The embers at Ground Zero still burned and the stench of 9/11's aftermath floated in the air. A still shell-shocked nation seemed (alarmingly) at ease with the prospect of employing physical torture, if deemed necessary by law enforcement. Many were quite okay with using it to "persuade," e.g., waterboard, a hypothetical terrorist, or terrorists, to literally spill his guts to the CIA. The torture might effectively help detect a ticking dirty bomb that would initiate nuclear holocaust at Capitol Hill, Times Square, the Sears Tower, Embarcadero, wherever.
Even Harvard's civil libertarian, Alan Dershowitz, and the Seventh Circuit's noted Judge Richard Posner were surprisingly comfortable that torture to disarm a terrorist plot was permissible. Dershowitz actually proposed a "torture warrant," by which law enforcement could quickly present evidence to a federal judge to gain court-ordered permission to torture. Posner didn't propose a procedure. In his review of Dershowitz' 2002 book "Why Terrorism Works" published in The New Republic -- "The Best Offense" -- Posner simply accepted the reality of torture. Agreeing with Dershowitz' point that "if the stakes are high enough, torture is permissible," Posner goes further to add that "no one who doubts that this is the case should hold a position of responsibility." His point could not be more plainly stated: "If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used -- and will be used -- to obtain the information." All this is astonishing given that experts are virtually uniform that torture too frequently leads to false results (forget what it says about our civilization). Indeed, if suffering excruciating pain almost anyone will lie -- they will falsely accuse anyone, including themselves -- to end the torment.
Fifteen years have passed since 9/11 and we are faced with the Apple/FBI/San Bernadino iPhone dustup -- something altogether different, maybe. The San Bernardino terrorists are long dead and their horrific plot long ago thwarted. And there is no evidence, none that the public knows anyway, to suggest that if the FBI could hack into the San Bernadino County phone in question -- it is indeed the County's phone -- and somehow seize a spinelessly compliant terrorist confederate, they might potentially stop a still-nascent terrorist plot.
But that is not really the point. During a Congressional hearing this month, Apple's counsel came pretty close to saying the somewhat unthinkable: that even in a ticking time bomb scenario, and assuming Apple could quickly enough write the program (if that's what's actually needed) to "open the (back)door" to allow the FBI access to (an even dead) terrorist's iPhone contents, Apple would still not do it. Curiously, is that really believable, or merely a Donald Trump-like, "opening bid" negotiating strategy?
But look at it from Apple's vantage point -- there is not just the litigation underway in San Francisco over the San Bernadino phone. No. In a case pending in Federal Court in Brooklyn, a Magistrate Judge recently decided that the court simply can't force Apple to bypass passcode security in order to assist in the execution of a search warrant in a drug case, as the Government demanded. And New York County District Attorney Cyrus Vance, Jr., an extremely principled prosecutor, testified at that same Congressional hearing that he had some 175 iPhones under quarantine just awaiting the assistance of Apple or its competitors. Vance, frankly, didn't do FBI's request for Apple's help in San Bernadino any good with his testimony, however candid.
So if Apple won't voluntarily comply with the Government's various requests, and the courts don't have the authority to direct Apple (and other companies, but Apple has certainly taken the lead in this fight), what is left is the promulgation of a statute? But, as the House Committee recognized right away, passing a statute to require Apple to unzip the iPhone in question will let the camel's nose under the tent. And with the Brooklyn drug case, for example, and Vance's 175 cases, and who knows what across the country, clearly, the camel's extremely long neck is right behind its nose. And even Congress seems not prepared to say "civil rights be damned!"
So, how do we get from here to there -- to the FBI getting Apple's technical help when it needs to right away (and assuming Apple, as patriotic as anyone, would ideally want to give it with proper restrictions in place). If truth be told -- I am a Luddite. I understand as much of the technical aspects of this as can be explained to someone who might have trouble turning on a computer. But isn't the real answer that both sides have to give, but only in the right -- indeed, ticking time bomb -- case? San Bernardino is too stale. There is no evidence that unlocking that particular iPhone will lead to information about any future attacks. Drug cases -- of course drugs should be stopped, but that is not where the Government should ask that Apple create a program to unlock the phones.
But Apple experts should write the required program, if that's what needs to be done, starting right now! Repeat, starting right now! Because even I (confessed Luddite) understand from the experts I have consulted that it will take time to write. And the program must be ready when needed. The other side of the deal has to be for the FBI, speaking for all American law enforcement, to make assurances, right now! -- the assurances being that this positively won't become a camel/tent situation. Under this protocol, the FBI will only come to Apple for a ticking time bomb situation -- one which Dershowitz and Posner describe as justifying torture. It won't come for a San Bernandino situation (after the fact, as here). Nor certainly for a drug case, or even a murder case. The FBI will only come to Apple (or its competitors) when clear-cut evidence of a future -- in the immediate future -- terrorist act is at play. In short, both parties need to show the good faith that good citizenship compels on both sides of the divide.
Yes, I would like to suggest a James Bond-like, self-destruct feature for the program to be written. That once it is used for the one-time only circumstance, e.g., where terrorist planes aimed at the Sears Tower are only three hours away, it will vanish. But Bond is fiction. The scenario that the FBI, and Apple, must prepare for is all too real!