Much Ado About Torture Warrants: Should They Be Allowed?

Well, it looks like it’s going to be harder now to get excited about gettingpackages in the mail again.  I swear, remember when you were a kid and it was so exciting to get a mysterious unmarked box delivered to your house and you couldn’t wait to open it to see what was inside?  What happened to those days?  Now instead of finding out it’s a crate full of Reese’s Cups, it might be a bomb.  Also, can’t the terrorists of the world think of anything original anymore?  I mean hasn’t the whole deadly mail thing been done to death already?  How about a falling piano or comically placed banana peel?

In any case, as is typical in these situations, whenever a new terrorist plot in America arises, news outlets and political pundits everywhere won’t be too far behind to help to stir up the mass hysteria.  Not to mention the inevitable politicians who stand ready to latch onto this latest crisis during this election year.  It’s never clear what the eventual fallout will be when terrorism is involved and it’d be fruitless to predict (mostly because doing so would make me no better than those much despised pundits).  However, regardless of the outcome, one thing is for sure.  Whenever there is a discussion on terrorism then talks on torture are soon to follow.

Reading this latest story on mail bombs, I couldn’t help but think about the ticking time bomb scenario.  The perpetual counterargument to those who oppose torture is encapsulated in this hypothetical.  And that is, assuming you are against torture, would you allow it if you knew there was a bomb hidden in a densely populated city set to go off in 24 hours and you had the man responsible for setting the bomb in custody?  Granted the situation sounds like a 24 plotline, but that doesn’t mean that it’s completely implausible.

Proponents for torture champion the ticking time bomb scenario as their main justification for the US to reverse their no torture policy.  It’s a compelling one, after all.  The idea that a bomb detonation or other terrorist attack, such as a hijacking, could occur is a scary enough idea.  But the notion that such an attack could’ve been averted if only a Jack Bauer-type law enforcement agent didn’t have his hands restrained by US policy makes the arguments torture seem much less convincing.

Regardless, the problem with torture is that it’s not only against federal and state law, as well as against United Nation policy and probably bad for the US’s foreign relations, too, torture is prohibited by the US Constitution.  Specifically, the Eight Amendment protects against cruel and unusual punishment, which is an interpretation that has been reaffirmed many times by the Supreme Court.  But the bigger argument is that the US Constitution only protects citizens, not foreign nationals.  Though this isn’t necessarily true as the Supreme Court and Congress has recognized that foreign nationals are given some protection under the Constitution, the protection is very minimal.  To make a long story short, in criminal context it’s limited to a warrant requirement based on probable cause.  Some torture proponents have been pushing this to mean that torture warrants could be allowed.

The idea of a torture warrant is a grim one.  Essentially it would be issued by a judge based on the same probable cause requirement, just that instead of allowing cops to bust down and search a house, it would allow them to beat the crap out of a person(s) until they coughed up answers.  Now I’m not going to stand here and list the well-treaded reasons for why torture shouldn’t be allowed such as it not being a reliable method in producing real information or the inherent unethical nature of the practice.  All I want to present to you, loyal readers, is how grisly the whole idea, if allowed, will be.

Judges approve warrants based on probable cause, meaning evidence and sworn affidavits that show a suspect is more likely than not probably deserving to have his or her constitutional rights violated.  However, the extent of the warrant, meaning how far cops will be allowed to violate a person’s constitutions right, must be specifically set spelled out.  For example, in a search warrant this would mean the object of the search must be stated and what may be searched to find it.  That’s all fine and good.  But in a torture warrant, this would mean the cops would have to state what information their trying to get out of a suspect and also what methods of torture they’d be allowed to use in order to extract the information.  How do you judge that?  If you think a bomb is going to go off in a week, is it more appropriate to use lighter torture such as sleep deprivation or starvation?  If it’s a few days, can you water board the suspect.  And if it’s set to go off in a few hours can you electrocute or start chopping off limbs?  How would you measure and set such standards?  It’s here where the notion of torture warrants start to break down.

I’m not saying that torture will never be allowed because of this, but simply that setting such standards will be very difficult to do.  And though torture isn’t allowed now, who knows what the future will bring.  The congress of the future could very well amend the Constitution to allow torture, but hopefully by then I won’t be around to see it.

Just imagine how bad it will be to fight a speeding ticket.

What are your thoughts on torture and torture warrants?  Throw them down below.