in this decision was an aberration, we need look only at the unanimous three-judge decision in Leon’s further appeal to the United States Court of Appeals for the Eleventh Circuit.

The facts were not in dispute. Once again, the only issue on appeal was whether the physical and psychological coercion at the time of arrest tainted the confession, or whether the coercion had, by then, sufficiently dissipated to make Leon’s confession voluntary.

First, the federal appeals court dealt with self-incrimination. As to Leon’s arrest statement concerning where his accomplice was holding Gachelin, there was no issue since the prosecution, properly, had never tried to introduce that statement at the trial. Next, whatever coercion had been used, it did not taint Leon’s later confession because, according to the court, "the totality of the circumstances . . . clearly confirms . . . that the second statement was voluntary." Therefore, that statement was both voluntary and admissible.

The federal appeal court’s ruling concerning the voluntariness of Leon’s confession completely disposed of the case. But, as with the earlier appeal, this court took the unnecessary step of including [gratuitous] dicta to the effect that the use of coercion at Leon’s arrest was "motivated by the immediate necessity of finding the victim and saving his life," and that "[t]his was a group of concerned officers acting in a reasonable manner to obtain information they needed in order to protect another individual from bodily harm or death."

All true. But, again, irrelevant to the sole question before the court as to whether the coercion used at the arrest had dissipated by the time of the confession.

Since the appellate courts, both state and federal, went out of their way to express their approval of coercion in a life-threatening situation, their dicta is noteworthy because it signals their acceptance of coercion in principle – a legitimization, as it were, [of the practice].

 If, without objection from a state and a federal appeals court (indeed, with their apparent approval), the Florida police could employ a relatively benign form of coercion to save the life of a kidnap victim, it follows that the same rationale would support actual torture (physical and/or psychological) in a ticking time bomb situation.

Once that threshold is crossed – once the principle is accepted that torture legitimately can be employed to save [innocent] lives – all that remains is the application of that principle to concrete cases. While that application could be difficult – requiring some form of probable cause, judicial oversight, and the like – the need to create such important procedural safeguards does not negate the argument that, in this country, where killers are routinely put to death for the commission of a single murder, it is neither immoral nor illegal in principle to employ non-lethal [or even lethal] torture in the name of saving thousands of innocent American lives. [Indeed, it would be immoral not to, especially because once the principle of torture is accepted the rest is only details.]
 

 

Holzer on the First Amendment and National Security, 1991

I recently stumbled on this video of my Federalist Society presentation back in the day. Those with the patience to watch it may be surprised at what I propose. My comments begin at about 2 1/2  minutes into the video. (You can tell it's me from the voice.)

First Amendment and National Security